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recent blog posts

October 2022
September 2022 CALCRIM Supplement
September 2022
New Alaska civil instructions
June 2022 changes to the Ninth Circuit Model Criminal Jury Instructions
June 2022 changes to the Ninth Circuit Model Civil Jury Instructions
archived posts

 

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September 2022 CALCRIM Supplement

The California Judicial Council has posted a September 2022 Supplement to the California Criminal Jury Instructions (CALCRIM). The changes, which are extensive, are listed here.

(10/01/22) (permalink)

 

New Alaska civil instructions

Alaska has posted five new instructions on it Civil Pattern Jury Instructions page:

  • 24.00B (Breach of Contract – Introduction Additional Elements and Affirmative Defenses)
  • 24.09H (Breach of Contract/Reliance Damages)
  • 24.10B (Expenses Paid to Avoid Losses)
  • 24.12C (Restitution Based on Quasi-Contract or Implied Contract)
  • 24.15B (Breach of Covenant of Good Faith and Fair Dealing – Employment)

(09/11/22) (permalink)

 

June 2022 changes to the Ninth Circuit Model Criminal Jury Instructions

The Ninth Circuit has posted the June 2022 revised version of its Model Criminal Jury Instructions. The changes are as follows:

  • The word "and" has been removed from many of the titles, e.g., Instruction 12.3 now reads "Controlled Substance—Attempted Possession with Intent to Distribute (21 U.S.C. §§ 841(a)(1) and, 846). These changes are obviously not substantive.
  • The first element of Instruction 12.1 (Controlled Substance—Possession with Intent to Distribute (21 U.S.C. § 841(a)(1))) now reads "First, the defendant knowingly possessed [specify any controlled substance]."
  • The Comment to Instruction 12.2 (Determining Amount of Controlled Substance) replaces citations to older cases with a citation to United States v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (en banc).
  • Instruction 12.3 has a slight and inconsequential change in its title: "Controlled Substance—Attempted Possession with Intent to Distribute (21 U.S.C. §§ 841(a)(1) and, 846). As in Instruction 12.1, "specify" has been replaced with "any."
  • The paranthetical to the citation of Old Chief v. United States, 519 U.S. 172 (1997) in Comment to Instruction 14.13 (Firearms—Unlawful Receipt (18 U.S.C. § 922(g))) has been revised as follows: "(holding that in case where “proof of convict status is at issue,” it is reversible error “an abuse of discretion to allow government to prove nature of prior admit the record of conviction when defendant offers to stipulate to the prior conviction)".
  • The last two elements of Instruction 14.16 (Firearms—Unlawful Possession—Convicted Felon (18 U.S.C. § 922(g)(1))) have been revised as follows:
    [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year; and]
    or
    [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of [specify prior felony], which is a crime punishable by imprisonment for a term exceeding one year; and]
    Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] had been convicted of [specify prior felony]. a crime punishable by imprisonment for a term exceeding one year.
    The changes are explained in the Comment.
