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Ninth Circuit posts its September 2024 Model Criminal Jury Instructions

The Ninth Circuit recently posted these revisions to its 2024 Model Criminal Jury Instructions:

• The Comment to Instruction 3.14 (Opinion Evidence, Expert Witnes) has a new paragraph discussing Diaz v. United States, 144 S. Ct. 1727 (2024).

• There is a new last paragraph to the Comment to Instruction 14.15 (Firearms—Unlawful Possession (18 U.S.C. § 922(g))) discussing United tates v. Rahimi, 144 S. Ct. 1889 (2024).

• The Comments to Instructions 14.22 (Firearms–Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))) and 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime (18 U.S.C. § 924(c))) now cite United States v. Howald, 104 F.4th 732, 742-43 (9th Cir. 2024) (attempt to kill is an attempted use of force, distinguishing Taylor.

  Also, the third paragraph of the Comment to Instruction 14.23 has been substantially revised:

  The phrase “in furtherance of” requires proof that the defendant possessed the weapon with the subjective intent of promoting or facilitating the underlying crime. United States v. Irons, 31 F.4th 702, 711-12 (9th Cir. 2022) (finding error in jury instruction that only required “connection” between firearm and underlying crime). A district court does not err in failing separately to define “in furtherance of” in its instruction to the jury on possession of a firearm in furtherance of a drug trafficking crime. United States v. Lopez, 477 F.3d 1110, 1115-16 (9th Cir.), cert. denied, 552 U.S. 855 (2007) (instruction that separately listed requirements of possession and possession in furtherance of the crime eliminated the possibility that rational juror would convict defendant upon finding mere possession). “The question whether possession of a firearm is ‘in furtherance of’ a crime is a ‘fact-based inquiry into the nexus between possession of the firearm and the drug crime.’” Thongsy, 577 F.3d at 1041 (citation omitted). There is sufficient evidence that the possession was “in furtherance of” the underlying crime when the requisite nexus exists. Id.; see United States v.); see United States v. Mahan, 586 F.3d 1185, 1187-89 n.3 (9th Cir. 2009) (holding that defendant who receives guns in exchange for drugs possesses those guns “in furtherance of” his drug trafficking offense). A district court does not err in failing separately to define “in furtherance of” in its instruction to the jury on possession of a firearm in furtherance of a drug trafficking crime. United States v. Lopez, 477 F.3d 1110, 1115-16 (9th Cir.), cert. denied, 552 U.S. 855 (2007) (instruction that separately listed requirements of possession and possession in furtherance of crime eliminated possibility that rational juror would convict defendant upon finding mere possession).

• The Title to Instruction 17.1 now reads "Kidnapping—Interstate Transportation (18 U.S.C. § 1201(a)(1)))."

  The third element now reads:

  [Third, the defendant intentionally transported [name of kidnapped person] across state lines]

  or

  [Third, the defendant [traveled in [interstate][foreign] commerce] [used the mail [in committing] [in furtherance of committing] the offense]

  or

  [Third, the defendant used [[the mail] [any [means] [facility] [instrumentality] of [interstate][foreign] commerce]] [[in [committing] [in furtherance of committing]]] the offense].

  The first paragraph of the Comment (which talked about former language requiring that the kidnapping be for “ransom, reward, or other benefit") was removed. A new penultimate paragraph discussing jurisdiction has been added.

• A new first paragraph of the Comment to Instruction 19.5 (Obstruction of Justice—Official Proceeding (18 U.S.C. § 1512(c)) now discusses Fischer v. United States, 144 S. Ct. 2176 (2024).

• The new paragraph in the Comment to Instruction 20.27 (Transportation or Attempted Transportation for Prostitution or Criminal Sexual Activity (18 U.S.C. § 2421)) now discusses United States v. Stackhouse, 105 F.4th 1193 (9th Cir. 2024).

(12/06/24) (permalink)

Sixth Circuit posts its 2024 Pattern Criminal Jury Instructions

The Sixth Circuit Committee on Pattern Criminal Jury Instructions posted its criminal pattern instructions this month ("Updated as of January 1, 2024") (the Sixth Circuit does not have pattern civil instructions). Changes include:

• Paragraph (4) of Instruction 1.02 (JURORS' DUTIES) now reads "(4) Perform these duties fairly and impartially. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way." Paragraph (5) is new:

  (5) Do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases. You should not be influenced by stereotypes based on any person’s age, race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances.

  This is explained in the Use Note and Committee Commentary.

• Instruction 1.07 (CREDIBILITY OF WITNESSES) has been renumbered as 1.07A. Instruction 1.07B (CREDIBILITY OF WITNESSES – LAW ENFORCEMENT OFFICER)is new.

• Instruction 1.07 (NUMBER OF WITNESSES) has been renumbered as 1.08.

• The Committee Commentary to Instruction 2.03 (DEFINITION OF LESSER OFFENSE) now cites Carter v. United States, 530 U.S. 255 (2000) and U.S. v. Colon, 268 F.3d 367 (6th Cir. 2001) (applying the Schmuck test and holding that simple possession is not a lesser-included-offense of (1) conspiracy to distribute and possess with intent to distribute drugs or (2) distribution of drugs). It also has an extended discussion of the deferential standard of review for the decision to instruct on lesser included crimes.

• The elements list in Instruction 3.01A (CONSPIRACY TO COMMIT AN OFFENSE (18 U.S.C. § 371) – BASIC ELEMENTS)) now read:

  (A) First, that two or more persons conspired, or agreed, to commit the crime of [insert substantive crime].

  (B) Second, that the defendant knowingly knew of the conspiracy and voluntarily its [objects] [aims] [goals].

  (C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].

  (D) And third fourth, that a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy.

  You must be convinced that the government has proved all of these elements beyond a reasonable doubt in order to find any one of these defendants guilty of the conspiracy charge.

  The Committee Commentary is substantially rewritten.

• Instruction 3.01B (CONSPIRACY TO DEFRAUD THE UNITED STATES (18 U.S.C. § 371) – BASIC ELEMENTS) has been rewritten

  (A) First, that two or more persons conspired, or agreed, to defraud the United States, or one of its agencies or departments, by dishonest means.

  (B) Second, that the defendant knew of the conspiracy and its [objects] [aims] [goals].

  (C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of defrauding the United States.

  (D) And fourth, that a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy.

  The notes under the elements conclude that

  The government need not prove that the defendants intended to directly commit the fraud themselves. Proof that they intended to use a third party as a go-between may be sufficient. But the government must prove that the United States or one of its agencies or departments was the ultimate target of the conspiracy, and that the defendants intended to defraud.

  The Committee Commentary is substantially rewritten.

• The first paragraph of Instruction 3.03 (DEFENDANT'S CONNECTION TO THE CONSPIRACY) has been deleted. Jurors are now admonished to consider each defendant separately. Also, the third paragraph now reads in part "A defendant's knowledge can be proved indirectly by facts and circumstances which lead to a conclusion that he knew the conspiracy's main purpose of the conspiracy and its [objects] [aims] [goals]. Most of the Committee Commentary has been deleted.

• The Committee Commentary to Instruction 3.11B (WITHDRAWAL AS A DEFENSE TO SUBSTANTIVE OFFENSES COMMITTED BY OTHERS) now cross references Instruction 3.10 re Pinkerton liability.

• The Committee Commentaries to Instructions 10.01 (MAIL FRAUD (18 U.S.C. § 1341)) and 10.02 (WIRE FRAUD (18 U.S.C. § 1343)) now discuss Ciminelli v. United States, 143 S. Ct. 1121 (2023).

• The Committee Commentary to Instruction 10.03A (BANK FRAUD – Scheme to Defraud a Bank (18 U.S.C. § 1344(1))) replaces the discussion of United States v. McGuire, 744 F.2d 1197 (6th Cir. 1984) with a reference to United States v. Skouteris, 51 F.4th 658 (6th Cir. 2022).

• The Committee Commentaries to Instructions 14.02C (DISPENSING OR DISTRIBUTION OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1))) and 14.03C (MANUFACTURE OF A CONTROLLED SUBSTANCE BY A PRACTITIONER (21 U.S.C. § 841(a)(1)))discuss mens rea issues post-United States v. Ruan, 142 S. Ct. 2370 (2022).

• The elements of Instruction 14.05 CONSPIRACY TO VIOLATE THE DRUG LAWS (21 U.S.C. § 846) now read:

  (A) First, that two or more persons conspired, or agreed, to [insert object(s) of conspiracy substantive crime].

  (B) Second, that the defendant(s) knowingly knew of the conspiracy and voluntarily its [objects] [aims] [goals], and

  (B) (C) Third, that the defendant joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].

