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June 2022 changes to the Ninth Circuit Model Criminal Jury Instructions

The Ninth Circuit has posted the June 2022 revised version of its Model Criminal Jury Instructions. The changes are as follows:

  • The word "and" has been removed from many of the titles, e.g., Instruction 12.3 now reads "Controlled Substance—Attempted Possession with Intent to Distribute (21 U.S.C. §§ 841(a)(1) and, 846). These changes are obviously not substantive.
  • The first element of Instruction 12.1 (Controlled Substance—Possession with Intent to Distribute (21 U.S.C. § 841(a)(1))) now reads "First, the defendant knowingly possessed [specify any controlled substance]."
  • The Comment to Instruction 12.2 (Determining Amount of Controlled Substance) replaces citations to older cases with a citation to United States v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (en banc).
  • Instruction 12.3 has a slight and inconsequential change in its title: "Controlled Substance—Attempted Possession with Intent to Distribute (21 U.S.C. §§ 841(a)(1) and, 846). As in Instruction 12.1, "specify" has been replaced with "any."
  • The paranthetical to the citation of Old Chief v. United States, 519 U.S. 172 (1997) in Comment to Instruction 14.13 (Firearms—Unlawful Receipt (18 U.S.C. § 922(g))) has been revised as follows: "(holding that in case where “proof of convict status is at issue,” it is reversible error “an abuse of discretion to allow government to prove nature of prior admit the record of conviction when defendant offers to stipulate to the prior conviction)".
  • The last two elements of Instruction 14.16 (Firearms—Unlawful Possession—Convicted Felon (18 U.S.C. § 922(g)(1))) have been revised as follows:
    [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year; and]
    or
    [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of [specify prior felony], which is a crime punishable by imprisonment for a term exceeding one year; and]
    Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] had been convicted of [specify prior felony]. a crime punishable by imprisonment for a term exceeding one year.
    The changes are explained in the Comment.
  • The following sentence has been added at the end of Instruction 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))): "The phrase 'in furtherance of' means that the defendant possessed the firearm with the subjective intent of promoting or facilitating the crime of [specify crime]." The Comment indicates that this was in response to United States v. Irons, 31 F.4th 702 (9th Cir. 2022).
  • The Comments to Instructions 15.1 to 15.3, 15.5 and 15.6 (Fraud in Connection with Identification Documents) now note that private financial institutions do not fit within the definition of “issuing authority,” citing United States v. Kirilyuk, 29 F.4th 1128 (2022).
  • The Comments to Instructions 15.7 (Fraud in Connection with Identification Documents—Possessing Another’s Means of Identification (18 U.S.C. § 1028 (a)(7))) and 15.9 (Fraud in Connection with Identification Documents—Aggravated Identity Theft (18 U.S.C. § 1028A)) now cite United States v. Kvashuk, 29 F.4th 1077 (9th Cir. 2022), regarding test accounts.
  • The Comment to Instruction 15.8 (Fraud in Connection with Identification Documents—Trafficking (18 U.S.C. § 1028(a)(8))) makes the same observations re Kirilyuk and Kvashuk.
  • The last sentence of Instruction 15.36 (Bank Fraud—Scheme to Defraud Bank (18 U.S.C. § 1344(1))) now reads: "An 'intent to defraud' is an means to act willfully, and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself." The Comment now cites United States v. Cloud, 872 F.2d 846 (9th Cir. 1989), defining “intent to defraud”.
  • The Comment to Instruction 16.2 (Murder—Second Degree (18 U.S.C. § 1111)) now cites and United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc).
  • The second element of Instruction 18.3 (Financial Transaction or Attempted Transaction to Promote Unlawful Activity (18 U.S.C. § 1956(a)(1)(A))) now reads: "Second, the defendant knew that the property represented the proceeds of [specify prior, separate criminal some form of unlawful activity." A new paragraph appears at the end:
    The phrase “knew that the property represented the proceeds of some form of unlawful activity” means that the defendant knew that the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony. I instruct you that [specify relevant unlawful activity] is a felony.
    The paragraph in the Comment that begins "With respect to the second element ..." has been deleted.
  • The second element of Instruction 18.6 (Transporting or Attempting to Transport Monetary Instruments for the Purpose of Laundering (18 U.S.C. § 1956(a)(2)(B))) has the same edits as the second element of Instruction 18.3 (with a probably unintended change of "represented" to "represents"). The paragraph in the Comment that begins "With respect to the second element ..." has been deleted.
  • The Comment to Instruction 20.20 (Sexual Exploitation of Child—Transportation of Visual Depiction into United States (18 U.S.C. § 2251(c))) now cites United States v. Rosenow, 33 F.4th 529 (9th Cir. 2022), for the proposition that “for the purpose of” does not require but-for causation.
  • The definition of reckless disregard standard in the Comment to Instruction 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion (18 U.S.C. § 1591(a)(1))) now reads: "applies only to advertising does not apply if the act is advertising. If the government charges “advertising,” the mens rea element is knowing."
  • The Comment to Instruction 20.29 (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 (18 U.S.C. § 2422(b))) now begins with a citation to United States v. McCarron, 30 F.4th 1157 (9th Cir. 2022).

The prior version is archived here.

(09/10/22) (permalink)