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360 Federal Crimes New from trialdex!

360 FEDERAL CRIMES is a 550 page field guide to the most commonly charged federal crimes. Authoritative and thoroughly indexed. Available in paperback and Kindle ebook formats from Amazon.

 

recent blog posts

June 2020
Supreme Court rules for the petitioner in Banister
The Kindle version of 360 FEDERAL CRIMES is FREE for the next three days!

May 2020
Received my paperback copies of 360 FEDERAL CRIMES
A few words about 360 FEDERAL CRIMES
Some reflections after self-publishing on Amazon KDP
Justices to consider retroactive effect of Ramos

April 2020
Supreme Court rejects non-unanimous jury verdicts in criminal cases
Supreme Court opines on car stops and age discrimination

archived posts
 

trialdex blog

Welcome to the trialdex blog. While you are here, be sure to check out the other free trial resources linked on the trialdex front page, including the jury instruction alerts.

June 2020

Supreme Court rules for the petitioner in Banister

This one is mostly for collateral review experts. I tried to explain the issues in a post last year. The Court needed to distinguish a 2005 case, Gonzalez v. Crosby, which they did. I am posting about it here only to link a thought provoking analysis by Kent Scheidegger at Crime and Consequences.

(06/02/20) (permalink)

The Kindle version of 360 FEDERAL CRIMES is FREE for the next three days!

For the next three days I am giving away free copies of the Kindle version of 360 Federal Crimes.

The purpose of this is to generate Amazon reviews and to spread the word about the book's availability (and perhaps generate some sales for the paperback version, a format that has independent merit). So if you download the book, please take a moment to share your thoughts about it on the Amazon review page, and let other folks know about the giveaway.

The Amazon note about the sale is a bit confusing, because they put a link to the "Kindle unlimited" version on top of the free Kindle book offer. Unless you already have Kindle unlimited, you'll want to check the second box.

(06/01/20) (permalink)

May 2020

Received my paperback copies of 360 FEDERAL CRIMES

It took a couple of weeks; perhaps delayed a bit by COVID-19 priorities.

I am very pleased with the results. I was a little concerned with not having the ability to spec paper weights or have personal contact with the printer (Amazon handles all of that), but the printer did a terrific job. The cover looks great, and there's no page bleed. These are high quality paperbacks.

The book is available now on Amazon in paperback and Kindle formats. Each format has its own strengths, and it is priced low enough to make owning both a reasonable purchase.

(05/26/20) (permalink)

A few words about 360 FEDERAL CRIMES

As noted below, I have a new book out that is available in paperback and Kindle format on Amazon. If you go there and click on the "look inside" link, you will see that a generous portion of the book is available, including the Foreword, which describes the book in some detail.

The book is intended to cover most of what you need to know about substantive federal criminal law in one paperback volume. This required considerable concission, which may present a challenge for the general reader. Although I am hopeful that non-lawyers, e.g., law enforcement officers, will buy the book, I resisted any temptation to dumb it down (in my experience, law enforcement officers who would buy a book like this have considerable legal sophistication). In any event, the book is more in the nature of a field guide rather than a treatise, that is, something that one would regularly consult rather than read cover to cover. In that respect, readers will find the 120-page index helpful.

It is a theme of the trialdex Web site, explained here, that federal pattern jury instructions are extraordinarily valuable and authoritative, and, consistent with that view, I began my research for each crime by consulting every official instruction and annotation. This was easy to do, using the trialdex federal jury instruction index. This provided as many as eight treatments of the same statute, and ensured that I was not going to miss an important issue.

In each case, I followed up by looking for pertinent articles published in the Department of Justice Journal of Federal Law and Practice (before 2018, the United States Attorneys' Bulletin). These are detailed practice guides written by federal attorneys with extensive experience or supervisory authority over the subject matter. I also checked for Reports by the Congressional Research Service ("CRS Reports"). I did conventional research as well, but the pattern instructions were my most valuable resources.

Put another way, making an assertion, and footnoting it with a citation to an official pattern instruction, is, I think, more compelling and useful authority than the more conventional approach of supporting the assertion with a string of case citations. This is particularly true for a survey of federal criminal statutes. It also has the added benefit of helping attain a manageable page count.

