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September 2021
Eighth Circuit posts the 2020 edition of its Criminal Instructions
Updated Eighth Circuit Civil FLSA Instructions
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Eighth Circuit posts the 2020 edition of its Criminal Instructions

The Eighth Circuit has posted the 2020 Edition of its Model Criminal Jury Instructions (I know we are eight plus months into 2021, but thats how some courts to do this sort of thing). This replaces the 2017 Edition and the September 2019 Supplement that were previously posted on the Eighth Circuit jury instruction page (they are archived here).

The following list of changes includes the ones that were part of the September 2019 Supplement. It does not note inconsequential additions of case authority:

  • Instruction 2.08 now emphasizes that similar acts can be proved by a lesser standard than proof beyond a reasonable doubt. Also, the second paragraph has been rewritten:
    If you find that this evidence has not been proved, you must disregard it. If you find this evidence has been proved, then you may consider it to help you decide (only for the limited purpose of deciding whether [defendant] [had the state of mind or intent necessary to commit the crime charged in the indictment]; or [had a motive or opportunity to commit the acts described in the indictment]; or [acted according to a plan or in preparation for commission of a crime]; or [committed the acts [he] [she] is on trial for by accident or mistake];or[ describe other permissible purpose under 404(b) for which evidence has been admitted.)]. You should give it the weight and value you believe it is entitled to receive. If you find that this evidence has not been proved, you must disregard it.
  • Instruction 3.14 DATE OF CRIME CHARGED is new.
  • The Notes on Use section for Instruction 5.06A-1 CONSPIRACY: ELEMENTS (18 U.S.C. § 371) now cites Whitfield v. United States, 543 U.S. 209 (2005).
  • The first two elements of 6.15.77q(a) AND 78j(b) SECURITIES FRAUD (15 U.S.C. § 77Q(a), 15 U.S.C. § 78J(b), AND 17 C.F.R. § 240.10b-5) have been conflated into one element as follows:
    The crime of securities fraud, as charged in [Count _____ of] the indictment, has four three elements, which are:
    One, the defendant [[offered] [or] [sold] securities] [[purchased] [or] [sold] securities] (describe securities referenced in the indictment);
    Two, in connection with the [[offer] [or] [sale]] [[purchase] [or] [sale]] of the securities (describe securities referenced in the indictment), the defendant, directly or through others: ....
    The Notes on Use section of that Instruction now cites United States v. Gruenberg, 989 F.2d 971, 976 (8th Cir. 1993) (approving jury instruction requiring that the defendant’s fraudulent conduct be “in connection with” with the purchase or sale of a security as proscribed by Section 10(b) and Rule 10b-5).
  • The Notes on Use section of Instruction 6.18.113(3) ASSAULT WITH A DANGEROUS WEAPON now concludes:
    A panel decision of the Eighth Circuit has held that a district court did not abuse its discretion by defining “dangerous weapon” as “any object capable of being readily used by one person to inflict bodily injury upon another person.” United States v. Page Spotted Horse, 916 F.3d 686, 692 (8th Cir. 2019) (rehearing denied). The Spotted Horse panel specifically rejected the argument that Hollow’s more restrictive definition (“...used in a manner likely to endanger life or inflict serious bodily harm”) controls.
  • The Notes on Use section of Instruction 6.18.666A THEFT CONCERNING A PROGRAM RECEIVING FEDERAL FUNDS now cites Kelly v. United States, 140 S. Ct. 1565 (2020).
  • The title to Instruction 6.18.922A is now FELON OR OTHER PROHIBITED PERSON IN POSSESSION OF FIREARM OR AMMUNITION, and adds a new knowledge element: "[he][she] knew [he][she] had been convicted of a crime punishable by imprisonment for more than one year (or describe other prohibited status)." It also contains optional language for cases where the parties have stipulated to that element. The Notes on Use section
    • lists the prohibited statuses
