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Book review: For the Prosecution by C.J. Williams

For the Prosecution is a new book written by United States District Court Judge C.J. Williams, and published by Rowman & Littlefield. Judge Williams is the author of two other books, Advanced Evidence: Applying the Federal Rules of Evidence in Pretrial and Litigation in 2018, and (with a co-author) Federal Criminal Practice in 2016 (published by West Academic as part of its "American Casebook" series).

Judge Williams spent about twenty years as a federal prosecutor before his appointment as a Federal Magistrate in 2016. He also worked in private practice, doing criminal defense work, early in his career. The Acknowledgment section makes an interesting point about the timing of the book. It was written at just the right time, not too long after leaving his job as a federal prosecutor, so that he could write freely about his prosecutorial experience while his memory was still fresh.

He emphasizes that this is not a trial advocacy book. Rather, it addresses the 90% of a prosecutor's job that takes place outside the courtroom.

Most of the work involves prosecutors interfacing with law enforcement officers, witnesses, and victims; developing an investigation; deciding who to charge and how to prosecute cases; identifying what charges to bring and how to draft the charges; negotiating plea agreements; marshaling and organizing evidence for hearings and trial; and preparing for grand jury presentations, motions hearings, trials, sentencing hearings, and appeals. Much more of a prosecutor's real life is spent in the field, at jails, in conference rooms, on the phone, and behind a desk than it is standing in a courtroom before a jury. And whether a prosecutor prevails in jury trials depends entirely on the work performed long before opening statements.

The tone of the book is set in the first chapter, which begins with the oft quoted passage from Berger v. United States: that a prosecutor's duty is not to win, but to seek justice; to strike hard blows, not foul ones. Consistent with this, the book repeatedly counsels prosecutors to take the high road.

They should, for example, never denigrate defense counsel, judges, or even defendants, inside and outside the courtroom. He recognizes how difficult this is to resist where defense counsel has unfairly attacked the prosecutor in court, and suggests that the response should be directed to the judge, not at the other attorney; that emphasis be placed on the effect of the defense statements, not on suggestions of evil intent or motive; and to consider requesting a curative instruction. In other parts of the book, he recommends liberal discovery and avoiding stereotypes during jury selection.

He takes a common sense approach to the use of law enforcement resources. For example, around the clock surveillance and wiretaps are expensive and mind numbing jobs that should not be requested unless they are really needed. At the same time, he helpfully describes alternative investigative techniques—"freeze letters" to Internet and social media providers, trap and trace, cover letters, and so on. He notes that prosecution teams may be essential in complex cases, but they work best when kept small.

This is just a small fraction of the matters treated in this 368-page book. The important takeaway is that this book would serve as an excellent orientation for new U.S. Attorneys, AUSAs, SAUSAs, and DOJ attorneys, and a helpful refresher for experienced government attorneys, or any judge or attorney regularly working in the area of federal criminal law and procedure. It is therefore a highly recommended addition to United States Attorney and other federal law libraries.

A short disclaimer: I am a former DOJ attorney, and worked with Judge Williams on a couple of projects when he was a Senior Litigation Counsel years ago. We worked in different offices, and I am not sure that I ever met him in person, but recall being favorably impressed with the quality of his work.

(04/25/21) (permalink)

 

A closer look at the March 2021 Ninth Circuit Model Instruction revisions

First, the criminal changes:

• The Comment to Instruction 8.25 (CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)) adds a citation to United States v. Henry, 984 F.3d 1343, 1355-1356 (9th Cir. 2021).
• The Comment to Instruction 8.63 (FIREARMS—UNLAWFUL RECEIPT) now notes that the government must prove that the defendant knew he had a nonimmigrant visa at the time of the offense for crimes charged under § 922(g)(5)(b), citing United States v. Gear, 985 F.3d 759, 761 (9th Cir. 2021).
• The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) now states that a conviction based on an accomplice theory of liability may serve as a predicate for a § 924(c) conviction, citing United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021).
• The discussion of United States v. Hong at the end of the Comment to 8.83 (FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS-AGGRAVATED IDENTITY THEFT) has been replaced with:

  "Use" under § 1028A requires that the use of the means of identification was central to the specified felony and facilitated its commission. For example, the forging of someone else’s signature on a fraudulent life insurance application constitutes a “use” within the meaning of § 1028A. See United States v. Gagarin, 950 F.3d 596, 604 (9th Cir. 2020). In addition, submitting TRICARE claims that falsely identify a therapist as being the rendering provider for dates on which the therapist provided no services constitutes a "use" within the meaning of § 1028A. See United States v. Harris, 983 F.3d 1125, 1128 (9th Cir. 2020). But employing a patient’s Medicare identification information to file Medicare claims that falsely identified the treatments as a Medicare-eligible physical therapy services rather than as massages does not constitute a "use" within the meaning of § 1028A. See United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019).