The crimes are placed in the order that they appear in the United States Code. The preferred approach was to start with the crime's name and statute number, followed by an excerpt of the pertinent text of the statute and an elements list, and ending with an annotation. This approach could not be strictly followed for each crime; often legal principles would apply to a range of statutes, and I did not want to repeat the same text over and over again. So some discussions were moved to the beginning of the book, and in some cases the annotations were grouped before or after the individual crimes. I hope that the rationale for each individual decision regarding the placement of an annotation will make sense to the reader.

By self-publishing, I have kept the price of the book ($24.99 for the paperback, $9.99 for the Kindle version) way below what's normal for a legal text. By way of example, I have another book in print with a major legal textbook publisher that lists at $1300. On that book, I have the advantage of professional marketing. On this book, all I have is word of mouth. So I hope, if you have a good experience with the book, that you will pass along a good word to friends who may be interested, and take a couple of minutes to post an honest review on Amazon.

(05/08/20) (permalink)

Some reflections after self-publishing on Amazon KDP

I have spent the better part of a year writing a book, 360 Federal Crimes. Click on the link or the image to see how it looks on Amazon.

I co-authored a couple of books in the 1980s, one of which, the Law of Confessions, is annually updated and still in print. From 1995 to 2018 I worked for the Department of Justice Office of Legal Education, where I edited and wrote dozens of books, practical skills manuals for government lawyers that are not publically available.

A *lot* has changed since the 1980s, and for a lot of reasons not worth reciting here, I was determined to self-publish this time. I have a working knowledge of how publishing works—how to create what we used to call a camera ready copy, how to spec print orders, the proper fonts, gutters, how to create a cover, etc.—but did not want to get involved in processing and shipping book orders or maintaining an inventory. I have no idea how successful the book will be, and do not wish to put up a lot of money up front (ISBNs alone cost $$$). Also, I wanted to publish an ebook edition. After quite a bit of research, I have decided, at least initially, to go all in on publishing with Amazon.

I wrote the book using Microsoft Word, and then converted it to PDF (there are more sophisticated products for writing books, but Word is what I know and have). Amazon initially rejected my PDF with a cryptic "error processing interior" message. Some online research suggested that this might be an Internet transfer corruption issue, or perhaps a problem with fonts that have not embedded. I pulled up the File/Options/Save menu in Word and checked the "Embed fonts in file" and "Embed only the characters used in the document" boxes before saving in PDF/A format, and after a couple of tries the upload was accepted.

The cover file, once again created in Word and converted to PDF/A, was offset a bit when I previewed it. The problem turned out to be my margin settings, which needed to be zero on all four sides. Amazon has a free Cover Creator application that I did not use, and that might have saved me some time.

The other part of this was the creation of a Kindle ebook. I had very limited experience with Kindles (I like to read physical books). But there is no doubt that ebooks are part of the market, and Amazon Kindle has a near-monoply position in that market, so I went to work.

I think that it is possible to simply upload a Word or PDF file, and let Amazon convert it. But my book has 1448 footnotes, probably a thousand internal cross-references, thousands of links to statutes and cases, and a 120-page index, and I wanted to have hands-on control of all of those links. So I elected to convert the book to HTML, carefully edit the HTML, and convert the HTML to the MOBI format used by Kindle.

The first step was converting the Word file to HTML. I have a lot of experience with file conversions. My rule of thumb is never to use file conversion programs, including the one that is part of Word. They spit out hopelessly complex HTML that is impossible to edit. Instead, my first step was to use macros to insert the bold and italic tags, and to similarly tag the footnotes. Next, replace all the paragraph breaks (Word ^p) with HTML <p> tags (I don't use </p> tags; they really don't do anything).

The next step was to save the file as a plain text file, and go to work adding other essential HTML tags. There are not many of these; Kindle wants your HTML as vanilla as possible, because they want the initial control of how their books look, and want the customers, not the creators, to make any changes in that format (this makes perfect sense to me). I use Notepad++; be sure to set your encoding to UTF-8.

