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Ninth Circuit updates its criminal instructions

As noted below, the Ninth Circuit posts quarterly updates of its Manuals of Model Jury Instructions, and recently posted the "September 2021" revisions of both its civil and criminal instructions. Here are the criminal changes:

  • The first part of the Comment to Instruction 3.5 (REASONABLE DOUBT—DEFINED) now cites United States v. Velazquez, 1 F.4th 1132 (9th Cir. 2021), emphasizing that the model instruction has been repeatedly upheld.
  • The enumerated elements section of Instruction 8.47A (MAILING THREATENING COMMUNICATIONS-THREATS TO KIDNAP OR INJURE) now reads:

    First, the defendant knowingly [mailed] [arranged to have mailed] a [letter] [insert other form of communication] addressed to [insert name or title of natural person] containing a threat to [kidnap] [injure] any person.; and

    Second, the defendant intended to communicate a threat by such [insert form of communication] was transmitted for the purpose of issuing a threat, or with knowledge that the [insert form of communication] would be viewed as a threat.

    This was apparently done to reflect language in United States v. Bachmeier, 8 F.4th 1059 (9th Cir. 2021) (subjective intent to threaten is the required mental state, not mere knowledge that the communication would be viewed as a threat).
  • The Comment to Instruction 8.73 (FALSE STATEMENT TO GOVERNMENT AGENCY) now expands its discussion of intent and Bryan v. United States, 524 U.S. 184 (1998), emphasizing that specific intent does not require evil intent, but only that the defendant act deliberately and knowingly.
  • Instruction 8.191 has been renamed TRANSPORTATION OR ATTEMPTED TRANSPORTATION FOR PROSTITUTION OR SEXUAL ACTIVITY, and the elements list has been rewritten as follows:

    First, the defendant knowingly [transported] [attempted to transport] a person in [interstate] [foreign] commerce; [and]

    Second, the defendant [transported] [attempted to transport] a person with the intent that such person engage in [prostitution] [any describe proposed sexual activity for which a person can be][.] [;] [;and] [Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense][.] [; and] a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]].

    [ThirdFourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

    The Comment excplains that this change was occasioned by the holding in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant's proposed sexual conduct was to be evaluated). "The bracketed language stating an additional element applies only when the charge is an attempt."

  • The elements list for Instruction 8.192 (PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY) now reads:

    [That [First, that [on] [between] [insert dates alleged] the defendant knowingly [persuaded] [induced] [enticed] [coerced] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any describe proposed sexual activity for which any person can be charged with a criminal offense, that is [insert title of sexual offense].] or ;and]

    [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]]].

    or

    [First, that [on] [between] [insert dates alleged] the defendant knowingly attempted to [persuade] [induce] [entice] [coerce] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any describe proposed sexual activity for which any person can be]; and

    [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense, that is [insert title of sexual offense]; and offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity].

    [Second,/Third], the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.]

    The Comment explains how this change was occasioned by Lopez. id.

  • The elements list for Instruction 8.192A (USING OR ATTEMPTING TO USE THE MAIL OR A MEANS OF INTERSTATE COMMERCE TO PERSUADE OR COERCE A MINOR TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY) now reads:

    First, that [on][between] [insert dates alleged] the defendant [used] [attempted to use] [the mail] [a means or facility of [interstate][foreign] commerce, that is [insert means or facility of interstate or foreign commerce]], to knowingly [persuade] [induce] [entice] [coerce] an individual to engage in [prostitution][any describe proposed sexual activity for which someone]; [and]

    [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could be have been charged with an a criminal offense, that is under the laws of [the United States] [insert title of the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual offense]]; activity]; [and]

    [[Second,/Third], the individual the defendant [persuaded] [induced] [enticed] [coerced] was under the age of 18.]

    or

    [[Second,/Third], the defendant believed that the individual [he][she] attempted to [persuade] [induce] [entice] [coerce] was under the age of 18; and

    [[Third,/Fourth], the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

    The Comment explains how this change was occasioned by Lopez. id.

The prior versions of these instructions are archived here.

(11/09/21) (permalink)