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The two trial instructions posted earlier this month on the Third Circuit
Web site turn out to have been just a sample of what was to come; lots more revisions got posted last week. There are changes to the bribery, government program theft, firearms, fraud, obstruction of justice, tax, and supplemental jury instructions. Here is a detailed list:
Instructions 6.18.922G (Felon In Possession of Firearm (18 U.S.C. § 922(g)) (non-bifurcated proceeding)), 6.18.922G-1 (Felon In Possession of Firearm (18 U.S.C. § 922(g)) (bifurcated proceeding)), and 6.18.922G-2 (Proof of Prior Conviction) (and their Comments) have been completely rewritten to reflect Rehaif v. United States, 139 S. Ct. 2191 (2019) (which adds the element of knowledge of the previous conviction and that it was for a crime punishable by imprisonment for a term exceeding one year). 6.18.922G and G-1 also discuss Second Amendment challenges.
- Instruction 6.18.201B1-2 (Bribery of a Public Official – “Official Act” Defined) now clarifies that an official act does not include "expressing support for a particular action." The change is accompanied by extended case notes discussing Cordaro v. United States, 933 F.3d 232 (3d Cir. 2019), United States v. Fattah, 914 F.3d 112 (3d Cir. 2019), and United States v. Repak, 852 F.3d 230 (3d Cir. 2017).
- Instruction 6.18.666A1A-3 (Theft Concerning a Program Receiving Federal Funds - Stole, Embezzled, Converted, and Misapplied Defined) now requires the taking of "money or property" (it used to just require "something"). The Comment explains how this is required by the holding in Kelly v United States, 140 S. Ct. 1565 (2020).
- Kelly is also discussed in the Comment to Instruction 6.18.666A1A-4 (Theft Concerning a Program Receiving Federal Funds - Belonging to and In the Care, Custody, or Control of Defined).
- The last sentence of Instruction 6.18.666A1A-5 (Theft Concerning a Program Receiving Federal Funds - Determining Value of Property) ("The court should include any portions of the bracketed language that are appropriate") is deleted.
- The end of the Comment to Instruction 6.18.922A-2 (Firearm Offenses - Firearm Defined), which was suggested language for simplifying the firearms definition has been replaced with a case note discussing United States v. Trant, 924 F.3d 83 (3d Cir. 2019) (a single lay opinion is sufficient).
- The last part of Instruction 6.18.922A-3 (Firearm Offenses - Material Defined) has been changed:
(a firearm sale is unlawful unless the seller records, among other matters, the name
and age of the buyer., age, and residence of the buyer, inspects the buyer’s photo identification, and submits the identifying information to a background check system to determine whether the buyer is prohibited from receiving a firearm. .... [If appropriate, add:
Therefore, a person who acts as a “straw purchaser” on behalf of the actual buyer of a firearm makes a material misrepresentation to the seller, whether the actual purchaser is legally permitted to purchase the firearm or not.)]
The Comment to Instruction 6.18.922G-3 (Evidence of Prior Conviction of Defendant Charged with Possession of a Firearm by a Convicted Felon (18 U.S.C. § 922(g))) now notes that "There may be cases where the name and nature of the prior offense is relevant; if that is the case, the court should instruct accordingly."
The Comment to Instruction 6.18.922G-4 (Firearm Offenses - Knowing Possession Defined) has been substantially rewritten. It now quotes a passage from Henderson v. United States, 575 U.S. 622 (2015), and concludes:
If warranted, the court may instruct that the government need not prove that defendant
possessed the firearm with intent to cause harm. See United States v. Dodd, 225 F.3d 340, 344
(3d Cir. 2000).
The fourth paragraph of Instruction 6.18.922G-5 (Firearm Offenses - In or Affecting Interstate or Foreign Commerce Defined) now includes the phrase "[there were no firearm manufacturers in the state where the defendant allegedly possessed a firearm]."
Former Instruction 6.18.922J (Possession of Stolen Firearm (18 U.S.C. § 922(j))) has been deleted.
