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March 2020
Fifth Circuit posts 2019 edition of its Pattern Criminal Jury Instructions
Does Comcast v. National Association of African American-Owned Media require a "but for" test in employment discrimination cases?
Eleventh Circuit updates its social media civil instruction
Eleventh Circuit posts revised criminal pattern jury instructions
Seventh Circuit posts revised criminal pattern jury instructions

February 2020
Ninth Circuit December 2019 revisions to its Model Civil Jury Instructions

January 2020
Seventh Circuit's § 922(g) revisions go official
Ninth Circuit adds a post-discharge instruction and modifies the mens rea element for § 2422(b)
One more note about § 1956(8)(B)

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March 2020

Fifth Circuit posts 2019 edition of its Pattern Criminal Jury Instructions

The Fifth Circuit has posted PDF and RTF copies of the 2019 edition of its Pattern Criminal Jury Instructions. This is the first comprehensive revision since 2015, and the changes are too numerous to completely describe here. The following instructions are brand new in the 2019 edition:

  • 1.07 Special Maritime and Territorial Jurisdiction of the United States—Defined
  • 1.40 Materiality
  • 1.47 "Affecting Commerce"—Defined
  • 2.02D Marriage Fraud 8 U.S.C. § 1325(c)
  • 2.37A Destruction of Government Property by Fire or Explosion 18 U.S.C. § 844(f)(1)
  • 2.44B Possessing Firearm in Furtherance of the Commission of a Drug Trafficking Crime or Crime of Violence 18 U.S.C. § 924(c)(1)
  • 2.48C Aggravated Identity Theft 18 U.S.C. § 1028(a)(1)
  • 2.73B Affecting Commerce by Robbery 18 U.S.C. § 1951(a) (Hobbs Act)
  • 2.76C Conspiracy to Commit Money Laundering 18 U.S.C. § 1956(h)
  • 2.86A Stalking 18 U.S.C. § 2261A(1)
  • 2.86B Stalking 18 U.S.C. § 2261A(2)
  • 2.92A Providing Material Support to Terrorists 18 U.S.C. § 2339A
  • 2.92B Providing Material Support to a Designated Foreign Terrorist Organization 18 U.S.C. § 2339B
  • 2.98B Killing While Engaged in Drug Trafficking or a Continuing Criminal Enterprise 21 U.S.C. § 848(c)(1)(A)
  • 2.108A Use of a Falsely Obtained Social Security Number 42 U.S.C. § 408(a)(7)(A)
  • 2.108B False Representation as to a Social Security Number 42 U.S.C. § 408(a)(7)(A)
  • 2.108C Social Security Card Alteration 42 U.S.C. § 408(a)(7)(C)
  • 2.109A Soliciting or Receiving Kickbacks for Referrals to Federal Health Care Programs (“Anti-Kickback Statute”) 42 U.S.C. § 1320a-7b(b)(1)(A)
  • 2.109B Paying or Offering to Pay Kickbacks for Referrals to Federal Health Care Programs (“AntiKickback Statute”) 42 U.S.C. § 1320a-7b(b)(2)(A)
  • 2.110 Interference with Security Screening Personnel 49 U.S.C. § 46503
  • 2.111 Interference with Flight Crew Members and Attendants 49 U.S.C. § 46504
  • 2.112A Carrying a Concealed Weapon on an Aircraft 49 U.S.C. § 46505(b)(1)
  • 2.112B Placing a Loaded Firearm on an Aircraft 49 U.S.C. § 46505(b)(2)
  • 2.112C Placing an Explosive Device on an Aircraft 49 U.S.C. § 46505(b)(3)

A redline/strikeout copy showing the provisions with substantive changes is posted here. The 2015 edition is also posted on the Fifth Circuit Web site.

We had previously noted here that Instruction 2.85C in the 2015 edition of the Pattern Instructions omitted any discussion of § 1956(8)(B) from its definition of child pornography, apparently because they missed the 2003 legislative fix enacted in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That has been remedied in the current version.

(03/25/20) (permalink)

Does Comcast v. National Association of African American-Owned Media require a "but for" test in ADA employment discrimination cases?

The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against persons based on real or perceived disabilities who are qualified to do the essential functions of the job, if the employers are aware of the disability. See generally 42 U.S.C. § 12112(a).

"Mixed motive" issues come up in employment discrimination cases where the employer produces a nondiscriminatory reason for the adverse employment action. The finder of fact determines whether it is valid or pretextual. The Supreme Court has not spoken definitively on the proper standard for this inquiry in ADA employment discrimination cases.

In Title VII employment discrimination (race, color, religion, sex or national origin) cases, a "motivating factor" ("same decision") test applies. This means a reason, alone or with other reasons, on which the defendant relied (or which moved the defendant toward its decision) in taking an adverse action. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

In ADEA (age discrimination) and Title VII retaliation cases, a stricter "determining factor" ("but for") test requires a showing that the the employee's protected trait actually played a role in the process and had a determinative influence on the decision. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009) (ADEA); University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation).

The reasoning in today's decision in Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020), which held that a plaintiff prosecuting a racial discrimination claim founded on 42 U.S.C. § 1981 must plead and then prove that the injury would not have occurred "but for" the defendant’s unlawful conduct, indicates that the "but for" test is likely the correct test in ADA discrimination cases.