• The Comment to Instruction 8.90 ACCESS (DEVICE—DEFINED) now cites United States v. Gainza, 982 F.3d 762, 764 (9th Cir. 2020) ("The term 'access device' includes the information needed to access funds from a debit or credit card, such as the account number and the PIN.").
• The Comments to Instructions 8.143A (HOBBS ACT—ROBBERY OR ATTEMPTED ROBBERY) and 8.143B (HOBBS ACT—AFFECTING INTERSTATE COMMERCE) add citations to United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021) (robberies of licensed marijuana dispensaries).
• The Comment to Instruction 8.162 (BANK ROBBERY) now cites for the proposition that armed bank robbery under § 2113(d) "requires that 'the robber knowingly made one or more victims at the scene of the robbery aware that he had a gun, real or not,'" citing United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021).
• Instruction 9.4 has been rewritten based on the recent panel decision in United States v. Sineneng-Smith. I posted a note about it last week.

The civil revisions were a bit more extensive:

• The Comment to Instruction 9.1 (SECTION 1983 CLAIM—INTRODUCTORY INSTRUCTION) now cites Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161 (9th Cir. 2021), regarding the joint action test.
• The discussion of Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), that appeared at the end of the Comment to Instruction 9.5 has been removed.
• The second half of element 5 of Instruction 9.8 (SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON A POLICY THAT FAILS TO PREVENT VIOLATIONS OF LAW OR A POLICY OF FAILURE TO TRAIN—ELEMENTS AND BURDEN OF PROOF) now reads:

  that is, the defendant’s failure [to prevent violations of law by its employees] [to train] is so closely related played a substantial part in bringing about or actually causing the injury or damage to the deprivation of the plaintiff’s rights as to be the moving force that caused the ultimate injury plaintiff.

  Also, the Instruction now provides that the plaintiff may prove deliberate indifference in this case by showing that

  the facts available to the defendant [name of local governing body] knew its put it on actual or constructive notice that its [failure to implement adequate policies] [failure to train adequately] made it highly predictable that its was substantially certain to result in the violation of the constitutional rights of persons such as the plaintiff due to [police officer[s]] [employee[s]] would engage in’s conduct that would deprive persons such as the plaintiff of [his] [her] rights.

  The paragraph in the Comment that begins "As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior." has the following added at the end of the paragraph:

  Instead, a plaintiff must establish a “direct causal link” between the municipal policy or custom and the alleged constitutional violation. See Sandoval v. Cnty. of San Diego, 985 F.3d 657, 681 (9th Cir. 2021). This “requires showing both but for and proximate causation.” Tsao, 698 F.3d at 1146 (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). In Harper, the Ninth Circuit approved of a jury instruction that explained that “proximate cause exists where “an act or omission played a substantial part in bringing about or actually causing the injury or damage to plaintiffs.” Harper, 533 F.3d at 1026.

  Finally, the discussion of Castro in the last paragraph of the Comment has been replaced with this the following:

  In Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021), the Ninth Circuit applied an objective deliberate indifference standard to the county’s policy of maintaining a mixed-use cell—sometimes using the cell for medical care and other times as a general holding cell—with only an informal verbal pass-off system for notifying nurses whether the detainee in the mixed-use cell required medical supervision. The court held that the standard “requires a showing that the facts available to the county put it on ‘actual or constructive notice’ that its practices with regard to [the mixed-use] cell were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.’” Id. (footnote omitted) (quoting Castro, 833 F.3d at 1076).

• The paragraph in the Comment to Instruction 9.9 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEECH) that comes after the dicussion of Demers (that starts "Whether the plaintiff spoke as a public employee") has been deleted. The following pargaraph has been added at the end:

  After a plaintiff establishes the first three steps, he or she has made out a prima facie case, and at step four the burden shifts to the government “to show that ‘under the balancing test established by Pickering, [the government’s] legitimate administrative interests outweigh the employee’s First Amendment rights.’” Moser v. Las Vegas Metro. Police. Dept., 984 F.3d 900, 906 (9th Cir. 2021) (quoting Eng, 552 F.3d at 1071) (holding the government failed to satisfy its step four burden because it did not produce any evidence indicating the speech at issue caused or would cause disruption). “[T]he Pickering balancing test is a legal question, but its resolution often entails underlying factual disputes that need to be resolved by a fact-finder.” Id. at 911 (quoting Eng, 552 F.3d at 1071). For example, the weight of the employee’s First Amendment interest is a question of law, but it is in part determined by the objective meaning of the employee’s speech, which is a question of fact. Id. at 906–08.

• The first paragraph of the Comment to Instruction 9.10 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEAKING AS A PRIVATE CITIZEN) now reads:

  Whether the plaintiff spoke as a public employee or a private citizen is a mixed question of fact and law. Barone v. City of Springfield, 902 F.3d 1091, 1099, 1101-06 (9th Cir. 2018) (“Whether an individual speaks as a public employee is a mixed question of fact and law . . . . First, a factual determination must be made as to the scope and content of a plaintiff’s job responsibilities . . . . Second, the ultimate constitutional significance of those facts must be determined as a matter of law.”) (citations and quotation marks omitted). In Dahlia v. Rodriguez, 735 F.3d 1060, 1063 (9th Cir. 2013) (en banc), the Ninth Circuit overruled Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), and found that the district court had improperly relied on a generic job description and failed to conduct the practical, fact-specific inquiry required by Garcetti, 547 U.S. at 424. The Ninth Circuit also set forth guiding principles for performing the Garcetti inquiry in analogous cases. Id. at 1073-76; see, e.g., Hagen v. City of Eugene, 736 F.3d 1251, 1258-60 (9th Cir. 2013) (holding that public employee reporting departmental safety concerns pursuant to duty to so report did not speak as private citizen). “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014); see also Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1104 (9th Cir. 2014).