    • notes Rehaif v. United States, 139 S. Ct. 2191 (2019), in its explanation of the new knowledge element, and notes the potential consequences of a failure to stipulate to that element
    • notes that "[t]he government may meet its burden of proving that the firearm was 'in commerce or affecting commerce' by showing that at any time during or prior to its possession by the defendant, the firearm was transported from one state to another. United States v. Leathers, 354 F.3d 955, 959 (8th Cir. 2004)."
    • the discussion of justification now uses the term "legal justification"
    • expands the discussion of multiple punishments for a single act of possession of a firearm
    • clarifies that possession, not ownership, is the crime
  • Two instructions (6.18.924C-1 FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE and 6.18.924C-2 FIREARMS—USE OR CARRY A FIREARM DURING A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE) replace the former single instruction (6.18.924C FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE). Consequently, the extensive changes are to the instructions, notes, and comments are too extensive to be summarized here.
  • The Notes on Use sections of Instruction 6.18.1001B FALSE STATEMENT TO A FEDERAL AGENCY and 6.18.1001C USING A FALSE DOCUMENT now cite with approval the definition of willfully set out in United States v. Benton, 890 F.3d 697, 714-15 (8th Cir. 2018). The Notes on Use section of the latter instruction now notes the legislative overruling of Hubbard v. United States, 514 U.S. 695 (1995).
  • The Notes on Use section of Instruction 6.18.1343 WIRE FRAUD now notes Kelly v. United States, 140 S.Ct. 1565 (2020).
  • The intent element to Instruction 6.18.1347 HEALTH CARE FRAUD now reads "knowingly, voluntarily and intentionally." Accordingly, some of the prior discussion of willfulness is omitted from the Notes on Use section of Instruction. It also now omits passages declaring that an "affected commerce" is proved if the money obtained through execution of the scheme was paid through a financial institution insured by the FDIC.
  • Instructions 6.18.1591 SEX TRAFFICKING OF CHILDREN OR BY FORCE, FRAUD, OR COERCION and 6.18.1956K CONSPIRACY TO LAUNDER MONEY are new.
  • Instruction 6.18.2250 has been retitled "FAILURE TO REGISTER UNDER SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) (18 U.S.C. § 2250(a)))." It has been thoroughly rewritten; the changes cannot be concisely summarized here.
  • The Notes on Use section of Instruction 6.18.2252 RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY discussion of mens rea has been rewritten consistent with United States v. Collier, 932 F.3d 1067 (8th Cir. 2019).
  • The discussion of intent to distribute in the Notes on Use section of Instruction 6.21.841A CONTROLLED SUBSTANCES—POSSESSION WITH INTENT TO DISTRIBUTE has been updated. There is also a new discussion of possession as a lesser included, and special considerations that apply when physicians are charged (noting the good faith instruction in United States v. Smith, 573 F.3d 639 (8th Cir. 2009)).
  • Instructions 6.21.841A.1 to 6.21.841D were completely rewritten; the changes cannot be concisely summarized here.
  • The elements list in Instruction 6.26.5861 FIREARMS-POSSESSION OF UNREGISTERED FIREARMS now reads"
    The crime of [possession of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four five elements, which are
    One, on or about [date], the defendant knew [he][she] had the knowingly possessed a [firearm in [his][her] possession;][destructive device];
    Two, the defendant knew weapon was [describe the type of firearm was a [ as one defined in 26 U.S.C. § 5845(a) for which registration is required];
    Three, the defendant knew the firearm was a [describe the type of firearm, e.g. short-barreled shotgun] [short-barreled rifle][ or machine gun][silencer][destructive device];]
    Three Four, the firearm [was capable of operating as designed] [could readily be put in operating condition]; and
    Five, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.
    The Notes on Use section was substantially rewritten, and now notes United States v. White, 863 F.3d 784 (8th Cir. 2017) (en banc).