Trialdex has a employment discrimination "litigation tool" that analyzes causes of action in ADA cases. It has been updated to note the Comcast decision.

(03/23/20) (permalink)

Eleventh Circuit updates its social media civil instruction

The Eleventh Circuit jury instruction Web site has updated posted "February 2020 jury instructions." The only change is to the social media discussion in Instruction 1.1 (General Preliminary Instructions - Criminal Cases):

In this age of technology, I want to emphasize that in addition to not talking face-to-face with anyone about the case, you must not communicate with anyone about the case by any other means. This includes e-mails, text messages, phone calls, and the Internet, including social-networking websites and apps such as Facebook, MySpace Instagram, Snapchat, YouTube, and Twitter. You may not use any similar technology of social media, even if I have not specifically mentioned it here.

You must not provide any information about the case to anyone by any means whatsoever, and that includes posting information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social websites, or any other means.

(03/11/20) (permalink)

Eleventh Circuit posts revised criminal pattern jury instructions

The Eleventh Circuit has posted its February 2020 jury instructions on its jury instruction Web site.

New Instructions include:

  • B8.1 (Conjunctively Charged Counts)
  • O24.3 (Bribery of Agent of Entity Receiving Benefits Under a Federal Assistance Program 18 U.S.C. § 666(a)(2))
  • O60.1 (Misuse of a Passport 18 U.S.C. § 1544 (First and Second Paragraphs))
  • O82.1 (Advertising Child Pornography 18 U.S.C. § 2251(d))
  • O96.4 (Conspiracy to Encourage or Induce Aliens to Enter the United States 8 U.S.C. § 1324(a)(1)(A)(v)(I))
  • O120 (Procurement of Citizenship or Naturalization Unlawfully 18 U.S.C. § 1425

Changes from the 2019 edition include:

  • The social media paragraph in the "Credibility of witnesses" section of Instruction P1 (Preliminary Instructions - Criminal Cases) has been modified:

    In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites and apps such as Facebook, My Space, Instagram, Snapchat, YouTube, or Twitter. You may not use any similar technology of social media, even if I have not specifically mentioned it here.

  • The annotation to Instruction O13.1 (General Conspiracy Charge 18 U.S.C. § 371) has a new paragraph tacked on at the end:

    The general conspiracy statute, 18 U.S.C. § 371, expressly makes an overt act an element of the offense. A conspiracy charged under other conspiracy statutes may not include an overt act as an element. See, e.g., 18 U.S.C. §§ 286, 1349, 1956(h), 1962(d); and 21 U.S.C. §§ 846, 963. To the extent that district courts are relying on this instruction as guidance for drafting an instruction for a different conspiracy offense, the Committee cautions that the United States Supreme Court has held in several circumstances that proof of an overt act is not required when a conspiracy statute does not expressly contain an overt act requirement. See Whitfield v. United States, 543 U.S. 209, 214 (2005) (finding no overt act requirement in 18 U.S.C. § 1956(h)); Salinas v. United States, 522 U.S. 52, 63 (1997) (same as to 18 U.S.C. § 1962(d)); United States v. Shabani 513 U.S. 10, 11 (1994) (same as to 21 U.S.C. § 846). Reference to instructions related to those statutes may provide useful guidance. See O74.5, O75.2, O100.

  • The second element of Instruction O24.2 (Bribery Concerning a Program Receiving Federal Funds 18 U.S.C. § 666(a)(1)(B)) now begins "(2) [same name of affected entity as above] ...", and the third element now begins "(3) during that the one-year period the Defendant ...." An extended discussion of McDonnell v. United States, 136 S.Ct. 2355 (2016), has been added to the Annotation.
  • Instruction O75.2 RICO (Conspiracy Offense 18 U.S.C. § 1962(d)) adds definitions for enterprise, racketeering activity, and pattern of racketeering activity. Also, the elements list now begins:

    (1) two or more people agreed to try to accomplish an unlawful plan to engage participate in the affairs of an enterprise through a pattern of racketeering activity;

    (2) that the unlawful plan affected interstate commerce;
    (3) the Defendant knowingly and willfully joined in the conspiracy; and (4) when the Defendant ...

    A brief explanatory paragraph has been added to the Annotation.

  • The second paragraph after the elements list in Instruction O92.3 (Attempted Coercion and Enticement of a Minor to Engage in Sexual Activity 18 U.S.C. § 2422(b)) now reads:

    Also, it is not necessary for the Government to prove that the individual was actually [persuaded] [or induced] [or enticed] [or coerced] to engage in [prostitution or] sexual activity; but it is necessary for the Government to prove that the Defendant intended to cause agreement on the part of the individual to engage in [prostitution or] some form of unlawful sexual activity with the individual and knowingly took some action that was a substantial step toward bringing about or engaging causing agreement on the part of the individual to engage in that [prostitution or] some form of unlawful sexual activity. A "substantial step" is an important action leading up to committing an offense - not just an inconsequential act. It must be more than simply preparing. It must be an act that would normally result in the persuasion, inducement, enticement, or coercion.

    The Annotation adds a long parenthetical regarding United States v. Lee, 603 F.3d 904, 917 (11th Cir. 2010). The discussion of the non-requirement of actual minor victims in attempt cases is rewritten.

  • The treatment of drug weight and Apprendi is rewritten in Instruction O98 (Controlled Substances - Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)), but it is not clear that any changes in substance are intended.