  There are some minor changes to specific instructions, notably

  (B) the government must prove that the defendant(s) knew the conspiracy's main purpose and voluntarily joined of the conspiracy intending to help advance or achieve and its [objects] [aims] [goals. ] and joined the conspiracy with the intent that at least one of conspirators engage in conduct that satisfies the elements of [insert substantive crime].

  The Committee Commentary observes that elements "were revised in 2024 to be consistent with changes made that year to other conspiracy instructions, Insts. 3.01A, 3.01B, and 3.03. These revisions are described in detail in the commentary to Inst. 3.01A." The summary of the holdig in United States v. Watkins, 1994 WL 464193, 1994 U.S. App. LEXIS 23886 (6th Cir. 1994) (unpublished) was deleted. The drawbacks of using the term “willfully" are noted.

• Paragraph (2)(E) of Instruction 15.04 (Aggravated Identity Theft (18 U.S.C. § 1028A(a)(1))) now reads:

  (E) The term [transfer] [possession] [use] of a means of identification is “during and in relation to” requires that the means of identification have some purpose or effect with respect to the felony of [include name of felony and citation] charged in Count; in other words, if the [transfer] [possession] [use] of the means of identification must facilitate or further, or have was at the potential of facilitating or furthering crux of the underlying felony of [include name of felony and citation] charged in Count , and its presence or involvement cannot be. Stated another way, the result[transfer] [possession] [use] must have been a key mover in the criminality. [In cases where the underlying crime involves fraud or deceit, the means of accident or coincidence. identification must have been [transferred] [possessed] [used] in a manner that is fraudulent or deceptive.]

  This is explained in the Committee Commentary.

• The Committee Commentary of Instruction 18.01 (Transmission of a Threat to Kidnap or Injure (18 U.S.C. § 875(c))) now replaces a discussion of Elonis v. United States, 135 S. Ct. 2001 (2015), with a discussion of Counterman v. Colorado, 143 S. Ct. 2106 (2023).

(11/21/24) (permalink)

Thomson Reuters now taking orders on Federal Crimes

This entry is going to be a "sticky" for a the next month while I use it to post information on my new book, Federal Crimes. Scroll down or click on the recent blog posts panel for other recent recent jury instruction news.

Federal Crimes identifies the essential things to know about the most commonly charged (approximately 400) federal crimes, including the elements, required mental states, defenses, Department of Justice policies, and the application of the Sentencing Guidelines.

Thomson Reuters has the book priced at $175, but I have a limited number of review copies that are available for free if you have the ability to post a review. All you have to do is email me with a brief description of the publication or Web site where you have the ability to post a review, and I'll get you a copy, first come, first served.

(09/14/24) (permalink)

Ninth Circuit issues new Model Criminal Jury Instructions

The Ninth Circuit has issued a revised set of civil and criminal Model Jury Instructions. The civil changes are described in yesterday's blog post. The criminal changes are described below.

• The Comment to Instruction 3.1 (Statements by Defendant or Codefendant) has a new paragraph re United States v. Ehmer, 87 F.4th 1073 (9th Cir. 2023) (trial court must make a preliminary finding by a preponderance of the evidence that the co-conspirator’s statements falls within the scope of the hearsay exception for statement of co-conspirators).

• The Comment to Instruction 6.25 (Deadlocked Jury) has a new paragraph discussing United States v. Sproat, 89 F.4th 771 (9th Cir. 2023).

• The Comment to Instruction 7.4 (Alien—Encouraging Illegal Entry 8 U.S.C. § 1324(a)(1)(A)(iv))) now cites United States v. Hansen, 97 F.4th 677, 681 (9th Cir. 2024).

• Instruction 11.1 (Conspiracy—Elements) and 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture (21 U.S.C. §§ 841(a), 846)) now instruct the jury that one joins a conspiracy by knowingly (not willfully) participates, and that one who knowingly (not willfully) joins the conspiracy is responsible for it. The Comment to Instruction 11.1 is thoroughly rewritten.

• Instruction 12.4 (Controlled Substance—Distribution or Manufacture (21 U.S.C. § 841(a)(1))) has two new paragraphs:

  [If you find that the defendant is guilty of [[distributing] [manufacturing]] [specify controlled substance], then you must determine whether [name of decedent]’s [[death] [serious bodily injury]] was a result of the use of the [specify controlled substance] [[distributed] [manufactured]] by the defendant. To find that the use of a drug resulted in [[death] [serious bodily injury]], you must unanimously and beyond a reasonable doubt find that “but for” the use of the [specify controlled substance] that the defendant [[distributed] [manufactured]], [name of decedent] would not have died.

  To find a particular controlled substance [[distributed] [manufactured]] by the defendant was a “but for” cause of death, you must find beyond a reasonable doubt that, but for the decedent’s use of the [specify controlled substance], the decedent would not have died.

  The government does not have the burden of establishing that the defendant intended that death result from the use of [specify controlled substance]. Nor does the government have the burden of establishing that the defendant knew, or should have known, that death would result from the use of the [specify controlled substance] that the defendant [[distributed] [manufactured]].

  The Comment explains that the new paragraphs may be used where the government is seeking a sentencing enhancement for death or serious bodily injury.

• The Comment to Instruction (12.21 Controlled Substance—Statutory Enhancement Based on Prior Serious Drug Felony or Serious Violent Felony) notes "that § 841(b)(1)(C) and (D) were not altered by the [First Step Act] and those provisions continue to require a prior conviction for a 'felony drug offense' for the sentencing enhancement to apply, such that Almendarez-Torres would continue to apply."

• Instructions 15.32 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises (18 U.S.C. § 1341)) and 15.35 (Wire Fraud (18 U.S.C. § 1343)) each have new paragraphs that read as follows:

  To convict [a] defendant[s] of mail fraud, the false or fraudulent pretenses, representations, or promises[, or omitted facts] must directly or indirectly deceive the victim about the nature of the bargain. A misrepresentation will go to the nature of the bargain if it goes to price or quality, or otherwise to essential aspects of the transaction. [Whether a misrepresentation goes to the nature of the bargain may depend on the specific transaction at issue.]

  The Comments to the Instructions explain that the paragraphs come from United States v. Milheiser, 98 F.4th 935, 938, 944-45 (9th Cir. 2024).

• Instruction 24.29 (Receiving the Proceeds of Extortion (18 U.S.C. § 880)) is new.

(09/17/24) (permalink)

Ninth Circuit issues new Model Civil Jury Instructions

The Ninth Circuit has issued a revised set of Model Jury Instructions. The changes are described below. The criminal instructions have also been revised; I will post a summary of those changes shortly.

• The case note re state action/social media pages, Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1170-73 (9th Cir. 2022), is replaced by a Note re Lindke v. Freed, 601 U.S. 187, 199 (2024), in the Comment to Instruction 9.1 (Section 1983 Claim—Introductory Instruction).

• The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) now cites Lindke, Linthicum v. Wagner, 94 F.4th 887 (9th Cir. 2024), and Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011).

• The Comment to Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally) now cites United States v. Payne, 99 F.4th 495, 505 (9th Cir. 2024).

• The Comment to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) also cites Payne.

• The Comment to Instruction 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Exception to Warrant Requirement—Terry Stop) now cites United States v. Ramirez, 98 F.4th 1141, 1144-46 (9th Cir. 2024).

• The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now discusses Hart v. City of Redwood City, 99 F.4th 543, 553-54 (9th Cir. 2024).

• The Comment to Instruction 9.34 Qualified Immunity now cites Rieman v. Vazquez, 96 F.4th 1085, 1095 (9th Cir. 2024).

• The Introductory Comment to Chapter 10 (CIVIL RIGHTS—TITLE VII—EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) now cites Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016), Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 512 (9th Cir. 2000), Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023), Hittle v. City of Stockton, California, 101 F.4th 1000, 1012 (9th Cir. 2024), Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 589 U.S. 327, 337 (2020), and Ricci v. DeStefano, 557 U.S. 557 (2009).

• The words "[woman] [man]" in element five of Instruction 10.5 (Civil Rights—Title VII—Hostile Work Environment—Harassment Because Of Protected Characteristics—Elements) have been replaced with "person [with the plaintiff’s protected characteristic]." The Comment now cites Mattioda v. Nelson, 98 F. 4th 1164, 1177 (9th Cir. 2024).

• The case notes in the penultimate paragraph of the Comment to "Instruction 10.7 Civil Rights—Title VII—Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based on Negligence" have been edited.

• The discussions of protected activity and but-for cause in the Comment to Instruction 10.8 (Civil Rights—Title VII—Retaliation—Elements and Burden of Proof) have bee edited.

