The Ninth Circuit has posted the May 2023 revisions to its
Model Criminal Instructions. The changes were as follows:
- The second element of Instruction 4.4 (Attempt) has been rewrittenas follows:
"Second, 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.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
A “substantial step” is conduct that strongly corroborated a defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.
If you look closely, the wording is essentially the same, but the sentences have been moved around. I don't see anything but rearranged deck chairs here, and there is nothing to explain the changes in the Comment. Similar changes were made to the optional attempt language in all of the Instructions that can be charged as attempts. There is no point in enumerating them here.
- The Comments to Instructions 14.14 (Firearms—Unlawful Shipment or Transportation, 14.15 (Firearms—Unlawful Possession), and 14.16 (Firearms—Unlawful Possession—Convicted Felon) now reference
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).
- Instruction 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion) has an added sentence in brackets at the end of the Instruction:
"[The government is not required to prove that the defendant knew, or recklessly disregarded the fact, that the person was under 18 years of age if the defendant had a reasonable opportunity to observe the person.]"
- Citations to 18 U.S.C. § 1591(a) are added to the third paragraph of the Comments to Instructions 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion) and 20.26 (Sex Trafficking of Children or by Force, Fraud, or Coercion—Benefitting from Participation in Venture).
- The title to Instruction 20.29 now reads "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))." The elements have been substantially rewritten.
- The Comment to Instruction 20.29 now discusses
United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), regarding a court's obligation to explain state law, and ends with a new paragraph regarding the definition of the term "sexual activity."