(09/07/21) (permalink)

 

Updated Eighth Circuit Civil FLSA Instructions

Eighth Circuit jury instructions are linked on the official Eighth Circuit Jury Instruction site in pdf and docx formats. The official civil instructions are labeled as "[r]eflecting changes made through October 22, 2020." But recently, without updating the title page, they made some significant changes to their FLSA Instructions:

  • There are a number of unconsequential edits to the Comment to Instruction 16.00 (EMPLOYMENT-FAIR LABOR STANDARDS ACT-OVERVIEW). More substantively, it now cites Kisor v. Wilkie, 139 S.Ct. 2400 (2019). It also adds "In some instances, an individual may be deemed to be employed by more than one employer in a 'joint employment' relationship. See 29 C.F.R. § 791.2 (2020) (describing two joint employer scenarios)." under "Employee and Enterprise Coverage." Finally, it includes the following under "Misclassification Cases":
    Exemptions are At one time courts consistently held that exemptions were to be narrowly construed against the employer and the employer carries the burden of proving an exemption applies. See, e.g., McDonnell v. City of Omaha, 999 F.2d 293, 295 (8th Cir. 1993) (Employers have the burden of proving that the exemption applies, and they must demonstrate that their employees fit “plainly and unmistakably within the exemption’s terms and spirit.”). This “narrow construction” was rejected by the Supreme Court in Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018). There, the Court observed that the FLSA’s numerous exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement. . . . Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than ‘narrow’) interpretation.” Id. at 1142.
    Exemptions involve issues of law and fact. “Disputes regarding the nature of an employee's duties are questions of fact, but the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (“The question of how the respondents spent their time working...is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law . . . .”)). Accordingly, Instruction No. 16.07 is prepared to enable the court to submit any material, disputed factual issues to the jury, with the court then making the legal determination by considering any facts that are undisputed along with the special findings from the jury with respect to any disputed material facts.
  • The minimum wage in Instruction 16.02 is updated to reflect the current wage.
  • The Notes on Use for Instruction 16.05 (EXPLANATORY: SALARY BASIS) now begins:
    This instruction is intended for use only where there are material factual disputes as to whether the plaintiff was paid on a “salary basis” within the meaning of the FLSA as it pertains to the executive, administrative, or professional exemptions from overtime. See 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541. The instruction should be modified as necessary to appropriately present the material factual issue(s) to the jury. Otherwise, “the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000).
  • Instruction 16.06 (EXPLANATORY: DETERMINING EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.
  • A new Instruction 16.07 (EXPLANATORY: DETERMINING EXEMPT STATUS) has been added.
  • Revised dollar numbers have been inserted in Instructions 16.60 to 16.64.
  • Instruction 16.72 (DAMAGES: WILLFUL VIOLATION) has been removed.
  • Instruction 16.92 (SPECIAL VERDICT FORM: EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.
  • A new Instruction 16.93 (SPECIAL VERDICT FORM: EXEMPT STATUS) has been added.

The former versions of these instructions are archived here.

(09/06/21) (permalink)

 

Wyoming now posts its jury instructions on the Internet

Wyoming jury instructions used to require a subscription to casemaker for access. It looks like they have recently made some sort of deal with fastcase. In any event, the civil, criminal, and juvenile instructions are now free to view on the Internet. The trialdex jury instructions links page has been updated accordingly.

(08/29/21) (permalink)

 

Seventh Circuit posts proposed criminal instructions revisions for public comment

The Seventh Circuit Pattern Criminal Jury Instruction Committee is accepting public comments on its proposed new and revised criminal pattern jury instructions until September 21. Comments should be emailed to jicomments@ca7.uscourts.gov with a subject line of "Pattern Jury Instruction Comment."

The proposed changes are helpfully posted in redline/strikeout.

(08/28/21) (permalink)

 

Updated jury instructions from Washington

Washington posts its jury instructions on an Internet page maintained by Westlaw (you don't need a Westlaw account to access them). A May 2021 update notes changes that are current as of September 2020:

New for this edition are Chapter 21 (Reimbursement of Defense Costs) regarding reimbursement when a defendant successfully defends by raising a claim of self defense, as well as when a law enforcement officer successfully uses the defense of justified force, and Chapter 135 (Animal Cruelty). Significant revisions have been made in the following: Chapter 35 (Crimes Against Persons) to reflect the new crime of felony assault in the fourth degree; Chapter 36 (Harassment, Hate Crimes, and Domestic Violence) to reflect the new crime of hate crime effective July 28, 2019, as well as a statutory change to the definition of domestic violence; Chapter 131 (Identity Theft) to reflect statutory changes that elevate the level of offense when the victim of identity theft is a senior or vulnerable adult; and Chapter 133 (Weapon Offenses) to reflect statutory changes effective July 28, 2019, that expand the definition of unlawful possession of a firearm. The Committee deleted Chapter 31 (Capital Cases) because the death penalty is no longer applicable in Washington State. Individual instructions in other chapters were also revised.

