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The Ninth Circuit posts revised copies of its Model Civil Instructions

The Ninth Circuit recently posted September 2025 revisions to its Model Civil Instructions. I have posted a docx file online showing the changes in redline/strikeout.

(11/16/25) (permalink)

The Third Circuit posts revised copies of chapters 5, 6, and 8-11 of its Model Civil Instructions

The Third Circuit recently posted September 2025 revisions to Chapters 5 (Employment Discrimination Claims Under Title VII), 6 (Race Discrimination Claims Under 42 U.S.C. § 1981), 8 (Claims Under the Age Discrimination In Employment Act), 9 (Employment Claims Under the Americans With Disabilities Act), 10 (Claims Under the Family and Medical Leave Act), and 11 (Sex Discrimination Claims Under the Equal Pay Act). I have posted docx files online (Chapter 5) (Chapter 6) (Chapter 8) (Chapter 9) (Chapter 10) (Chapter 11) showing the changes in redline/strikeout.

(11/05/25) (permalink)

The Third Circuit posts revised copies of chapters 4 and 7 of its Model Civil Instructions

The Third Circuit recently posted September 2025 revisions to Chapters 4 (Civil Rights Claims Under Section 1983) and 7 (Section 1983 Employment Claims) of its Model Civil Instructions. I have posted docx files online (Chapter 4) (Chapter 7) showing the changes in redline/strikeout.

(10/28/25) (permalink)

The Ninth Circuit has revised its Model Criminal Jury Instructions

The Ninth Circuit has posted the September 2025 revisions to its Model Criminal Jury Instructions. The civil instructions have not been updated, but past practice suggests that they will show up soon.

Instructions 11.8 (Solicitation to Commit a Crime of Violence (18 U.S.C. § 373)), 19.6 (Obstruction of Justice—Pending Proceeding Before United States Departments or Agencies (18 U.S.C. § 1505)), 24.29 (Theft Concerning Federally Funded Program—Elements (18 U.S.C. § 666)), 24.30 Accepting A Bribe—Elements ((18 U.S.C. § 666(a)(1)(B)), 24.31 Paying A Bribe—Elements (18 U.S.C. § 666(a)(2)), and 24.32 Definition of “Agent” (18 U.S.C. § 666)) are new.

The revisions to other instructions criminal Instructions are as follows:

• Instruction 1.8 (Conduct of the Jury) now cites X as well as Twitter.

• The Comment to Instruction (4.2 Aiding and Abetting (18 U.S.C. § 2(b))) now observes that Section 2(b) “does not require a defendant to have a duty to disclose if prosecuted for inaction,” United States v. Sullivan, 131 F.4th 776, 784 (9th Cir. 2025), so long as the third party who does the act has such a duty, id. (citing United States v. Singh, 979 F.3d 697, 717-18 (9th Cir. 2020)).

• The second and fourth elements of Instruction 5.8 (Necessity (Legal Excuse)) now requires that "the defendant reasonably acted to prevent imminent harm." Accordingly, the Comment now cites United States v. Powers, 129 F.4th 617, 625-26 (9th Cir. 2025) (clarifying that reasonableness requirement applies to second, third, and fourth elements of necessity defense).

• Instruction 7.6 (Alien—Deported Alien Reentering United States Without Consent (8 U.S.C. § 1326(a))) has a new element: "Fourth, the defendant was free from official observation or restraint between the moment [he] [she] [other pronoun] physically crossed into U.S. territory and the moment [he] [she] [other pronoun] was apprehended." It also now defines "official restraint." The Comment attributes the change to United States v. Liberato, 142 F.4th 1174, 1182 (9th Cir. 2025) (government had not met its burden of proving with sufficient evidence that the defendant 'was at any point free from official observation or restraint between the moment he physically crossed into U.S. territory and the moment he was apprehended' and therefore free of official restraint).

• Instruction 7.8 (Alien—Deported Alien Found in United States (8 U.S.C. § 1326(a))) amends the pronoun designations to "[he] [she] [other pronoun]. Element six now reads "the defendant was free from official observation or restraint at between the timemoment [he][] [she] [other pronoun] entered physically crossed into U.S. territory and the United States moment [he] [she] [other pronoun] was apprehended. The Comment now cites Liberato re official restraint.

• The first paragraph of Instruction 8.6 (Assault by Striking or Wounding (18 U.S.C § 113(a)(4))) replaces "with a dangerous weapon" with "by striking or wounding."