A redline/strikeout copy of the affected instructions is posted here.

(03/10/20) (permalink)

Seventh Circuit posts revised pattern criminal jury instructions

The Seventh Circuit posts revsions to their criminal pattern jury instructions each Spring, using the prior year as the date ("Pattern Criminal Jury Instructions (2012 ed.) (includes the 2015-2019 changes)").

New Instructions include:

  • 6.09(B) ("Diminished Capacity")
  • "18 U.S.C. § 201 Official Act")
  • "18 U.S.C. § 1035(A)(1 & 2) Definition of Health Care Benefit Program"
  • New homicide instructions: "18 U.S.C. § 1111 First Degree Murder – Elements"; "18 U.S.C. § 1111 Definition of Malice Aforethought"; "18 U.S.C. § 1111 Definition of Premeditation"; "18 U.S.C. § 1111 Second Degree Murder – Elements"; "18 U.S.C. §§ 1111, 1112 Jurisdiction"; "18 U.S.C. §§ 1111, 1112 Conduct Caused Death"; "18 U.S.C. § 1112 VOLUNTARY MANSLAUGHTER – ELEMENTS"; "18 U.S.C. § 1112 Definition of Heat of Passion"; "18 U.S.C. § 1112 Definition of Voluntary Manslaughter"; "18 U.S.C. § 1112 Involuntary Manslaughter - Elements"; "18 U.S.C. § 1112 Definition of Assault"; "18 U.S.C. § 1112 Definition of Dangerous Weapon"; and "18 U.S.C. § 1112 Definition of Serious Bodily Injury"
  • New Instructions "18 U.S.C. § 1344 Scheme – Definition," "18 U.S.C. § 1344 Multiple False Statements Charged," and "18 U.S.C. § 1344(1) Scheme to Defraud a Financial Institution – Elements" replace "18 U.S.C. § 1347(1) Scheme – Definition" and "18 U.S.C. § 1347(2) Obtaining Property From a Health Care Benefit Program by False or Fraudulent Pretenses – Elements."
  • "18 U.S.C. § 1591 Sex Trafficking of a Minor – Elements" (the former instruction had been removed and labeled "under review") and "18 U.S.C. § 1591 Benefitting From Sex Trafficking of a Minor – Elements."
  • "18 U.S.C. § 1959(A) Violent Crimes in Aid of Racketeering Activity."
  • "18 U.S.C. § 2252A(a)(4)(B) Sale or Possession With Intent to Sell of Child Pornography in Interstate or Foreign Commerce – Elements"

In addition to the change to the Rehaif change to the § 922(g) instruction noted above, the revised instructions include these changes:

  • Several instructions replace the word "charge" with "count."
  • Instruction "18 U.S.C. § 666(a)(1)(B) Bribery Concerning Federally Funded Program – Elements" has been edited to replace the word "anything" with "something" where those words appear in the instruction.
  • Instructions "18 U.S.C. § 666(a)(1)(B) Accepting a Bribe" and "18 U.S.C. § 666(a)(2) Paying a Bribe" replace references to "something" with "a thing" where those words appear in the instructions, and a passage in each of the the Comments that discussed United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015), was replaced with a discussion of United States v. Robinson, 663 F.3d 265, 271–73 (7th Cir. 2011), and McDonnell v. United States, 136 S. Ct. 2355 (2016).
  • Instruction "18 U.S.C. § 1028(d)(7) DEFINITION OF 'Means of Identification'” replaces a discussion of a Fourth Circuit case, United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008), with a brief cite to United States v. Thomas, 763 F.3d 689 (7th Cir. 2014).
  • The intent element of Instriction "18 U.S.C. § 1028A(A)(1) Aggravated Identity Theft – Elements" has been tightened up to conform with recent Seventh Circuit cases. The reason for the change is described in the Comment section.
  • The Comment to Instruction "18 U.S.C. § 1030(a)(1) Obtaining Information From Computer Injurious to the United States – Elements" adds this sentence in the end: "The term 'knowingly' is defined in Pattern Instruction 4.10, which should be given to define the term 'knowingly' in the first element of this instruction."
  • The Comment to Instruction "18 U.S.C. §§ 1341, 1343 & 1346 Receiving a Bribe or Kickback" now notes that "the bracketed list of fiduciaries is not necessarily an exhaustive list." The definition of "Official Act" cross-references a discussion of McDonnell elsewhere in the instructions. The Comment also deletes a discussion of Blagolevich, regarding cases where the payment was a mere gratuity or where the defendant falsely promised to take official action but never intended to do so, substituting a discussion of United States v. Hawkins, 777 F.3d 880, 883-84 (7th Cir. 2015), and McDonnell.
  • The Comment to Instruction "18 U.S.C. § 1344(1) Scheme to Defraud a Financial Institution – Elements" now notes that "a materially false or fraudulent pretense, representation, or promise may be accomplished by an omission or by the concealment of material information."
  • Instruction "18 U.S.C. § 1347 Health Care Benefit Program/ Interstate Commerce – Definition" adds the admonition "The government need only prove that the health care program itself either engaged in interstate commerce or that its activity affected interstate commerce to any degree," and the Comment has a note about United States v. Lucien, 2003 WL 22336124 (2d Cir. Oct. 14, 2003).
  • The Comment to Instruction "18 U.S.C. § 1951 Color of Official Right – Definition" deletes a discussion of Blagojevich, substituting a cross-reference to McDonnell.
  • The Comment to Instruction "18 U.S.C. § 2250(a) Failure to Register/ Update as Sex Offender – Elements" has a note about Nichols v. United States, 136 S.Ct. 1113 (2016), and United States v. Haslage, 853 F.3d 331 (7th Cir. 2017).
  • Instruction "18 U.S.C. § 2251A(b) Purchasing or Obtaining Children" has been removed.
  • The § 2252A instructions have all been rewritten to take the position that United States v. X-Citement Video, 513 U.S. 64 (1994), governs the intent element.
  • Instruction "18 U.S.C. § 2256(9) – 18 U.S.C. § 2252A(C) – Affirmative Defense to Charges Under 18 U.S.C. §§ 2252A(A)(1), (A)(2), (A)(3)(A), (A)(4) OR (A)(5)" notes that the the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 has added the word "anus."
  • The Comment to Instruction "18 U.S.C. § 2422(b) Enticement of a Minor – Elements" now discusses adult-to-adult communications, the mistaken belief that the victim was a minor, and jury unanimity.
  • Instruction "DRUG QUANTITY/SPECIAL VERDICT" replaces "controlled substances" with "narcotics," and deletes discussions of Pinkerton liability and 404(b) evidence.