(08/27/21) (permalink)

 

Hawaii posts revised civil instructions

The Hawaii Supreme Court has posted an updated edition of its Civil Jury Instructions ("1999 edition with amendments to 06/03/21"). Changes include a new instruction 14.4 (informed consent), and revisions to 1.2 (preliminary instructions to the jury), 2.6 (no discrimination), 16.19 (wrongful termination), and 16.35 (conviction record discrimination).

(08/21/21) (permalink)

 

Motivation, adverse employment action, and reasonable accommodation under the ADA

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 or should be aware of the disability. See generally 42 U.S.C. § 12112(a). There are two paths to a valid cause of action. The employee must:

  • have (or be regarded to have) a disability, be a qualified individual, and have suffered an adverse employment action because of that disability; or
  • have been denied a reasonable accommodation that would make the employee qualified to do the job.

ADA infographic

Trialdex has an ADA litigation tool (Q&A) and infographic that walk you through the process of determining whether an employee has an ADA cause of action. A reader emailed me the other day alerting me to an error in the infographic.

Here's an explanation. Under the ADA, an employer who takes an adverse employment action against a disabled employee can defend by producing a nondiscriminatory reason for the adverse employment action. There are, however, cases indicating that a nondiscriminatory reason is not available as a defense where the employer has failed to provide a reasonable accommodation. See Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) ("the known disability triggers the duty to reasonably accommodate and, if the employer fails to fulfill that duty, we do not care if he was motivated by the disability"); Hollis v. Chestnut Bend Homeowners Ass'n, 760 F.3d 531 (6th Cir. 2014) (FHA reasonable accommodation).

It has also been suggested, notably in Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 784 (10th Cir. 2020) (en banc), that a reasonable accommodation case does not require proof of an independent adverse employment action, which would logically rule out a motivation defense. A failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination. See also Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019) ("plaintiffs need not prove that they suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee"); Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accomodate Disability Claim (Hamline Law Review 2013),

I have consequently modified the ADA Q&A and infographic accordingly.

(08/15/21) (permalink)

 

Ninth Circuit June 2021 Model Criminal Instructions revisions include a new instruction applying Rehaif to § 931(a) crimes

The Ninth Circuit posted June 2021 revisions to its criminal instructions this week.

There is a brand new instruction 8.72A FIREARMS—UNLAWFUL POSSESSION OF BODY ARMOR (18 U.S.C. § 931(a)). Notably, it requires proof not just that the defendant knew that the prior conviction was a felony, but that the defendant knew that the prior felony conviction had as an element the use, attempted use, or threatened use of physical force. This was required by United States v. Door, 996 F.3d 606, 615 (9th Cir. 2021), which so extended the Supreme Court's holding in Rehaif.

Many of the revisions to existing instructions have to do with writing style (for example, substituting "For" for "In order for". "After" for "Subsequent to"). Some parentheticals are rewritten to make them read better without changing the meaning. There are substantive changes as well:

  • The Comment to Instruction 8.63 (FIREARMS—UNLAWFUL RECEIPT (18 U.S.C. § 922(g))) now cites United States v. Door, 996 F.3d 606 (9th Cir. April 28, 2021).
  • The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) now notes that "[w]ith respect to 18 U.S.C. § 924(c)(1)(B)(i), there is no mens rea requirement that the defendant knew the rifle barrel’s length," citing United States v. Woodberry, 987 F.3d 1231 (9th Cir. 2021).
  • The Comment to Instruction 8.72 (FIREARMS—POSSESSION IN FURTHERANCE OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) also cites Woodberry, which held that the fact that a firearm is a short-barrel rifle is element of offense, but there is no mens rea requirement that the defendant knew the rifle barrel’s length.
  • The Comments to Instructions 8.126 (BANK FRAUD—SCHEME TO DEPRIVE BANK OF INTANGIBLE RIGHT OF HONEST SERVICES)and 8.126A (ATTEMPTED BANK FRAUD—SCHEME TO DEPRIVE OF INTANGIBLE RIGHT OF HONEST SERVICES) add this language "Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-409 (2010); Black v. United States, 561 U.S. 465, 471 (2010)."
  • The discussion of Loughrin in Comment to Instruction 8.127 (BANK FRAUD—SCHEME TO DEFRAUD BY FALSE PROMISES) has been edited as follows: "The Supreme Court held that the government need not prove the defendant intended to defraud a bank, and that Section 1344(2)’s 'by means of' language is satisfied when 'the defendant’s false statement was the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.'"
  • The Comment to Instruction 8.142A (HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION BY NONVIOLENT THREAT) adds the following "'[T]hreats of sham litigation, which are made to obtain property to which the defendant knows he has no lawful claim, are ‘wrongful’ under the Hobbs Act.” United States v. Koziol, 993 F.3d 1160, 1170 (9th Cir. 2021).'" It also flags an issue raised in Koziol: “We do not decide whether the Hobbs Act imposes liability absent proof that the defendant knew he was not entitled to the property.”
  • The Comment to Instruction 8.143B (HOBBS ACT—AFFECTING INTERSTATE COMMERCE) replaces a citation to Woodberry with "See generally United States v. Tuan Ngoc Luong, 965 F.3d 973, 986 (9th Cir. 2020) (holding that district court did not err by instruction that '[a]n effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of an actual impact, proof of a probable or potential impact. This impact can be slight, but not speculative.')."

(08/14/21) (permalink)

 

Ninth Circuit June 2021 Model Civil Instructions revisions

The Ninth Circuit posted June 2021 revisions to its civil instructions this week:

  • The Comment to Instruction 9.10 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEAKING AS A PRIVATE CITIZEN) now cites Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1015 (9th Cir. 2021).
  • A sentence in the Comment to Instruction 9.19 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PROPERTY—EXCEPTIONS TO WARRANT REQUIREMENT) has been amended to read: "A plaintiff alleging a § 1983 claim based on an unreasonable search seizure in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply."
  • The Comment to Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE FORCE) now notes that officers have a duty to independently evaluate a situation when they arrive if they have an opportunity to do so, citing Rice v. Morehouse, 989 F.3d 1112, 1122 (9th Cir. 2021).
  • A paragraph in the Comment to Instruction 9.26 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM OF EXCESSIVE FORCE) has been rewritten to emphasize that juries may be instructed that they need not always defer to the judgment of officials.
  • The following language has been deleted from Instruction 9.27 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM RE CONDITIONS OF CONFINEMENT/MEDICAL CARE): "[In determining whether the defendant violated the plaintiff’s rights as alleged, you should give deference to [jail] [prison] officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.]" The Comment explains that this deletion was required by Shorter v. Baca, 895 F.3d 1176 (9th Cir. 2018).
  • The final sentence, "In considering these elements, you should give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison." has been deleted from Instruction 9.28 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM OF FAILURE TO PROTECT). This change is discussed at the end of the Comment.
  • The Comment to Instruction 15.18 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTORS—SLEEKCRAFT TEST) now cites Ironhawk Techs., v. Inc. v. Dropbox, Inc., 994 F.3d 1107 (2021).
  • The Comment to Instruction 15.19 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTOR—STRENGTH OF TRADEMARK) adds this paragraph at the end:
    For evaluating the strength of a mark in reverse confusion cases, the questions are “‘whether consumers doing business with the senior user might mistakenly believe that they are dealing with the junior user’” and what the conceptual strength of the senior mark is compared to the commercial strength of the junior mark. Ironhawk Techs., Inc. v. Dropbox, Inc., 994 F.3d 1107, 1118 (9th Cir. 2021) (quoting JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1107 (9th Cir. 2016)).

