Ninth Circuit updates its criminal instructions

Ninth Circuit updates its criminal instructions

As noted below, the Ninth Circuit posted March 2023 revisions to its Model Jury Instructions this week. In this post, we will examine the changes to the criminal instructions.

Instruction 3.14 (Opinion Evidence, Expert Witness) is revised to read "This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education ~~or experience~~ of this witness." A new paragraph is added at the end of the Comment:
This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides both expert opinion testimony and percipient witness testimony (including fact testimony, lay opinion testimony, or both), these different roles must be clarified for the jury. See Comment to Instruction 3.15 (Dual Role Testimony). In that event, use one of the three options shown in Instruction 3.15, instead of this instruction.

Instruction 3.15 (Dual Role Testimony) has been significantly expanded. The Comment indicates that this was in response to United States v. Holguin, 51 F.4th 841 (9th Cir. 2022).
The Comment to Instruction 6.27 (Specific Issue Unanimity) now cites United States v. Barai, 55 F.4th 1245, 1249 (9th Cir. 2022), regarding the difference between elements and means.
Instruction 8.15 (Threatening to Assault, Kidnap, or Murder a United States Official, United States Judge, Federal Law Enforcement Officer, or Other Official) and 14.28 (Transportation of an Explosive or Attempted Transportation of an Explosive) are new.
A new element has been added to Instruction 15.36 (Bank Fraud—Scheme to Defraud Bank): "that the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property." The balance of the Instruction has been revised as follows:
A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or and cheat ~~a financial institution and~~, in other words to deprive it the victim of ~~something~~ money or property by means of ~~value~~ deception. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud.
An “intent to defraud” means to act willfully, and with the specific intent to deceive or and cheat ~~for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself~~.
The Comment to the Instruction now discusses Loughrin v. United States, 573 U.S. 351, 355–57 (2014), regarding the "key difference between § 1344(1) and (2)," older cases establishing materiality as an element, and the 2009 change to the definition of "financial institution."
The second element in 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) now substitutes "any person" for "defendant." The Comment now cites United States v. Eller, 57 F.4th 1117, 1119 (9th Cir. 2023), regarding the elements. The third paragraph of the Comment has been thoroughly rewritten in light of United States v. Macapagal, 56 F.4th 742 (9th Cir. 2022). The final paragraph now cites Eller and Macapagal in support of the assertion that an actual minor victim is not required for an attempt conviction.
The Comment to Instruction 24.10 (False Statement to Government Agency) now cites United States v. Kirst, 54 F.4th 610, 624 (9th Cir. 2022) (affirming jury instruction regarding materiality element).
The second element of Instruction 24.26 (Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program Payments) has been revised to substitute "and at least one purpose of the payment was to" for "primarily to."
Instruction 24.28 (Forced Labor) is new.

(05/09/23) (permalink)

New search option

From time to time over the years I have introduced new features to this site. I generally give them a few months to learn whether people are using them (page views), and to see how much work is involved in keeping them current. If they get a lot of page views, I am OK with doing the work to keep them current; conversely, if they are easy to maintain, I am OK with low traffic. Sadly, I must say that they have been mostly low traffic, high maintenance tools, and I have let several of them go over the years.

One successful feature has been the jury instruction search box on the trialdex front page. It has radio buttons to select full text searches for either federal or state jury instructions. Not every circuit or state has searchable jury instructions on the Internet, but plenty of them do. I have several writing projects going on, and just about always check for applicable jury instructions and annotations (you should, too). The search window saves me the time-consuming task of searching every court site individually.

Lately, I have been working on a new 2024 edition of 360 Federal Crimes, a field guide to the most commonly charged federal crimes. It is important to check every legal assertion in the book against the positions taken in every official instruction, and I have been using the trialdex search box to do that.
Anyway, it struck me that it would often be quicker to just search the instruction titles. So I put all of the tables of contents of all of the available official federal criminal pattern instructions on one page with links to the full text, so that they could be searched with a simple Ctrl F. Searching for "entrapment," for example, readily pulls up every entrapment (and entrapment by estoppel) instruction. It is not perfect, and sometimes you'll want to use the more sophisticated search terms available on the regular search box, but I have found it useful so far.

If you would like to try it, go to the search box on the trialdex front page and click on the "(search titles)" link next to the state and federal radio buttons. It will take you to the Federal Criminal Jury Instructions Tables of Contents page.