  • The following sentence has been added at the end of Instruction 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))): "The phrase 'in furtherance of' means that the defendant possessed the firearm with the subjective intent of promoting or facilitating the crime of [specify crime]." The Comment indicates that this was in response to United States v. Irons, 31 F.4th 702 (9th Cir. 2022).
  • The Comments to Instructions 15.1 to 15.3, 15.5 and 15.6 (Fraud in Connection with Identification Documents) now note that private financial institutions do not fit within the definition of “issuing authority,” citing United States v. Kirilyuk, 29 F.4th 1128 (2022).
  • The Comments to Instructions 15.7 (Fraud in Connection with Identification Documents—Possessing Another’s Means of Identification (18 U.S.C. § 1028 (a)(7))) and 15.9 (Fraud in Connection with Identification Documents—Aggravated Identity Theft (18 U.S.C. § 1028A)) now cite United States v. Kvashuk, 29 F.4th 1077 (9th Cir. 2022), regarding test accounts.
  • The Comment to Instruction 15.8 (Fraud in Connection with Identification Documents—Trafficking (18 U.S.C. § 1028(a)(8))) makes the same observations re Kirilyuk and Kvashuk.
  • The last sentence of Instruction 15.36 (Bank Fraud—Scheme to Defraud Bank (18 U.S.C. § 1344(1))) now reads: "An 'intent to defraud' is an means to act willfully, and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself." The Comment now cites United States v. Cloud, 872 F.2d 846 (9th Cir. 1989), defining “intent to defraud”.
  • The Comment to Instruction 16.2 (Murder—Second Degree (18 U.S.C. § 1111)) now cites and United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc).
  • The second element of Instruction 18.3 (Financial Transaction or Attempted Transaction to Promote Unlawful Activity (18 U.S.C. § 1956(a)(1)(A))) now reads: "Second, the defendant knew that the property represented the proceeds of [specify prior, separate criminal some form of unlawful activity." A new paragraph appears at the end:
    The phrase “knew that the property represented the proceeds of some form of unlawful activity” means that the defendant knew that the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony. I instruct you that [specify relevant unlawful activity] is a felony.
    The paragraph in the Comment that begins "With respect to the second element ..." has been deleted.
  • The second element of Instruction 18.6 (Transporting or Attempting to Transport Monetary Instruments for the Purpose of Laundering (18 U.S.C. § 1956(a)(2)(B))) has the same edits as the second element of Instruction 18.3 (with a probably unintended change of "represented" to "represents"). The paragraph in the Comment that begins "With respect to the second element ..." has been deleted.
  • The Comment to Instruction 20.20 (Sexual Exploitation of Child—Transportation of Visual Depiction into United States (18 U.S.C. § 2251(c))) now cites United States v. Rosenow, 33 F.4th 529 (9th Cir. 2022), for the proposition that “for the purpose of” does not require but-for causation.
  • The definition of reckless disregard standard in the Comment to Instruction 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion (18 U.S.C. § 1591(a)(1))) now reads: "applies only to advertising does not apply if the act is advertising. If the government charges “advertising,” the mens rea element is knowing."
  • The Comment to Instruction 20.29 (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 (18 U.S.C. § 2422(b))) now begins with a citation to United States v. McCarron, 30 F.4th 1157 (9th Cir. 2022).

