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Tenth Circuit's § 841(a)(1) instruction now references Ruan

The Comment to Tenth Circuit Criminal Pattern Instruction 2.85.1 (DISTRIBUTION OF A CONTROLLED SUBSTANCE 21 U.S.C. § 841(a)(1)) now ends with "For a case in which the defendant invokes § 841(a)(1)’s authorization exception, the government 'must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.' Ruan v. United States, 142 S.Ct. 2370, 2382 (2022); United States v. Khan, 58 F.4th 1308, 1315-17 (10th Cir. 2023).

(07/19/23) (permalink)

 

Ninth Circuit posts May 2023 revisions to its Model Criminal Instructions

The Ninth Circuit has posted the May 2023 revisions to its Model Criminal Instructions. The changes were as follows:

• The second element of Instruction 4.4 (Attempt) has been rewrittenas follows:

  "Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

  Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.

  A “substantial step” is conduct that strongly corroborated a defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.

  If you look closely, the wording is essentially the same, but the sentences have been moved around. I don't see anything but rearranged deck chairs here, and there is nothing to explain the changes in the Comment. Similar changes were made to the optional attempt language in all of the Instructions that can be charged as attempts. There is no point in enumerating them here.

• The Comments to Instructions 14.14 (Firearms—Unlawful Shipment or Transportation, 14.15 (Firearms—Unlawful Possession), and 14.16 (Firearms—Unlawful Possession—Convicted Felon) now reference Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).
• Instruction 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion) has an added sentence in brackets at the end of the Instruction: "[The government is not required to prove that the defendant knew, or recklessly disregarded the fact, that the person was under 18 years of age if the defendant had a reasonable opportunity to observe the person.]"
• Citations to 18 U.S.C. § 1591(a) are added to the third paragraph of the Comments to Instructions 20.25 (Sex Trafficking of Children or by Force, Fraud, or Coercion) and 20.26 (Sex Trafficking of Children or by Force, Fraud, or Coercion—Benefitting from Participation in Venture).
• The title to Instruction 20.29 now reads "Using or Attempting to Use the Mail or a Means of Interstate Commerce to Persuade or Coerce a Minor to Travel to Engage in Prostitution or Sexual Activity (18 U.S.C. § 2422(b))." The elements have been substantially rewritten.
• The Comment to Instruction 20.29 now discusses United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), regarding a court's obligation to explain state law, and ends with a new paragraph regarding the definition of the term "sexual activity."

(07/18/23) (permalink)

 

Ninth Circuit posts May 2023 revisions to its Model Civil Instructions

The Ninth Circuit has posted the May 2023 revisions to its Model Civil Instructions. The changes were as follows:

• The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) now cites Sullivan v. Univ. of Wash., 60 F.4th 574, 581-82 (9th Cir. 2023) (holding that the First Amendment right of expressive association did not protect the work of committee members individually or collectively when they were appointed to serve a public function and their work fell within the scope of their official duties on a university committee).
• Section II.B.2 of the Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship) now notes that the "Ninth Circuit has clarified that 'the only two exceptions to the general rule against failure-to-act liability for § 1983 claims presently recognized by this court are the special-relationship exception and the state-created danger exception,' and 'the mere failure to perform a legally required act is [not] grounds for § 1983 liability based on a substantive due process violation,'" citing Murguia v. Langdon, 61 F.4th 1096, 1108 (9th Cir. 2023).
• The Comment to Instruction 9.33B (Particular Rights—Fourteenth Amendment—Due Process—State-Created Danger) now cites Murguia.
• The Introductory Comment to Chapter 10 (CIVIL RIGHTS—TITLE VII—EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) (under Organization of Instructions) now cites a number of cases supporting the proposition that "[I]n many instances, instructions for a disparate-impact claim under Title VII may be made with minor alterations to the instruction for a disparate impact claim under the ADEA."
• The Comments to Instructions 18.1 (Securities—Definitions of Recurring Terms) and 18.5 (Securities—Knowingly) now cite Glazer Cap. Mgmt., L.P. v. Forescout Techs., Inc., 63 F.4th 747 (9th Cir. 2023).

(07/17/23) (permalink)

 

Ninth Circuit updates its 8 U.S.C. § 1324(a)(1)(A)(iv) instruction

As you may know, the Ninth Circuit updates its civil and criminal model instructions every quarter. There is a bit of a delay in posting them (the March 2023 instructions are up there now), but every now and then they make an edit or a correction before they post the quarterly update. There is no formal announcement; I get tipped off when the file name changes.

