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November 2020

The Ninth Circuit has posted revised criminal jury instructions

The Ninth Circuit has posted revisions (dated September 2020) to its Manual of Model Criminal Jury Instructions.

The changes include:

• Instruction 5.12 (INTENT TO DEFRAUD) has been modified to reflect the holding in United States v. Miller, 953 F.3d 1095, 1101 (9th Cir. 2020) (intent to defraud for purposes of wire and mail fraud requires intent to deceive and cheat). Miller is also noted in Instructions 8.11 (BANKRUPTCY FRAUD—SCHEME OR ARTIFICE TO DEFRAUD (18 U.S.C. § 157)), 8.21 (CONSPIRACY TO DEFRAUD THE UNITED STATES (18 U.S.C. § 371 “Defraud Clause”)), 8.121 MAIL FRAUD—SCHEME TO DEFRAUD OR TO OBTAIN MONEY OR PROPERTY BY FALSE PROMISES (18 U.S.C. § 1341), and 8.124 (WIRE FRAUD (18 U.S.C. § 1343)).
• Instruction 8.134A has been renamed SEX TRAFFICKING OF CHILDREN OR BY FORCE, FRAUD OR COERCION (18 U.S.C. § 1591(a)(1)).
• The Comment to Instruction 9.19 (CONTROLLED SUBSTANCE—CONSPIRACY TO DISTRIBUTE OR MANUFACTURE (21 U.S.C. §§ 841(a) and 846)) now cites United States v. Garrison, 888 F.3d 1057, 1064-65 (9th Cir. 2018) regarding the elements of the crime.
• The Comment to Instruction 9.19A (BUYER-SELLER RELATIONSHIP) now notes United States v. Loveland, 825 F.3d 555, 562 (9th Cir. 2016) (relationship of mere seller and buyer shows the absence of a conspiracy because it is missing the element of an agreement for redistribution; evidence showing that the seller probably knew the buyer was reselling the drugs based on the quantities and repeated sales between the two is insufficient by itself).

(11/11/20) (permalink)

The Ninth Circuit has posted revised civil jury instructions

The Ninth Circuit has posted revisions (dated September 2020) to its Manual of Model Civil Jury Instructions.

The changes include:

• The Comment to Instruction 9.1 (SECTION 1983 CLAIM—INTRODUCTORY INSTRUCTION) now notes Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020), which explains the four tests that may aid in identifying state action.
• The Comment to Instruction 9.2 (CAUSATION) now notes Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020) (minimum level of involvement needed for § 1983 liability under the integral-participant doctrine).
• The Comments to Instructions 9.21 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCEPTION TO WARRANT REQUIREMENT—TERRY STOP), and 9.22 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—TERRY FRISK), and 9.23 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—PROBABLE CAUSE ARREST) also discuss Reynaga Hernandez, noting the inapplicability of Terry to unlawful presence cases.
• The Comment to Instruction 9.32 (PARTICULAR RIGHTS—FOURTEENTH AMENDMENT—DUE PROCESS—INTERFERENCE WITH PARENT/CHILD RELATIONSHIP) now notes Dees v. Cty. of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020) (Fourteenth Amendment claim based on a minor being separated from his or her parents requires a plaintiff to establish that an actual loss of custody occurred, rather than the mere threat of separation).
• The Comment to Instruction 10.1 (CIVIL RIGHTS—TITLE VII—DISPARATE TREATMENT—WHEN EVIDENCE SUPPORTS “SOLE REASON” OR “MOTIVATING FACTOR”) now suggests that in sexual orientation or gender identity cases, the word “sex” should be modified or explained consistent with Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020).
• The Comments to Instruction 11.1 (AGE DISCRIMINATION—DISPARATE TREATMENT—ELEMENTS AND BURDEN OF PROOF) and 11.11 (AGE DISCRIMINATION—DEFENSES—REASONABLE FACTOR OTHER THAN AGE) now discuss Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020) (but-for causation).
• The Introductory Comment to Chapter 12 (AMERICANS WITH DISABILITIES ACT) now notes Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030 (9th Cir. 2020) (burden shifting in architectural barrier cases).
• The Comment to Instruction 15.10 (INFRINGEMENT—ELEMENTS—VALIDITY—UNREGISTERED MARK—DISTINCTIVENESS) and 15.19 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTOR—STRENGTH OF TRADEMARK) now note U.S. Patent and Trademark Office v. Booking.com B.V., 140 S. Ct. 2298, 2308 (2020) (rejecting proposition that combining generic term with “.com” yields generic composite).
• Instruction 15.12 (INFRINGEMENT—ELEMENTS—VALIDITY—TRADE DRESS—NON-FUNCTIONALITY REQUIREMENT) has been rewritten to reflect the holding in Blumenthal Distributing, Inc. V. Herman Miller, Inc., 963 F.3d 859 (9th Cir. 2020).
• The Comment to Instruction 15.25 (DEFENSES—NOMINATIVE FAIR USE) now notes the unavailability of the defense where the marks are not identical. See VIP Products v. Jack Daniel’s Properties, Inc., 953 F.3d 1170, 1174 (9th Cir. 2020).
• The Comment to Instruction 15.30 (TRADEMARK DILUTION (15 U.S.C. § 1125(c))) now notes that, per VIP Porudcts v. Jack Daniel’s Properties, Inc., 953 F.3d 1170, 1176 (9th Cir. 2020), there can be no dilution by tarnishment if a mark is used in a “noncommercial” fashion, and that a use is “noncommercial if it does more than propose a commercial transaction,” even if the mark is used to sell a product. If a mark has been determined to be expressive under the First Amendment, any claim for dilution by tarnishment is foreclosed. The Comment also notes the extensive discussion of trade dress dilution in Blumenthal Distributing.
• The Comment to Instruction 17.5 (COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))), notes a change in the second prong of the infringement element occasioned by the en banc decision in Skidmore v. Led Zeppelin, 905 F.3d 1064 (9th Cir. 2020).
• The Comment to Instruction 17.7 (COPYRIGHT INFRINGEMENT—COPYRIGHT REGISTRATION CERTIFICATE (17 U.S.C. § 410(c))) now notes Unicolors, Inc., v. H&H Hennes & Mauritz, L.P., 959 F.3d 1194, 1200 (9th Cir. 2020) (district court obligation to notify Register of Copyrights; no intent-to-defraud requirement for registration invalidation; “single unit of publication”).
• The Comment to Instruction 17.17 (COPYING—ACCESS AND SUBSTANTIAL SIMILARITY) notes that Skidmore rejects the “inverse ratio rule.”
• The Comment to Instruction 17.19 (SUBSTANTIAL SIMILARITY—EXTRINSIC TEST; INTRINSIC TEST) now notes Corbello v. Valli, 974 F.3d 965, 975 (9th Cir. 2020) (applying extrinsic test for similarity to elements of challenged work that are undisputedly factual). It also slightly edited its description of the holding in Skidmore, consistent with the newer en banc decision.