A redline/strikeout copy of the affected instructions is posted here. Prior versions of these instructions are archived here.

(03/07/20) (permalink)

February 2020

Fifth Circuit instructions in limbo?

[2/19/20 Update: The links are fixed now]

All of my Fifth Circuit instruction links have gone 404, as has the link to the instructions at the Fifth Circuit Web site. A google search for "fifth circuit jury instructions" turns up an entry captioned "Fifth Circuit Criminal Jury Instructions (2019)," which is also a bad link. Did some other search tricks not worth describing here, but could not bring them up. I assuming that the previous (2015) criminal set was replaced with a 2019 set, and that that set was later removed for some reason, along with the current civil set.

The earlier editions of these instructions are available on the Internet archive and Westlaw. I called the court clerk's office and left a message, but this is the weekend, so I don't expect to learn anything soon. In the meantime, I'll rewrite my Fifth Circuit links so that they go to this blog post.

(02/15/20) (permalink)

Ninth Circuit December 2019 revisions to its Model Civil Jury Instructions

The most recent changes to the Ninth Circuit Model Civil Instructions are dated December 2019, but I think the posting is more recent than that. Here are the changes:

  • There are two new instructions: 1.22 (Self-Represented Party), and 3.9 (Post-Discharge Instruction).
  • The paragraph in the Introductory Comment to Chapter 9 (CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983) that begins "The Ninth Circuit applies a five factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes" has been rewritten with new case authority.
  • The Comment to Instruction 9.2 (CAUSATION) adds a brief note about Nicholson v. City of Los Angeles, 935 F.3d 685 (9th Cir. 2019) to the end of the "General Principles" section.
  • The last sentence of Instruction 9.11 (PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF) now reads "A substantial or motivating factor is a significant factor., though not necessarily the only factor." This was apparently occasioned by Capp v. City of San Diego, 940 F.3d 1046 (9th Cir. 2019).
  • The Comment to Instruction 9.23 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—PROBABLE CAUSE ARREST) has a short quotation from Nicholson.
  • The Comment to Instruction 9.34 (QUALIFIED IMMUNITY) rewords the standard for when a right is clearly established, citing Nicholson. Also, the paragraph that begins with "The Supreme Court has provided little guidance" now ends "stealing seized property would be improper was morally wrong, they did not have clear notice that it violated the Fourth Amendment."
  • The Comment to Instruction 18.3 (SECURITIES—MISREPRESENTATIONS OR OMISSIONS—MATERIALITY) now cites SEC v. Hui Feng, 935 F.3d 721, 736 (9th Cir. 2019).

A redline/strikeout document showing the changes is posted here.

(02/07/20) (permalink)

January 2020

Seventh Circuit's § 922(g) revisions go official

Last month we noted that the Seventh Circuit had posted a proposed revision to its § 922(g) instructions acknowledging the Supreme Court's decision in Rehaif. It is now official.

(01/19/20) (permalink)

Ninth Circuit adds a post-discharge instruction and modifies the mens rea element for § 2422(b)

The Ninth Circuit has followed up its December 2019 revisions to its Model Criminal Jury Instructions with two more revisions:

  • They have added a new instruction 7.13 ("Post-Discharge Instruction").
  • The second element of Instruction 8.192A ("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") has been revised as follows: "[Second, the individual the defendant believed that the individual [he][she] attempted to [persuade] [induce] [entice] [coerce] was under the age of 18;"

(01/18/20) (permalink)

One more note about § 1956(8)(B)

As noted here here last week, Instruction 2.85C in the 2015 edition of the Fifth Circuit Pattern Jury Instructions for Criminal Cases omits § 1956(8)(B) from its definition of child pornography, apparently because they missed the 2003 legislative fix enacted in response to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

It is probably worth taking a moment to look at how this is addressed in other pattern instructions.