It is worth noting that the Third Circuit has held that felon-in-possession is a continuing
offense; presenting two counts related to different moments during uninterrupted possession is
therefore plain error. See United States v. Benjamin, 711 F.3d 371, 378 (3d Cir.2013).
Where a defendant simultaneously possessed multiple firearms or pieces of ammunition,
whether that supports a single or multiple 922(g) charges “is a highly fact-driven inquiry that
depends on the circumstances surrounding a defendant’s alleged conduct.” United States v.
Steiner, 847 F.3d 103, 116 (3d Cir. 2017). As a general rule, “simultaneous possession of
multiple firearms or pieces of ammunition does not give rise to a separate offense for each
firearm or piece of ammunition possessed. Likewise, multiple convictions for possession of
multiple firearms may be appropriate where the firearms in question were seized in different
locations or if they were acquired in separate transactions.” Steiner, 847 F.3d. at 115 (footnotes
The Comment to Instruction 6.18.922K (Possession of Firearm With Serial Number Removed, Obliterated, or Altered (18 U.S.C. § 922(k))) now includes a discussion of Second Amendment challenges.
Instructions 6.18.924A (Possession of a Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c)(1))) and 6.18.924B (Using or Carrying a Firearm During Any Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c)(1))) have been substantially rewritten. The Comments now clarify that attempted possession of a firearm is not an offense under § 924(c), and that the unit of prosecution is the predicate offense, not each individual instance of possession of a firearm.
A new instruction has been added, 6.18.924C (Aiding and Abetting 924(c) Violation (by participant in underlying predicate offense)). Its Comment includes a discussion of Rosemond v. United States.
The Comment to Instruction 6.18.1341-1 (Mail, Wire, or Bank Fraud – “Scheme to Defraud or to Obtain Money or Property” Defined) has been rewritten, and now includes a discussion of United States v. Kelly.
The Comment to Instruction 6.18.1341-4 (Mail or Wire Fraud – "Intent to Defraud" Defined) now cites United States v. Ding, 756 F.App’x. 126 (3d Cir. 2018).
The Comment to Instruction 18.1343-2 (Wire Fraud - Each Transmission by Wire Communication a Separate Offense) now cites United States v. James, 955 F.3d 336 (3d Cir. 2020).
The Comment to Instruction 6.18.1344 (Bank Fraud - Elements of the Offense (18 U.S.C. § 1344)) now cites United States v. Capps, 977 F.3d 250 (3d Cir. 2020). The discussion of Fattah has been rewritten.
The Comments to Instructions 6.18.1512A2-1 (Obstruction of Justice - Hindering Communication Through Physical Force or Threat of Physical Force (18 U.S.C. § 1512(a)(2)(C))) and 6.18.1512B-1 (Obstruction of Justice - Hindering Communication Through Intimidation, Threats, or Corrupt Persuasion (18 U.S.C. § 1512(b)(3))) have been rewritten and now discuss United States v. Tyler, 956 F.3d 116, 124-25 (3d Cir. 2020).
The Comment to Instruction 6.26.7201-4 (Tax Evasion - Willfully Defined) notes a number of recent nonprecedential cases regarding the mens rea.
The Comment to Instruction 9.01 (Retention of Alternate Jurors) now notes United States v. James, 955 F.3d 336 (3d Cir. 2020).
The Comment to Instruction 9.02 (Response to Jury Questions) now cites United States v. Bunchuk, 799 F. App’x. 100 (3d Cir. 2019).
The Comment to Instruction 9.09 (Return to Deliberations After Polling) also discusses James.
It is the practice of the Third Circuit to update the instructions in sections rather than doing it all at the same time, so it is possible that more changes are in the pipeline. We'll keep an eye on the site for updates.
The prior versions of these instructions are archived here.
Sales have picked up a bit on the
Detective's Guide. Some good reviews and word of mouth, I think. Nevertheless, I would like to give it a bit more visibility. So, starting Monday morning (February 22) the kindle version of the book goes on a one-week sale for 99 cents, a big discount from the regular price of $2.99. Please pass the word on this along to police and prosecutors you know.
