The Ninth Circuit has recently posted the November 2024 versions of its
Model Jury Instructions.
The non-clerical changes to the criminal instructions are as
follows:
The Comment to Instruction 4.1 (Aiding and Abetting (18 U.S.C. § 2(a))) has thhe following language tacked on to the fifth paragraph:
There are two paths to a conviction for the substantive offense under an “aiding and abetting” theory: first, aiding and abetting an attempt, and second, attempting to aid and abet. United States v. Bellot, 113 F.4th 1151, 1155-56 (9th Cir. 2024) (describing the two paths in the context of a conviction for knowingly attempting to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)). Aiding and abetting an attempt requires “a guilty principal,” while attempting to aid and abet does not. Id. However, to prove an attempt, the government must prove that the defendant did something that was a substantial step toward committing the crime. See Instruction 4.4.
The Comment to Instruction 14.8 (Firearms—False Statement or Identification in Acquisition or Attempted Acquisition (18 U.S.C. § 922(a)(6))) now cites United States v. Manney, 114 F.4th 1048, 1053-54 (9th Cir. 2024) (holding that Abramksi foreclosed the defendant’s argument that her statement falsely claiming to be the actual purchaser was immaterial because the true buyer could legally possess a firearm).
The Comments to Instruction 14.22 (Firearms–Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))) and 18.8 (Violent Crime or Attempted Violent Crime in Aid of Racketeering Enterprise (18 U.S.C. § 1959)) now have extended discussions of United States v. Elmore, 118 F.4th 1193 (9th Cir. 2024) (VICAR as a predicate offense).
The definition of "means of identification" in Instruction 15.9 (Fraud in Connection with Identification Documents—Aggravated Identity Theft (18 U.S.C. § 1028A)) now includes "transferred" and "possessed." The Comment concludes by noting that "[s]imilarly, “possession” of another person’s means of identification “in relation to” a predicate offense under § 1028A requires that the possession of the means of identification be “at the crux of the criminality” of the predicate offense," citing United States v. Ovsepian, 13 F.4th 1193, 1209 (9th Cir. 2024) (internal quotations and citation omitted) (explaining that the same is true for all three verb prongs of § 1028A(a)(1)).
The sentence "A deprivation of the right of honest services does not require tangible harm" is now tacked on at the end of the fourth element of Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services (18 U.S.C. §§ 1341, 1346)). The Comment now cites United States v. Solakyan, 119 F.4th 575, 585 (9th Cir. 2024) (“[t]he physician-patient relationship falls squarely within [the United States v. Milovanovic, 678 F.3d 713 (9th Cir. 2012) (en banc)] definition of a fiduciary relationship”).
A redline/strikeout version of the civil instructions is posted here.