The prior version is archived here.

(09/10/22) (permalink)

 

June 2022 changes to the Ninth Circuit Model Civil Jury Instructions

The Ninth Circuit has posted the June 2022 revised version of its Model Civil Jury Instructions. The changes are as follows:

  • The Comment to Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) now has an extended discussion of Riley’s American Heritage Farms v. Elsasser, 32 F.4th 707 (9th Cir. 2022), regarding its application to government contractors. The instruction does not apply to restrictions on the speech of elected officials per Boquist v. Courtney, 32 F.4th 764 (9th Cir. 2022).
  • The Comment to Instruction 9.11 (Particular Rights—First Amendment— “Citizen” Plaintiff) now notes that plaintiffs must, with some exceptions, plead and prove the absence of probable cause, citing Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022). It also discusses Boquist v. Courtney regarding speech by elected officials and but/for causation.
  • The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) was rewritten to note Estate of Aguirre v. County of Riverside, 29 F.4th 624 (9th Cir. 2022), Andrews v. City of Henderson, 35 F.4th 710 (9th Cir. 2022), and Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239 (2021).
  • The Comment to Instruction 9.26 (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Excessive Force) was rewritten to note Coston v. Nangalama, 13 F.4th 729 (9th Cir. 2021), and Hughes v. Rodriguez, 31 F.4th 1211 (9th Cir. 2022).
  • The Comment to Instruction 9.30 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim Re Conditions of Confinement/Medical Care) now ends: "While there is 'no § 1983 liability for simply acting contrary to prison policy,' the standardized medical procedures of a prison can 'help to underscore' that prison officials 'had access to facts from which a reasonable person would infer' that a particular patient 'was at serious medical risk.' Russell v. Lumitap, 31 F.4th 729, 742 (9th Cir. 2022)."
  • The Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship) has been extensively rewritten.
  • The Comment to Instruction 9.34 (Qualified Immunity) now cites Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022) and Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) regarding the required showing that a right was clearly established).
  • The last paragraph of Instruction 10.2 (Civil Rights—Title VII—Disparate Treatment—With Affirmative Defense of “Same Decision”) has been revised as follows:
    The defendant has the burden of proving by a preponderance of the evidence both that the defendant would have [made the same defendant’s decision] [taken the same to [state adverse action] regardless of the plaintiff’s [protected characteristic], unless the defendant also has proven was motivated by a preponderance of the evidence lawful reason and that the defendant would have [made the same decision] [taken the same to [state adverse action] regardless of the plaintiff’s [protected characteristic]. even if the plaintiff’s [race] [color] [religion] [sex] [national origin] had played no role in the defendant’s decision to [state adverse action].
  • The sentence that precedes the "Major Life Activies" paragraph of Instruction 12.1A (ADA Employment Actions—Actual Disability—Elements) now reads: "If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant."
  • The Comments to Instructions 12.1A, 12.1B (ADA Employment Actions—Record of Disability—Elements), and 12.1C (ADA Employment Actions—Regarded as Disability—Elements) now cite Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022).
  • The second sentence of Instruction 15.13 (Infringement—Elements—Ownership—Generally) now reads "A person acquires the right to exclude others from using a trademark by being the first to use lawfully it [sic] in the marketplace or by lawfully using it before the alleged infringer." The Comment now cites Lodestar Anstalt v. Bacardi & Co., 31 F.4th 1228 (9th Cir. 2022), re "extensive use date" and "extension of protection," and ends with three new paragraphs regarding Lodestar, AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022), and the Madrid Protocol.
  • Instruction 15.26 (Defenses—First Sale) is new.
  • A new sentence has been added at the end of Instruction 17.17 (Copying—Access and Substantial Similarity): "If you find that the plaintiff has failed to prove either access to the plaintiff’s copyrighted work or substantial similarities between the defendant’s work and original elements of the plaintiff’s work, your verdict should be for the defendant." The Comment indicates that this was based on Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022).
  • The Comment to Instruction 17.19 (Substantial Similarity—Extrinsic Test; Intrinsic Test) now references Gray.
  • The Comment to Instruction 18.3 (Securities—Misrepresentations or Omissions—Materiality) now ends: "The Ninth Circuit has also held that when plaintiffs make claims about the impact of highly technical information on investment decisions, they must provide enough context to make clear why investors would find one set of technical information meaningfully different from another set of technical information. See In re Nektar Therapeutics Securities Litigation, 34 F.4th 828, 837 (9th Cir. 2022)."

The prior version is archived here.

(09/09/22) (permalink)

 

June 2022 changes to Massachusetts District Court Criminal Model Jury Instructions

Massachusetts has posted June 2022 changes to some of its District Court Criminal Model Jury Instructions. The changed instructions are:

  • 2.250 Motive
  • 6.305 Assault by means of a dangerous weapon
  • 7.670 Carrying a loaded firearm while under the influence
  • 7.680 Carrying certain dangerous weapons (G.L. c. 269, s. 10 [b])
  • 8.525 Larceny by stealing from a person 60 or older/disabled
  • 9.200 Lack of criminal responsibility
  • 10.100 Juror contact after trial

The prior versions of these instructions are archived here.

(07/09/22) (permalink)

 

Alaska updates civil damages instruction

Alaska has updated the Comment to Civil Instruction 20.01A (DAMAGES – INTRODUCTORY INSTRUCTION: LIABILITY CONTESTED) to add a new paragraph:

The court has used both “reasonable certainty” and “reasonable probability” when describing the necessary proof for future medical expenses. Sherbahn v. Kerkove, 987 P.2d 195, 198-99 & n.12 (Alaska 1999); Sampson v. Alaska Airlines, Inc., 467 P.3d 1072, 1075 (Alaska 2020). This instruction uses the term “reasonably probable” to remain consistent with other instructions in this article. There is some risk of confusing the jury by using different terms for the same concept. In order to avoid confusing the jury, the Committee has used the term “reasonably probable” rather than the term “reasonably certain” when discussing the likelihood that future medical expenses will be incurred. As noted above, however, both have been approved by the court and are not erroneous.