I also send out free review copies of the paperback edition of the Detective's Guide (and
360 Federal Crimes)
to folks with a blog or similar Internet presence who are willing to read and review the books.
Email me if you are interested.
Here's a description of the Detective's Guide from
A Detective’s Guide to Interrogation Law is the most complete and authoritative manual on the law of interrogation ever written for law enforcement officers. It covers—in plain language, and with illustrative case examples—every important legal principle.
- Use it to solve real world problems like this:
- Compelling suspects to unlock computer and cell phone passcodes
- The difference between Garrity and Kalkines warnings, and how to use them while questioning public employees
- Admissibility of admissions made by prisoners, probationers, or parolees as part of a treatment or rehabilitation program
- The admissibility of a defendant’s silence when accused of a crime
- Things an officer can say and do to avoid a finding of Miranda custody
- Questioning prison and jail inmates without Miranda warnings
- The application of the Miranda rule to questioning at borders or airports
- Obtaining Miranda waivers from uncooperative suspects
- How to lawfully question suspects who have invoked their Miranda rights
- What officers should do when defendants change their minds about invoking Miranda rights
- Questioning suspects who have been formally charged or who have attorneys
- How to manage jailhouse informants
- How to work with prosecutors on investigations without creating ethical problems for them
- Tactics for addressing insanity and diminished intent issues
- Your obligation to advise foreign nationals of their consular notification rights
- Working with foreign police officers in foreign countries.
The Third Circuit revised two criminal instructions in
Chapter 2 (Instructions For Use During Trial) this month.
The prior versions of these instructions are archived here.
- The previous admonition in Instruction 2.01 (Recesses) to avoid looking at the news reports is now headed "Before Each Daytime Recess During the Case." A new second admonition, headed "At the End of Each Day of the Case," more specifically addresses Internet and other independent research. A third admonition, headed "At the Beginning of Each Day of the Case," prompts the judge to ask the jurors whether they violated the other admonitions.
The Comment notes that the source of this was a 2020 Judicial Conference Committee on Court Administration and Case Management report.
- The Comment to Instruction 2.11 (Limited Admissibility: Evidence Admitted for a Limited Purpose) now has suggested language to deal with "evidence of the defendant’s self-expression or artistic expression in social or more traditional media" where "the nature or style of the defendant’s expression creates a risk of unfair prejudice."
I believe that this was inserted in order to deal with cases where the prosecution introduces things like offensive rap lyrics to show the defendant's state of mind regarding illegal drugs.
The Judicial Council of California has posted its
2021 set of Civil Jury Instructions (CACI). Consult the
tables of new, revised, revoked, and renumbered instructions to see the
Seventh Circuit has posted a revised version of Chapter 11 (Patents) of its civil jury instructions. This is a complete rewrite, so I was unable to put together a coherent redline/strikeout. Those wishing to attempt their own comparison can find the new version posted as a standalone PDF, while the older version is still in the 2017 civil PDF.
The Colorado Pattern Civil Jury Instructions Committee page now links its 2021 instructions. Links to the prior 2020 instructions are on the same page.
On January 29 Illinois posted a revised Criminal Instruction 1.01 (The Functions Of The Court And The Jury), and a new Criminal Instruction 1.01B (Implicit Bias). The previous instructions are
Arizona has posted
2020 New & Revised Criminal Jury Instructions for Public Comment. Comments are due February 19, 2021.
The Eighth Circuit has posted the
2020 revision to its Manual of Model Civil Jury Instructions. Most of the revisions were to Chapter 4 (civil rights actions brought by prisoners under 42 U.S.C. § 1983). There are no references to Bostock (to see which circuit instructions have referenced Bostock, see the entry in the
trialdex federal jury instructions index).
The changes are as follows:
The 2019 instructions are archived here.
- Instruction 4.00, the Overview to the PRISONER/PRETRIAL DETAINEE CIVIL RIGHTS CASES chapter no longer just lists the contents. It is now a four-page summary of the law.