• Instruction 14.16 has been retitled from Firearms—Unlawful Possession—Convicted Felon (18 U.S.C. § 922(g)(1924(g)) to Firearms—Armed Career Criminal Act (18 U.S.C. § (1924(e)). The text and Comment have been substantially rewritten.

• The Comment to Instruction 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))) now discusses United States v. Johnson, 139 F.4th 830 (9th Cir. 2025) (Pinkerton theory for Hobbs Act robbery).

• Instruction 15.9 (Fraud in Connection with Identification Documents—Aggravated Identity Theft (18 U.S.C. § 1028A)) now ends: [The government need not establish that the [means of identification of another person] [false identification document] was stolen or used without the other person’s consent.]" The Comment indicates that the change was occasioned by United States v. Parviz, 131 F.4th 966, 972 (9th Cir. 2025).

• Instruction 15.21 (Without Authorization—Defined) now notes that an 'actor’s authorization, or lack thereof, is assessed at the moment of access.' United States v. Sullivan, 131 F.4th 776, 785 (9th Cir. 2025)."

• The Comment to Instruction 15.32 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises (18 U.S.C. § 1341)) has been rewritten to reflect the Supreme Court's recent holding in Kousisis v. United States, 145 S. Ct. 1382 (2025). The Comment also now notes United States v. Milheiser, 98 F.4th 935, 938, 944-45 (9th Cir. 2024) (“The nature of the bargain requirement properly excludes from liability cases in which a defendant’s misrepresentations about collateral matters may have led to the transaction but the buyer still got the product that she expected at the price she expected.”).

• Kousisis is also noted in the Comment to Instruction 15.35 (Wire Fraud (18 U.S.C. § 1343)).

• The Comment to Instruction 15.41 (False Statement to a Bank or Other Federally Insured Institution (18 U.S.C. § 1014)) now notes Thompson v. United States, 604 U.S. __, 145 S. Ct. 821, 826 (2025) regarding misleading but true statements.

• The Comments to Instructions 20.25 (Sex Trafficking of Children (18 U.S.C. § 1591(a)(1))), 20.25A (Sex Trafficking by Force, Fraud, or Coercion (18 U.S.C. § 1591(a)(1))), and 20.26 Sex Trafficking of Children or by Force, Fraud, or Coercion—Benefitting from Participation in Venture (18 U.S.C. § 1591(a)(2)) now note United States v. Bradford, 148 F.4th 699 (9th Cir. 2025) regarding duplicity and the two standards for mens rea.

• The Comment to Instruction 24.1 (Misprision of Felony (18 U.S.C. § 4)) has been updated to note United States v. Sullivan, 131 F.4th 776, 785-86 (9th Cir. 2025) (defendant need not know the precise term of imprisonment authorized by law, but at least must know that the potential punishment exceeds one year in prison).

• Instructions 24.13 to 24.28 have been renumbered.

(10/27/25) (permalink)

Eleventh Circuit has revised its civil and criminal Pattern Jury Instructions

The Eleventh Circuit has revised its civil and criminal Pattern Jury Instructions. The civil changes can be found in this redline/strikeout file. The criminal changes are described below:

• Instruction P1 (Preliminary Instructions – Criminal Cases) no longer lists "Facebook, Instagram, Snapchat, YouTube, or Twitter." It instead lists "encrypted-communication apps," "social-networking websites" or "any similar social-media technology."

• The Comment to Instruction B6.7 (Impeachment of Witness Because of Bad Reputation for (or Opinion about) Truthfulness (May Be Used With 6.1 – 6.6)) has the updated version of Rule 608.

• The phrase "that is, with the intent to do something the law forbids" has been removed from the definition of willfully in Instruction B9.1B (Knowingly; Willfully – Intentional Violation of a Known Legal Duty).

• The Comment to Instruction S10.1 Lesser - Included Offense (Single) deletes the second and third paragraphs, and the verdict form (which remains in Instruction S10.2 (Lesser - Included Offense (Multiple)).

• The third element of Instruction O21 (Theft of Government Money or Property 18 U.S.C. § 641 (First Paragraph)) substitures "owner" for "United States." The Comment explains that it does not matter whether the defendant knew that the United States owned the property.