  • The Seventh Circuit applies a knowing mens rea, relying on United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994), but that is a § 2252, not a 2252A, case.
  • The Sixth Circuit’s more informed approach takes the view that courts may hesitate to use paragraph (B) in their instructions “because subsections (8)(A) and (8)(C) will cover most of the prosecutions and because the constitutionality of subsection (8)(B) has not been addressed.”
  • The Eleventh Circuit gets it right, I think, using the term believed rather than knew, which is more consistent with the statute. That is, the defendant knew that he or she was shipping or possessing the item, and believed that it was child pornography.

(01/17/20) (permalink)

An error in the Fifth Circuit instructions regarding "child pornography"?

Title 18 §§ 2252 and § 2252A are two statutes that criminalize child pornography. Section 2252, enacted in 1990, prohibits the visual depiction of an actual minor engaging in sexually explicit conduct. Section 2252A, enacted in 1996, prohibits child pornography, which is defined to include not just material that depicts actual minors, but also images that are made to appear to be minors.

The statute defining "child pornography" is 18 U.S.C. § 1956(8). That statute was modified effective April 30, 2003, after the Supreme Court found the previous definition to be constitutionally overbroad in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The 2003 changes were as follows:

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct;

Instruction 2.85C in the 2015 edition of the Fifth Circuit Pattern Jury Instructions for Criminal Cases defines "child pornography" as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.

This omits paragraph (B), with the Note to the instruction indicating that the author(s) simply missed the 2003 legislation.

In Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002), the Supreme Court struck down two definitional terms of “child pornography” contained in 18 U.S.C. § 2256(8) as vague and overbroad. Accordingly, only the definitions listed in 18 U.S.C. §§ 2256(8)(A) and (C) should be utilized.

The Committee updates their instructions from time to time (there is an addendum dated March 28, 2017, but it does not address the child pornography statutes). I'll drop them a note, and see if I get a response.

(01/13/20) (permalink)

December 2019

That's it for the state roundups

One of the goals for this site was to keep track of changes to all of the jury instructions, state and federal. This has been easy enough to do with the federal instructions, but monitoring state instructions has been problematic.

Most state instructions are posted on the Internet, and it has been easy enough to monitor those sites. Many instruction sets that are not on the Internet are on Westlaw, and those sets can, at best, be checked once a year for changes (see below). But there are also many sets parked on Lexis (I don't have a Lexis account) or behind state bar pay walls, and I can't check those at all.

After trying to monitor state instructions for the better part of a year, I have become convinced that the effort is quixotic, and may create the impression that the coverage is more reliable than it is (it is a bit labor intensive as well). So I have decided to stop doing it.

There is still considerable coverage of state instructions on the site, including a comprehensive links page and Internet search boxes. So if you are researching state jury instructions, this is still a useful site.

I will continue to monitor the federal sites (which are all on the Internet), report any changes in this blog, and send out jury instruction email alerts to folks who have signed up for them.

(12/26/19) (permalink)

Roundup part two—state instructions on Westlaw

Every month or two I do "roundups" of changes to state jury instructions for states that publish their instructions on the Internet (see the one just below). It is inpossible to do this for states that only post on Westlaw: Arkansas, Georgia, Kansas, Louisiana, Massachusetts (civil), Missouri (civil), Minnesota, Nebraska, New York (civil), Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia. All I can do is note changes for the calendar year, which I will do right now:

The 2019-2020 revisions to Alabama's civil instructions on Westlaw include "rewritten common counts instructions, new business restrictive covenants instructions, new instructions about damages for loss of income, loss of future earnings, loss of earning capacity, all of which are written or rewritten in Plain Language."

Georgia's civil instructions are labeled "August 2019 4th Edition," and the criminal instructions are collected in an "August 2019 5th Edition." There is no readily apparent way to tell what may have changed in the new edition.

There were hundreds of 2019 changes to the Kansas civil and criminal instructions on Westlaw that can be viewed by using the search term "2019 update" (in quotes as shown).

For Louisiana, use this link to get a list of civil instructions updated in 2019. Criminal instructions updated in 2019 can be viewed by using the search term "2019 update" (in quotes as shown).

Massachusetts civil instructions are on Westlaw. There were 2019 changes to the WRONGFUL DEATH, SPECIAL ISSUES, BUSINESS LITIGATION, PRODUCT LIABILITY, and EMPLOYMENT DISCRIMINATION instructions.

Missouri civil instructions are on Westlaw. The 2019 revisions all involved Chapter 38 (employment discrimination).

The 2019 pocket part to the Minnesota criminal instructions notes the following: "Updated elements for Solicitation of a Juvenile to Commit a Crime; updates to multiple instructions concerning Murder of an Unborn child, Murder in the Second and Third Degree, and Manslaughter; new and expanded Criminal Vehicular Operation/Homicide coverage; Retitled Threat of Violence Instructions; updated instructions for Possession of Firearm by Ineligible Person and Driving While Under the Influence of an Intoxication Substance; new instruction for Restraint of Defendant; and updates to many Comments and Footnotes."

Nebraska civil instructions are on Westlaw. There were hundreds of revisions in 2019 that may be accessed using the query CI("1 Neb. Prac.") & "2019 update". The criminal instructions are also on Westlaw, but I can't discern a graceful way to display just the 2019 revisions.