- New Instruction 4.01 (§ 1983 CLAIM-INTRODUCTORY INSTRUCTION)
- The title to Instruction 4.20 now reads DEFINITION: UNDER COLOR OF STATE LAW
(42 U.S.C. § 1983).
The Instruction now reads:
[(If the parties dispute that the action was under color of state law):
Acts are done under color of law when a person acts or [falsely appears] [falsely claims] [purports] to act in the performance of official duties under any state, county or municipal law, ordinance or regulation.]
[(If the parties stipulate that the action was under color of state law):
In this case the parties have stipulated [agreed] that Defendant [name] acted "under color" of state law, and you must accept that fact as proved.]
The Committee Comments on the instruction have been thoroughly rewritten.
- The title to Instruction 4.21 now reads DEFINITION:
PERVASIVE SUBSTANTIAL RISK OF SERIOUS HARM - CONVICTED PRISONERS (42 U.S.C. § 1983).
The Instruction now reads:
pervasive substantial risk of serious harm exists
is present when (violent acts) (sexual assaults) occur with sufficient frequency that a
prisoner or prisoners are put in reasonable fear for their safety, and faces an objectively intolerable risk of harm such that prison officials are aware of cannot argue that they were subjectively blameless for the problem and resulting harm to the need for protective measures prisoner.
The Committee Comments on the instruction have been thoroughly rewritten.
- The phrase "CONVICTED PRISONERS (42 U.S.C. § 1983)" is no longer in the title to Instruction 4.22. The Committee Comments on the instruction have been thoroughly rewritten.
- The phrase "CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 U.S.C. § 1983)" is no longer in the title to Instruction 4.23. The Instruction now reads:
Deliberate indifference is established only if there is actual knowledge of
a [here describe the substantial risk that the plaintiff (describe serious medical problem or other of serious harm that the defendant is expected to prevent) or serious medical need of] the plaintiff and if the defendant disregards that [risk or need] by intentionally refusing or intentionally failing to take reasonable measures to deal with the problem. Negligence or inadvertence does not constitute deliberate indifference.
The Comment deletes the discussion of Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), citing three more recent cases instead.
- The Comment to Instruction 4.24 (DEFINITION: MALICIOUSLY) substitutes a citation to Levine v. Roebuck, 550 F.3d 684 (8th Cir. 2008) for the former citation to the Black's Law Dictionary.
- The Comment to Instruction 4.25 (DEFINITION: SADISTICALLY) now cites United States v. Miller, 477 F.3d 644 (8th Cir. 2007).
- The title to Instruction 4.40 now deletes the reference to "FOURTH AMENDMENT." The Instruction adds a citation to Corpus v. Bennett, 430 F.3d 912 (8th Cir. 2005). The Comments have been substantially rewritten.
- The title to Instruction 4.41 now deletes the reference to "FIFTH AND FOURTEENTH AMENDMENTS."
The second half of the Committee Comment has been substantially rewritten.
- The title to Instruction 4.42 now deletes the reference to "EIGHTH AMENDMENT." The Comment formerly recommended that "an instruction not be given on qualified immunity based on defendant's good faith." That admonition has been deleted, and the Comment now has an extended discussion of qualified immunity.
- The title to Instruction 4.43 now deletes the reference to "CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 U.S.C. § 1983)." The Comments have been extensively rewritten.
- The title to Instruction 4.44 now deletes the reference to "SPECIFIC ATTACK - CONVICTED PRISONERS - EIGHTH AMENDMENT (Including Pretrial Detainees - Fourteenth Amendment)." The first element now ends "and the Plaintiff was incarcerated under conditions posing a substantial risk of serious harm."
The Comment clarifies that the change was occasioned by Glaze v. Byrd, 721 F.3d 528 (8th Cir. 2013).
- The first element of Instruction 4.45 now indicates an alternative cause of action for filing a grievance, and the paragraph at the end that begins "The [filing of a § 1983 claim] was a 'determining factor'" has been deleted. The Notes on Use and the Comment have been extensively rewritten.
