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Eleventh Circuit has revised its civil and criminal Pattern Jury Instructions

The Eleventh Circuit has revised its civil and criminal Pattern Jury Instructions. The civil changes can be found in this redline/strikeout file. The criminal changes are described below:

• 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.

(10/08/25) (permalink)

Sixth Circuit has published a 2025 update to its Pattern Jury Instructions

The Sixth Circuit has published the 2025 update to its Pattern Jury Instructions.

• The Commentary to Instruction 8.03B (UNANIMITY NOT REQUIRED – MEANS) has a new paragraph:

  –18 U.S.C. § 1519 (where defendant made multiple false statements and omissions in a prison incident report, the “falsifies clause” of § 1519 provided several possible means or ways of committing the crime and the jury need not agree that the same way was proved, United States v. Schmeltz, 667 F.3d 685 at 687-688 (6th Cir. 2011).

• The Commentary to Instructions 10.01 (MAIL FRAUD (18 U.S.C. § 1341)) and 10.02 (WIRE FRAUD (18 U.S.C. § 1343)) now note United States v. Gold Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999), United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019), and United States v. Sadler, 750 F.3d 585, 590-592 (6th Cir. 2014), abrogated on other grounds, Kousisis v. United States, 2025 WL 1459593). Kousisis was a May 2025 U.S. Supreme Court case holding that a defendant violates the wire fraud statute by scheming to obtain a victim’s money or property regardless of whether he seeks to leave the victim economically worse off.

• The Commentary to Instruction 10.05 (HEALTH CARE FRAUD (18 U.S.C. § 1347)) adds a discussion of whether knowledge of the illegality is required for proof of willfulness.

• The Introduction to Chapter 12 Firearms Offenses has been substantially revised.

• Instruction 12.01B (Unanimity Required – Determining Whether Defendant Had Three Previous Convictions for Offenses Committed on Occasions Different from One Another (18 U.S.C. § 924(e)(1)) and Special Verdict Form) is new.

• Paragraph (2)(D) of Instruction 12.02 (FIREARMS – USING OR CARRYING A FIREARM DURING AND IN RELATION TO A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c)(1)(A)(i))) now defines "during." The Commentary explains that this change was occasined by the concurring opinion in United States v. Edwards, 2025 WL 789558, 5-10 (6th Cir. 2025) (unpublished). The definition of “in relation to” was not changed.

• The Use Note for Instructions 12.01B and 12.03 (FIREARMS – POSSESSING A FIREARM IN FURTHERANCE OF A CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c)(1)(A)(i)) now list the facts that must be proven to a jury beyond a reasonable doubt in order to support an enhanced sentence per § 924(c). The Use Notes for these Instructions now conclude:

  If the prosecution is based on a violation of § 924(c) involving an increased penalty, the Committee recommends that the court give an instruction like Insts. 14.07(A) or (B) and use a special verdict form like those following Instructions 14.07(A) and (B).

  The Committee did not draft instructions specifically to cover subsections (c)(1)(A)(ii) (brandishing a firearm) or (c)(1)(A)(iii) (discharging a firearm), but the pattern instructions can be easily modified to fit these provisions.

• Instructions 13.01 (CONCEALING A MATERIAL FACT IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(1))), 13.02 (MAKING A FALSE STATEMENT IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(2))), and 13.03 (MAKING OR USING A FALSE WRITING IN A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES GOVERNMENT (18 U.S.C. § 1001(a)(3))) add a paragraph defining “knowingly and willfully” as "if the defendant knows that he [falsified] [concealed] [covered up] a fact that he had a duty to disclose and knows that his conduct is unlawful. It is not necessary for the government to prove that the defendant was aware of the specific provision of the law that he is charged with violating." This is explained in the Commentaries to these Instructions.

• The Use Note to Instruction 14.01 (POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE (21 U.S.C. § 841(a)(1))) has this tacked on at the end: "This instruction covers possession with intent to distribute; if the charges include increased penalties based on the amount of the controlled substance, see Inst. 14.07A Unanimity Required – Determining Amount of Controlled Substance (§ 841)."

• The first two paragraphs of the Use Note for Instruction 14.02A (DISTRIBUTION OF A CONTROLLED SUBSTANCE (21 U.S.C. § 841(a)(1)) now read:

  This instruction covers simple distributing of a controlled substance. If the defendant is a practitioner, use Inst. 14.02B Dispensing or Distribution of a Controlled Substance by a Practitioner.