• The following has been added at the end of the Comment to Instruction 9.20 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—GENERALLY): "A Fourth Amendment seizure of a bystander can occur when officers intentionally use force that injures the bystander. Villanueva v. California, 986 F.3d 1158, 1168 (9th Cir. 2021) (citing Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012))."
• The second to last paragraph of Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE FORCE) now ends: "But the use of deadly force to stop a slow-moving vehicle when the officers could easily have stepped aside violates the Fourth Amendment. Villanueva v. California, 986 F.3d 1158, 1170 (9th Cir. 2021) (citing Acosta v. City & Cnty. of S.F., 83 F.3d 1143, 1146 (9th Cir. 1996), as amended (June 18, 1996), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001))."
• The Comment to Instruction 9.30 (PARTICULAR RIGHTS—FOURTEENTH AMENDMENT—PRETRIAL DETAINEE’S CLAIM RE CONDITIONS OF CONFINEMENT/MEDICAL CARE) now cites Sandoval v. Cnty. of San Diego, 985 F.3d 657 (9th Cir. 2021).
• The Comment to Instruction 10.4 (CIVIL RIGHTS—TITLE VII—HOSTILE WORK ENVIRONMENT—HARASSMENT) now cites Christian v. Umpqua Bank, 984 F.3d 801 (9th Cir. 2020).
• A new paragraph appears at the end of the Comment to Instruction 10.5 (CIVIL RIGHTS—TITLE VII—HOSTILE WORK ENVIRONMENT—HARASSMENT BECAUSE OF PROTECTED CHARACTERISTICS—ELEMENTS:

  In determining whether the harassment was sufficiently severe or pervasive, the fact finder should consider all circumstances, “including those incidents that do not involve verbal communication between the plaintiff and harasser, physical proximity, or physical or sexual touching,” including interactions between the harasser and third persons. Christian v. Umpqua Bank, 984 F.3d 801, 810–11 (9th Cir. 2020) (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)). When harassment is of the “same type of conduct,” “occurred relatively frequently,” and was “perpetrated by the same individual,” that harassment should be evaluated together when assessing its severity. Id. at 810 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120–21 (2002)).

• A new paragraph appears at the end of the Comment to Instruction 15.19A (EXPRESSIVE WORKS):

  “The Rogers test drew a balance in favor of artistic expression and tolerates ‘the slight risk that [the use of the trademark] might implicitly suggest endorsement or sponsorship to some people.” Dr. Seuss Entprs., L.P. v. ComicMix LLC, 983 F.3d 443, 462 (9th Cir. 2020) (holding Lanham Act did not apply despite alleged use of trademark when junior use was not explicitly misleading and distinguishing Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018)).

• The Comment to Instruction 17.22 (COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE) twice references Dr. Seuss Entprs., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020).
• The Comment to Instruction 17.35 (COPYRIGHT—DAMAGES—STATUTORY DAMAGES) now states that in "In the case of willful infringement, the statutory maximum for damages is $150,000. 17 U.S.C. § 504(c)(2)." The paragraph that begins "If statutory damages are assessed against one defendant or a group of defendants ..." inserts the following: "This is true even if there is incomplete joint and several liability between all parties. Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1265 (9th Cir. 2021) (holding that only one statutory award was available when “one infringer is jointly and severally liable with all other infringers, but the other infringers are not completely jointly and severally liable with one another”)."
• The fifth paragraph in the Comment to Instruction 18.4 (SECURITIES—FORWARD-LOOKING STATEMENTS) (discussing In re Cutera) has been replaced with a paragraph discussing Wochos v. Tesla, Inc., 985 F.3d 1180, 1190 (9th Cir. 2021).
• The Comment to Instruction 18.8 (SECURITIES—CAUSATION) now cites Wochos v. Tesla Motors, Inc., 985 F.3d 1180, 1198 (9th Cir. 2021).

The prior (December 2020) versions of both sets are archived here.