(11/10/20) (permalink)

October 2020

North Dakota instructions are now freely available on the Internet

Updated the trialdex state pattern instructions list to reflect that North Dakota civil and criminal instructions are now freely available to the public on the ND Bar Association site.

(10/28/20) (permalink)

Bribery and money laundering in the news

We are strictly nonpartisan here, but could not help noticing references to the federal crimes of bribery and money laundering in the news regarding a certain laptop computer. For a crash course on those two crimes, you might want to check out two blog articles posted here late last year: Bribery 101 and Money Laundering 101.

If you find those summaries helpful, be sure to check out 360 Federal Crimes.

(10/22/20) (permalink)

Amazon Advertising—product targeting

This is a continuation of the discussion below about advertising my books on Amazon. To bring you up a bit, the keyword strategy described below has been disappointing so far; I am seeing no discernable bump in sales from it. I'll keep watching it, but it is clearly time to try "product targeting." I am going to be a bit conservative this time, and just run one product targeting campaign for one book, A Detective's Guide to Interrogation Law.

I picked out four competing books that come up on the first couple of pages when I used the search term interrogation, and harvested their ASINs. Commercially published books usually have ISBNs, ten and thirteen digit numbers used by book stores to identify individual books. Amazon uses the ten-digit ISBN as the ASIN if the book has one, and assigns its own ten-digit ASIN if it does not. The ASIN/ISBN will be on the product page, or show up as the first ten-digit number in the product page's URL.

Creating a product targeting campaign is the same as for a keyword targeting campaign until you get about halfway down the campaign page. Under Targeting, you select Product Targeting. It then defaults to Categories, and suggested Criminal Procedure Law as a category. That's too broad and, as noted above, I wanted to target specific books, so I clicked on Individual Products, and then Enter List. I then entered my harvested ASINs (ISBNs). That generated a list of the books with suggested bid amounts much lower than the default 75-cent bid. I lowered my bids accordingly and filled out the rest of the form. Pretty easy, really.

I'll check back later and see how it went.

(10/15/20) (permalink)

Amazon Advertising—keyword targeting

I have from time to time posted about my experiences selling books (360 Federal Crimes and A Detective's Guide to Interrogation Law) on Amazon, and I'll continue that conversation with this post.

Back in August I talked briefly about advertising on Amazon. In short, I noted that I had been using "Amazon Advertising," but did not spend much time learning about it before starting. I just selected the default entries when setting up my the "campaigns" for the books, and placed a fairly high (70 cent) bid for impressions.