(04/04/23) (permalink)

trialdex ™ jury instructions
Ninth Circuit updates its criminal instructions As noted below, the Ninth Circuit posted March 2023 revisions to its Model Jury Instructions this week. In this post, we will examine the changes to the criminal instructions. Instruction 3.14 (Opinion Evidence, Expert Witness) is revised to read "This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education ~~or experience~~ of this witness." A new paragraph is added at the end of the Comment: This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides both expert opinion testimony and percipient witness testimony (including fact testimony, lay opinion testimony, or both), these different roles must be clarified for the jury. See Comment to Instruction 3.15 (Dual Role Testimony). In that event, use one of the three options shown in Instruction 3.15, instead of this instruction. Instruction 3.15 (Dual Role Testimony) has been significantly expanded. The Comment indicates that this was in response to United States v. Holguin, 51 F.4th 841 (9th Cir. 2022). The Comment to Instruction 6.27 (Specific Issue Unanimity) now cites United States v. Barai, 55 F.4th 1245, 1249 (9th Cir. 2022), regarding the difference between elements and means. Instruction 8.15 (Threatening to Assault, Kidnap, or Murder a United States Official, United States Judge, Federal Law Enforcement Officer, or Other Official) and 14.28 (Transportation of an Explosive or Attempted Transportation of an Explosive) are new. A new element has been added to Instruction 15.36 (Bank Fraud—Scheme to Defraud Bank): "that the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property." The balance of the Instruction has been revised as follows: A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or and cheat ~~a financial institution and~~, in other words to deprive it the victim of ~~something~~ money or property by means of ~~value~~ deception. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud. An “intent to defraud” means to act willfully, and with the specific intent to deceive or and cheat ~~for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself~~. The Comment to the Instruction now discusses Loughrin v. United States, 573 U.S. 351, 355–57 (2014), regarding the "key difference between § 1344(1) and (2)," older cases establishing materiality as an element, and the 2009 change to the definition of "financial institution." The second element in 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) now substitutes "any person" for "defendant." The Comment now cites United States v. Eller, 57 F.4th 1117, 1119 (9th Cir. 2023), regarding the elements. The third paragraph of the Comment has been thoroughly rewritten in light of United States v. Macapagal, 56 F.4th 742 (9th Cir. 2022). The final paragraph now cites Eller and Macapagal in support of the assertion that an actual minor victim is not required for an attempt conviction. The Comment to Instruction 24.10 (False Statement to Government Agency) now cites United States v. Kirst, 54 F.4th 610, 624 (9th Cir. 2022) (affirming jury instruction regarding materiality element). The second element of Instruction 24.26 (Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program Payments) has been revised to substitute "and at least one purpose of the payment was to" for "primarily to." Instruction 24.28 (Forced Labor) is new. (05/09/23) (permalink) New search option From time to time over the years I have introduced new features to this site. I generally give them a few months to learn whether people are using them (page views), and to see how much work is involved in keeping them current. If they get a lot of page views, I am OK with doing the work to keep them current; conversely, if they are easy to maintain, I am OK with low traffic. Sadly, I must say that they have been mostly low traffic, high maintenance tools, and I have let several of them go over the years. One successful feature has been the jury instruction search box on the trialdex front page. It has radio buttons to select full text searches for either federal or state jury instructions. Not every circuit or state has searchable jury instructions on the Internet, but plenty of them do. I have several writing projects going on, and just about always check for applicable jury instructions and annotations (you should, too). The search window saves me the time-consuming task of searching every court site individually. Lately, I have been working on a new 2024 edition of 360 Federal Crimes, a field guide to the most commonly charged federal crimes. It is important to check every legal assertion in the book against the positions taken in every official instruction, and I have been using the trialdex search box to do that. Anyway, it struck me that it would often be quicker to just search the instruction titles. So I put all of the tables of contents of all of the available official federal criminal pattern instructions on one page with links to the full text, so that they could be searched with a simple Ctrl F. Searching for "entrapment," for example, readily pulls up every entrapment (and entrapment by estoppel) instruction. It is not perfect, and sometimes you'll want to use the more sophisticated search terms available on the regular search box, but I have found it useful so far. If you would like to try it, go to the search box on the trialdex front page and click on the "(search titles)" link next to the state and federal radio buttons. It will take you to the Federal Criminal Jury Instructions Tables of Contents page. (04/04/23) (permalink)

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