(04/16/21) (permalink)

 

Tenth Circuit posts 2021 criminal jury instructions

The Tenth Circuit has posted a 2021 edition of its criminal pattern jury instructions. This is the first update since 2018, and the changes are extensive:

• Instruction 2.01 (FOOD STAMPS-UNAUTHORIZED USE) no longer concludes with "Finally, in determining the value of [food stamp coupons] [authorization cards] [access devices], you should rely on their face value [if specified or otherwise determinable]." The Comment more concisely describes the knowledge element.
• The fourth element of Instruction 2.02.1 (BRINGING IN AN ALIEN) now defines "reckless disregard" as a "deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully." The Comment notes that reckless disregard is not defined in Title 8, and discusses the applicable case law. It further notes case law regarding defense claims of being a national.
• The first two elements of Instruction 2.03 (ALIEN-ILLEGAL TRANSPORTATION) have been combined, with the added phrase "or was present in the United States in violation of law." The last element now has "in furtherance of the alien's violation of law" tacked on at the end. The Comment was extensively rewritten to explain this.
• The first two elements of Instruction 2.04 (ALIEN-CONCEALMENT) have been combined with an added alternative means ("come to").
• The Use Note for Instruction 2.05 (REENTRY OF DEPORTED ALIEN) now references United States v. Marceleno, 819 F.3d 1267 (10th Cir. 2016), regarding a duress defense.
• The Comment to Instruction 2.06 (AID AND ABET) has been rewritten with an extended discussion of Rosemond v. United States, 572 U.S. 65 (2014).
• Instruction 2.07 (ACCESSORY AFTER THE FACT) combines the first two elements into one without making any substantive change.
• Instruction 2.09 (ASSAULTING A FEDERAL OFFICER) now has an additional element with two alternatives: "the defendant [made physical contact with the federal officer] [acted with the intent to commit another felony]." It further provides:

  Before you can find the defendant guilty you must find, beyond a reasonable doubt, that he acted forcibly. The defendant acted forcibly if he used force, attempted to use force, or threatened to presently use force against the federal officer. A threat to use force at some unspecified time in the future is not sufficient to establish that the defendant acted forcibly.

  The acts proscribed by the offense - assault, resist, oppose, impede, intimidate, and interfere with - each require an underlying simple assault. Simple assault means any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so. and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured.]

  A finding that one used force (or attempted or threatened to use it) isn't the same as a finding that he attempted or threatened to inflict injury. Thus, in addition to finding beyond a reasonable doubt that the defendant acted forcibly, you must also find that the defendant intended to inflict or intended to threaten injury.

  This is explained in the Comment, which has been extensively rewritten.
• The fourth element of Instruction 2.10 (BANKRUPTCY FRAUD (PROPERTY CONCEALMENT)) has been rewritten to strike the word "fraudulently" and substitute in its place "with the intent to defraud the [custodian or trustee or marshal or other officer of the court, who was charged with control or custody of the property] [in Ch. 11 cases: creditors or United States Trustee]." An extended discussion of materiality in the Comment has been deleted.
• There is a new Instruction 2.10.1 (BANKRUPTCY FRAUD (SCHEME OR ARTIFICE TO DEFRAUD)).
• Instruction 2.11 (BRIBERY OF A PUBLIC OFFICIAL) now defines "official act" and the Comment now has an extended discussion of McDonnell v. United States, 136 S. Ct. 2355 (2016).
• Instruction 2.12 (RECEIVING A BRIBE BY A PUBLIC OFFICIAL) adds the element "at that time, defendant was a public official."
• The second element of Instruction 2.13 (ILLEGAL GRATUITY TO A PUBLIC OFFICIAL) now reads: "the defendant [gave] [offered] [promised] anything of value not authorized by law for the proper discharge of official duty to [name of official] [directly or indirectly]." The Comment notes United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 414 (1999) (to prove a violation of § 201(c)(1)(A) "the Government must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given").
• Two paragraphs have been added to the Use Note for Instruction 2.15 (BRIBERY OR REWARD OF A BANK OFFICER) discussing the "gravamen of the offense" and the term "corruptly."
• Instruction 2.16 (CONSPIRACY TO DEPRIVE PERSON OF CIVIL RIGHTS) now references United States v. Shabani, 513 U.S. 10 (1994).
