Paragraph (4) of Instruction 1.02 (JURORS' DUTIES) now reads "(4) Perform these duties fairly and impartially. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way." Paragraph (5) is new:
(5) Do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases. You should not be influenced by stereotypes based on any person’s age, race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances.
This is explained in the Use Note and Committee Commentary.
Instruction 1.07 (CREDIBILITY OF WITNESSES) has been renumbered as 1.07A. Instruction 1.07B (CREDIBILITY OF WITNESSES – LAW ENFORCEMENT OFFICER)is new.
Instruction 1.07 (NUMBER OF WITNESSES) has been renumbered as 1.08.
The Committee Commentary to Instruction 2.03 (DEFINITION OF LESSER OFFENSE) now cites Carter v. United States, 530 U.S. 255 (2000) and U.S. v. Colon, 268 F.3d 367 (6th Cir. 2001) (applying the Schmuck test and holding that simple possession is not a lesser-included-offense of (1) conspiracy to distribute and possess with intent to distribute drugs or (2) distribution of drugs). It also has an extended discussion of the deferential standard of review for the decision to instruct on lesser included crimes.
The elements list in Instruction 3.01A (CONSPIRACY TO COMMIT AN OFFENSE (18 U.S.C. § 371) – BASIC ELEMENTS)) now read:
(A) First, that two or more persons conspired, or agreed, to commit the crime of [insert substantive crime].
(B) Second, that the defendant knowinglyknew of the conspiracy and voluntarilyits [objects] [aims] [goals].
(C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].
(D) And third fourth, that a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy.
You must be convinced that the government has proved all of these elements beyond a reasonable doubt in order to find any one of these defendants guilty of the conspiracy charge.
The Committee Commentary is substantially rewritten.
Instruction 3.01B (CONSPIRACY TO DEFRAUD THE UNITED STATES (18 U.S.C. § 371) – BASIC ELEMENTS) has been rewritten
(A) First, that two or more persons conspired, or agreed, to defraud the United States, or one of its agencies or departments, by dishonest means.
(B) Second, that the defendant knew of the conspiracy and its [objects] [aims] [goals].
(C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of defrauding the United States.
(D) And fourth, that a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy.
The notes under the elements conclude that
The government need not prove that the defendants intended to directly commit the fraud themselves. Proof that they intended to use a third party as a go-between may be sufficient. But the government must prove that the United States or one of its agencies or departments was the ultimate target of the conspiracy, and that the defendants intended to defraud.
The Committee Commentary is substantially rewritten.
The first paragraph of Instruction 3.03 (DEFENDANT'S CONNECTION TO THE CONSPIRACY) has been deleted. Jurors are now admonished to consider each defendant separately. Also, the third paragraph now reads in part "A defendant's knowledge can be proved indirectly by facts and circumstances which lead to a conclusion that he knew the conspiracy's main purposeof the conspiracy and its [objects] [aims] [goals]. Most of the Committee Commentary has been deleted.
The Committee Commentary to Instruction 3.11B (WITHDRAWAL AS A DEFENSE TO SUBSTANTIVE OFFENSES COMMITTED BY OTHERS) now cross references Instruction 3.10 re Pinkerton liability.
The Committee Commentaries to Instructions 10.01 (MAIL FRAUD (18 U.S.C. § 1341)) and 10.02 (WIRE FRAUD (18 U.S.C. § 1343)) now discuss Ciminelli v. United States, 143 S. Ct. 1121 (2023).
The Committee Commentary to Instruction 10.03A (BANK FRAUD – Scheme to Defraud a Bank (18 U.S.C. § 1344(1))) replaces the discussion of United States v. McGuire, 744 F.2d 1197 (6th Cir. 1984) with a reference to United States v. Skouteris, 51 F.4th 658 (6th Cir. 2022).
The Committee Commentaries to Instructions 14.02C (DISPENSING OR DISTRIBUTION OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) and 14.03C (MANUFACTURE OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1)))discuss mens rea issues post-United States v. Ruan, 142 S. Ct. 2370 (2022).
The elements of Instruction 14.05 CONSPIRACY TO VIOLATE THE DRUG LAWS (21 U.S.C. § 846) now read:
(A) First, that two or more persons conspired, or agreed, to [insert object(s) of conspiracysubstantive crime].
(B) Second, that the defendant(s) knowinglyknew of the conspiracy and voluntarilyits [objects] [aims] [goals], and
(B)(C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].
There are some minor changes to specific instructions, notably
(B) the government must prove that the defendant(s) knew the conspiracy's main purpose and voluntarily joinedof the conspiracy intending to help advance or achieveand its [objects] [aims] [goals. ] and joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].
The Committee Commentary observes that elements "were revised in 2024 to be consistent with changes made that year to other conspiracy instructions, Insts. 3.01A, 3.01B, and 3.03. These revisions are described in detail in the commentary to Inst. 3.01A." The summary of the holdig in United States v. Watkins, 1994 WL 464193, 1994 U.S. App. LEXIS 23886 (6th Cir. 1994) (unpublished) was deleted. The drawbacks of using the term “willfully" are noted.
Paragraph (2)(E) of Instruction 15.04 (Aggravated Identity Theft (18 U.S.C. § 1028A(a)(1))) now reads:
(E) The term[transfer] [possession] [use] of a means of identification is “during and in relation to” requires that the means of identification have some purpose or effect with respect to the felony of [include name of felony and citation] charged in Count; in other words,if the [transfer] [possession] [use] of the means of identification must facilitate or further, or havewas at the potential of facilitating or furtheringcrux of the
underlying felony of [include name of felony and citation] charged in Count , and its presence or involvement cannot be. Stated another way, the result[transfer] [possession] [use] must have been a key mover in the criminality. [In cases where the underlying crime involves fraud or deceit, the means of accident or coincidence.identification must have been [transferred] [possessed] [used] in a manner that is fraudulent or deceptive.]
This is explained in the Committee Commentary.
The Committee Commentary of Instruction 18.01 (Transmission of a Threat to Kidnap or Injure (18 U.S.C. § 875(c))) now replaces a discussion of Elonis v. United States, 135 S. Ct. 2001 (2015), with a discussion of Counterman v. Colorado, 143 S. Ct. 2106 (2023).