- Instructions 4.46 (ELEMENTS OF CLAIM: CONDITIONS OF CONFINEMENT), 4.47 (ELEMENTS OF CLAIM: SUPERVISORY LIABILITY-FAILURE TO TRAIN OR SUPERVISE), 4.48 (ELEMENTS OF CLAIM: MUNICIPAL LIABILITY FOR OFFICIAL POLICY OR UNOFFICIAL CUSTOM), 4.49 (FRAUDULENTLY OBTAINED WARRANT), 4.50 (ELEMENTS OF CLAIM: UNREASONABLE STOP), 4.51 (ELEMENTS OF CLAIM: FALSE ARREST), and 4.52 (ELEMENTS OF CLAIM: § 1983 CIVIL CONSPIRACY) are new.
- The Comment to Instruction 4.70 (DAMAGES: ACTUAL - PRISONER CIVIL RIGHTS) now notes that compensatory damages based on emotional distress can be awarded even though no actual damages are proven.
- The Comment to Instruction 4.71 (DAMAGES: NOMINAL - PRISONER CIVIL RIGHTS) adds this passage at the end:
See Williams v. Hobbs, 662 F.3d 994, 1010 (8th Cir. 2011). Nominal damages may be awarded on a per violation basis, but not a per day basis. If a jury finds that the constitutional violation at issue was not a direct cause of injury to a plaintiff yet makes a substantial "nominal" damage award, the district court must reduce the damage award to a legally nominal sum as a matter of law. See Corpus v. Bennett, 430 F.3d 912, 915-16 (8th Cir. 2005) (Where jury found that officer's use of excessive force did not cause injuries to plaintiff but found $75,000 was the nominal sum that would fairly and adequately compensate plaintiff for the deprivation of his constitutional rights, trial court did not err in reducing the nominal damages award to one dollar).
- The Notes to Instruction 4.72 (DAMAGES: PUNITIVE - CIVIL RIGHTS) now cites Bryant v. Jeffrey Sand Company, 919 F.3d 520 (2019).
- Instruction 7.21 (DEFINITION: WILLFULNESS) is new.
- The second element in Instruction 7.80 (GENERAL VERDICT FORM) now asks whether the defendant's conduct was willful. It used to ask "Has it been proved that the defendant either knew it was violating the Equal Pay Act or acted with reckless disregard of the Equal Pay Act?"
- Instruction 9.00 (AMERICANS WITH DISABILITIES ACT - OVERVIEW) adds case notes regarding Oehmke v. Medtronic, Inc., 844 F.3d 748 (8th Cir. 1995), Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), and Rozmiarek v. Walmart Stores, Inc., 2018 WL 4854181 (D. Neb. 2018), to its discussion of causation. It also adds citations to Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 544-45 (8th Cir. 2018) (noting that regular and reliable attendance is an essential function in most jobs), Moses v. Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 923-24 (8th Cir. 2018) (explaining a disabled plaintiff was not a "qualified individual," as he was unable to perform essential job functions and "no known modifications" of such functions existed for his job), Faulkner v. Douglas County, 906 F.3d 728, 732-34 (8th Cir. 2018) (employer not obligated to violate a collective bargaining agreement to create a reasonable job accommodation), and Faulkner v. Douglas County, 906 F.3d 728, 732-34 (8th Cir. 2018) (employer not obligated to violate a collective bargaining agreement to create a reasonable job accommodation).