At that time my only "product" was 360 Federal Crimes. It had an extraordinarily low click-through rate (CTR) (.09%) (people who see my ad don't often click on it), but a ridiculously high number of people who clicked on the ad bought the book. So my cost-per-click (CPC) (21 cents) and my advertising cost of sales (ACOS) (.27%) were extraordinarily low. As an indication of how crazy low my ACOS is, the Amazon average ACOS is 30%, so mine is less than 1% of that. The ads were responsible for less than ten percent of my sales, but the cost was nominal (eight bucks), so I did not make any changes.

Sales have slowed a bit, so I thought that it would be a good idea to take a closer look at advertising on Amazon, and launch new campaigns. There is no shortage of Web pages, on Amazon and elsewhere, providing advice on this, but most were difficult to understand (for me, anyway). Also, the terms Amazon uses are not intuitive and have changed over the years. Amazon's self-publishing service is called KDP, which stands for "Kindle Direct Publishing" (it used to be called "Create Space," a service that Amazon acquired and later renamed KDP). The word "Kindle" suggests eBooks, but it encompasses paperbacks (print-on-demand) as well. In 2018 "Amazon Marketing Services (AMS)" was renamed "Amazon Advertising," and the name and availability of various Amazon advertising packages changed as well.

Amazon has about a half dozen selling options, including some only available to "professional sellers." However, if you go to the Advertising solutions for KDP authors page, you only get two options: Sponsored Products and Lockscreen Ads. Lockscreen Ads appear when people power up their Kindle devices. There seems to be a strong consensus among Amazon KDP sellers that these ads don't provide real value, so I won't discuss them further. So that leaves me with Sponsored Products.

Each Sponsored Product campaign is limited to a single product, so there would be separate campaigns for the print and eBook versions of each of my books. On my original campaigns, I figured that the links would ultimately go to an Amazon page with both versions of the book, so I did a single campaign for each book. This time, I am going to do separate campaigns for each format of each book. I can't say why there would be an advantage of doing it that way, but the prompts seem to push you in that direction.

The setup for a Sponsored Products "campaign" begins by querying you for a campaign name, start and end date, and daily budget. On my earlier campaigns, I set my budget at $10, which was never triggered. I'll stay with that, at least until it starts getting triggered.

It next asked whether I want to do manual or automatic targeting. I think that I had it on automatic before, but this time I want to experiment with manual targeting.

It then asks you about your campaign bidding strategy. Some sites counsel caution here, suggesting that you start with dynamic bids-down. Because of my low ACOS and the small amount of dollars involved, I decided to go with dynamic bids, but I'll keep a close eye on this one, especially for eBook sales on the Detective's Guide (don't want to spend a lot per sale on a three dollar item). There are also options for "top of search (first page)" and "product page." The former is self-explanatory, the latter has to do with the "Add to Cart" page. I decided to go 300% for top of search, and leave the other at 0%.

I chose custom text for the ad format (you type in the actual text lower on the form): "Miranda and other interrogation rules explained in plain language with illustrative case examples" for the Detective's Guide, and "A field guide that covers the most commonly charged federal crimes, covering the elements, required mental states, defenses, definitions, DOJ policies, and sentence enhancements" for 360 Federal Crimes.

The next decision was whether to do keyword or product targeting. I plan to do both, but let's begin here with keyword targeting (product targeting would be a separate set of campaigns, and I'll talk about it in my next blog entry).

Amazon did not initially suggest any keywords for the Detective's Guide, but suggestions would pop up as I typed in my keywords. I ultimately chose criminal law, criminal procedure, interrogation, police training, law enforcement, law of confessions, and confessions law as my keywords. I was not sure at first whether to use both "interrogation" and "interrogation law," since both appear in the book's title, and will bring up the book anyway. I tested this by searching for both terms before adding the advertising. My book is the second item that comes up if I search for "interrogation law," but is six pages deep if the search term is "interrogation." So I selected interrogation, but not interrogation law, figuring that the former term needed some help.

I then had to choose "broad," "phrase," or “exact” matches for each of these terms. A broad match picks up synonyms and misspellings. A phrase match allows you control over word order, and allows keywords that include words outside the phrase, but would not pick up phrases where other words are inserted (i.e., police training would pick up police training materials but not training police or police officer training. An exact match requires the exact words used in the search. In all of these matches, Amazon will ignore plurals and mispellings.

My choices for the eBook version of the Detective's Guide (and I am not claiming to be any sort of expert) were confessions law (exact), law of confessions (exact), criminal law (exact), criminal procedure (exact), interrogation (broad and exact), police training (exact), and law enforcement (phrase).

I did not do any negative keyword targeting; could not think of a good one.

As indicated above, I'll come back later this week with notes about product targeting.

(10/12/20) (permalink)

Fifth Circuit posts 2020 civil instructions

The Fifth Circuit just posted a new revised version of its Civil Jury Instructions ("with revisions through June 2020"). This is the first revision since 2016, and the changes are too numerous to detail here. I have posted a redline/strikeout version here, and the 2016 revision is archived here.

(10/05/20) (permalink)

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