(07/01/22) (permalink)

 

Arizona posts proposed revisions to civil and criminal instructions

The State Bar of Arizona has posted proposed revisions to its civil first and third party bad faith instructions. Comments are due on August 12.

It has also posted proposed revisions to criminal jury instruction 14.01.02 (Definition of “Position of Trust”), with three new proposed instrictions, 14.04.01 (Sexual Abuse (Victim 15 or Older) (No Position of Trust)), 14.04.02 (Sexual Abuse (Victim 15, 16 or 17) (Position of Trust)), and 4.04.03 (Sexual Abuse (Victim Under 15)). Comments are due on August 1.

(05/28/22) (permalink)

 

California posts a 2022 supplement to its civil instructions

The Judicial Council of California Advisory Committee on Civil Jury Instructions has published a May 2022 supplement to the 2022 Edition of its Civil Jury Instructions. The changed sections are listed here.

(05/21/22) (permalink)

 

360 Federal Crimes gets an Instapundit link

As some of you may know, I have a couple of books for sale on Amazon (see the box on the upper righthand corner of this page). One of them, 360 Federal Crimes (2020) is a 550 page field guide to the most commonly charged federal crimes.

The book got linked the other day on Instapundit, a popular Web site run by a Tennessee law professor. All of the reader comments were expressions of outrage regarding the multiplicity of federal crimes. Although I'm not entirely unsympathic to that view of things, that's not the point of the book. But I'm not complaining; Instapundit is a hugely popular blog, and the link got me a nice bump in book sales.

(05/10/22) (permalink)

 

Ninth Circuit March 2022 civil revisions

As noted yesterday, the Ninth Circuit updates their Civil and Criminal Model Jury Instructions every three months. The "March 2022 revisions were posted the other day. They were extensive, so I decided to do this in two separate blog posts.

The March 2022 civil revisions were as follows:

  • The Comment to Instruction 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Unlawful Official Policy, Practice, or Custom-Elements and Burden of Proof) now notes Saved Magazine v. Spokane Police Dept., 19 F.4th 1193, 1201 (9th Cir. 2021) (allegations of an isolated or sporadic incident cannot form the basis for Monell liability).
  • The Comment to Instruction 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Policy That Fails to Prevent Violations of Law or a Policy of Failure to Train-Elements and Burden of Proof) now cites Hyde v. City of Willcox, 23 F.4th 863, 874-75 (9th Cir. 2022) (while deliberate indifference can be inferred from a single incident when the unconstitutional consequences of failing to train are patently obvious, an inadequate training policy itself cannot be inferred from a single incident).
  • The Comment to Instruction 9.11 (Particular Rights-First Amendment- “Citizen” Plaintiff) now cites Jones v. Slade, 23 F.4th 1124, 1134 (9th Cir. 2022), and Turner v. Safley, 482 U.S. 78 (1987), regarding the First Amendment right to receive information while incarcerated.
  • The Comment to Instruction 9.25 (Particular Rights-Fourth Amendment-Unreasonable Seizure of Person-Excessive Force) now cites Williamson v. City of National City, 23 F.4th 1146, 1151 (9th Cir. 2022) (police officers are not required to use the least intrusive degree of force possible).
  • The Comment to Instruction 9.29 (Particular Rights-Fourteenth Amendment-Pretrial Detainee's Claim of Excessive Force) was substantially rewritten due to Hyde v. City of Willcox.
  • The Comment to Instruction 9.31 (Particular Rights-Fourteenth Amendment-Pretrial Detainee’ Claim of Failure to Protect) now has an extended discussion of Castro v. County of Los Angeles, 833 F.3d. 1060 (9th Cir. 2016) (en banc).
  • The Comment to Instruction 9.32 (Particular Rights-Fourteenth Amendment-Due Process -Interference with Parent/Child Relationship) now notes Ochoa v. City of Mesa, 26 F.4th 1050 (9th Cir. 2022), and Herrera v. Los Angeles Unified School Dist., 18 F.4th 1156 (9th Cir. 2021).
  • The Comment to Instruction 9.34 (Qualified Immunity) now notes Saved Magazine v. Spokane Police Department, 19 F.4th 1193 (9th Cir. 2021)., and Williamson v. City of National City, 23 F.4th 1146 (2022).
  • The Introductory Comment to Chapter 10 (CIVIL RIGHTS-TITLE VII-EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) has been thoroughly rewritten, and includes a new section, "The Evolving Interpretation of 'Because of' and But-for Causation in Title VII Cases."
  • Instruction 10.1 has been retitled as "Civil Rights-Title VII-Disparate Treatment-Without Affirmative Defense ofSole Reason Same Decision-Elements and Burden of Proof As to." The Instruction has been rewritten as follows:
    For the plaintiff’ claim that [his] [her] [he] [she] [other pronoun] was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant because of the plaintiff' [[race] [color] [religion] [sex] [national origin]] was the sole reason for the defendant’ decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her]]], the plaintiff has the burden of proving the following elements by a preponderance of the evidence:
    1. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant;