- Instruction 15.00 (EMPLOYMENT - FEDERAL EMPLOYERS' LIABILITY ACT - OVERVIEW) now notes the holding in Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158 (2007), regarding causation. It also excises a reference to Wilkerson v. McCarthy, 336 U.S. 53 (1949), substituting a note regarding Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
- The ending paragraph in Note 2 and first paragraph of Note 3 for Instruction 15.40 (ELEMENTS OF CLAIM: GENERAL FELA NEGLIGENCE) has been rewritten:
Sometimes employees of one company work on property or equipment owned by a railroad. In such situations, the individual can be Generally speaking, the plaintiff may be said to be employed by the railroad
for FELA purposes if the railroad controlled or had the right to control the plaintiff's work. The passing of information and other coordinated efforts between employees of the two companies are not alone enough to satisfy this test. To find that the plaintiff was employed by the railroad, the railroad's employees must have had a supervisory role over the plaintiff's work. See Royal v. Mo. & N. Ark. R.R. Co., 857 F.3d 759, 763-64 (8th Cir. 2017); Vanskike v. ACF Industries, Inc., 665 F.2d 188, 198-99, 200-02 (8th Cir. 1981).
3. It may be argued that the plaintiff, even though employed by the railroad, was not acting within the scope of
his or her railroad that employment at the time of the incident. If there is a question whether the employee was acting within the scope of employment, paragraph First should provide as follows:
The Comment has been substantially rewritten.
- The Notes for Instruction 15.41 (ELEMENTS OF CLAIM: LOCOMOTIVE INSPECTION ACT VIOLATION), 15.42 (ELEMENTS OF CLAIM: SAFETY APPLIANCE ACT VIOLATION), and 15.43 (ELEMENTS OF CLAIM: VIOLATION OF REGULATION ENACTED FOR THE SAFETY OF RAILROAD EMPLOYEES) now note that "[g]enerally speaking, the plaintiff may be said to be employed by the railroad for FELA purposes if the railroad controlled or had the right to control the plaintiff's work."
- Instruction 16.22 (DEFINITION: WILLFULNESS) is new.
- The second element in Instruction 16.72 (DAMAGES: WILLFUL VIOLATION) now asks whether the defendant's failure to pay was willful. It used to ask whether its conduct was "prohibited by the Fair Labor Standards Act or showed reckless disregard for whether its conduct was prohibited by the Fair Labor Standards Act?"
- Instruction 17.72 (DAMAGES: PUNITIVE) has been substantially rewritten.
The Ninth Circuit posts revisions to its
Model Jury Instructions every three months. They posted the December 2020 revisions this week. The Civil revisions are as follows:
The Criminal revisions are as follows:
- Civil Instruction 1.15 (CONDUCT OF THE JURY) has the following edits:
"This includes discussing the case in person, in writing, by phone, tablet, or
computer, or any other electronic means, via email, text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat,
Tiktok, or any other forms of social media....
Do not visit or view any place discussed in this case, and do not use the Internet
programs or any other devices resource to search for or view any place discussed during the trial....
The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread....
State court practice in some jurisdictions does allow discussion
If the court decides to allow discussion, the third sentence of the fourth paragraph of the instruction should be modified accordingly, and the following language may be included: You may discuss with fellow case by jurors the testimony as it is presented, provided that all jurors are present for the discussion. You are to keep an open mind throughout the case until you have fully deliberated. prior to the beginning of deliberations. The Ninth Circuit has not addressed this practice."
- New Civil Instruction 2.0 (CAUTIONARY INSTRUCTIONS).
- Civil Instruction 3.2 (CONSIDERATION OF EVIDENCE—-CONDUCT OF THE JURY) has been edited as follows: "This includes discussing the case in person, in writing, by phone, tablet, computer, or
any other means, via email, via text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat,
TikTok, or any other forms of social media."
- The Comment to Civil Instruction 9.12 (PARTICULAR RIGHTS—-FOURTH AMENDMENT—-UNREASONABLE SEARCH—-GENERALLY) now notes Cates v. Stroud, 976 F.3d 972, 978-85 (9th Cir. 2020) (examining search of prison visitor and holding that prior to strip search, visitor must be given opportunity to leave prison).
- The Comment to Civil Instruction 15.6 (INFRINGEMENT—-ELEMENTS AND BURDEN OF PROOF—-TRADEMARK) now notes Arcona, Inc. v. Farmacy Beauty, LLC, 976 F.3d 1074, 1079 (9th Cir. 2020) (holding that "a counterfeit claim requires a showing of likelihood of confusion under Section 1114.").