New York civil instructions are on Westlaw. The Publisher's Introduction to the 2020 edition notes the following changes:

  • New charges and commentary have been added on the topic of General Instruction-Judicial Notice of Facts. These charges cover Judicial Notice of Facts During Trial and After Trial. See PJI 1:79 and 1:79.1.
  • A new charge with commentary has been added to cover Contracts—Damages—Generally—Mitigation. The following charges covering Contracts—Damages—Generally [Supplemental Instruction] have been renumbered. See PJI 4:20.1 through 4:20.5.
  • Completely revised charge and commentary on Res Ipsa Loquitur. See PJI 2:65.
  • Revised charges and commentary covering Employment Discrimination—Hostile Work Environment—Claims Under the New York State Human Rights Law. See PJI 9:5 and 9:5A.
  • Many other updates to commentary and addition of new case cites throughout the publication.

Ohio civil and criminal jury instructions instructions on Westlaw all have the date "May 2019" along with the date of their latest actual revision. Unfortunately, the revision dates are in a format that is not searchable, so there is no way to just list instructions that were revised in 2019.

The Oregon civil criminal jury instruction sets begin with summary pages for 2018 (but not yet 2019) changes.

The Pennsylvania civil criminal instruction sets do not appear to have been updated in 2019.

South Carolina's instructions were last updated in 2016.

Tennessee has a new September 2019 edition of its criminal instructions. The Introduction notes the following:

  • 1.01—Before Voir Dire. This instruction was edited to include information that should be charged to the jury when one of the parties is a self-represented litigant.
  • 4.35, 4.36 and 14.17—Emotional Distress. A new comment was added to these instructions based on the holding in Odom v. Claiborne County, Tennessee, 498 S.W.3d 882, 887 (Tenn. Ct. App. 2016). Odom helps clarify what constitutes “outrageous” conduct for an emotional distress action. The Court found that liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
  • 14.26—Minor's Damages. A comment was added to clear up the confusion as to whether a minor (as opposed to the parents of a minor) can bring a suit for pretrial medical expenses incurred because of the diagnosis and treatment of injuries alleged to have been incurred because of a defendant’s negligence. The Tennessee Court of Appeals provided some guidance in Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 660 (Tenn. Ct. App. 2017) and which is reflected in the comment.

The criminal instructions are all marked "May 2019," but there is no readily apparent way to identify instructions that were actually updated in 2019.

The Texas civil instructions have a "What's New in the 2019 Edition" page that simply states that the instructions have "been substantially revised since the Third Edition. Case law, Texas Rules, and other statutory references are current through January 1, 2019. Chapters and sections have been reorganized for clarity and ease of use." This suggests that there are no 2019 revisions, and a brief examination of the text appears to confirm that.

The criminal instructionsare dated 2018, with no references to 2019 cases.

Virginia's civil and criminal instructions are all marked "November 2019 Update," but there is no readily apparent way to identify instructions that were actually updated in 2019.

Kentucky. Maine, Maryland, New Hampshire (civil), Rhode Island, and West Virginia are only on Lexis (I don't have Lexis access), and Iowa, Missouri (criminal), Montana (civil), and Wyoming either require state bar access or purchase, so I can't check those. See generally the jury instruction information linked here.

(12/25/19) (permalink)

A roundup of recent additions and revisions to state jury instructions

Arizona has posted proposed a new Medical Negligence Emergency Instruction and revisions to its Product Liability Instructions.

California posts supplements to its criminal and civil instructions during the course of the year, and at some point integrates the supplements into an official edition. The 2020 edition of the California Civil Jury Instructions (CACI) has been posted. The 2019 edition and supplements (which list the changed sections) are archived here. The criminal instructions have not yet been integrated into a 2020 edition.

Colorado publishes new editions of its model criminal jury instructions from time to time. The current edition is dated 2018. The Committee's Reporter posts a "Reporter's Online Update" during the interim period that developments in relevant case law. The current report is dated December 19, 2019.

Florida issued orders on December 19, 2019, deleting Standard Criminal Instruction 3.3(b) (Aggravation of Felony by Carrying a Weapon), and revising 3.3(a) (Aggravation of a Felony by Carrying a [Firearm] [Weapon]), 3.6(f) and (g) (Justifiable Use or Threatened use of Force), 7.3, 7.5, 7.6 (Felony Murder), 10.7(a), (b), and (c) (Possessing, Throwing, Making, Placing, Projecting or Discharging a Destructive Device), 10.13 (Shooting or Throwing a [Missile] [Stone] [Hard Substance] [at] [within] [into] a[n] [Building] [Vehicle] [Vessel] [Aircraft]), 10.18 (Altered Firearm Serial Numbers), 22.5-22.11 (Gambling Businesses), and 26.2-26.8 (RICO). The current instructions are linked here.

In December 2019 New York made these changes to its criminal instructions:

  • Modified the "Delay in Arraignment" section of of its Confessions instruction
  • Added a section to the Credibility charge regarding "A Judge Found Witness Testified Falsely"
  • Added the following Penal Law instructions: 176.75 [Staging A Motor Vehicle Accident in the Second Degree]; 176.80 [Staging A Motor Vehicle Accident First Degree]; 205.19 [Absconding from a Community Treatment Facility]; 221.10 [Unlawful Possession of Marihuana in the Second Degree]; 230.11 [Aggravaed Patronizing a Minor for Prostitution in the Third Degree]; 230.12 [Aggravated Patronizing a Minor for Prostitution in the Second Degree]; 230.13 [Aggravated Patronizing a Minor for Prostitution in the First Degree]; 240.10 [Unlawful Assembly]; 245.15 [Unlawful Dissemination or Publication of an Intimate Image]; 265.01-c [Criminal Possession of a Rapid-Fire Modification Device]; 265.45 [Failure to Safely Store Rifles, Shotguns, and Firearms in the first degree]; 265.55(2) [Criminal Possession of an Undetectable Firearm, Rifle or Shotgun];
  • Revised or modified these Penal Law instructions: 165.15(3) (Theft); 170.40(1) and 170.75 (Forgery); 205.17 (Escape); 496.02-03-04-05 (Government Corruption); and the Extreme Emotional Disturbance defense (to conform to a statutory change).