• The Comment to Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases) now cites Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003).

• The Comment to Instruction 10.11 (Civil Rights—Title VII—“Adverse Employment Action” in Disparate Treatment Cases) now cites Muldrow v. City of St. Louis, 144 S. Ct. 967, 977 (2024).

• The Comment to Instruction 10.13 (Civil Rights—Title VII—“Constructive Discharge” Defined now cites Green v. Brennan, 578 U.S. 547, 555 (2016).

• The Comment to Instruction 10.14 (Civil Rights—Title VII—Defense—Bona Fide Occupational Qualification) now cites Teamsters Local Union No. 117 v. Washington Dep’t of Corr., 789 F.3d 979, 986 (9th Cir. 2015).

• The discussion of bona fide seniority systems in the Comment to Instruction 10.15 (Civil Rights—Title VII—Defense—Bona Fide Seniority System) has been edited.

• The discussion of nonwage compensatory damages in the Introductory Comment to Chapter 12 (AGE DISCRIMINATION) has been edited.

• The Comment to Instruction 11.1 (Age Discrimination—Disparate Treatment—Elements and Burden of Proof) now cites Babb v. Wilkie, 140 589 U.S. Ct. 411 (2020).

• The Comment to Instruction 11.10 (Age Discrimination—Defenses—Bona Fide Employee Benefit Plan) now cites Meacham v. Knolls Atomic Power Lab’y, 554 U.S. 84 (2008).

• The Comment to Instruction 11.13 (Age Discrimination—Damages—Back Pay—Mitigation) now cites Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), and . Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009).

  A sentence in the fifth paragraph of the Introductory Comment to Chapter 12 (AMERICANS WITH DISABILITIES ACT) is rewritten: "In the employment context, a qualified individual with a disability may show an ADA discrimination primarily in either of two ways: by presenting evidence of disparate treatment or by showing a failure to accommodate." The Introductory Comment also now cites Mattioda v. Nelson, 98 F. 4th 1164 (9th Cir. 2024). Also, the final two paragraphs have been deleted, and replaced with a new paragraph discussing Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009), and Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853 (9th Cir. 2017).

• Instructions 12.1 (ADA Employment Actions—Actual Disability—Elements), 12.2 (ADA Employment Actions—Record of Disability—Elements), 12.3 (ADA Employment Actions—Regarded as Disability—Elements), 12.5 (ADA—Work as a Major Life Activity), and 12.6 (Interacting with Others as Major Life Activity) now include optional pronouns. The Comment to Instruction 12.3 deletes the citation to SoCal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, (9th Cir. 2023).

• Language regarding the Lanham Act has been removed from the first paragraph of the Comment to Instruction 15.8 (Infringement—Elements—Presumed Validity and Ownership—Registered Trademark (15 U.S.C. §§ 1057, 1065 and 1115)). The case note for Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), and the penultimate paragraph have been removed from the Incontestible marks paragraph of the Incontestability section of the Comment.

• The Comment to Instruction 15.9 (Infringement—Elements—Validity—Unregistered Marks) has been thoroughly rewritten.

• The Comment to Instruction 15.11 (Infringement—Elements—Validity—Distinctiveness—Secondary Meaning) has been thoroughly rewritten.

• Instruction 15.19A (Expressive Works) now reads:

  The defendant’s work, [insert name of allegedly infringing work], is an expressive work that is protected by the First Amendment.

  Therefore, you may find proceed to the likelihood-of-confusion test for the plaintiff on [his] [her] [its] trademark infringement claim only if the plaintiff proves by a preponderance of the evidence that the defendant’s use of the plaintiff’s mark is explicitly misleading as to the source or content of [insert name of allegedly infringing work]. The defendant’s use of the mark is explicitly misleading if it is an explicit indication, overt claim, or explicit misstatement that the [insert name of allegedly infringing work] is sponsored by or somehow associated with the plaintiff.

  The Comment has been thoughly rewritten.

• The second paragraph of Instruction 15.27 (Trademark Damages—Plaintiff’s Actual)

  Damages(15 U.S.C. § 1117(a)) now reads:

  The plaintiff has the burden of proving that [he][she][other pronoun] sustained actual damages by a preponderance of the evidence. If you find that the plaintiff proved actual damages, you may make reasonable inferences from the evidence to calculate the amount of damages. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any [injury] [and] [or] [property damage] you find was caused by the defendant’s infringement of the plaintiff’s registered trademark.

  The Comment has been thoroughly rewritten.

• Instruction 15.29 has been retitled "Trademark Damages—Disgorgement of Defendant’s Profits (15 U.S.C. § 1117(a))." The Comment has been thoroughly rewritten.

• The Comment to the Introductory Comment of Chapter 18. (SECURITIES EXCHANGE ACT) now cites Macquarie Infrastructure Corp. v. Moab Partners, 601 U.S. 257 (2024).

• The Comment to Instruction 18.3 (Securities—Misrepresentations or)

  Omissions—Materiality) now cites In re Sorrento Therapeutics, Inc. Sec. Litig., 97 F.4th 634, 641 (9th Cir. 2024), and observes that in "evaluating materiality, courts may consider SEC interpretive guidance."

• Instruction 18.5 has been retitled "Securities—Knowingly and Recklessly. The Comment has been thoroughly rewritten.

• Instruction 18.8 (Securities—Causation) adds a new sentence: "To establish economic injury or loss, the plaintiff must prove that the alleged misrepresentation[s] or omission[s] artificially inflated the price of the security." The Comment adds a paragraph discussing In re Genius Brands Int'l, Inc. Sec. Litig., 97 F.4th 1183 (9th Cir. 2024).

(09/16/24) (permalink)

Fifth Circuit issues new Criminal Jury Instructions

The Fifth Circuit District Judges Association Committee on Pattern Jury Instructions has issued a 2024 set of Criminal Jury Instructions. This is a big deal, since it has been about five years since the last revision. To make this survey of the changes more manageable, mere corrections of clerical errors or simple updates of the Instructions and Notes with newer case citations are not noted here. Also, the substantive offense Instructions now set out optional elements that support sentencing enhancements. This is not a change in the law, and such changes are not noted here.

New instructions in this 2024 edition are:

• 1.20A (VENUE—GENERALLY)
• 2.01D (Encouraging or Inducing Illegal Entry 8 U.S.C. § 1324(a)(1)(A)(iv))
• 2.09B (RECEIVING BRIBE BY A PUBLIC OFFICIAL/JUROR 18 U.S.C. § 201(b)(2))
• 2.35A (HIGH SPEED FLIGHT FROM IMMIGRATION CHECKPOINT 18 U.S.C. § 758)
• 2.42A (FALSE IMPERSONATION OF FEDERAL OFFICER 18 U.S.C. § 912 (FIRST CLAUSE))
• 2.43E (POSSESSION OR SALE OF A STOLEN FIREARM 18 U.S.C. §§ 922(j), 924(a)(2))
• 2.43F (THEFT OF A FIREARM FROM A FEDERAL FIREARMS LICENSEE 18 U.S.C. §§ 922(u), 924(i)(1))
• 2.43G (POSSESSION OF A FIREARM WITH OBLITERATED OR ALTERED SERIAL NUMBER 18 U.S.C. §§ 922(k), 924(a)(1)(B))
• 2.43H (FALSE STATEMENT IN REQUIRED INFORMATION KEPT BY A FIREARMS DEALER 18 U.S.C. § 924(a)(1)(A))
• 2.43I (POSSESSION OF A MACHINEGUN 18 U.S.C. §§ 922(o)(1), 924(a)(2))
• 2.48D (POSSESSION OF AN IDENTIFICATION DOCUMENT OR AUTHENTICATION FEATURE WHICH WAS STOLEN OR PRODUCED WITHOUT LAWFUL AUTHORITY 18 U.S.C. § 1028(a)(6))
• 2.49C (POSSESSION OR TRAFFICKING OF DEVICE-MAKING EQUIPMENT 18 U.S.C. § 1029(a)(4))
• 2.65A (FALSE STATEMENT IN APPLICATION OF ASSPORT 18 U.S.C. § 1542 (FIRST PARAGRAPH))
• 2.65B (FALSE STATEMENT IN PASSPORT APPLICAION 18 U.S.C. § 1542 (SECOND PARAGRAPH)) 2.65C (FORGERY OF PASSPORT 18 U.S.C. § 1543 (FIRST PARAGRAPH))
• 2.65D (FALSE USE OF A PASSPORT 18 U.S.C. § 1543 (SECOND PARAGRAPH))
• 2.80C (BANK BURGLARY 18 U.S.C. § 2113(a) (SECOND PARAGRAPH))
• 2.82E (SEXUAL ABUSE—LACK OF CONSENT 18 U.S.C. § 2242(3))
• 2.82F (SEXUAL ABUSE OF AN INDIVIDUAL IN FEDERAL CUSTODY 18 U.S.C. § 2243(c))
• 2.95C (CONTROLLED SUBSTANCES—UNLAWFUL DISTRIBUTION BY PHYSICIAN [OTHER MEDICAL PRACTITIONER] 21 U.S.C. § 841(a)(1); 21 C.F.R. § 1306.04(a))
• 2.95D (ACQUISITION OF CONTROLLED SUBSTANCES BY MISREPRESENTATION 21 U.S.C. § 843(a)(3))
• 2.95E (CONTROLLED SUBSTANCES—UNLAWFUL DISTRIBUTION BY PHARMACIST 21 U.S.C. § 841(a)(1); 21 C.F.R. § 1306.04(a))
• 2.96A (SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE 21 U.S.C. § 844(a))
• 2.103A (WILLFUL FAILURE TO FILE TAX RETURN 26 U.S.C. § 7203)