(08/12/21) (permalink)

 

Eleventh Circuit adds a Rehaif element to its § 922(g)(1) instruction

Title 18 U.S.C. §§ 922(g) and 924(a)(2) combine to make it illegal for certain classes of individuals (notably felons and aliens) to possess firearms. In a 2019 case, Rehaif v. United States, the Supreme Court held that the government must show that a defendant knew that he or she had the relevant status when they possessed the firearm. Since then most circuits have revised their § 922(g) instructions accordingly.

The Eleventh Circuit is the latest to do so, having revised criminal instuction O34.6 (Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1) as follows:

  • The title now reads "Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1))," and all referernces to the crime in the body of the instruction are revised accordingly.
  • Element 3 now reads "at the time the Defendant possessed the firearm or ammunition, the Defendant knew [he][she] had previously been convicted of a felony."
  • A definition of "ammunition" has been added ("ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm").
  • The Annotation now concludes: "In a prosecution under 18 U. S. C. § 922(g), 'the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.' Rehaif v. United States, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019)."

(08/11/21) (permalink)

 

Jury instruction news from Arizona

The Arizona State Bar Criminal Jury Instructions Committee has posted a 2021 Update to its standard criminal instructions. The changes are to Chapters 12, 14, 32, 36, and the DUII and Capital Case instructions.

The Civil Instructions Committee has considered changing a phrase in element three of the personal injury damages instruction from "reasonable expenses of necessary medical care” to "expenses incurred for reasonably necessary medical care," but is unlikely to make the change.

(07/18/21) (permalink)

 

New and revised criminal instructions from Michigan

The new instructions are 5.15 (Interpreter), 40.1 (Disturbing the Peace), 40.2 (Disturbing Religious Meetings), and 40.3 (Disturbing Others at a Funeral). The revised instructions are 17.2a (Domestic Assault/Aggravated Domestic Assault) and 33.1a (Use of an Animal for Fighting, Baiting, or Shooting). The changes took effect on June 1, 2021.

The prior versions of the revised instructions are archived here.

(07/14/21) (permalink)

 

Revised civil and criminal instructions from Illinois

Recent changes to the Illinois civil Pattern Jury Instructions:

  • 31.00 DAMAGES--WRONGFUL DEATH - 31.09, 31.10, 31.12 Instruction and Comment, 31.13 Instruction and Comment (June 2021)
  • 710.00 LIABILITY INSURANCE - 710.01 & Notes, 710.02 & Notes, 710.03, 710.04 Notes on Use, 710.05 & Notes, 710.07 & Notes (March 2021)

The prior versions of these instructions are archived here.

Recent changes to the Illinois criminal Pattern Jury Instructions:

  • 1.00 FUNCTION OF COURT, JURY, AND COUNSEL - 1.01A & 1.01B (April 30, 2021)
  • 5.00 MENTAL STATE, ACCOUNTABILITY, AND RESPONSIBILITY - 5.15 (April 30, 2021)
  • 13.00 THEFT - 13.39, 13.40A, 13.42, 13.42A (April 30, 2021)
  • 22.00 INTERFERENCE WITH JUDICIAL AND OTHER GOVERNMENTAL FUNCTIONS - New 22.77A, 22.77B, 22.78, 22.77 (April 30, 2021)

The prior versions of these instructions are archived here.

(07/13/21) (permalink)

 

Connecticut updates its criminal jury instructions

The following changes to the Connecticut Judicial Branch Criminal Jury Instructions were approved on June 2, 2021:

  • Instruction 7.1-6 (Sexual Assault in Spousal or Cohabitating Relationship) has been archived because the underlying statute was repealed. "Additionally, the glossary definitions for 'sexual contact; and 'sexual intercourse' have been revised, and language in the instructions for various other sexual offenses, indicating that those offenses are not applicable to people in spousal or cohabitating relationships, has been removed."
  • New Instructions 6.1-15 Assault in the Second Degree (Striking or Kicking Head of Prone Person), 7.1-8 Sexual Assault in the Third Degree (bars sexual contact with a mentally incapacitated or impaired person who is unable to consent), and 8.3-9 (Disobeying an Officer’s Signal).
  • Instruction 2.6-4 (Identification of Defendant) has been updated consistent with State v. Guilbert, 306 Conn. 218 (2012), and State v. Harris, 330 Conn. 91 (2018) (fallibility of eyewitness identification evidence).
  • Instruction 2.6-14 (Adequacy of Police Investigation) was replaced with one with language encouraged by State v. Gomes, (SC 20407), 2021 WL 262029, *13 n.20 (January 26, 2021).