- The Comment to Civil Instruction 18.8 (SECURITIES—-CAUSATION) now concludes:
"To establish loss causation in a fraud-on-the-market case, the plaintiff must show that after purchasing her shares and before selling, the following occurred: (1) 'the truth became known,' and (2) the revelation caused the fraud-induced inflation in the stock's price to be reduced or eliminated." In re BofI Holding, Inc. Sec. Litig., 977 F.3d 781, 789 (9th Cir. 2020) (quoting Dura Pharms., Inc., 544 U.S. at 347). A plaintiff may prove that "the truth became known" by identifying one or more "corrective disclosures." Id. at 790. "A corrective disclosure occurs when 'information correcting the misstatement or omission that is the basis for the action is disseminated to the market.'" Id. (quoting 15 U.S.C. § 78u-4(e)(1)); see also Grigsby v. BofI Holding, Inc., No. 19-55042, 2020 WL 6438912 (9th Cir Nov. 3, 2020) (holding news article with information from FOIA request can be corrective disclosure, but Internet article with publicly available information from whistleblower was not corrective disclosure). The Ninth Circuit offered guidance on what constitutes a corrective disclosure in In re BofI Holding, Inc. Sec. Litig., 977 F.3d 781, 790 (9th Cir. 2020), explaining that "a corrective disclosure need not consist of an admission of fraud by the defendant or a formal finding of fraud by a government agency"; rather, it may "come from any source, including knowledgeable third parties such as whistleblowers, analysts, or investigative reporters." Id. A corrective disclosure also "need not reveal the full scope of the defendant's fraud in one fell swoop; the true facts concealed by the defendant's misstatements may be revealed over time through a series of partial disclosures." Id. A corrective disclosure "need not precisely mirror the earlier misrepresentation," id. (internal quotation marks omitted), as it "is enough if the disclosure reveals new facts that, taken as true, render some aspect of the defendant's prior statements false or misleading." Id. Against this backdrop, the Ninth Circuit rejected the district court's conclusion that, "to adequately plead loss causation, the shareholders had to identify an additional disclosure that confirmed the truth of [the] allegations" in the corrective disclosure. Id. at 792. Rather, the court noted that "short of an admission by the defendant or a formal finding of fraud-neither of which is required-any corrective disclosure will necessarily take the form of contestable allegations of wrongdoing." Id. (citations omitted). While the "plaintiff must, of course, prove that the defendant's misstatements were false, . . . that can be done through proof other than the corrective disclosure itself." Id.
Prior versions of these instructions are
- Criminal Instruction (1.8 CONDUCT OF THE JURY) has the same edits found in Civil Instruction 3.2 (CONSIDERATION OF EVIDENCE—-CONDUCT OF THE JURY) (described above).
- Former Criminal Instruction 2.1 (CAUTIONARY INSTRUCTION—FIRST RECESS) no longer has "FIRST RECESS" in its title. It is now intended to be given "At the End of Each Day of the Case" and has been rephrased accordingly. It also now includes alternative language for open court, and for voir dire with each juror individually. It now has a Comment that states: "This instruction is derived from the model instruction prepared by the Judicial Conference Committee on Court Administration and Case Management in June 2020. The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread. See e.g., United States v. Pino-Noriega, 189 F.3d 1089, 1096 (9th Cir. 1999)."
- The Comment to Criminal Instruction 8.56 (FIREARMS—UNLAWFUL TRANSPORTATION OF DESTRUCTIVE DEVICE, MACHINE GUN, SHORT–BARRELED SHOTGUN OR SHORT–BARRELED RIFLE) now concludes "26 U.S.C. § 5845(b) provides the definition of 'machine gun.' United States v. Kuzma, 967 F.3d 959, 967 (9th Cir. 2020). '[A] weapon is ‘designed to shoot’ automatically if it has a specific configuration of objective structural features that, in the absence of any minor defect, would give the weapon the capacity to shoot automatically.' Id. at 969-70."