The substantial changes to existing instructions include:

• The first sentence of the last paragraph of Instruction 1.04 (DUTY TO FOLLOW INSTRUCTIONS) now reads "It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy, and without consulting any outside or online source or materials." The Note now cites United States v. Hill, 63 F.4th 335, 359–60 n.8 (5th Cir. 2023).

• The Note to Instruction 1.06 (EVIDENCE - EXCLUDING WHAT IS NOT EVIDENCE) has been rewritten to note that the instruction may be insufficient in some cases, and may be harmful in others.

• Instruction 1.08 (EVIDENCE – INFERENCES – DIRECT AND CIRCUMSTANTIAL) is now divided into two alternatives. "Alternative B is provided for judges who prefer to explain the distinction between direct and circumstantial evidence." The Note is amended accordingly.

• The Note to Instruction 1.11 (IMPEACHMENT BY PRIOR INCONSISTENCIES) now observes that “[a] refusal to give a requested instruction is reversible error only if the proposed instruction was (1) substantively correct, (2) not substantively covered in the jury charge, and (3) concerned an important issue in the trial, such that failure to give the requested instruction seriously impaired the presentation of a defense,” citing United States v. Jones, 132 F.3d 232, 242 (5th Cir. 1998); and United States v. Robinson, 87 F.4th 658, 674 (5th Cir. 2023). The Note also cites United States v. Okpara, 967 F.3d 503, 512 (5th Cir. 2020).

• A new paragraph has been added at the end of the Note to Instruction 1.16 (ACOMPLICE – CO-DEFENDANT – PLEA AGREEMENT):

  A limiting instruction may be required in cases where a conviction is based solely on the testimony of an accomplice. United States v. McClaren, 13 F.4th 386, 400 (5th Cir. 2021) (citing Tillery v. United States, 411 F.2d 644, 644 (5th Cir. 1969) (finding reversible error where there was no limiting instruction in a case where the accomplice “indicated less concern with the truth than with his own skin”)).

• The Note to Instruction 1.18 (EXPERT OPINION TESTIMONY) cites United States v. Lara, 23 F.4th 459, 475–78 (5th Cir. 2022). It then discusses the potential "tension" between the Fifth Circuit's "functional equivalence doctrine" and the Supreme Court's recent decision in Diaz v. United States, 144 S. Ct. 1727, 1735 (2024), and suggests an Instruction covering those circumstances. It concludes with an extended suggestion that certain evidence can be introduced without the need for expert testimony.

• The Note to Instruction 1.20 (VENUE – CONSPIRACY) now cites United States v. Lee, 966 F.3d 310, 319 (5th Cir. 2020), United States v. Brown, 898 F.3d 636, 640–41 (5th Cir. 2018), United States v. Lanier, 879 F.3d 141, 147–48 (5th Cir. 2018), United States v. Kiekow, 872 F.3d 236, 243 (5th Cir. 2017), Smith v. United States v. , 143 S. Ct. 1594, 1603 (2023), United States v. Owens, 724 F. App’x 289, 295–96 (5th Cir. 2018) (per curiam), and United States v. Romans, 823 F.3d 299, 309-10 (5th Cir. 2016), in a discussion of overt acts, conspiracy, and venue.

• The Note to Instruction 1.24 (MULTIPLE DEFENDANTS – SINGLE COUNT) adds a discussion of recent cases that reject various arguments of misjoinder, suggesting that the problem be addressed with a curative Instruction.

• Instruction 1.26 (DUTY TO DELIBERATE) adds this sentence to the second paragraph: "Recall, you must base your verdict solely on the evidence, testimony, and stipulations at trial and not on any outside or online material or source."

• The Note to Instruction 1.27 (UNANIMITY OF THEORY) has been substantially rewritten.

• The Note to Instruction 1.29 (CONFESSION – STATEMENT – VOLUNTARINESS (MULTIPLE DEFENDANTS)) has been substantially rewritten in light of Samia v. United States, 143 S. Ct. 2004, 2012 (2023).

• The Note to Instruction 1.30 (ENTRAPMENT) has been substantially rewritten (the Instruction itself is unchanged).

• Parentheticals have been added to the cases cited in the Note to Instruction 1.31 (IDENTIFICATION TESTIMONY).

• Instruction 1.32 (SIMILAR ACTS) now provides that "[m]ere touching or physical contact alone is insufficient by itself to establish possession." The Note has been extensively rewritten.

• The first two paragraphs of Instruction 1.38 (JUSTIFICATION, DURESS, OR COERCION) now read

  The defendant claims that if he [she] committed the acts charged in the indictment, he [she] did so only because he [she] was forced to commit the crime. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should nevertheless be found “not guilty” because his [her] actions were justified excused by duress or coercion. [justified by necessity].

  The defendant’s actions were committed under duress [justified,] [necessary], and therefore he [she] is not guilty, only if the defendant has shown by a preponderance of evidence that each of the following four elements is true. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lesser burden of proof than to prove a fact beyond a reasonable doubt.

  The Note has been completely rewritten.

• The Note to Instruction 1.40 (MATERIALITY) now observes that the "Supreme Court has sometimes read 'materiality' into federal criminal statutes even when that word does not appear in the language defining the offense."

• The Note to Instruction 1.41 (KNOWINGLY – TO ACT) has been rewritten to note Ruan v. United States, 142 S. Ct. 2370, 2377–79 (2022), and United States v. Hansen, 143 S. Ct. 1932, 1944–46 (2023).

• The Note to Instruction 1.42 (DELIBERATE IGNORANCE) has been rewritten to discourage the Instruction's use, citing United States v. Lee, 966 F.3d 310 (5th Cir. 2020).

• The Note to Instruction 1.43 (WILLFULLY – TO ACT) has been updated with a discussion of the application of this Instruction to tax, campaign finance, and health care fraud laws.

• The Note to Instruction 1.44 (INTERSTATE COMMERCE – DEFINED) now observes that "use of the internet, cell phones or hotels that service interstate travelers may constitute use of the means or facilities of interstate commerce."

• The Note to Instruction 1.47 (“AFFECTING COMMERCE” – ”—DEFINED) now extensively discusses Taylor v. United States, 136 S. Ct. 2074 (2016).

• Instruction 1.48 (“Firearm” and “Ammunition”—Defined) is new, and the rest of the Instructions in Chapter 1 are incremented accordingly.

• The Note to Instruction 1.49 (CAUTIONARY INSTRUCTION DURING TRIAL – TRANSCRIPT OF TAPE-RECORDED CONVERSATION) has been substantially revised.

• Instruction 1.50 (TRANSCRIPT OF FOREIGN LANGUAGE – TAPE RECORDED CONVERSATION) has been substantially revised.

• The Note to Instruction 2.01A (BRINGING ALIENS TO THE UNITED STATES 8 U.S.C. § 1324(a)(1)(A)(i)) now observes that the "Fifth Circuit declined to resolve whether, to support an enhancement, a resulting death must have been reasonably foreseeable."

• The first element of Instruction 2.01B (TRANSPORTING ALIENS WITHIN THE UNITED STATES 8 U.S.C. § 1324(a)(1)(A)(ii)) adds "comes to" as an alternate means. The third element now reads "That the defendant transported [moved] [attempted to transport or move] the alien within the United States with intent to further the alien’s unlawful presence." Also, the Instruction now defines "commercial advantage" and "private financial gain." The Note to Instruction 2.01B suggests that there may be a "Good Samaritan" defense. It also now discourages the use of a deliberate ignorance theory. The Note now notes the limited applicability of the "commercial advantage" enhancement, and observes that "although alienage is an element of the transportation offense, it is not an element of the conspiracy-to-transport offense."