Oklahoma modified its criminal instructions in 2019 regarding CRIMES AGAINST CHILDREN, DEFENDANT'S SELF-REPRESENTATION, AND TRANSFERRED INTENT. The revised instructions are linked here.

Utah revised Model Criminal Instruction CR1320 (Aggravated Assault) in October 2019, and Model Criminal Instruction CR1322 (Aggravated Assault—Targeting Law Enforcement Officer) in December 2019.

The Vermont Bar Association's Model Criminal Instructions page notes instruction and a reporter's note for aggravated animal cruelty.

(12/24/19) (permalink)

Ninth Circuit December 2019 revisions to its Model Criminal Jury Instructions

The December 2019 revisions to the Ninth Circuit Model Criminal Jury Instructions have been posted. There are two new instructions:


Other non-clerical changes:

  • The Comment to Instruction 1.1 ("DUTY OF JURY") notes a new "shortened" video about unconscious bias that may be shown to jurors. Like the original video, it goes beyond mere admonitions, and features "attorneys" reciting the results of "studies."
  • The introduction to Chapter 3. ("INSTRUCTIONS AT END OF CASE") notes United States v. Becerra, 939 F.3d 995 (9th Cir. 2019), which found structural error where the judge did not read the instructions to the jury, but simply gave them written copies.
  • The Comment to Instruction 5.8 ("DELIBERATE IGNORANCE") notes United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), which cautions about the overuse of wilful blindness instructions.
  • Instruction 7.7 ("DEADLOCKED JURY"), among other things, now omits the paragraph:

    All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

    and adds:

    What I have just said is not meant to rush you or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.

  • The Comment to Instruction 8.83 ("AGGRAVATED IDENTITY THEFT (18 U.S.C. § 1028A)") now notes Hong, id., which narrowly construes the word "use."
  • The Comment to Instruction 8.128A("HEALTH CARE FRAUD (18 U.S.C. § 1347)") now notes Hong's discussion of wilful blindness instructions.
  • The Comments to the Hobbs Act instructions (8.142 et seq.) now note a circuit split regarding whether the Hobbs Act requires specific intent to steal.
  • The Comment to Instruction 8.150 ("MONEY LAUNDERING (18 U.S.C. § 1957)") now notes a discussion in United States v. Chi, 936 F.3d 888, 893 (9th Cir. 2019), regarding "specified unlawful activity."
  • Instruction 8.192 (18 U.S.C. § 2422(a)) has been renamed as "PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY."
  • The Comments to Instructions 9.37 ("ATTEMPT TO EVADE OR DEFEAT INCOME TAX (26 U.S.C. § 7201)") and 9.39 ("FILING FALSE TAX RETURN (26 U.S.C. § 7206(1))") replace references to "dividend" with "distribution" and "capital distribution" with "return of capital."

A redline/strikeout document showing these changes is posted here.

(12/19/19) (permalink)

Seventh Circuit's proposed Rehaif instruction applies mens rea to other paragraphs of § 922(g)

The Seventh Circuit has posted a proposed revision to its § 922(g) instructions that extends the Supreme Court's holding in Rehaif v. United States, 139 S.Ct. 2191 (2019), to the other paragraphs of § 922(g).

The Court in Rehaif held that, in prosecutions under § 922(g)(5) (firearms possession by aliens unlawfully in the United States), the government "must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it." Rehaif, id. at 2194. The proposed instruction extends that mens rea to every prohibited status, including the much more common § 922(g)(1) (felon-in-possession).

This position is not controversial. It is, by my count, the third circuit to do this. See Pattern Crim. Jury Instr. 6th Cir. 12.01 (2019) (felon-in-possession); Model Crim. Jury Instr. 9th Cir. 8.62-65A (2019) (unlawful delivery/receipt/shipment/possession).

(12/15/19) (permalink)

Law "infographics"

From time to time, I do a post about the mechanics of maintaining a Web site. This site has been up for the better part of a year. It has been getting about 375,000 "hits" a month, a fairly worthless statistic as far as I can tell. I am more focused on the number of unique visitors, which has consistently been more than a thousand each month. That's enough traffic to keep me plugging away at this, but not enough to tempt me to monetize the site. No ads, no popups, no cookies, nothing but (I hope) quality content.

The biggest problem in expanding traffic is getting the site to show up when people do Google searches. If you are reading this, you are probably generally aware of the site's coverage of jury instructions; it has the most comprehensive coverage of the subject anywhere. But take a look at Google's first page when you search for "jury instructions." Trialdex is not there; it is not on the first ten pages (it is on the first page if you search for "federal jury instruction index," but even then, even though it is the only federal jury instruction index on the Internet, it is halfway down the page).