• Specific fact (5) of Instruction O75.1 (RICO – Substantive Offense 18 U.S.C. § 1962(c)) now reads "(5) the enterprise was involved engaged in, or the activities of the enterprise affected, interstate commerce." The last paragraph of the Instruction now reads:

  For the fifth specific fact, “interstate commerce” means business, trade, or movement between one state and another. The Government must prove beyond a reasonable doubt that in conducting the affairs the enterprise engaged in, or the activities of the enterprise the Defendant was involved in or affected, interstate commerce by [describe interstate commerce activity from indictment; e.g. using interstate communications facilities by making long-distance phone calls; by traveling from one state to another; by sending funds by mail or wire from one state to another]. If you find that these transactions or events occurred, and that they occurred or were done in the course of or as a direct result of conducting the enterprise’s affairs, then the required involvement in or effect on interstate commerce is established, but But if you don’t so find, then the required effect on interstate commerce is not established.

  The paragraph regarding the maximum penalty is removed from the Comment.

• The second Specific Fact in Instruction O75.2 ((RICO – Conspiracy Offense 18 U.S.C. § 1962(d))) now reads: "(2) that the unlawful enterprise engaged in, or the activities of the enterprise affected, interstate commerce." Both references to "other acts of racketeering" in Specific Fact (4) are edited to strike the word "other."

  The paragraph in the Comment regarding the maximum penalty is removed, and the paragraph that follows it (discussing United States v. To, 144 F.3d 737 (11th Cir. 1998)) is new.

• Former Instruction O98 (Controlled Substances – Possession with Intent to Distribute 21 U.S.C. § 841(a)(1)) has been renumbered as O98.1. Elements (1) and (2) of the Instruction are edited to read " controlled substance" instead of simply "substance." The discussion of Apprendi, Alleyne, and McFadden and the Verdict Form in the Comment have been substantially rewritten.

• Instruction O98.2 (Controlled Substances – Distribution 21 U.S.C. § 841(a)(1)) is new.

• Instruction O103 (Possession of Controlled Substance Near Schools or Public Housing 21 U.S.C. § 860) has the same "controlled substance" changes noted for O98.1 above. The Maximum Penalty note and discussion of "willfully" have been removed from the Comment. The Apprendi/Alleyne discussion has been replaced with a discussion of newer Eleventh Circuit cases.

• Instruction O107.1 has been renamed as Attempt to Evade or Defeat Income Tax (26 U.S.C. § 7201). Elements (2) and (3) now read:

  (2) the Defendant knew when [he] [she] filed that income tax return that [he] [she] owed substantially more income taxes than the amount reported on [his] [her] return; and

  (3) the Defendant intended to evade or defeat paying income taxes [he] [she] knew [he] [she] was required by law to pay.

  References to "tax" are generally replaced by "income tax."

  The Comment section now begins:

  Under 26 U.S.C. § 7201 provides:

  Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof [shall be guilty of an offense against the United States.]

  The Maximum Penalty note is deleted, and the Comment further observes that although 26 U.S.C. § 7201 "covers any tax imposed by this title, this instruction is limited to income tax."

• The Elements list for Instruction O117.1 (Controlled Substances – United States or Subject to the Jurisdiction of the United States 46 U.S.C. § 70503(a)) replaces references to "substance" with "controlled substance." The final paragraph of the Instruction reads:

  [The Defendant[s] [is/are] charged in the indictment with [distributing] [possessing with intent to distribute] a certain quantity or weight at least [threshold(s)] of the alleged controlled [substance[(s)]. But you may find [the/any] Defendant guilty of the offense crime even if the quantity amount of the controlled substance[s] for which [he/she] should be held responsible is less than the amount or weight charged. Thus the verdict form prepared with respect to [the] [each] Defendant, as I will explain in a moment, will require that [threshold(s)]. So if you find [the/any] Defendant guilty, you must also find whether the Government has proved beyond a reasonable doubt the weight of [substance](s)] the Defendant possessed and specify the amount[s] on the verdict form.]

  The dicussion of Apprendi issues in the Comment was significantly revised. The jury instruction committee also noted that it:

  has omitted the word “willfully,” which was previously used in this instruction. “Willfully” is not used in the statute, and the essence of the offense is a knowing possession of a controlled substance with an intent to distribute it. The Committee has concluded that the use of the term “willfully” does not add clarity or certainty, and relying instead on the words “knowingly” and “intentionally” more closely comports with the legislative intent.

• The same changes were applied to Instruction O117.2 Controlled Substances – Possession on Vessel by United States Citizen or Resident Alien 46 U.S.C. § 70503(a).

• Instruction T3 is now titled Explanatory Instruction Transcript of Tape Recorded Conversation. The phrase "and secondary" has been removed from the second paragraph, and "and from your own examination of the transcript in relation to hearing the tape recording itself as the primary evidence of its own contents" has been removed from the third paragraph.

(10/08/25) (permalink)