  If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity Required: Determining Amount of Controlled Substance (§ 841). If the conduct charged includes distributing with death or serious bodily injury resulting, see also Instruction 14.07C Unanimity Required: Determining Whether Death or Serious Bodily Injury Resulted.

  The Commentary now ends with a citation to Burrage v. United States, 134 S. Ct. 881, 887 & note 3 (2014).

• The Use Note for Instruction 14.02B (DISPENSING OR DISTRIBUTION OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) now begins:

  This instruction covers dispensing or distributing a controlled substance by a practitioner; if the defendant is not a practitioner, use Inst. 14.02A Distribution of a Controlled Substance.

  This instruction covers simple dispensing or distributing of a controlled substance by a practitioner. If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A. If the conduct charged includes distributing with death or serious bodily injury resulting, see also Instruction 14.07C.

  The Commentary now has a note re United States v. Chaney, 921 F.3d 572 (6th Cir. 2019).

• The first paraggraph of the Use Note to Instruction 14.03A (MANUFACTURE OF A CONTROLLED SUBSTANCE (21 U.S.C. § 841(a)(1))) now reads:

  This instruction covers simple manufacturing of a controlled substance. If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity Required: Determining Amount of Controlled Substance (§ 841). If the conduct charged includes manufacturing with death or serious bodily injury resulting, see also Instruction 14.07C Unanimity required: Determining Whether Death or Serious Bodily Injury Resulted and Special Verdict Form.

• The second paragraph of the Use Note to Instruction 14.03B (MANUFACTURE OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) now reads:

  This instruction covers simple manufacturing of a controlled substance. If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity requireed – Determining Amount of Controlled Substance (§ 841). If the conduct charged includes manufacturing with death or serious bodily injury resulting, see also Instruction 14.07C Unanimity Required – Determining Whether Death or Serious Bodily Injury Resulted and Special Verdict Form.

• The third paragraph of the Use Note to Instruction 14.05 (CONSPIRACY TO VIOLATE THE DRUG LAWS (21 U.S.C. § 846)) now reads:

  This instruction covers simple conspiracy to violate the drug laws. If the prosecution involves conspiracy with increased penalties based on the amount of the controlled substance, see also Inst. 14.07B Unanimity Required – Determining Amount of Controlled Substance (§ 846). If the prosecution involves conspiracy with increased penalties based on death or serious bodily injury, Inst. 14.07C Unanimity Required – Determining Whether Death or Serious Bodily Injury Resulted for Distributing/Dispensing or Manufacturing (§ 841) may be modified to fit the facts.

  The Commentary now notes that knowledge that the defendant possessed “some type of controlled substance” is sufficient even after Alleyne.

• The first sentence of the Use Note for Instruction 14.07A (UNANIMITY REQUIRED – DETERMINING AMOUNT OF CONTROLLED SUBSTANCE (§ 841)) now reads: "This instruction explains the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013) for a § 841 prosecution when the penalties are increased based on the amount of the controlled substance."

• Instruction 14.07C (UNANIMITY REQUIRED – DETERMINING WHETHER DEATH OR SERIOUS BODILY INJURY RESULTED FROM DISTRIBUTING/DISPENSING OR MANUFACTURING (§ 841) AND SPECIAL VERDICT FORM) and Form 14.07C (Special Verdict Form for § 841 Distributing/Dispensing or Manufacturing when Death or Serious Bodily Results) is new.

(07/19/25) (permalink)

Revised Model Civil Instructions from the Third Circuit

The Third Circuit has posted 2025 revisions to Chapters 4-6 and 8-11 of its Model Civil Jury Instructions. Redline/strikeout files are linked below:

• Chapter 4 (Civil Rights Claims)
• Chapter 5 (Employment Discrimination)
• Chapter 6 (Race Discrimination)
• Chapter 8 (Age Discrimination In Employment Act)
• Chapter 9 (Employment Claims Under the Americans With Disabilities Act)
• Chapter 10 (Claims Under the Family and Medical Leave Act)
• Chapter 11 (Sex Discrimination Claims Under the Equal Pay Act)

(05/12/25) (permalink)

Ninth Circuit posts March 2025 revisions to its Model Civil Jury Instructions

The Ninth Circuit has posted a March 2025 updated copy of its Model Civil Jury Instructions. A redline/strikeout copy is posted here.

(05/06/25) (permalink)