This leads us to SEO ("search engine optimization"). This refers to techniques that boost your visibility (page rank) on Google. Some are obviously legitimate (write good content that gets favorable reviews on other sites, get linked on popular sites, create a site that looks good on multiple platforms), some are makework (create a site.html, choose the right phrases for title and meta statements), some are crooked (buy fake backlinks). Supposedly Google employs countermeasures that sniff out illegitimate SEO tactics.

I try to do the legitimate and the makework stuff. I just tried something new today. This site uses a number of graphic charts that I have been calling "flowcharts." I have recently become aware that that phrase is hopelessly twentieth century. So now I am using the more hip term, "infographics." Encouraging other sites to link one of my infographics or use it on their site with a suitable backlink is a legitimate SEO tactic.

So, to mildly encourage that, the infographics now have labels on them that say "embed this infographic." Click on that link and you get sample code that can be used to embed a copy of the infographic in a blog entry or on a Web site. Additionally, I have a created a page that has all of the infographics on it.


Tweaked the USC index pages

The trialdex jury instruction index indexes about 20,000 legal terms, statutes, CFRs, and Supreme Court cases. It is a helpful tool that I use almost every day.

That being said, the USC index had an issue. There are separate pages for every Title of the United States Code, and Title 18 has pages for each chapter. In many cases there are a small number of entries, so paging down to the statute you are looking for is a small matter. In other cases, though there are hundreds of entries on the page, and scrolling down to a particular statute can be a nuisance.

That has been fixed. Any page with an appreciable number of entries now has a list of statutes to click on at the top of the page.


SCOTUSblog predicts win for Banister

Justices seem likely to side with Texas prisoner in important habeas case


Arguments in Banister set for Wednesday

The Supreme Court will hear the arguments in Banister v. Davis on Wednesday. The issue is "Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby."

Following the arguments will be tough going for those not well schooled in the nuances of habeas corpus review. There was a concise description of the case posted here in September. SCOTUSblog has a more detailed preview that concludes that the case could have broad ramifications "because AEDPA limits to two very specific circumstances the available grounds for relief in a second-or-successive application for post-conviction relief by state or federal prisoners. A ruling for Texas, therefore, would dramatically curtail the availability of Rule 59(e) motions in all first federal habeas petitions by state or federal prisoners."

(12/02/19) (permalink)

Bribery 101

"Bribery" and "quid pro quo" are phrases that are in the news today, but we won't be talking about Presidential politics today. This survey looks at current federal bribery law as codified in the United States Code (generic, common law, or historical "bribery" may be more relevant in that other context).

Before we get started, you may wish to look at the previous "101" posts:

Mail and wire fraud part one (jurisdictional elements)
Mail and wire fraud part two (elements in common)
Obstruction of justice
Hobbs Act
Travel Act
Money Laundering

The principal bribery statutes are found in 18 U.S.C. chapter 11, especially § 201, which specifies eight individual crimes, four of them involving witnesses, and four involving public officials.

There are other federal bribery statutes, e.g., bankruptcy bribery, (18 U.S.C. § 152(6)), bribery involving financial institutions (§§ 215 and 225), federal program fraud (§ 666), obstruction of criminal investigations by bribery (1510), Hobbs Act (1951), Travel Act 1952 and pension and welfare bribery (1954), but the principles and definitions are pretty much the same throughout the federal criminal code.

So, to simplify our discussion, let's take a close look at the four § 201 crimes involving public officials:

  • Bribery of a public official (§ 201(b)(1))
  • Receiving bribe by a public official (§ 201(b)(2))
  • Illegal gratuity to a public official (§ 201(c)(1)(A))
  • Receiving an illegal gratuity by a public official (§ 201(c)(1)(B))

Bribery of a public official (§ 201(b)(1)) takes place when something of value is promised, given, or offered to influence an official act. Receiving a bribe (§ 201(b)(2)) takes place when something is demanded, sought, or received in return for being influenced in the performance of an official act. In each case, the act must be done corruptly.

A person offers a thing of value to a public official corruptly if the person acts knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the offer of the thing of value to the public official. Mod. Crim. Jury Instr. 3rd Cir. 6.18.201B1-3 (2017).

Giving or receiving a gratuity (§ 201(c)(1)) is criminalized if it is done for or because of an official act that had been performed or was going to be performed. There need not be proof that the act was done corruptly.

Bribery requires intent "to influence" an official act or "to be influenced" in an official act. An illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act.

In other words, for bribery there must be a quid pro quo—a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

Nevertheless, illegal gratuity cases require proof of

a link between the offer or giving of the thing of value and a specific official act for or because of which it was offered or given. It is not sufficient that the gratuity was offered or given because the public official had authority over matters in which the defendant had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that the public official would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Mod. Crim. Jury Instr. 3rd Cir. 6.18.201C1A (2017).

An official act is a decision or action on a question, matter, cause, suit, proceeding or controversy that involves

  • "a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee." McDonnell v. United States, 136 S.Ct. 2355, 2371-72 (2016).
  • It must be something specific and focused that is "pending" or "may by law be brought" before a public official. Id. at 2372.
  • The public official must make a decision, take an action on it, or agree to do so. Id.

The decision or action could be using his or her official position to exert pressure on another official to perform an "official act," or advising another official, knowing or intending that such advice will form the basis for an "official act" by another official. Id. But "[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of 'official act.'" Id.

(12/01/19) (permalink)


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