This took *hours*, but I am very happy with how it turned out. The book is full of links that work as intended, and it looks great on Kindle devices.

The MOBI conversion process was a bit of a challenge. It actually involves using a command line program, not an issue for folks from my generation, but probably intimidating for others. I had unsatisfactory results following instructions on Amazon and on various blogs and Web sites. I finally got error free code by *precisely* following the instructions on this site (well, I did get "warnings" about my unclosed <p> tags, but as noted above, those warnings may be safely ignored).

The last step was pricing the book. I did a bit of online research, and tried to price it compared to other similar books (one outlandish comparison; the list price on my other (professionally published) book is a cool $1300). But the pricing process is very complicated, because the royalties vary based on how you price the book, and the level of your participation in programs like Amazon Select and Kindle Unlimited. I ended up selecting every option, with the purpose of seeing what works.

In closing, I don't want to pose as any sort of expert here. And it's way to early to call this a success. For one thing, I have not seen a physical copy of the book. But so far, so good. I'll post again when I know more.

(05/06/20) (permalink)

Supreme Court to consider retroactive effect of Ramos

See the post below regarding the Supreme Court's decision last month in Ramos v. Louisiana, and a link to my post from last year explaining the decision's unlikely retroactive effect. Today, the Court granted cert in Edwards v. Vannoy, No. 19-5807, to determine whether "the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review."

Collateral review guru Kent Scheidegger is also skeptical about the petitioner's chances in this one, but notes that the issue has not really been briefed yet, so we will have to wait and see what Edwards' counsel comes up with.

On a personal note, I spent half of my career prosecuting cases in Oregon, one of the two states that authorized non-unanimous verdicts. I can't recall that anybody ever challenged or complained about it. The rule presumably cut down on the number of hung juries, but not to any significant degree. Some defendants would probably prefer to take their chances on a 10-2 verdict to the expense and stress of multiple trials.

(05/04/20) (permalink)

April 2020

Supreme Court rejects non-unanimous jury verdicts

As expected, the Supreme Court, in Ramos v. Louisiana (U.S., Apr. 20, 2020), ruled that the Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense.

Those curious about the retroactive application of this decision may wish to read the analysis posted here in October, What would be the retroactive effect if Ramos wins his case? Employing the trialdex retroactivity litigation tool, the article concluded that, on the federal level, that the "class of persons who will get a retroactive benefit of the rule is limited to defendants in Louisiana and Oregon on direct appeal who can establish that they have not waived or forfeited the issue."

(04/20/20) (permalink)

Supreme Court opines on car stops and age discrimination

The Supreme Court issued two decisions this morning:

  • In Kansas v. Glover, No. 18-556 (U.S. Apr. 6, 2020), the Court upheld a traffic stop initiated after the officer ran a records check on the license plate and learned that the registered owner had a revoked driver’s license. "We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable."

  • In Babb v.Wilkie, No. 18-882 (U.S. Apr. 6, 2020), the Court held that some remedies of the federal-sector provision of the ADEA do not require that age was a "but-for cause" of the adverse decision. We briefly discussed a decision last month with a similar issue, Comcast v. National Association of African American-Owned Media; the different outcomes were based on different statutory language.

We are updating the trialdex ADA employment discrimination and automobile searches litigation tools to note these two case. They don't affect these tools in a substantive way, however.

(04/06/20) (permalink)

March 2020

Fifth Circuit posts 2019 edition of its Pattern Criminal Jury Instructions

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

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

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

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

(03/25/20) (permalink)

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

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

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

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

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

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

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

(03/23/20) (permalink)

Eleventh Circuit updates its social media civil instruction

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

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

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

(03/11/20) (permalink)

Eleventh Circuit posts revised criminal pattern jury instructions

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

New Instructions include:

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

Changes from the 2019 edition include:

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

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

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

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

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

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

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

    A brief explanatory paragraph has been added to the Annotation.

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

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

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

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

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

(03/10/20) (permalink)

Seventh Circuit posts revised pattern criminal jury instructions

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

New Instructions include:

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

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

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

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

(03/07/20) (permalink)

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