The interim change this time was an edit to Model Criminal Instruction 7.4 Alien—Encouraging Illegal Entry (8 U.S.C. § 1324(a)(1)(A)(iv)) (Comment). It used to read:

Section 1324(a)(1)(A)(iv) is facially overbroad under the First Amendment of the U.S. Constitution, and therefore a person cannot validly be charged or convicted of a § 1324(a)(1)(A)(iv) offense. See United States v. Hansen, 25 F.4th 1103, 1105-06, 1110-11 (9th Cir. 2022).

Now it reads:

Because § 1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad. See United States v. Hansen, 2023 WL 4138994 (U.S. June 23, 2023). Further updates to this instruction in light of Hansen are forthcoming.

The HTML and PDF versions have been updated, but not the DOCX.

(07/05/23) (permalink)

 

Ninth Circuit updates its criminal instructions

As noted below, the Ninth Circuit posted March 2023 revisions to its Model Jury Instructions this week. In this post, we will examine the changes to the criminal instructions.

• Instruction 3.14 (Opinion Evidence, Expert Witness) is revised to read "This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education or experience of this witness." A new paragraph is added at the end of the Comment:

  This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides both expert opinion testimony and percipient witness testimony (including fact testimony, lay opinion testimony, or both), these different roles must be clarified for the jury. See Comment to Instruction 3.15 (Dual Role Testimony). In that event, use one of the three options shown in Instruction 3.15, instead of this instruction.

• Instruction 3.15 (Dual Role Testimony) has been significantly expanded. The Comment indicates that this was in response to United States v. Holguin, 51 F.4th 841 (9th Cir. 2022).
• The Comment to Instruction 6.27 (Specific Issue Unanimity) now cites United States v. Barai, 55 F.4th 1245, 1249 (9th Cir. 2022), regarding the difference between elements and means.
• Instruction 8.15 (Threatening to Assault, Kidnap, or Murder a United States Official, United States Judge, Federal Law Enforcement Officer, or Other Official) and 14.28 (Transportation of an Explosive or Attempted Transportation of an Explosive) are new.
• A new element has been added to Instruction 15.36 (Bank Fraud—Scheme to Defraud Bank): "that the statements made [or facts omitted] as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property." The balance of the Instruction has been revised as follows:

  A “scheme to defraud” means any deliberate plan of action or course of conduct by which someone intends to deceive or and cheat a financial institution and, in other words to deprive it the victim of something money or property by means of value deception. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud.

  An “intent to defraud” means to act willfully, and with the specific intent to deceive or and cheat for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself.

  The Comment to the Instruction now discusses Loughrin v. United States, 573 U.S. 351, 355–57 (2014), regarding the "key difference between § 1344(1) and (2)," older cases establishing materiality as an element, and the 2009 change to the definition of "financial institution."
• The second element in Instruction 20.29 (Using or Attempting to Use the Mail or a Means of Interstate Commerce to Persuade or Coerce a Minor to Travel to Engage in Prostitution or Sexual Activity) now substitutes "any person" for "defendant." The Comment now cites United States v. Eller, 57 F.4th 1117, 1119 (9th Cir. 2023), regarding the elements. The third paragraph of the Comment has been thoroughly rewritten in light of United States v. Macapagal, 56 F.4th 742 (9th Cir. 2022). The final paragraph now cites Eller and Macapagal in support of the assertion that an actual minor victim is not required for an attempt conviction.
• The Comment to Instruction 24.10 (False Statement to Government Agency) now cites United States v. Kirst, 54 F.4th 610, 624 (9th Cir. 2022) (affirming jury instruction regarding materiality element).
• The second element of Instruction 24.26 (Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program Payments) has been revised to substitute "and at least one purpose of the payment was to" for "primarily to."
• Instruction 24.28 (Forced Labor) is new.

(05/09/23) (permalink)

 

Ninth Circuit updates its civil instructions

The Ninth Circuit posted March 2023 revisions to its Model Jury Instructions this week. In this post, we will examine the changes to the civil instructions.

• Instruction 2.13 (Expert Opinion) is revised to read "This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education or experience of this witness." A new paragraph is added at the end of the Comment:

  This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides expert opinion testimony and percipient witness testimony (whether fact testimony, lay opinion testimony, or both), these different roles should be clarified for the jury, even in a civil case. Model Criminal Instruction 3.15 (Dual Role Testimony) provides guidance.

