Instruction P1 (Preliminary Instructions – Criminal Cases) no longer lists "Facebook, Instagram, Snapchat, YouTube, or Twitter." It instead lists "encrypted-communication apps," "social-networking websites" or "any similar social-media technology."
The Comment to Instruction B6.7
(Impeachment of Witness Because of Bad Reputation for
(or Opinion about) Truthfulness (May Be Used With 6.1 – 6.6)) has the updated version of Rule 608.
The phrase "that is, with the intent to do something the law forbids" has been removed from the definition of willfully in Instruction B9.1B (Knowingly; Willfully – Intentional Violation of a Known Legal Duty).
The Comment to Instruction S10.1
Lesser - Included Offense (Single) deletes the second and third paragraphs, and the verdict form (which remains in Instruction S10.2 (Lesser - Included Offense
(Multiple)).
The third element of Instruction O21 (Theft of Government Money or Property 18 U.S.C. § 641 (First Paragraph)) substitures "owner" for "United States." The Comment explains that it does not matter whether the defendant knew that the United States owned the
property.
Specific fact (5) of Instruction O75.1 (RICO – Substantive Offense 18 U.S.C. § 1962(c)) now reads "(5) the enterprise was involved
engaged in, or
the activities of the
enterprise affected, interstate commerce." The last paragraph of the Instruction now
reads:
For the fifth specific fact, “interstate commerce” means business, trade, or movement between one state and another. The Government must prove beyond a reasonable doubt that in conducting the affairs the
enterprise engaged in, or the activities of the enterprise the Defendant was involved in or affected, interstate commerce by [describe interstate commerce activity from indictment; e.g. using interstate communications facilities by making long-distance phone calls; by traveling from one state to another; by sending funds by mail or wire from one state to another]. If you find that these transactions or events occurred, and that they occurred or were done in the course of or as a direct result of conducting the enterprise’s affairs, then the required involvement in or effect on interstate commerce is established, but But if you don’t so find, then the required effect on interstate commerce is not established.
The paragraph regarding the maximum penalty is removed from the Comment.
The second Specific Fact in Instruction O75.2 ((RICO – Conspiracy Offense 18 U.S.C. § 1962(d))) now
reads: "(2) that the unlawful
enterprise engaged in, or the activities of the enterprise affected, interstate commerce." Both references to "other acts of racketeering" in Specific Fact (4) are edited to strike the word
"other."
The paragraph in the Comment regarding the maximum penalty is removed, and the paragraph that follows it
(discussing United States v. To, 144 F.3d 737 (11th Cir. 1998)) is new.
Former Instruction O98 (Controlled Substances –
Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)) has been renumbered as O98.1.
Elements (1) and (2) of the Instruction are edited to read
"
controlled substance" instead of simply "substance." The discussion of Apprendi,
Alleyne, and McFadden and the Verdict Form in the Comment have been substantially rewritten.
Instruction O98.2 (Controlled Substances – Distribution 21 U.S.C. § 841(a)(1)) is new.
Instruction O103 (Possession of Controlled Substance Near Schools or Public Housing
21 U.S.C. § 860) has the same "controlled substance" changes noted for O98.1 above. The Maximum Penalty note and discussion of "willfully" have been removed from the Comment. The Apprendi/Alleyne discussion has been replaced with a discussion of newer Eleventh Circuit
cases.
Instruction O107.1 has been renamed as
Attempt to Evade or Defeat Income Tax (26 U.S.C. § 7201). Elements (2) and (3) now read:
(2) the Defendant knew when [he] [she] filed that income tax return that [he] [she] owed substantially more income taxes than the amount reported on [his] [her] return; and
(3) the Defendant intended to evade
or defeat paying
income taxes [he] [she] knew [he] [she] was required by law to pay.
References to "tax" are generally replaced by
"income tax."
The Comment section now begins:
Under
26 U.S.C. § 7201 provides:
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title
or the payment thereof [shall be guilty of an offense against the United States.]
The Maximum Penalty note is deleted, and the Comment further observes that although 26 U.S.C. § 7201 "covers any tax imposed by this title, this instruction is limited to income tax."
The Elements list for Instruction O117.1
(Controlled Substances – United States or Subject to the Jurisdiction of the United States 46 U.S.C. § 70503(a)) replaces references to "substance" with "controlled substance." The final paragraph of the Instruction
reads:
[The Defendant[s] [is/are] charged in the
indictment with [distributing] [possessing with intent to distribute] a certain quantity or
weight at least [threshold(s)] of the alleged controlled [substance[(s)]. But you may find [the/any]
Defendant guilty of the offense
crime even if the quantity amount of the controlled substance[s] for which [he/she] should be held responsible is less than the amount or weight charged. Thus the verdict form prepared with respect to [the] [each] Defendant, as I will explain in a moment, will require that [threshold(s)]. So if you find [the/any] Defendant guilty, you must also find whether the Government has proved beyond a reasonable doubt the weight of [substance](s)] the Defendant possessed and specify the amount[s] on the verdict form.]
The dicussion of Apprendi issues in the Comment was significantly revised. The jury instruction committee also noted that it:
has omitted the word “willfully,” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. The Committee has concluded that the use of the term “willfully” does not add clarity or certainty, and relying instead on the words “knowingly” and “intentionally” more closely comports with the legislative intent.
The same changes were applied to Instruction O117.2
Controlled Substances – Possession on Vessel by United States Citizen or Resident Alien 46 U.S.C. § 70503(a).
Instruction T3 is now titled Explanatory Instruction
Transcript of Tape Recorded Conversation. The phrase "and secondary" has been removed from the second paragraph, and "and from your own examination of the transcript in relation to hearing the tape recording itself as the primary evidence of its own contents" has been removed from the third paragraph.