      [and]

    2. the plaintiff was defendant [discharged] [not hired] [not promoted] [failed to hire] [failed to promote] [demoted] [state other adverse action] solely the plaintiff because of the plaintiff’ [race] [color] [religion] [sex] [national origin];
    [3. the plaintiff was qualified for [his] [her] [other pronoun] position;
    [4. similarly situated individuals outside the plaintiff’ [race] [color] [religion] [sex] [national origin] were treated more favorably.]

    If you find that the plaintiff has proved proven each of these elements by a preponderance of the evidence, the plaintiff is entitled to your verdict.

    The Comment has been thoroughly rewritten to reflect Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1021 (9th Cir. 2021), and Bostock v. Clayton County, 140 S. Ct. 1731, 1741, 1754 (2020).

  • Instruction 10.2 has been retitled as "Civil Rights-Title VII-Disparate Treatment-When Evidence Supports With Affirmative Defense ofSole Reason Same Decision.” The Instruction and Comment have been thoroughly rewritten, largely regarding motivating factor/same decision issues and Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). A sample verdict form has been added.
  • Instruction 10.3 has been retitled as "Civil Rights-Title VII-Disparate Treatment-”Motivating Factor Because of-Elements and Burden of Proof ; Defined." The Instruction has been rewritten as follows:
    1. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant; [and]
    * * * *

    [If you find that the plaintiff has proved each of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant.]

    [Or, if “same decision” affirmative defense applies, add the following, and omit the last bracketed paragraph above:]

    * * * *
    [If you find that the plaintiff has proved these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant.]
    The Comment has been thoroughly rewritten, once again most regarding motivating factor/same decision issues.
  • The Comment to Instruction 10.16 (Civil Rights-Title VII-Defense-After-Acquired Evidence) has been edited to reflect that the affirmative defense is Same Decision, not Motivating Factor, cross-referencing the Comment to Instruction 10.2.
The December 2021 versions of both the criminal and civil instructions are archived here.

(05/09/22) (permalink)

 

Ninth Circuit posts March 2022 criminal and civil revisions

The Ninth Circuit updates their Civil and Criminal Model Jury Instructions every three months. The "March 2022" revisions were posted the other day. They were extensive, so I am going to break this into two posts.

The March 2022 criminal revisions were as follows:

  • The Comment to Instruction 4.8 (Knowingly) now notes that, in money laundering cases, the second sentence of the instruction "may be given if altered to clarify that it applies only to the act of engaging in monetary transactions, and not to whether a defendant knew the money involved in the transaction was the proceeds of criminal activity." See also the note regarding Instruction 18.7, infra.
  • The Comment to Instruction 4.12 (Corruptly) now provides that in § 215(a)(2) cases, “corruptly” refers to proof that the defendant “‘intend[ed] to be influenced or rewarded in connection with any business or transaction of’ a financial institution,” citing United States v. Lonich, 23 F.4th 881, 902-03 (9th Cir. 2022).
  • The Comment to Instruction 4.13 (Intent to Defraud) now cites United States v. Saini, 23 F.4th 1155, 1163 (9th Cir. 2022), and United States v. Dearing, 504 F.3d 897 (9th Cir. 2007), regarding intent to deceive vs. intent to cheat.
  • The text of Instruction 7.4 (Alien—Encouraging Illegal Entry) has been removed because of United States v. Hansen, 25 F.4th 1103, 1105-6, 1110-1111 (9th Cir. 2022) (8 U.S.C. § 1324(a)(1)(A)(iv) is facially overbroad).
  • Instruction 10.10 (Receiving Commissions or Gifts for Procuring Loans) (18 U.S.C. § 215(a)(2)) is new.
  • The Comment to Instruction 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture) adds a note regarding circumstantial evidence to establish an agreement to distribute drugs, citing United States v. Mendoza, 25 F.4th 730, 736 (9th Cir. 2022), and a cross-reference to Instruction 12.6 (Buyer-Seller Relationship).
  • Instruction 12.6 (Buyer-Seller Relationship) adds a new tenth factor, "whether the buyer was free to shop elsewhere." The Comment now has extended discussions of Mendoza.
  • The Comments to Instructions 14.22 (Firearms–Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime) and 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime) add this paragraph:
    When the crime of violence or drug trafficking crime is charged in the same indictment, the government’s failure to prove the elements underlying the crime of violence or drug trafficking crime beyond a reasonable doubt will mean that the government has failed to prove the underlying crime element of § 924(c). See United States v. Mendoza, 25 F.4th 730, 740-742 (9th Cir. 2022). This does not mean the government must separately charge and convict the defendant of any underlying crime of violence or drug-trafficking, but when a jury acquits the defendant of any underlying crime of violence or drug-trafficking or when the government’s evidence of the underlying offense is insufficient as a matter of law, that offense cannot serve as a § 924(c) predicate. See id.
    Instruction 14.22 further notes that Bailey v. United States, 516 U.S. 137, 150 (1995), has been superseded by statute on other grounds as recognized in Welch v. United States, 578 U.S. 120, 133 (2016), and clarifies that:
    Similarly, because “there is no distinction between aiding-and-abetting liability and liability as a principal under federal law,” a “person who aids or abets [a crime of violence] falls, like a principal, within the scope of the definition of the underlying offense and is deemed to have committed a crime of violence under § 924(c)’s elements clause.” Young v. United States, 22 F.4th 1115, 1122-23 (9th Cir. 2022). In other words, “aiding and abetting a crime of violence ... is also a crime of violence.” Id. at 1123.
  • The Comment to Instruction 15.1 (Fraud in Connection with Identification Documents) now cites United States v. Turchin, 21 F.4th 1192, 1197 (9th Cir. 2022), for the proposition that defendants knowingly produce identification documents “without lawful authority” if they produce the document knowing that the recipient has not completed the eligibility requirements for the document. However, it is plain error to instruct the jury “that the federal nexus required by § 1028(c)(1) was automatically satisfied merely by showing that the identification document in question was issued by a state government."
  • Instruction 15.12 (Access Devices—Unlawfully Possessing Fifteen or More) has been revised as follows:

    The defendant is charged in [Count _______ of] the indictment with unlawful possession of counterfeit or unauthorized access devices in violation of Section 1029(a)(13) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

    * * * *

    A defendant acts with the intent to defraud if [he] [she] had the intent to deprive [victim] of money or property by deception.

    The Comment now observes that “Intent to defraud” for purposes of § 1029(a)(3) requires the intent to “deceive and cheat,” citing United States v. Saini, 23 F.4th 1155, 1160 (9th Cir. 2022).
  • Instruction 15.13 (Device-Making Equipment—Illegal Possession or Production) now has "A defendant acts with the intent to defraud if [he] [she] had the intent to deprive [victim] of money or property by deception" tacked on at the end. The Comment now concludes that “Intent to defraud” for purposes of § 1029(a)(4) requires the intent to “deceive and cheat,” which means that “the government must prove that the defendant had the intent to deprive a victim of money or property by deception,” citing United States v. Saini, 23 F.4th 1155, 1160 (9th Cir. 2022).
  • The Comments to Instructions 17.1 (Kidnapping—Interstate Transportation), 17.3 (Kidnapping—Foreign Official or Official Guest), 17.4 (Kidnapping—Federal Officer or Employee), 17.5 (Attempted Kidnapping—Foreign Official or Official Guest), and 17.6 (Attempted Kidnapping—Federal Officer or or Employee) now cross-reference Instruction 17.2 "concerning the need for an instruction distinguishing kidnapping from other offenses involving seizure, confinement, detention, or asportation."
  • Instruction 17.2 (Kidnapping—Within Special Maritime and Territorial Jurisdiction of United States) now ends as follows:

    [Not every seizure of a person against his or her will is a kidnapping. To decide whether such a seizure in this case amounts to a [seizure] [confinement] [detention] [asportation], you should consider the following factors:

    First, the duration of the [seizure] [confinement] [detention] [asportation],

    Second, whether the [seizure] [confinement] [detention] [asportation] occurred during the commission of a separate offense,

    Third, whether the [seizure] [confinement] [detention] [asportation] which occurred is an essential part of in the separate offense, and

    Fourth, whether the [seizure] [confinement] [detention] [asportation] created a significant danger to the victim independent of that posed by the separate offense.]

    The Comment explains how this language was occasioned by United States v. Jackson, 24 F.4th 1308 (9th Cir. 2022).
  • The Comment to Instruction 18.7 (Money Laundering) now ends with this paragraph:
    Because it is a specific intent crime, it is reversible error to give Instruction 4.8 (Knowingly) in a money laundering case in a manner that indicates the defendant need not know that the money being laundered was proceeds of criminal transactions. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); see also United States v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (applying Stein retroactively), abrogated on other grounds by Henderson v. United States, 568 U.S. 266 (2013). But see United States v. Lonich, 23 F.4th 881, 899-901 (9th Cir. 2022) (concluding district court did not err by using general “knowingly” instruction in money laundering case because district court modified instruction to clarify that it applies only to act of engaging in monetary transactions).
  • Instruction 19.5 (Obstruction of Justice—Official Proceeding) (18 U.S.C. § 1512(c)) is new.
  • Instruction 20.27 has been retitled "Transportation or Attempted Transportation for Prostitution or Criminal Sexual Activity (18 U.S.C. § 2421), and the word "criminal" inserted in the first paragraph and in the second element. The Instruction now ends: "A defendant transports a person with the intent that such person engage in [prostitution] [describe criminal sexual activity] if the intended [prostitution] [criminal sexual activity] was a dominant, significant, or motivating purpose of the transportation." The first sentence of the Comment now reads "The bracketed language setting forth the first option for the third element is to be used when the defendant is charged with persuading or coercing a minor to engage transporting an individual with the intent that the individual engages in 'any sexual activity for which any person can be charged with a criminal offense.'" A paragraph has been added to the Comment regarding United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022) (a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement).
  • Instruction 20.30 has been retitled "Transportation of Minor for Prostitution or Criminal Sexual Activity," and the term "criminal sexual activity" has been inserted into the first paragraph and the second element. The third element has been rewritten as follows:

    [Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]; and]

    [Third/Fourth], [name of victim] was under the age of eighteen years at the time.

    A defendant transports a person with the intent that such person engage in [prostitution] [describe criminal sexual activity] if the intended [prostitution] [criminal sexual activity] was a dominant, significant, or motivating purpose of the transportation.

    The first two paragraphs of the Comment discuss United States v. Lopez, 4 F.4th 706, 730 (9th Cir. 2021) (instructions regarding state law), and United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022) (a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement).
  • The Comment to Instruction 23.3 (Theft, Embezzlement, or Misapplication of Bank Funds) now notes United States v. Lonich, 23 F.4th 881, 901 (9th Cir. 2022), regarding knowingly as the mens rea.

Oddly, the DOCX and PDF versions of the criminal instructions no longer note the date of the last revision at the bottom of individual instructions. The HTML versions (and all three copies of the civil instructions) retain the revision notes.