• The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) now cites Dodge v. Evergreen School District, 56 F.4th 767, 778 (9th Cir. 2022) (concluding that teacher engaged in expression as private citizen entitled to First Amendment protection rather than employee when he “display[ed] a message on a personal item while attending a teacher-only training”).
• The Comment to Instruction 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) now clarifies that the Tinker standard applies to "campus" speech, and adds a couple of paragraphs discussing Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2045 (2021), Chen Through Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 720 (9th Cir. 2022), and Lathus v. City of Huntington Beach, 56 F.4th 1238, 1241 (9th Cir. 2023).
• The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now observes that a "suspect’s previous violent conduct does not justify non-trivial force where the suspect poses no immediate safety threat," citing Andrews v. City of Henderson, 35 F.4th 710, 719 (9th Cir. 2022).
• The Comment to Instruction 9.35 (Bivens Claim Against Federal Defendant in Individual Capacity—Elements and Burden of Proof) now cites Pettibone v. Russell, 59 F.4th 449, 457 (9th Cir. 2023), regarding the limits on Bivens actions in Egbert v. Boule, 142 S. Ct. 1793 (2022).
• The Comment to Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases) now cites Dodge v. Evergreen School District, 56 F.4th 767, 774 (9th Cir. 2022) (in action brought under 42 U.S.C. § 1983, concluding statement that employee would “need to have [your] union rep” if he persisted in engaging in speech on matter of public concern made as private citizen). It also makes some clerical changes, substituting "discussing" for "involving."
• The Introductory Comment to Instruction 12 (AMERICANS WITH DISABILITIES ACT) adds two paragraphs at the end discussing Langer v. Kiser, 57 F.4th 1085 (9th Cir. 2023).
• The Comment to Instruction 12.1C (ADA Employment Actions—Regarded as Disability—Elements) now cites SoCal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 817 (9th Cir. 2023) (“To establish disability under the ‘regarded as disabled’ prong, [plaintiffs] need to show that [defendants] perceived their clients as being disabled and discriminated against them on that basis.”).
• The elements list for Instruction 13.1 (Employee Claim Against Union and/or Employer—Labor Management Relations Act (LMRA) § 301 (29 U.S.C. § 185)) has been revised as follows:
  1. that the plaintiff was discharged from employment by the [name of employer;];
  2. that such discharge was without “just cause”; and
  3. that the plaintiff filed a grievance with [name of union]; and

  4. that [name of union] breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith.

  The Comment to this instruction has been thoroughly rewritten.
• The Comment to Instruction 13.2 (LMRA § 301—Damages (29 U.S.C. § 185)), starting with the fifth paragraph, has been thoroughly rewritten. Also, the third question on the Verdict Form has been revised: "Do you find from a preponderance of the evidence that the defendant union breached its duty of fair representation owed to the plaintiff as one of its members by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith?"

(05/08/23) (permalink)

 

New search option

From time to time over the years I have introduced new features to this site. I generally give them a few months to learn whether people are using them (page views), and to see how much work is involved in keeping them current. If they get a lot of page views, I am OK with doing the work to keep them current; conversely, if they are easy to maintain, I am OK with low traffic. Sadly, I must say that they have been mostly low traffic, high maintenance tools, and I have let several of them go over the years.

One successful feature has been the jury instruction search box on the trialdex front page. It has radio buttons to select full text searches for either federal or state jury instructions. Not every circuit or state has searchable jury instructions on the Internet, but plenty of them do. I have several writing projects going on, and just about always check for applicable jury instructions and annotations (you should, too). The search window saves me the time-consuming task of searching every court site individually.

Lately, I have been working on a new 2024 edition of 360 Federal Crimes, a field guide to the most commonly charged federal crimes. It is important to check every legal assertion in the book against the positions taken in every official instruction, and I have been using the trialdex search box to do that.

Anyway, it struck me that it would often be quicker to just search the instruction titles. So I put all of the tables of contents of all of the available official federal criminal pattern instructions on one page with links to the full text, so that they could be searched with a simple Ctrl F. Searching for "entrapment," for example, readily pulls up every entrapment (and entrapment by estoppel) instruction. It is not perfect, and sometimes you'll want to use the more sophisticated search terms available on the regular search box, but I have found it useful so far.

If you would like to try it, go to the search box on the trialdex front page and click on the "(search titles)" link next to the state and federal radio buttons. It will take you to the Federal Criminal Jury Instructions Tables of Contents page.

(04/04/23) (permalink)