• The Note to Instruction 2.01C (CONCEALING OR HARBORING ALIENS 8 U.S.C. § 1324(a)(1)(A)(iii)) now indicates that “the mere act of providing shelter to an alien is not, alone, sufficient to prove beyond a reasonable doubt that the defendant harbored an alien.”

• Instruction 2.02A (ILLEGAL ENTRY 8 U.S.C. § 1325(a)(1)) now reads:

  Title 8, United States Code, Section 1325(a)(1) makes it a crime [felony] for an alien to enter [attempt to enter] the United States at a time and place other than as designated by immigration officers after a previous conviction under this statute.

  For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

  First: The defendant was an alien;

  Second: The defendant knowingly entered [attempted to enter] the United States; and

  Third: The defendant entered [attempted to enter] at a time or place other than a as designated port of entry. by immigration officers; and

  [Fourth: The defendant was previously convicted of a violation of 8 U.S.C. § 1325].

  An “alien” is a any person who is not a natural-born or naturalized citizen or national of the United States. A “national of the United States” is a citizen of the United States or a non-citizen of the United States who owes permanent allegiance to the United States.

  The Note now observes that qualifying for asylum does not change a defendant’s alien status.

• The last paragraph of Instruction 2.02B (ELUDING EXAMINATION OR INSPECTION 8 U.S.C. § 1325(a)(2)) makes the same changes to the defnition of "alien" as was used in Instruction 2.02B. The Note indicates that neither proof of “entry” nor proof of specific intent is required.

• The discussion of general intent in the Note to Instruction 2.03 (ILLEGAL REENTRY FOLLOWING DEPORTATION 8 U.S.C. § 1326(a)) has been rewritten. The last sentence of the Note -- that formerly indicated that a CNR is sufficient evidence to prove a lack of consent to reapply for reentry -- has been deleted.

• A sentence has been added at the end of Instruction (AIDING AND ABETTING (AGENCY)(8 U.S.C. § 2): "Though the defendant must share the same criminal intent for the crime as the principal, his [her] aid may relate to only one of the crime’s phases or elements." The Note has been thoroughly rewritten, largely to address Rosemond v. United States, 134 S. Ct. 1240 (2014).

• The Note to Instruction 2.07 (FORCIBLY ASSAULTING A FEDERAL OFFICER 18 U.S.C. § 111(a)(1) and (b)) observes that the government sufficiently refutes a claim of self-defense to a § 111 charge if it shows that the defendant knew of the victim’s status or that the defendant’s actions were not reasonably justified.

• The Note to Instruction 2.08B (BANKRUPTCY: PRESENTING OR USING A FALSE CLAIM (BANKRUPTCY PROCEEDING PENDING) 18 U.S.C. § 152 (FOURTH PARAGRAPH)) notes the uncertainty of whether materiality is an element, observing that elements of the similar offense under the third paragraph of 18 U.S.C. § 152(3) include that the false declaration must concern a material fact.

• The Note to Instruction 2.09A (BRIBING A PUBLIC OFFICIAL/JUROR 18 U.S.C. § 201(b)(1)) now ends with a discussion of the meaning of "corruptly."

• The first elements of Instructions 2.09C (ILLEGAL GRATUITY TO A PUBLIC OFFICIAL 18 U.S.C. § 201(c)(1)(A)) and 2.09D (RECEIVING ILLEGAL GRATUITY BY A PUBLIC OFFICIAL 18 U.S.C. § 201(c)(1)(B)) now note [juror] as an option.

• The Note to Instruction 2.12 (DEPRIVATION OF CIVIL RIGHTS 18 U.S.C. § 242) deletes a discussion of United States v. McRae, 702 F.3d 806, 830–32 (5th Cir. 2012), and substitutes a discussion of United States v. Douglas, 957 F.3d 602, 608–09 (5th Cir. 2020). It also adds a paragraph instructing courts on how to handle cicumstances where the statute’s enhancement provision does not define the enumerated offense.

• The definition of the word "defraud" has been deleted from Instruction 2.13 (CONSPIRACY TO DEFRAUD THE GOVERNMENT WITH RESPECT TO CLAIMS 18 U.S.C. § 286).

• The Note to Instruction 2.15A (CONSPIRACY TO COMMIT OFFENSE 18 U.S.C. § 371) now observes that conspiracy has two intent elements: the intent to further the unlawful purpose and the level of intent required to prove the underlying substantive offense.

• The Note to Instruction 2.16 (MULTIPLE CONSPIRACIES) has been thoroughly rewritten.

• The Note to Instruction 2.17 (CONSPIRATOR’S LIABILITY FOR SUBSTANTIVE COUNT) now rejects the disjunctive approach in Pinkerton cases. The last paragraph has been deleted.

• The Note to Instruction 2.18 (CONSPIRACY – WITHDRAWAL) now notes Smith v. United States, 133 S. Ct. 714, 717 (2013).

• The Note to Instruction 2.27 (THEFT OF GOVERNMENT MONEY OR PROPERTY 18 U.S.C. § 641 (FIRST PARAGRAPH)) now ends with two paragraphs discussing jury unanimity.

• A sentence has been added to the definition of "obtain by fraud" in Instruction 2.33A (THEFT CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS 18 U.S.C. § 666(a)(1)(A)): "The object of the fraud must be to obtain money or property." A new final paragraph of the Note explains that this is required by . Kelly v. United States, 140 S. Ct. 1565 (2020). The Note also now observes that "[c]ourts may use more than one traditional valuation method to determine the transactional value of intangible items."

• Element 3 of Instruction 2.33B (BRIBERY CONCERNING PROGRAMS RECEIVING FEDERAL FUND(SOLICITING A BRIBE) 18 U.S.C. § 666(a)(1)(B)) has been edited as folows:

  Third: That the defendant corruptly solicited for the benefit of any person [demanded for the benefit of any person] [accepted] [agreed to accept] anything _______________ (describe thing of value) from _______________ (name any person) with the intent to be influenced [rewarded] in connection with any business [transaction] [series of transactions] of such _____________ (name of organization, State, local, or Indian tribal government, or any agency thereof); and

  There is a new paragrah defining "intent to be influenced or rewarded." This is expolained in a new last paragraph of the Note.

  Also, the second to last paragraph of the Instruction now reads: "It is also not necessary for the government to prove that the defendant who solicited [demanded] [accepted] [agreed to accept] the bribe benefitted from the bribe or that the bribe was successfully obtained.

  Paragraph 5 of the Note now explains that the transactional element may also be satisfied by using other “traditional valuation methods.”

• The Note to Instruction 2.33C (BRIBERY CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS (OFFERING A BRIBE) 18 U.S.C. § 666(a)(2)) also has a new paragrah defining "intent to be influenced or rewarded," explained in the second paragraph of the Note.

• The Notes to Instructions 2.36A (DEALING IN EXPLOSIVE MATERIALS WITHOUT LICENSE 18 U.S.C. § 842(a)(1)), 2.36B (FALSE STATEMENTS IN CONNECTION WITH EXPLOSIVE MATERIALS 18 U.S.C. § 842(a)(2)), and 2.36C (UNLAWFUL DISTRIBUTION OF EXPLOSIVE MATERIALS 18 U.S.C. § 842(d)) now observe that the ATF explosives list is comprehensive but not all-inclusive.

• The Note to Instruction 2.36D (POSSESSION OF EXPLOSIVES BY A PROHIBITED PERSON 18 U.S.C. § 842(i)(1)) has a paragraph discussing the applicability of Rehaif v. United States, 139 S. Ct. 2191 (2019).

• A paragraph has been added to the end of the Note to Instruction 2.37B (ARSON OF PROPERTY USED IN INTERSTATE COMMERCE OR USED IN AN ACTIVITY AFFECTING INTERSTATE COMMERCE 18 U.S.C. § 844(i)) discussing the application of the statute to churches.

• The Note to Instruction 2.38 (THREATS AGAINST THE PRESIDENT AND SUCCESSORS 18 U.S.C. § 871) has been thoroughly rewritten in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and Counterman v. Colorado, 143 S. Ct. 2106 (2023). "The Committee made no changes in the Instruction because the 2019 Instruction "comports with the standards of Elonis and Counterman and the explicit elements of the statute by requiring the mental states of knowledge and willfulness, as set out in the second and third paragraphs." "In addition to the mens rea required by Elonis and Counterman, a jury still must find that the communication is a "threat.'"