• The Comment to Instruction 2.17 (DEPRIVATION OF CIVIL RIGHTS) adds more case authority, noting that the "purpose need not be expressed; it may at times be reasonably inferred from all the circumstances."
• 2.18 (FALSE CLAIMS AGAINST THE GOVERNMENT) now clarifies that the false or fraudulent claim must be made to a person or officer in civilian or military service of the United States or to a department or agency of the United States, and defines "claim" as "a demand for money, property, credit or reimbursement."
• The Comment and User Note to Instruction 2.19 (CONSPIRACY) has been rewritten, mostly to delete case notes without any really substantive changes to the guidance.
• The last paragraph of Instruction 2.22 (WITHDRAWAL) now reads: "In order to find that the defendant withdrew from the conspiracy, you must be convinced that the defendant has proven by a preponderance of the evidence that he took an affirmative step to either defeat the purpose of the conspiracy, either by reporting to the authorities or communicating to tell his coconspirators that he was no longer participating in the conspiracy." Some additional cases have been added to the Comment. The Use Note now emphasizes that the conspirator has the burden of proof.
• The first element of Instruction 2.23 (COUNTERFEITING) now reads " First: the defendant [falsely made counterfeit] [forged] [counterfeited] [name obligation or security]." The Hanzlicek case note in the Use Note has been deleted.
• The first two elements of Instruction 2.24 (PASSING COUNTERFEIT OBLIGATIONS OR SECURITIES) now read "First: the defendant [passed counterfeit] [uttered] [published] [sold], [falsely made] [forged] [counterfeited] [altered] [name obligation or security]; Second: the defendant knew that the [name obligation or security] was [falsely made] [forged] [counterfeit] [altered]"
• The first two elements of Instruction 2.24.1 (IMPORTATION, POSSESSION OR CONCEALMENT OF COUNTERFEIT OBLIGATIONS OR SECURITIES) now read "First: the defendant [brought into the United States] [kept in his possession] [concealed] ], [falsely made] [forged] [counterfeit] [altered] [name obligation or security]; Second: the defendant knew that the [name obligation or security] was [falsely made] [forged] [counterfeit;] [altered]"
• The first two paragraphs of the Comment to Instruction 2.30 (UNLAWFUL IMPORTATION) have been deleted.
• Case notes describing the different contexts of federal custody were added to the Comment to Instruction 2.35 (ESCAPE).
• The last sentence of the definitions of "threat" in Instructions 2.37 (INTERSTATE TRANSMISSION OF EXTORTIONATE COMMUNICATION) and 2.37.1 (INTERSTATE TRANSMISSION OF THREATENING COMMUNICATION) now read: "It is not necessary that the defendant intended to or carry out the threat, nor is it necessary that the defendant had the ability to carry out the threat."
• The Comment to Instruction 2.44 (POSSESSION OF A FIREARM BY A CONVICTED FELON) now references Rehaif v. United States, 139 S. Ct. 2191 (2019) (defendant must have knowledge that he was convicted of a felony).
• Instructions 2.45.2 (AIDING AND ABETTING USING/CARRYING A FIREARM DURING COMMISSION OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE) and 2.45.3 (AIDING AND ABETTING POSSESSION OF A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE) are new.
• The Comment to Instruction 2.46.2 (USING A FALSE WRITING) adds a couple of case parentheticals.
• The Comment to Instruction 2.47 (FALSE STATEMENTS IN BANK RECORDS) cites cases saying that "neither the Supreme Court nor this court has addressed whether the false bank entry statue, 18 U.S.C. § 1005, requires proof of materiality," the "omission of material information qualifies as a false entry," and that the "defendant need not have made the false entries himself."
• The second element in Instruction 2.49 (FALSE IDENTIFICATION DOCUMENTS) deletes the "willfulness" requirement. Specifically, it now reads "the defendant did so knowingly and willfully, with the intent to use unlawfully or transfer unlawfully the false identification documents." The Use Note adds that the "offenses set out at § 1028(a) are subject to the circumstances of § 1028(c)," and cross-references § 1028(d) for definitions.
• Instruction 2.50.1 has been renamed "FRAUD IN CONNECTION WITH COUNTERFEIT CREDIT CARDS OR OTHER ACCESS DEVICES." The Comment observes that the "essence of the offense is the willful knowing use of a counterfeit access device with intent to defraud." A new paragraph regarding the statute's legislative history now appears at the end of the Use Note.
• The same legislative history paragraph has also been added to the Use Note for Instruction 2.50.2 (USE OF UNAUTHORIZED ACCESS DEVICE)
• The elements of Instruction 2.51 (TRANSMISSION OF WAGERING INFORMATION) have been rewritten:

  First: the defendant was engaged in the business of betting or wagering;

  Second: the defendant regularly devoted time, attention and labor to betting or wagering for profit;

  Third: the defendant knowingly used a wire communication facility [to place bets or wagers on any sporting event or contest] [to provide information to assist with the placing of bets or wagers] [to inform someone that he or she had won a bet or wager and was entitled to payment or credit; and Fourth: the transmission was made from one state to another state or foreign country.

  Illustrative case notes have been added to the Comment.
• An extended note about jurisdiction in § 924(j)(1) murders has been excised from the Comment to Instruction 2.52 (FIRST DEGREE MURDER). The phrase "or defense of another" is added to the last paragraph of the Comment.
• An extended note about the liability of non-shooters has been excised from the Comment to Instruction 2.52.1 (FELONY MURDER).
• The discussion of malice aforethought in the Comment to Instruction 2.53 (MURDER IN THE SECOND DEGREE) has been rewritten.
• The third element of Instruction 2.54 (VOLUNTARY MANSLAUGHTER) has been rewritten as: "while in [sudden quarrel] [heat of passion], and therefore without malice, the defendant intentionally killed [acted with a general intent to kill] [the victim]; or [intended to cause the victim] serious bodily injury;] or [acted with a depraved heart, that is, recklessly with extreme disregard for human life." The definition of :intentionally killed" was removed from the instruction. The Comment was extensively revised in accord with these changes.
• The first two elements of Instruction 2.54.1 (INVOLUNTARY MANSLAUGHTER) were combined. A new second element requires that "the defendant knew that his conduct was a threat to the lives of others or it was foreseeable to him that his conduct was a threat to the lives of others." A new paragraph regarding the intent element, quoting United States v. Benally, 756 F.2d 773, 776 (10th Cir. 1985), was added to the Comment.
• The references to honest services in Instruction 2.56 (MAIL FRAUD) was moved to the beginning of the instruction. The Comment now references Shaw v. United States, 137 S. Ct. 462, 467 (2016), and Skilling v. United States, 561 U.S. 358 (2010).
• The third element of Instruction 2.58 (BANK FRAUD) no longer requires an intent to defraud a financial institution. The Comment now references Shaw v. United States.
• The Comment to Instruction 2.62 (CORRUPTLY OBSTRUCTING ADMINISTRATION OF JUSTICE) now references United States v. Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009) ("[A]n act is done 'corruptly' when 'done with the purpose of obstructing justice.'").
• The Comment to Instruction 2.65 (WITNESS TAMPERING) now references United States v. Banks, 884 F.3d 998, 1021-22 (10th Cir. 2018), regarding cases involving the use of physical force, see 18 U.S.C. § 1512(a)(2).
• Instruction 2.70 (Hobbs Act [ROBBERY] [EXTORTION] BY FORCE, VIOLENCE, OR FEAR) now requires that the property includes money and other tangible and intangible things of value that are transferable. The Comment explains that this is in accord with Sekhar v. United States, 570 U.S. 729 (2013). The Instruction also requires that the "force" be an act capable of causing physical pain or injury to another person. The Comment notes recent Tenth ircuit authority that requires this.
• Instruction 2.71 (Hobbs Act EXTORTION UNDER COLOR OF OFFICIAL RIGHT) also incorporates Sekhar. The definitions of "wrongfully obtain property under color of official right" and "official action" have been rewritten. The Comment notes that this was in compliance with McDonnell v. United States, 136 S. Ct. 2355 (2016).
• The Comment to Instruction 2.73 (MONEY LAUNDERING USING ILLEGAL PROCEEDS TO PROMOTE ILLEGAL ACTIVITY) now notes that the government need not prove that the defendant conducted the financial transaction with funds actually received as a result of unlawful activity, citing United States v. Johnson, 821 F.3d 1194 (10th Cir. 2016).
• The Comment to Instruction 2.73.1 (MONEY LAUNDERING CONCEALING ILLEGAL PROCEEDS) now notes that the government need not prove that the money laundering transaction was designed to make the criminal proceeds appear legitimate, citing United States v. Gonzales, 918 F.3d 808 (10th Cir. 2019).
• The Use Note for Instruction 2.81 (RECEIPT OR SALE OF A STOLEN MOTOR VEHICLE OR AIRCRAFT) has been deleted.
• Instruction 2.87 (CONTROLLED SUBSTANCES-CONSPIRACY) now provides that there "can be no conspiracy between a defendant and a government agent." The Comment cites United States v. Leal, 921 F.3d 951 (10th Cir. 2019), in support of this.
• The Comment to Instruction 2.92 (TAX EVASION) used to set forth with approval an Eleventh Circuit instruction on "Intentional Violation of a Known Legal Duty (as Proof of Willfulness Under the Internal Revenue Code)." This passage has been deleted.
• A new sixth element has been added to Instruction 2.93 (FALSE STATEMENTS ON INCOME TAX RETURN): "the defendant [filed] [caused someone to file] the [income] tax return with the Internal Revenue Service."

The 2018 instructions are archived here.

(04/11/21) (permalink)

 

Jury instruction news from California and Wisconsin

The Web site of California's Criminal Jury Instructions Resource Center now links the 2021 edition of CALCRIM, California's criminal jury instructions. There are two new instructions, 768 (Penalty Trial: Pre-Deliberation Instructions), and 1927 (Possession of Counterfeiting Equipment). Former No. 3220 (Amount of Loss) has been revoked. Revised instructions include:

• Posttrial Introductory
• 202. Note-Taking and Reading Back of Testimony
• 222. Evidence
• 520. First or Second Degree Murder With Malice Aforethought
• 591. Vehicular Manslaughter While Intoxicated—Ordinary Negligence
• 730. Special Circumstances: Murder in Commission of Felony
• 763. Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating
• 1140. Distributing, Sending, or Exhibiting Harmful Material
• 1151. Pandering
• 1193. Testimony on Child Sexual Abuse Accommodation Syndrome
• 1202. Kidnapping: For Ransom, Reward, Extortion or to Exact From Another Person
• 1820. Felony Unlawful Taking or Driving of Vehicle
• 2044. False Personation
• 2520. Carrying Concealed Firearm on Person
• 2521. Carrying Concealed Firearm Within Vehicle
• 2522. Carrying Concealed Firearm: Caused to Be Carried Within Vehicle
• 2624. Threatening a Witness After Testimony or Information Given
• 2651. Trying to Prevent an Executive Officer From Performing Duty

The prior version is archived here.

Wisconsin's civil, criminal, and "children" jury instructions, created and edited by the Wisconsin Jury Instructions Committees of the Wisconsin Judicial Conference, are now posted on the Wisconsin State Law Library Web site. I believe that they were previously only available on non-public sites like fastcase.

(04/10/21) (permalink)

 

An update on Sineneng-Smith

Still waiting for the Ninth Circuit changes to go official. Here's a preview of one of them.

Instruction 9.4 addresses Encouraging illegal entry, codified at 8 U.S.C. § 1324(a)(1)(A)(iv). In 2018 a Ninth Circuit panel held that the statute was unconstitutionally overbroad. The government appealed this decision to the United States Supreme Court, which accepted cert. The Ninth Circuit accordingly withdrew the Model Instruction while the case was pending before the Supreme Court.