The prior versions of these instructions are archived here.

(07/12/21) (permalink)

 

Colorado Reporter's Online Update

The Colorado Model Criminal Jury Instructions Committee periodically publishes a “Reporter’s Online Update,” which includes developments in case law relevant to its formal instructions. The June 11 Update was posted this week.

(06/18/21) (permalink)

 

Greer and plain error

retroactivity infographic As you may know, one of the trialdex "litigation tools" is a Q&A that helps you analyze the retroactive effect of new Supreme Court decisions. You can click on the infographic on the right to see how it works.

The retroactivity tool was updated today so that it notes today's Supreme Court decision in United States v. Greer, which holds that Rehaif errors are not a basis for plain-error relief where defendants do not make a sufficient argument or representation on appeal that they would have presented evidence at trial that they did not in fact know that they were felons.

Today's decision was unanimous, and does not change the retroactivity tool's treatment of the issue. I just added the case because it had helpful language explaining one of the Olano prongs. For further background on Rehaif retroactivity, you might want to take a look at my (prescient, I think) 2019 blog entry, What is the potential retroactive effect of Rehaif?

(06/14/21) (permalink)

 

Progress report on the Federal Crimes Statute Tracker

The Federal Crimes Statute Tracker project is almost finished. The application displays a visual history of United States Code provisions that describe commonly charged federal felonies. It works like the "versions" feature on Westlaw, with the addition of a redline/strikeout view of the precise changes.

Here is what a typical page looks like:

screen shot

Click on the image to get a complete explanation.

I have finished Titles 8 and 18, and will be adding the remaining titles soon. It is still in "beta" and, of course, comments and suggestions are appreciated.

(06/12/21) (permalink)

 

Civil jury instruction news from Arizona

Arizona has posted Proposed Revisions to Personal Injury Damages instructions. Comments are due by June 30, 2021.

(06/11/21) (permalink)

 

California has posted a supplement to its Civil Jury Instructions (CACI)

Earlier this year the Judicial Council of California posted a new edition of its Civil Jury Instructions (CACI). This week it posted a May 2021 Supplement to those instructions. The changes are listed on pages v-vii of the document.

(06/04/21) (permalink)

 

The Vermont civil jury instructions are no longer on the Internet

The Vermont civil jury instructions appear to have been removed from the Vermont Bar Association Web site. I can't find them anywhere else on the Internet, on archive.org, or on Westlaw. I can't find an explanation on the Bar's Web site, either. I sent them an email, and will update this post with any new information. If anybody knows more about this, please email me.

(05/22/21) (permalink)

 

The Supreme Court declares the watershed exception "moribund"

Today the Supreme Court, in Edwards v. Vannoy (U.S. May 17, 2021), rejected a federal post-conviction claim of a man sentenced to life in prison by a state court after being found guilty of a number of violent crimes by a non-unanimous jury.

At the time of the Edwards' trial (fifteen years ago) it was generally understood that such verdicts were lawful because of a split decision in Apodaca v. Oregon, 406 U.S. 404 (1972). But any notion that Apodaca allowed non-unanimous verdicts was rejected by the Supreme Court last year in Ramos v. Louisiana, 140 S.Ct. 1390 (2020).

This raised the question of whether prisoners like Edwards, whose state trials and direct appeals ended years ago, could raise the issue collaterally in federal court. A previous trialdex blog entry, "What would be the retroactive effect if Ramos wins his case?" (10/21/19), discussed this issue in considerable detail. I think that things have played out as that article predicted, but with an interesting twist.