  2.39

• The first elements of Instructions INTERSTATE TRANSMISSION OF EXTORTIONAT(COMMUNICATION 18 U.S.C. § 875(b)) and 2.40 (MAILING THREATENING COMMUNICATIONS 18 U.S.C. § 876(b)) now read "First: That the defendant knowingly ... a communication containing that the defendant knew contained a threat ... as charged in the indictment." The Notes have been rewritten with a discussion of Elonis and Counterman.

• Instruction 2.42 has been retitled "FALSE IMPERSONATION OF FEDERAL OFFICER OR EMPLOYEE—DEMANDING OR OBTAINING ANYTHING OF VALUE 18 U.S.C. § 912 (SECOND CLAUSE)." The Note has been thoroughly rewritten.

• The opening paragraph of Instruction 2.43A (DEALING IN FIREARMS WITHOUT LICENSE 18 U.S.C. § 922(a)(1)(A)) now reads "Title 18, United States Code, Sections 922(a)(1)(A) and 924(a)(1)(D), make it a crime to be engage in the business of dealing in firearms [ammunition] without a federal license." The third element deletes the definition of firearm. The definition of "engaged in the business of selling firearms at wholesale or retail" has been substantially revised. The first sentence of the last paragraph now begins: "The term 'with the principle objective of livelihood and to predominantly earn a profit' means that ...." The Note has been substantially revised.

• The elements of Instruction 2.43B (FALSE STATEMENT TO FIREARMS DEALER 18 U.S.C. §§ 922(a)(6), 924(a)(2)) have been amended as follows:

  First: That the defendant made a false [fictitious] oral [written] statement; Second: That the defendant knew the statement was false; [fictitious]; Third: That the statement was made in connection with the acquisition of a firearm [ammunition] from a federally-licensed firearm [ammunitions] firearms dealer; Fourth: That the statement was intended or was likely to deceive a federally-licensed firearm [ammunitions]firearms dealer; and Fifth: That the alleged false statement was material to the lawfulness of the sale or disposition of the firearm [ammunition]

  The paragraph defining "firearm" has been deleted. The Instruction ends with the admonition: "The Government does not need to prove that the defendant knew the seller was a federally-licensed firearms dealer."

  The Note now explains that a defendant "can also violate 18 U.S.C. § 922(a)(6) by knowingly furnishing or exhibiting a false, fictitious, or misrepresented identification to a federally-licensed firearms dealer in connection with the acquisition of a firearm or ammunition" and that the government need not prove that the defendant knew the seller was a federally-licensed firearms dealer as an element of this offense. The discussion of straw purchases now notes Abramski v. United States, 134 S. Ct. 2259 (2014).

• Instruction 2.43C (UNLAWFUL SALE OR DISPOSITION OF FIREARM OR AMMUNITION 18 U.S.C. §§ 922(d), 924(a)(8)) deletes the definition of "firearm." The Note now discusses Anramski.

• Instruction 2.43D (POSSESSION OF A FIREARM BY A CONVICTED FELON 18 U.S.C. §§ 922(g)(1), 924(a)(8), 924(e)) deletes the definition of "firearm." The Note now discusses Rehaif, stipulations, and constructive possession. It ends with a "Note on Armed Career Criminal Act."

• The word "federal" is inserted in three different places in Instruction 2.44A (USING OR CARRYING A FIREARM DURING COMMISSION OF DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE 18 U.S.C. § 924(c)(1)). The Note explains that courts apply the “categorical approach” to determine whether a federal felony may serve as a predicate. The Note further clarifies that the relevant inquiry is not how a particular defendant may commit the crime but whether the federal felony at issue always meets the elements test, citing United States v. Taylor, 142 S. Ct. 2015, 2020 (2022). It then lists a number of case examples.

• The word "federal" is inserted in two different places in Instruction 2.44B (POSSESSING A FIREARM IN FURTHERANCE OF THE COMMISSION OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE 18 U.S.C. § 924(c)(1)). The Note now states that the mental state requirement in § 924(c)(1)(A) is “knowing possession with a nexus linking the defendant and firearm to the offense," and that one drug trafficking conspiracy can support only one firearms conviction. As with Instruction 2.44A, the Note to Instruction 2.44B adds a new discussion of the categorical approach with case examples.

• The elements list of Instruction 2.45 (FALSE STATEMENTS TO FEDERAL AGENCIES AND AGENTS 18 U.S.C. §§ 1001(a)(2) AND (a)(3)) has been extensively rewritten.

  First: That the defendant made a false statement [made or used any false writing or document] ___________________ (name executive, legislative, or judicial branch of the United States government) regarding a matter within its jurisdiction;];

  Second: That the defendant made statement knowing that it was false, [knowing the same contained a false fictitious, or fraudulent statement [the writing or document made or entry used was false, fictitious, or fraudulent];

  Third: That the statement was material [the false, fictitious, or fraudulent statement or entry was material]; and

  Fourth: That the defendant made the statement knowing that it was false [knowing the writing or document contained a false, fictitious, or fraudulent statement or entry];

  Fifth: That the defendant made the false statement willfully for the purpose of misleading the ___________________ (name of agency of the executive, legislative, or judicial branch of the United States government); and

  Sixth: That the statement pertained to a matter within the jurisdiction of __________, part of the executive, legislative, or judicial branch of the United States government.

  The definition of a material statement is rewritten in the Note as a statement that has a natural tendency to influence, or be capable of influencing, the decision of a government agency, but actual influence is not required. A paragraph at the end of the Note explains how, in certain contexts, a proof of willfulness may be required.

• Instruction 2.48C now (AGGRAVATED IDENTITY THEFT 18 U.S.C. § 1028A(a)(1)) has a new paragraph at the end:

  Identity theft is committed when a defendant uses the means of identification itself in a manner to defraud or deceive. It is not enough to be a violation of this law that the use of a means of identification was helpful or even necessary to accomplish the charged conduct unless the accused used that means of identification to deceive about the identity of the person performing the actions or receiving the benefits or services.

  The Note has an extended discussion of Dubin v. United States, 143 S. Ct. 1557 (2023).

• The Notes to Instruction 2.49A (USE OF UNAUTHORIZED ACCESS DEVICE 18 U.S.C. § 1029(a)(2)) and 2.49B (POSSESSION OF COUNTERFEIT OR UNAUTHORIZED ACCESS DEVICES 18 U.S.C. § 1029(a)(3)) now observe that, while the term “access device” is broad enough to encompass technological advances and includes long-distance telephone access codes, and “counterfeit” and “unauthorized” are not mutually exclusive terms, account numbers, which could have been used in connection with other codes to obtain access to those accounts, are not themselves access devices when the account numbers are used solely to originate paper transactions.

• The Note to Instruction 2.49B (POSSESSION OF COUNTERFEIT OR UNAUTHORIZED ACCESS DEVICES 18 U.S.C. § 1029(a)(3))

• The changes to Instruction 2.50 (FALSE STATEMENTS RELATING TO HEALTH CARE MATTERS 18 U.S.C. §§ 1035(a)(1), (2)) appear to be matters of style rather than substance.

• The opening paragraph of Instruction 2.51 (TRANSMISSION OF WAGERING INFORMATION 18 U.S.C. § 1084) now reads:

  Title 18, United States Code, Section 1084, makes it a crime for anyone to transmit bets or wagers on sports gambling use a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.

• The Note to Instruction 2.52A (MURDER (FIRST DEGREE) 18 U.S.C. § 1111) adds a paragraph regarding the sufficient period of time for premeditation.

• The Note to Instruction 2.52B (MURDER (SECOND DEGREE) 18 U.S.C. § 1111) now obsreves that attempted second degree murder requires proof of intent to kill.

• Instruction 2.54 (KIDNAPPING 18 U.S.C. § 1201(a) (1)) ends with a new optional enhancement paragraph regarding causation, with instructions to make the finding in a special verdict. The Note now observes that the 1972 removal of the word knowingly and the placement of the word ‘willfully’ only in subsection (a)(1) indicates that Congress intended subsection (a)(2) to be a general intent crime. It also now provides that there is no requirement of an extended duration of the requisite restraint.

• The Notes to Instructions 2.56 (MAIL FRAUD: MONEY/PROPERTY OR HONEST SERVICES 18 U.S.C. § 1341 [18 U.S.C. § 1346]) and 2.57 (WIRE FRAUD: MONEY/PROPERTY OR HONEST SERVICES 18 U.S.C. § 1343 [18 U.S.C. § 1346])have been rewritten in light of United States v. Greenlaw, 84 F.4th 325, (5th Cir. 2023), Ciminelli v. United States, 143 S. Ct. 1121 (2023), and Percoco v. United States, 143 S. Ct. 1130 (2023).

• The Note to Instruction 2.58A (BANK FRAUD 18 U.S.C. § 1344(1) [18 U.S.C. § 1346]) now observes that the jury need not unanimously agree as to which alleged statement was false.