Early last year, in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020), the Supreme Court vacated and remanded the Ninth Circuit decision without addressing the merits. At trial and on its initial appeal the defendant had made a number of First Amendment arguments, but did not argue overbreadth. Rather than address the claims raised by the defendant, the Ninth Circuit panel had appointed three amici and invited them to brief and argue other issues framed by the panel, including overbreadth. This, according to the Supreme Court, "departed so drastically from the principle of party presentation as to constitute an abuse of discretion." The case was remanded "for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel." The panel was specifically instructed to review the case "shorn of the overbreadth inquiry."

In December the Ninth Circuit panel, on remand, rejected the defendant's actual arguments and affirmed the conviction. The revised Model Instruction now simply sets out the elements in the statutory language without any reference to overbreadth which, I assume, remains an issue if properly raised in future cases.

(04/09/21) (permalink)

 

March 2021 changes to the Ninth Circuit civil and criminal instructions

The Ninth Circuit has revised its civil and criminal Model Instructions. Currently the changes only appear in the HTML copies of the instructions, not in the WPD or PDF copies posted on the site.

The civil changes are to Instructions 9.5, 9.8, 9.30, and to the Comments to Instructions 9.1, 9.9, 9.10, 9.20, 9.25, 10.4, 10.5, 15.19A, 17.22, 17.35, 18.4, and 18.8. The criminal changes are to Instruction 9.4, and to the Comments to Instructions 8.25, 8.63, 8.71, 8.83, 8.90, 8.143A, 8.143B, and 8.162.

I'll post a thorough analysis of the changes when the WPD and PDF versions are posted, which should be any day now.

(04/09/21) (permalink)

 

March 2021 changes to the Sixth Circuit criminal instructions

The Sixth Circuit has revised several criminal jury instructions.

• Instruction 8.02 (Experiments, Research, Investigation and Outside Communications) now reads in part: "You may not use any electronic device or media, or application [unless specifically instructed to do so by this court], and adds the language "Even using your smartphones, tablets, and computers–and the news and social media apps on those devices–may inadvertently expose you to certain notices, such as pop ups or advertisements, that could influence your consideration of the matters you've heard about in this courtroom." It also adds to the list of proscribed social media platforms. The Use Note is substantially rewritten; it was formerly based on a 2013 Benchbook, but is now taken from the Proposed Model Jury Instructions on the Use of Electronic Technology to Learn or Communicate about a Case, Prepared by the Judicial Conference Committee on Court Administration and Case Management (June 2020).
• Paragraph (1)(A) of Instruction 10.01 (Mail Fraud) replaces the word "obtain" with "deprive another of." Paragraph (2)(C) deletes the word "intentionally." Paragraph (2)(D) replaces "either causing a financial loss to another or bringing about a financial gain to oneself [to another person]" with "depriving another of money or property." The reasons for these changes are discussed in an extensively rewritten Commentary, and include a note about Kelly v. United States, 140 S. Ct. 1565 (2020).
• The same changes were made to Instruction 10.02 (Wire Fraud). The Use Note regarding Paragraph (2)(D) suggests that "if the prosecution's theory of fraud is based on concealment of required reports, the court should consider instructing that a failure to file required reports may be a material omission." Once again, the Commentary is substantially rewritten.
• An additional element has been added to Instruction 14.02B (Distribution of a Controlled Substance when Death or Serious Bodily Injury Results): "[(D) Fourth, the defendant was part of the of the distribution chain that placed the [name controlled substance] into the hands of [name of person injured/deceased]]." The Use Note explains this language "should be used only when the defendant's liability for the distribution offense is based on a Pinkerton conspiracy theory." The revised Commentary explains that the new element comes from United States v. Hamm, 952 F.3d 728, 747 note 11 (6th Cir. 2020).
• The same changes are made to Instruction 14.03B (Manufacture of a Controlled Substance when Death or Serious Bodily Injury Results).
• Instruction 18.01 (Transmission of a Threat to Kidnap or Injure) now provides that the "government need not prove that the defendant [intended to carry out the threat or was capable of carrying out the threat at the time it was made] [made the targeted individual feel threatened or that the targeted individual knew about the threat against him.]." The Commentary was updated to note the court's decision in United States v. Howard, 947 F.3d 936, 946 (6th Cir. 2020).

Previous versions of these instructions are archived here.

(03/27/21) (permalink)

 

Hawaii recompiles its criminal instructions

Hawaii's criminal instructions are technically a 1991 edition, but it works interim amendments into the text from time to time. This week it posted a March 2021 update along with an archive of the amendments that got added. Actually, there have been no amendments since 2018, but this is the first time that the amendments have been recompiled into main volume since 2005.

