The Commentary to Instruction 8.03B (UNANIMITY NOT REQUIRED – MEANS) has a new paragraph:
–18 U.S.C. § 1519 (where defendant made multiple false statements and omissions in a prison incident report, the “falsifies clause” of § 1519 provided several possible means or ways of committing the crime and the jury need not agree that the same way was proved, United States v. Schmeltz, 667 F.3d 685 at 687-688 (6th Cir. 2011).
The Commentary to Instructions 10.01 (MAIL FRAUD (18 U.S.C. § 1341)) and 10.02 (WIRE FRAUD (18 U.S.C. § 1343)) now note United States v. Gold Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999), United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019), and United States v. Sadler, 750 F.3d 585, 590-592 (6th Cir. 2014), abrogated on other grounds, Kousisis v. United States, 2025 WL 1459593). Kousisis was a May 2025 U.S. Supreme Court case holding that a defendant violates the wire fraud statute by scheming to obtain a victim’s money or property regardless of whether he seeks to leave the victim economically worse off.
The Commentary to Instruction 10.05 (HEALTH CARE FRAUD (18 U.S.C. § 1347)) adds a discussion of whether knowledge of the illegality is required for proof of willfulness.
The Introduction to Chapter 12 Firearms Offenses has been substantially revised.
Instruction 12.01B (Unanimity Required – Determining Whether Defendant Had Three Previous Convictions for Offenses Committed on Occasions Different from One Another (18 U.S.C. § 924(e)(1)) and Special Verdict Form) is new.
Paragraph (2)(D) of Instruction 12.02 (FIREARMS – USING OR CARRYING A FIREARM DURING AND IN RELATION TO A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c)(1)(A)(i))) now defines "during." The Commentary explains that this change was occasined by the concurring opinion in United States v. Edwards, 2025 WL 789558, 5-10 (6th Cir. 2025) (unpublished). The definition of “in relation to” was not changed.
The Use Note for Instructions 12.01B and 12.03 (FIREARMS – POSSESSING A FIREARM IN FURTHERANCE OF A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c)(1)(A)(i)) now list the facts that must be proven to a jury beyond a reasonable doubt in order to support an enhanced sentence per § 924(c). The Use Notes for these Instructions now conclude:
If the prosecution is based on a violation of § 924(c) involving an increased penalty, the Committee recommends that the court give an instruction like Insts. 14.07(A) or (B) and use a special verdict form like those following Instructions 14.07(A) and (B).
The Committee did not draft instructions specifically to cover subsections (c)(1)(A)(ii) (brandishing a firearm) or (c)(1)(A)(iii) (discharging a firearm), but the pattern instructions can be easily modified to fit these provisions.
Instructions 13.01 (CONCEALING A MATERIAL FACT IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(1))), 13.02 (MAKING A FALSE STATEMENT IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(2))), and 13.03 (MAKING OR USING A FALSE WRITING IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(3))) add a paragraph defining “knowingly and willfully” as "if the defendant knows that he [falsified] [concealed] [covered up] a fact that he had a duty to disclose and knows that his conduct is unlawful. It is not necessary for the government to prove that the defendant was aware of the specific provision of the law that he is charged with violating." This is explained in the Commentaries to these Instructions.
The Use Note to Instruction 14.01 (POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))) has this tacked on at the end:
"This instruction covers possession with intent to distribute; if the charges include increased penalties based on the amount of the controlled substance, see Inst. 14.07A Unanimity Required – Determining Amount of Controlled Substance
(§ 841)."
The first two paragraphs of the Use Note for Instruction 14.02A (DISTRIBUTION OF A CONTROLLED SUBSTANCE (21 U.S.C. § 841(a)(1)) now read:
This instruction covers simple distributing of a controlled substance.
If the defendant is a practitioner, use Inst. 14.02B Dispensing or Distribution of a Controlled Substance by a Practitioner.
If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity Required: Determining Amount of Controlled Substance (§ 841). If the conduct charged includes distributing with death or serious bodily injury resulting, see
also Instruction
14.07C Unanimity Required: Determining Whether Death or Serious Bodily Injury Resulted.
The Commentary now ends with a citation to Burrage v.
United States, 134 S. Ct. 881, 887 & note 3 (2014).
The Use Note for Instruction 14.02B (DISPENSING OR DISTRIBUTION OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) now begins:
This instruction covers dispensing or distributing a controlled substance by a practitioner; if the defendant is not a practitioner, use Inst. 14.02A Distribution of a Controlled Substance.
This instruction covers simple dispensing or distributing of a controlled substance by a practitioner. If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A. If the conduct charged includes distributing with death or serious bodily injury resulting, see also Instruction 14.07C.
The Commentary now has a note re United States v. Chaney, 921 F.3d 572 (6th Cir. 2019).
The first paraggraph of the Use Note to Instruction 14.03A (MANUFACTURE OF A CONTROLLED SUBSTANCE (21 U.S.C. § 841(a)(1))) now reads:
This instruction covers simple manufacturing of a controlled substance.
If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity Required: Determining Amount of Controlled Substance (§ 841). If the conduct charged includes manufacturing
with death or serious bodily injury
resulting, see
also Instruction 14.07C Unanimity required: Determining Whether Death or Serious Bodily Injury Resulted and Special Verdict Form.
The second paragraph of the Use Note to Instruction 14.03B (MANUFACTURE OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) now reads:
This instruction covers simple manufacturing of a controlled substance. If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity requireed – Determining Amount of Controlled Substance (§ 841). If the conduct charged includes manufacturing with death or serious bodily injury resulting, see also Instruction 14.07C Unanimity Required – Determining Whether Death or Serious Bodily Injury Resulted and Special Verdict Form.
The third paragraph of the Use Note to Instruction 14.05 (CONSPIRACY TO VIOLATE THE DRUG LAWS (21 U.S.C. § 846)) now reads:
This instruction covers simple conspiracy to violate the drug laws. If the prosecution involves conspiracy with increased penalties based on the amount of the controlled substance, see also Inst. 14.07B Unanimity Required – Determining Amount of Controlled Substance (§ 846). If the prosecution involves conspiracy with increased penalties based on death or serious bodily injury, Inst. 14.07C Unanimity Required – Determining Whether Death or Serious Bodily Injury Resulted for Distributing/Dispensing or Manufacturing (§ 841) may be modified to fit the facts.
The Commentary now notes that knowledge that the defendant possessed “some type of controlled substance” is sufficient even after Alleyne.
The first sentence of the Use Note for Instruction 14.07A (UNANIMITY REQUIRED – DETERMINING AMOUNT OF CONTROLLED SUBSTANCE (§ 841)) now reads:
"This instruction explains the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013) for a § 841 prosecution when the penalties are increased based on the amount of the controlled substance."
Instruction 14.07C (UNANIMITY REQUIRED – DETERMINING WHETHER DEATH OR SERIOUS BODILY INJURY RESULTED FROM DISTRIBUTING/DISPENSING OR MANUFACTURING (§ 841) AND SPECIAL VERDICT FORM) and Form 14.07C (Special Verdict Form for § 841 Distributing/Dispensing or Manufacturing when Death or Serious Bodily Results) is new.