• The Note to Instruction 2.58B (BANK FRAUD 18 U.S.C. § 1344(2)) now observes that Rehaif does require knowledge that the representations were both false and material.

• The Note to Instruction 2.59 (HEALTH CARE FRAUD 18 U.S.C. § 1347(a)) now discusses deliberate ignorance and willfulness.

• Instruction 2.60 (MAILING OBSCENE ATERIAL 18 U.S.C. § 1461) now uses the language "members of a deviant group with specific sexual interests" rather than "members of a deviant sexual group," and strikes the phrase "normal or perverted." The Note now cites a case regarding "serious value."

• Instructions 2.63A (CORRUPTLY OBSTRUCTIG ADMINISTRATION OF JUSTICE 18 U.S.C. § 1503(a)) and 2.63B (OBSTRUCTING ADMINISRATION OF JUSTICE BY THREATS OR FORCE 18 U.S.C. § 1503(a)) now define “due administration of justice.” The Note to nstruction 2.63A now defines "endeavor."

• Instruction 2.64 (INTIMIDATION TO INFLUEnCE TESTIMONY 18 U.S.C. § 1512(b)(1)) now defines "corruptly" and notes the affirmative defense of "truth-seeking." The Note inserts the statutory language regarding "misleading conduct." It also now discusses a circuit split over the type of conduct that falls within the ambit of the phrase “corruptly persuade” in light of Arthur Andersen LLP v. United States, 125 S. Ct. 2129 (2005). The Note now ends with a discussion of the § 1512(e) affirmative defense to obstruction of justice.

• The Note to Instruction 2.65 (DESTROYING, ALTEING, OR FALSIFYING A DOCUMENT IN A FEDERAL INVESTIGATION 18 U.S.C. § 1519) now notes that materiality is not an element.

• The Note to Instruction 2.66 (MISUSE OF A PASSPORT 18 U.S.C. § 1544 (FIRST AND SECOND PARAGRAPHS)) now cites a case that discusses the elements.

• Instruction 2.68 (SEX TRAFFICKING 18 U.S.C. § 1591(a)(1)) now clarifies that if the act is not advertising the mens rea can be reckless. The Note now states that § 1591 should be interpreted broadly to reflect Congress’s clear intent to reach sex trafficking at all levels, including purely local crimes.

• The introduction and elements list of Instruction 2.70A (THEFT OF MAIL MATTER 18 U.S.C. § 1708 (FIRST PARAGRAPH)) now reads:

  Title 18, United States Code, Section 1708, makes it a crime to steal any letter, postal card, package, bag, or mail from a United States mailbox [post office] [mail or post office station] [letter box] [mail receptacle] [mail route] [authorized depository for mail matter] [letter or mail carrier].

  For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

  First: That the letter described in the indictment was in the mail [post office] [mail or post office station] [letter box] [mail receptacle] [mail route] [authorized depository for mail matter], as described in the indictment; and

  Second: That the defendant stole the letter from the mail [post office] [mail or post office station] [letter box] [mail receptacle] [mail route] [authorized depository for mail matter], as described in the indictment.

  The Note now concludes: "The statute also includes unlawfully taking, abstracting, or obtaining mail by fraud or deception as well as secreting, embezzling, or destroying mail. In such a case, the instruction should be so modified."

• Element one of Instruction 2.70B (POSSESSION OF STOLEN MAIL 18 U.S.C. § 1708 (THIRD PARAGRAPH)) adds [mail or post station] and [mail route]. The fourth element now requires specific intent. The Note now includes case notes regarding United States v. Estill, 494 F. App’x 425 (5th Cir. 2012), Barnes v. United States, 93 S. Ct. 2357 (1973).

• The Note to Instruction 2.71 (EMBEZZLEMENT/THET OF MAIL MATTER BY POSTAL SERVICE EMPLOYEE 18 U.S.C. § 1709) now lists cases regarding the elements and decoy letters.

• The Note to Instruction 2.72B (POSSESSING CONTRABAND N PRISON 18 U.S.C. § 1791(a)(2)) now discusses mobile phones and double jeopardy.

• Instruction 2.73A (EXTORTION BY FORCE, VIOLENCE, OR FEAR 18 U.S.C. §§ 1951(a) AND (b)(2) (HOBBS ACT)) now states that all that is necessary is that the defendant’s acts had an actual effect on interstate commerce. "It is not sufficient to merely show that commerce was somehow implicated in the course of events." The discussion of interstate commerce is thoroughly rewritten in the Note, and also asserts that defendants can extort property belonging to themselves or property to which they claim a right."

• Instruction 2.73B (AFFECTING COMMERCE BY ROBBERY 18 U.S.C. § 1951(a) (HOBBS ACT)) adds "[All that is necessary is that the defendant’s acts had an actual effect on interstate commerce. It is not sufficient to merely show that commerce was somehow implicated in the course of events.]" The discussion of the Commerce Clause in the Note is thoroughly rewritten, and notes a case holding that the "interstate-commerce element satisfied in factual basis for guilty plea based on intent to target drug dealer’s home to steal drugs on one occasion, even though the actual victims, by reason of mistake, were not the intended target."

• The Note to Instruction 2.73C (EXTORTION UNDER COLOR OF OFFICIL RIGHT 18 U.S.C. § 1951(a) (HOBBS ACT)) asserts that defendants can extort property belonging to themselves or property to which they claim a right.

• The Note to Instruction 2.74 (INTERSTATE AND FOREIGN TRAVEL OR TRANSPORTATION IN AI OF RACKETEERING ENTRPRISES 18 U.S.C. § 1952(a)) has a new paragraph re the Commerce Clause. It also now pbserves:

  For purposes of § 1952(a)(2), the term “crime of violence” is defined by 18 U.S.C. § 16(a), which requires that the offense have as an element the use, attempted use, or threatened use of physical force against the person or property of another. See United States v. Jackson, 7 F.4th 261, 262 (5th Cir. 2021). Although 18 U.S.C. § 16(b) includes a residual clause, the Supreme Court ruled in Sessions v. Dimaya, 138 S. Ct. 1204, 1214–16 (2018), that § 16(b) was unconstitutionally vague. “That ruling left only § 16(a) to define a ‘crime of violence’ under [§ 1952(a)(2)].” Jackson, 7 F.4th at 262.

• The Note to Instruction 2.76A (LAUNDERING MONETARY INSTRUMENTS—PROCEEDS OF UNLAWFUL ACTIVITY 18 U.S.C. §§ 1956(a)(1)(A)(i) AND 1956(a)(1)(B)(i)) now cites a case "reversing attempted money laundering convictions due to the lack of a substantial step towards a transaction beyond receiving the proceeds, believed to be drug money."

• The Note to Instruction 2.76C (CONSPIRACY TO COMMIT MONEY LAUNDERING 18 U.S.C. § 1956(h)) has a new paragraph on jury unanimity, and notes that the "burden is on the government to prove that the defendant joined the conspiracy, but subsequent withdrawal from the conspiracy is an affirmative defense, the burden of proof for which falls on the defendant." It further explains that "although § 1956(a)(1) requires that the funds be actual proceeds of illegal activity, a defendant can be convicted of conspiracy to violate § 1956(a)(1) even if the funds were not actually proceeds of illegal activity, i.e., a sting operation." The final paragraph discusses "the method of attributing an amount of laundered money to a particular conspiracy defendant; [and that] the attributable amount is a question of fact, including the amount attributed to acts or omissions caused by the defendant or, if applicable, by a co-conspirator within the scope of the conspiracy."

• The Note to Instruction 2.77 (ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY 18 U.S.C. § 1957) observes that, under § 1957(c), "there is no requirement that the government prove that the defendant knew that the offense from which the criminally derived property was derived was 'specific unlawful activity,' as defined by § 1957 .... all that is required is that the defendant knew that the property in question is criminally derived.

• The introductory paragraph of Instruction 2.79 (RACKETEER INFLUENCED CORRUPT ORGANIZATIONS 18 U.S.C. § 1962(c)) adds "[collection of an unlawful debt]." The Note expands the discussion of Boyle v. United States, 129 S. Ct. 2237 (2009), and the definition of "enterprise." It further now notes that drug trafficking activity is a “type of economic activity that has been recognized to substantially affect interstate commerce in the aggregate.” The final paragraph of the Note discusses the definition of "racketeering activity."