That's it for the criminal changes. I'll post the civil changes tomorrow.

The December 2021 versions of both the criminal and civil instructions are archived here.

(05/08/22) (permalink)

 

Updated criminal instructions from the Third Circuit

The Third Circuit recently posted "Feb 2022" versions of some of its Model Criminal Jury Instructions. The revisions are fairly minor. All the changes were to the Comments; no instructions were changed. The Comment changes were as follows:

  • The Comments to Instructions 6.18.201B1 (Bribery of a Public Official) and 6.18.201B1-2 (Bribery of a Public Official – “Official Act” Defined) now cite United States v. Davis, 841 F. App’x. 375 (3d Cir. 2021).
  • The Comments to Instructions 6.18.666A1A (Theft Concerning a Program Receiving Federal Funds) and 6.18.666A1A-1 (Theft Concerning a Program Receiving Federal Funds - Agent of Organization or Government Defined) now end with discussions of United States v. Shulick, 18 F.4th 91 (3d Cir. 2021).
  • The Comment to Instruction 6.18.666A1A-3 (Theft Concerning a Program Receiving Federal Funds Stole, Embezzled, Converted, and Misapplied Defined) now notes that Kelly v United States, 140 S.Ct. 1565 (2020), did not address an aspect of United States v. Baroni, 909 F.3d 550 (3d Cir. 2018), and adds a discussion of Shulick.
  • The Comments to Instructions 6.18.922D (Sale of Firearm to Convicted Felon) and 6.18.922G-1 (Felon In Possession of Firearm) now cite Greer v. United States, 141 S.Ct. 2090 (2021) (mens rea), and discuss United States v. Boyd, 999 F.3d 171 (3d Cir. 2021) (Second Amendment).
  • The Comment to Instruction 6.18.922G-2 (Proof of Prior Conviction) now cites Greer.
  • The Comment to Instruction 6.18.922K (Possession of Firearm With Serial Number Removed, Obliterated, or Altered) now discusses Boyd.
  • The Comment to Instruction 6.18.924A (Possession of a Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime) adds a discussion of United States v. Walker, 990 F.3d 316 (3d Cir. 2021), to its treatment of Hobbs Act convictions as predicates, and replaces its citation to United States v. Whitted with a citation to United States v. Moore, 852 F.App'x. 681 (3d Cir. 2021).
  • The Comment to Instruction 6.18.924B (Using or Carrying a Firearm During Any Crime of Violence or Drug Trafficking Crime) now has an extended discussion of Walker.
  • The Comment to Instruction 6.18.1341-3 (Mail or Wire Fraud - Protected Interests: Honest Services) now cites Davis.
  • The Comment to Instruction 6.18.1341-5 (Mail Fraud - "Use of the Mails" Defined) now cites United States v. Kusi, 2021 WL 5505399 (3d Cir. 2021).
  • The Comment to Instruction 6.18.1344 (Bank Fraud - Elements of the Offense) now references the definition of financial institution and mortgage lending business. Also, it now cites United States v. Glenn, 846 F. App'x. 110 (3d Cir. 2021).
  • The Comment to Instruction 6.18.2113D (Bank Robbery - Armed - Elements of the Offense) now cites United States v. Graves, 849 F. App'x. 349 (3d Cir. 2021) (armed bank robbery with a pellet gun).

The prior versions of these instructions are archived here.

(05/07/22) (permalink)

 

Hawaii adds civil instruction regarding pronouns

Hawaii has added a new introductory instruction to its civil instructions clarifying that "references to the parties and personal pronouns in these instructions may be modified to fit the particular circumstances of a case." I'm not sure what the point of this was. Were Hawaii trial judges unsure of their authority to substitute pronouns to fit the facts of a case?

June 10, 2022 UPDATE: The civil instructions have been recompiled accordingly.

(04/30/22) (permalink)

 

California posts its 2022 criminal instructions

The Judicial Council of California Advisory Committee on Criminal Jury Instructions has published the 2022 Edition of its Civil Jury Instructions (CALCRIM). It includes a table of new and revised instructions. The prior edition is archived here.

(04/10/22) (permalink)

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