Edwards' federal petition for habeas corpus under 28 U.S.C. § 2254 ("State custody; remedies in Federal courts") was properly rejected because the Ramos decision announced a new procedural rule. New procedural rules are not available on federal collateral review. This can be shown graphically using this infographic from the trialdex retroactivity litigation tool (if the print is hard to read on your screen, blow it up to a full size PDF by clicking on the image):

retroactivity infographic

For the Edwards case, follow the arrows to "is seeking collateral review," "in custody," "new rule," and "procedural." This is more fully explained in the Q&A that accompanies the infographic, but I'll outline it here.

Persons filing § 2254 petitions must be in custody, not an issue for Edwards, who is serving a life term.

A rule is new when it breaks new ground or imposes a new obligation on the government. A rule is old if the result was dictated by precedent existing at the time the defendant's conviction became final, i.e., it would have been apparent to all reasonable jurists. A case does not announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts. See Chaidez v. United States, 568 U.S. 342, 347 (2013). A rule requiring unanimous verdicts in state cases would be a new rule.

Courts then look to see whether the rule is substantive or procedural. Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016). Procedural rules are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining culpability. Id. A rule requiring unanimous verdicts in state cases would be a procedural rule.

Before today, there was something called the "watershed" exception. See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288 (1989). New procedural rules could nevertheless be reviewed if they are "watershed" rules. This exception has been narrowly defined over the years, and more to the point, has never been applied.

My 2019 blog article noted the watershed exception, and explained why an exception that the Supreme Court has never recognized would almost certainly not be recognized here. The Supreme Court today decided to get rid of the exception entirely.

Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time–probably long past time–to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.
The reasoning is quite sound. If the exception is a unicorn, why should courts waste time litigating it?

(05/17/21) (permalink)

 

Federal Crimes Statute Tracker

If you are sharp-eyed, you might have noticed the new link on the front page to the Federal Crimes Statute Tracker. At this point it is not a completed project, but more of a proof of concept (I have only done six statutes so far). But I expect to have all of the most commonly charged federal crimes posted in the next month or so.

It is a statutory history application that works like the "versions" feature on Westlaw, with the addition of a focused redline/strikeout view of the precise changes.

Beyond flagging recent legislation, these views can be important in interpreting case law, since they allow you to see at a glance whether case holdings have been affected by subsequent amendments to the statute.

(05/14/21) (permalink)

 

Jury instruction news from New York and Colorado

The following jury instruction revision notes, dated May 2021, showed up this week on NYCourts.gov:

General Applicability

  • CJI2d Temporary & Lawful Possession - Revised
  • CJI2d Interested Witness – amplified case annotations
  • CJI2d Credibility instructions amended to include:
    [Add if the defendant testified: And you should evaluate the testimony of the defendant in the same way as you would any other witness.]

Penal Law

  • Per L. 2021, c. 92, marked Penal Law art. 221 (Marihuana) repealed, and moved repealed Penal Law sections 220.06(4), 220.00(10), and 220.34(3) to a section on former Penal Law charges.
  • Added sections: 240.31(2), 240.60(5); 240.60(6), 265.10(2) (sentence 1), 265.10(3) (sentence 1).
  • Added Monetary Laundering sections 470.05, 470.10, 470.15, and 470.20.
  • Amended 120.06, 120.07, 160.10(1) to include in footnotes decision law on the element of aided by another actually present.
  • Revised 155.30(2)-(4)-(7)-(11) and 165-45(2) to include amplification of the definition of “credit card” pursuant to a Court of Appeals decision.
  • Revised 170.10 to include an amplified definition of “credit card” pursuant to a Court of Appeals decision.
  • Revised 170.25 to include an amplified definition of “credit card” pursuant to a Court of Appeals decision and to amend the presumption about a person who possesses two or more forged instruments to require, pursuant to Court of Appeals decision, that the person “knowingly” possess two or more forged instruments.
  • Revised 240.31(1), 485.05, 490.27 to accord with statutory amendments related to gender identity.

The Colorado Model Criminal Jury Instructions Committee periodically publishes a “Reporter’s Online Update,” which includes developments in case law relevant to its formal instructions. The May 3 Update was posted this week.

(05/07/21) (permalink)

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