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Eighth Circuit posts the 2020 edition of its Criminal Instructions

The Eighth Circuit has posted the 2020 Edition of its Model Criminal Jury Instructions (I know we are eight plus months into 2021, but thats how some courts to do this sort of thing). This replaces the 2017 Edition and the September 2019 Supplement that were previously posted on the Eighth Circuit jury instruction page (they are archived here).

The following list of changes includes the ones that were part of the September 2019 Supplement. It does not note inconsequential additions of case authority:

  • Instruction 2.08 now emphasizes that similar acts can be proved by a lesser standard than proof beyond a reasonable doubt. Also, the second paragraph has been rewritten:
    If you find that this evidence has not been proved, you must disregard it. If you find this evidence has been proved, then you may consider it to help you decide (only for the limited purpose of deciding whether [defendant] [had the state of mind or intent necessary to commit the crime charged in the indictment]; or [had a motive or opportunity to commit the acts described in the indictment]; or [acted according to a plan or in preparation for commission of a crime]; or [committed the acts [he] [she] is on trial for by accident or mistake];or[ describe other permissible purpose under 404(b) for which evidence has been admitted.)]. You should give it the weight and value you believe it is entitled to receive. If you find that this evidence has not been proved, you must disregard it.
  • Instruction 3.14 DATE OF CRIME CHARGED is new.
  • The Notes on Use section for Instruction 5.06A-1 CONSPIRACY: ELEMENTS (18 U.S.C. § 371) now cites Whitfield v. United States, 543 U.S. 209 (2005).
  • The first two elements of 6.15.77q(a) AND 78j(b) SECURITIES FRAUD (15 U.S.C. § 77Q(a), 15 U.S.C. § 78J(b), AND 17 C.F.R. § 240.10b-5) have been conflated into one element as follows:
    The crime of securities fraud, as charged in [Count _____ of] the indictment, has four three elements, which are:
    One, the defendant [[offered] [or] [sold] securities] [[purchased] [or] [sold] securities] (describe securities referenced in the indictment);
    Two, in connection with the [[offer] [or] [sale]] [[purchase] [or] [sale]] of the securities (describe securities referenced in the indictment), the defendant, directly or through others: ....
    The Notes on Use section of that Instruction now cites United States v. Gruenberg, 989 F.2d 971, 976 (8th Cir. 1993) (approving jury instruction requiring that the defendant’s fraudulent conduct be “in connection with” with the purchase or sale of a security as proscribed by Section 10(b) and Rule 10b-5).
  • The Notes on Use section of Instruction 6.18.113(3) ASSAULT WITH A DANGEROUS WEAPON now concludes:
    A panel decision of the Eighth Circuit has held that a district court did not abuse its discretion by defining “dangerous weapon” as “any object capable of being readily used by one person to inflict bodily injury upon another person.” United States v. Page Spotted Horse, 916 F.3d 686, 692 (8th Cir. 2019) (rehearing denied). The Spotted Horse panel specifically rejected the argument that Hollow’s more restrictive definition (“...used in a manner likely to endanger life or inflict serious bodily harm”) controls.
  • The Notes on Use section of Instruction 6.18.666A THEFT CONCERNING A PROGRAM RECEIVING FEDERAL FUNDS now cites Kelly v. United States, 140 S. Ct. 1565 (2020).
  • The title to Instruction 6.18.922A is now FELON OR OTHER PROHIBITED PERSON IN POSSESSION OF FIREARM OR AMMUNITION, and adds a new knowledge element: "[he][she] knew [he][she] had been convicted of a crime punishable by imprisonment for more than one year (or describe other prohibited status)." It also contains optional language for cases where the parties have stipulated to that element. The Notes on Use section
    • lists the prohibited statuses
    • notes Rehaif v. United States, 139 S. Ct. 2191 (2019), in its explanation of the new knowledge element, and notes the potential consequences of a failure to stipulate to that element
    • notes that "[t]he government may meet its burden of proving that the firearm was 'in commerce or affecting commerce' by showing that at any time during or prior to its possession by the defendant, the firearm was transported from one state to another. United States v. Leathers, 354 F.3d 955, 959 (8th Cir. 2004)."
    • the discussion of justification now uses the term "legal justification"
    • expands the discussion of multiple punishments for a single act of possession of a firearm
    • clarifies that possession, not ownership, is the crime
  • Two instructions (6.18.924C-1 FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE and 6.18.924C-2 FIREARMS—USE OR CARRY A FIREARM DURING A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE) replace the former single instruction (6.18.924C FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE). Consequently, the extensive changes are to the instructions, notes, and comments are too extensive to be summarized here.
  • The Notes on Use sections of Instruction 6.18.1001B FALSE STATEMENT TO A FEDERAL AGENCY and 6.18.1001C USING A FALSE DOCUMENT now cite with approval the definition of willfully set out in United States v. Benton, 890 F.3d 697, 714-15 (8th Cir. 2018). The Notes on Use section of the latter instruction now notes the legislative overruling of Hubbard v. United States, 514 U.S. 695 (1995).
  • The Notes on Use section of Instruction 6.18.1343 WIRE FRAUD now notes Kelly v. United States, 140 S.Ct. 1565 (2020).
  • The intent element to Instruction 6.18.1347 HEALTH CARE FRAUD now reads "knowingly, voluntarily and intentionally." Accordingly, some of the prior discussion of willfulness is omitted from the Notes on Use section of Instruction. It also now omits passages declaring that an "affected commerce" is proved if the money obtained through execution of the scheme was paid through a financial institution insured by the FDIC.
  • Instruction 6.18.2250 has been retitled "FAILURE TO REGISTER UNDER SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) (18 U.S.C. § 2250(a)))." It has been thoroughly rewritten; the changes cannot be concisely summarized here.
  • The Notes on Use section of Instruction 6.18.2252 RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY discussion of mens rea has been rewritten consistent with United States v. Collier, 932 F.3d 1067 (8th Cir. 2019).
  • The discussion of intent to distribute in the Notes on Use section of Instruction 6.21.841A CONTROLLED SUBSTANCES—POSSESSION WITH INTENT TO DISTRIBUTE has been updated. There is also a new discussion of possession as a lesser included, and special considerations that apply when physicians are charged (noting the good faith instruction in United States v. Smith, 573 F.3d 639 (8th Cir. 2009)).
  • Instructions 6.21.841A.1 to 6.21.841D were completely rewritten; the changes cannot be concisely summarized here.
  • The elements list in Instruction 6.26.5861 FIREARMS-POSSESSION OF UNREGISTERED FIREARMS now reads"
    The crime of [possession of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four five elements, which are
    One, on or about [date], the defendant knew [he][she] had the knowingly possessed a [firearm in [his][her] possession;][destructive device];
    Two, the defendant knew weapon was [describe the type of firearm was a [ as one defined in 26 U.S.C. § 5845(a) for which registration is required];
    Three, the defendant knew the firearm was a [describe the type of firearm, e.g. short-barreled shotgun] [short-barreled rifle][ or machine gun][silencer][destructive device];]
    Three Four, the firearm [was capable of operating as designed] [could readily be put in operating condition]; and
    Five, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.
    The Notes on Use section was substantially rewritten, and now notes United States v. White, 863 F.3d 784 (8th Cir. 2017) (en banc).

(09/07/21) (permalink)