(03/12/21) (permalink)

 

Revised reporter's notes from Vermont

The Vermont Model Criminal Jury Instructions site notes that the following changes to the reporter's notes occurred last week:

• The Committee has revamped and expanded the reporter's note for the hung jury ("Allen") charge. The expanded note incorporates discussion from State v. Rolls, 2020 VT 18.
• The Committee has revised the reporter's note accompanying the transition instructions, which appear on multiple pages on this website, to add a reference to State v. Rolls, 2020 VT 18 (trial court did not err in providing both hard and soft transition instructions, rather than one or the other, in the absence of defendant's request).
• The Committee has added a reference to State v. Kandzior, 2020 VT 37 ("the failure to investigate possible jury taint and establish an evidentiary basis for determining if the jury was fair and unbiased amounts to plain error") to the reporter's notes accompanying the juror prohibition instructions.

(03/07/21) (permalink)

 

Third Circuit's revised criminal Chapter 4 addresses eyewitness testimony

The Third Circuit has continued its weekly rollout of revised criminal instructions. This week we have the February 2021 version of Chapter 4 ("Final Instructions: Consideration of Particular Kinds of Evidence").

The most noteworthy change is to Instruction 4.15 (Eyewitness Identification of the Defendant). The Comment to the former instruction had indicated its approval of a critical approach to eyewitness instructions taken by Pennsylvania courts as set out in this paragraph:

In any case raising the question whether the defendant was in fact the criminal actor, the jury will be instructed to resolve any conflict or uncertainty on the issue of identification. The jury will be instructed that identification may be made through the perception of any of the witness' senses, and that it is not essential that the witness himself be free from doubt as to the correctness of his opinion. The identification testimony may be treated by the jury as a statement of fact by the witness: (1) if the witness had the opportunity to observe the accused; (2) if the witness is positive in his identification; (3) if the witness' identification testimony is not weakened by prior failure to identify or by prior inconsistent identification; and (4) if, after cross-examination, his testimony remains positive and unqualified. In the absence of any one of these four conditions, however, the jury will be admonished by the court that the witness' testimony as to identity must be received with caution and scrutinized with care. The burden of proof on the prosecution extends to every element of the crime charged, including the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he stands charged.

That paragraph has been deleted in the 2021 Instruction. The Comment explains:

Instruction 4.15 has never been amended. Neither the Supreme Court nor the Third Circuit has issued further guidance requiring amendment of the instruction. However, in 2016, the Third Circuit appointed a Task Force on Eyewitness Identification. The Task Force was directed to "make recommendations regarding jury instructions, use of expert testimony, and other procedures and policies intended to promote reliable practices for eyewitness identification and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of a wrongful conviction." In 2019, the Task Force issued a comprehensive Report on eyewitness identification. This Report includes sections on system and estimator variables, suggestions on modifications/additions regarding Instruction 4.15, and a best practices section. The Report does not have precedential authority (see "Disclaimer," page 7 of the Report). However, it is a useful treatise on the myriad of issues that may arise during a trial that involves an eyewitness identification. The Report is available at https://www.deb.uscourts.gov/news/2019-report-third-circuit-task-force-eyewitness-identifications and in the Temple Law Review, 92 TEMP. L. REV. 1 (2019). In the report, certain Task Force members recommended amendments to Instruction 4.15.

The Third Circuit Committee on Model Criminal Jury Instructions considered the information and recommendations in the Task Force report. The Committee declined to adopt most of these recommendations, concluding that the issues should be raised by counsel as they arise at trial. The Committee nevertheless adopted one recommendation, deleting the following language that directed the jury's attention to witness certainty:

you should ask whether the witness is positive in the identification and whether the witness' testimony remained positive and unqualified after cross-examination.

The Task Force reported that social science empirical evidence establishes that, at most, there is a weak relationship between the witness's affirmative confidence in the identification and the accuracy of the identification. In addition, pattern instructions in other circuits do not mention witness certainty. Consequently, the members of the Task Force agreed that this language should be removed.

Accordingly, a paragraph in Instruction 4.15 has been modified as follows:

(Second), you should ask whether the witness is positive in the Even if the witness's identification and whether the witness' testimony remained is positive and unqualified after cross-examination. If the witness' identification testimony is positive and unqualified, you should ask whether the witness's certainty is well-founded.

Other less consequential changes:

• The Comment to Instruction 4.09 (Opinion Evidence (Lay Witnesses) (F.R.E. 701)) now cites United States v. Brown, 754 F.App'x. 86 (3d Cir. 2019) (non-precedential) (discussing requirements and concluding that police officer's lay opinion was properly admitted).

• The Comment to Instruction 4.12 (Chain of Custody) notes that the burden is not heavy, citing United States v. Talley, 826 F. App'x. 158 (3d Cir. 2020) (non-precedential), and United States v. Rawlins, 606 F.3d 73, 82 (3d Cir. 2010).

• The Comment to Instruction 4.24 (Impeachment of Witness - Prior Bad Acts (F.R.E. 608(b))) now cites United States v. Trant, 924 F.3d 83, 91 (3d Cir. 2019), where the Third Circuit held that the trial court properly precluded the defendant's cross-examination of a prosecution witness concerning his illegal possession of a firearm because it did not bear on the witness's character for truthfulness or untruthfulness.

The prior versions of these instructions are archived here.

(03/06/21) (permalink)

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