- The Comments to Criminal Instructions 8.176 (SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION) and 8.177 (ATTEMPTED SEXUAL ABUSE OF PERSON IN OFFICIAL DETENTION) now note that "'Official detention' includes a minor who is being held in a facility who has been served with a Notice to Appear in Immigration Court, and who has been placed into removal proceedings. United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020)."
- The Comment to Criminal Instruction 8.180 (ABUSIVE SEXUAL CONTACT—WITHOUT PERMISSION) has an updated citation to United States v. Price, 980 F.3d 1211, 1217-1224 (9th Cir. 2020) (approving instruction). "In this case, the Ninth Circuit held that the government must prove beyond a reasonable doubt that the defendant knowingly had sexual contact with the victim and that the sexual contact was without the victim’s permission. 'Permission' includes both explicit and implicit permission and may be proven by either direct or circumstantial evidence. The government is not required to prove that the defendant subjectively knew that the sexual contact was without the victim’s permission. Id."
- The Comment to Criminal Instruction 8.183 (SEXUAL EXPLOITATION OF CHILD—NOTICE OR ADVERTISEMENT SEEKING OR OFFERING) now provides that one-to-one communication can satisfy the notice requirement under 18 U.S.C. § 2251(d)(1), citing United States v. Cox, 963 F.3d 915, 922 (9th Cir. 2020).
- The Comment to Criminal Instruction 9.9 (SECURITIES FRAUD) now states: "As in the Securities Exchange Act §10(b) context, 18 U.S.C. § 1348’s requirement of 'in connection with' is broadly construed and can be met by proof of dissemination and materiality of the misrepresentation or omission. See United States v. Hussein, 972 F.3d 1128, 1147 (9th Cir. 2020)."
- The Comment to Criminal Instruction 9.19 (CONTROLLED SUBSTANCE—CONSPIRACY TO DISTRIBUTE OR MANUFACTURE) now cites United States v. Collazo, 982 F.3d 596 (9th 2020) and deletes both references to "and (b) that the type and quantity of drugs fell within the scope of [name of defendant]’s agreement or was reasonably foreseeable to [name of defendant]" from the SUGGESTED VERDICT FORM.
The Reporter’s Online Update surveys recent cases relevant to the current instruction set.
Vermont has added a new model instruction and reporter’s note for the crime of "criminal threatening."
The Vermont Model Criminal Jury Instructions Committee revised its Evidence of Flight instruction and posted two new Sexual Exploitation of a Minor instructions on January 8, 2021. The instructions are
linked here. The prior edition is
Illinois Pattern Jury Civil Instruction 30.06 (Damages) was revised in late 2020. The instructions are
linked here. The prior edition is archived here.
Illinois has posted extensive revisions to its Criminal Pattern Jury Instructions Chapter 8 (Kidnapping) that were approved on November 13, 2020. The previous version is archived here.
As noted below, I am now using WatchThatPage.com to monitor changes to many of the online state jury instruction sites. Here are some recent developments:
As some of you know, this site has a free service that alerts you when there have been changes to federal jury instructions (details here). I have been manually checking the sites weekly, but it occurred to me today that there must be a Web application that automates the process. It turns out that there are several of them. I'm trying out WatchThatPage.com. If it works out well, I'll look into expanding the alerts to cover state jury instructions sites as well.
The Fourth Circuit does not have official pattern instructions. However, a set of
unofficial criminal instructions and annotations, authored by former AUSA Eric Wm. Ruschky and annually updated by law professor Miller W. Shealy, Jr., is posted in PDF format on the District of South Carolina Web site. I just noticed that the annual revision (dated November 1, 2020) is posted there now. These instructions and annotations are of particular value, even outside the Fourth Circuit, because they cover crimes that the official sets don't.
Former U.S. Magistrate Judge Carl Horn's
Federal Criminal Jury Instructions for the Fourth Circuit are also widely used, but are not posted on the Internet.
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).
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.
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.
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.
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.
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.
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
here, and the 2016 revision is archived here.