• Instruction 2.80A has been retitled "BANK ROBBERY 18 U.S.C. §§ 2113(a) (FIRST CLAUSE) AND (d))

• The Note to Instruction 2.81 (CARJACKING 18 U.S.C. § 2119) observes that the intent requirement does not mandate that a defendant intend to kill or cause serious injury in furtherance of taking the vehicle; it is sufficient if the government proves that at the moment the defendant demanded or took control over the driver’s automobile that the defendant possessed the intent to seriously harm or kill the driver, regardless of whether such action was necessary to effectuate theft of the car.

• The definition of "sexual act" in Instruction 2.82A (SEXUAL ABUSE—THREATS OR FEAR 18 U.S.C. § 2242(1)) adds the language "occurring upon penetration, however slight." The Note now clarifies that "threat or fear” requires more than a mere lack of consent, and is distinct from § 2241’s force element. For purposes of § 2242, fear has a very broad definition and can be inferred from the circumstances (particularly a disparity in power between defendant and victim).

• The definition of "sexual act" in Instruction 2.82B (SEXUAL ABUSE—VICTIM INCAPABLE 18 U.S.C. § 2242(2)) adds the language "occurring upon penetration, however slight." The Note deletes a case note discussing deliberate ignorance.

• A paragraph in the Note to Instruction 2.82C (SEXUAL ABUSE OF A MINOR 18 U.S.C. § 2243(a)) dealing with a marriage defense has been deleted.

• The definition of "sexual act" in Instruction 2.82D (SEXUAL ABUSE OF A WARD 18 U.S.C. § 2243(b)) adds the language "occurring upon penetration, however slight." A paragraph in the Note discussing a marriage defense has been deleted.

• A paragraph in Instruction 2.83 (FAILURE TO REGISTER AS A SEX OFFENDER 18 U.S.C. § 2250) has been edited as follows:

  A person is required to register for a certain time period if he [she] is a sex offender, which means a person convicted of a sex offense. I hereby instruct you that _____________________ (indicate offense) is a sex offense requiring registration for _______ (indicate time period of registration).

  The Note adds a new paragraph discussing Carr v. United States, 130 S. Ct. 2229 (2010), and a discussion of how to handle a refusal to stipulate.

• The definition of “Sexually explicit conduct” in Instruction 2.84 (SEXUAL EXPLOITATION OF CHILDREN – PRODUCING CHILD PORNOGRAPHY 18 U.S.C. § 2251(a)) now includes lascivious exhibition of the anus. The Note now clarifies that the statute covers purely local crimes if there is a connection to interstate commerce, and now cites United States v. Williams, 128 S. Ct. 1830 (2008) (“sexually explicit conduct” definition not vague or overbroad).

• Instruction 2.85A is now titled "SEXUAL EXPLOITATION AND OTHER ABUSES OF CHILDREN — RECEIVING AND DISTRIBUTING MATERIAL INVOLVING SEXUAL EXPLOITATION OF MINORS 18 U.S.C. § 2252(a)(2).The definition of “Sexually explicit conduct” and "lascivious exhibition has been substantially revised. The Note now observes that whether a defendant has “knowingly received” computer images of child pornography is a highly fact-specific inquiry.

• The Note to Instruction 2.85B (SEXUAL EXPLOITATION OF CHILDREN—POSSESSION OF CHILD PORNOGRAPHY 18 U.S.C. § 2252(a)(4)(B)) has a new discussion of “lascivious exhibition,” and now cites United States v. Williams, 128 S. Ct. 1830 (2008) (“sexually explicit conduct” definition not vague or overbroad). The last part of the note has three added paragraphs observing that proof of bad motive or evil intent, multiple images constitute a single count, and enhancements based on the age of the minor.

• Instruction 2.85C is now titled SEXUAL EXPLOITATION OF CHILDREN – TRANSPORTING OR SHIPPING OF CHILD PORNOGRAPHY (VISUAL DEPICTION OF ACTUAL MINOR) [IDENTIFIABLE MINOR] 18 U.S.C. § 2252A(a)(1). Accordingly, the definition of child pornography now includes "[where such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct]." It now defines “identifiable minor” and clarifies that the Government does not have to prove the actual identity of the identifiable minor. A paragraph defining “Sexually explicit conduct” is added, and it now includes lascivious exhibition of the anus. The Note has been extensively rewritten.

• Instruction 2.85D is now titled SEXUAL EXPLOITATION OF CHILDREN—RECEIVING OR DISTRIBUTING CHILD PORNOGRAPHY (VISUAL DEPICTION OF ACTUAL MINOR) [IDENTIFIABLE MINOR]) 18 U.S.C. § 2252A(a)(2)(A)." The third element deletes the word "[contained]." The Instruction now includes a definition of child pornography that clarifies that the Government does not have to prove the actual identity of the identifiable minor. It also rewrites the definition of "sexually explicit conduct" which now includes the lascivious exhibition of the anus. It admonishes "Be cautioned that not every exposure of the genitals or pubic area constitutes lascivious exhibition." The Note has been throughly rewritten.

• Instruction 2.85E is now titled SEXUAL EXPLOITATION OF CHILDREN—RECEIVING OR DISTRIBUTING MATERIAL THAT CONTAINS CHILD PORNOGRAPHY (VISIBLE DEPICTION OF ACTUAL MINOR[IDENTIFIABLE MINOR]) 18 U.S.C. § 2252A(a)(2)(B). The definition of "child pornography" now includes cases "where such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct." There is a new paragraph defining “Sexually explicit conduct.” The Note has been throughly rewritten.

• Instruction 2.85F is now titled SEXUAL EXPLOITATION OF CHILDREN—POSSESSING OR ACCESSING CHILD PORNOGRAPHY (VISUAL DEPICTION OF AN ACTUAL MINOR) [IDENTIFIABLE MINOR]) 18 U.S.C. § 2252A(a)(5)(B). The paragraph defining "child pornography" now ends "[where such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct]." The definition of "sexually explicit conduct" has been rewritten, and now includes lascivious exhibition of the anus. The Note has been throughly rewritten.

• The Notes to Instruction 2.86A (STALKING 18 U.S.C. § 2261A(1)) and 2.86B (STALKING 18 U.S.C. § 2261A(2) now cite Burrage v. United States, 134 S. Ct. 881 (2014).

• The Note to Instruction 2.89 (INTERSTATE TRANSPORTATION OF STOLEN PROPERTY 18 U.S.C. § 2314 (FIRST PARAGRAPH)) now indicates that it is not required that a defendant personally transport stolen goods, but only that the defendant caused stolen goods to travel in interstate (or foreign) commerce.

• The Note to Instruction 2.91A (TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES 18 U.S.C. § 2320(a)(1))

• The Note to Instruction 2.92A (PROVIDING MATERIAL SUPPORT TO TERRORISTS 18 U.S.C. § 2339A) now references “lawful combatant immunity.”

• The Note to Instruction 2.92B (PROVIDING MATERIAL SUPPORT TO A DESGIGNATED FOREIGN TERRORIST ORGANIZATION 18 U.S.C. § 2339B) has been thoroughly rewritten.

• The opening paragraph of Instruction 2.93 (ENTICEMENT OF A MINOR 18 U.S.C. § 2422(b)) now references prostitution. The Note has been thoroughly rewritten.

• Instruction 2.95A is now titled CONTROLLED SUBSTANCES – POSSESSION WITH INTENT TO DISTRIBUTE 21 U.S.C. §§ 841(a)(1) AND (b). It has been completely rewritten with two special verdict forms. The Note has been completely revised.

• The elements list for Instruction 2.95B (POSSESSION WITH INTENT TO DISTRIBUTE - ANALOGUE 21 U.S.C. §§ 802(32)(A), 813(a), 841(a)(1)) substitutes "controlled substance analogue" where it used to say "controlled substance." A list of factors to be used in determining whether the defendant knew that a controlled substance analogue was intended for human consumption, followed by an admonition that "[e]vidence that a substance was not marketed, advertised, or labeled for human consumption is not sufficient, by itself, to establish that the defendant did not know that the substance was intended for human consumption." The Note explains that these two changes were required by a 2018 amendment to § 813(b) and (c).

• Instruction 2.97 (CONTROLLED SUBSTANCES – CONSPIRACY 21 U.S.C. § 846) now tells judges to instruct the jury that the involved controlled substance "is a controlled substance within the meaning of federal law." The Note now has a paragraph describing conspiracies taken from United States v. McClaren, 13 F.4th 386 (5th Cir. 2021). The Note discusses how to handle circumstances where the defense contests the type or quantity, or where more than one type of drug is involved.

• The Note to Instruction 2.98A (CONTINUING CRIMINAL ENTERPRISE 21 U.S.C. § 848) notes a Second Circuit case holding that when calculating the quantity of drugs under § 848(b)(2)(A) necessary to trigger a mandatory life sentence, a jury may consider only the single violation of the Controlled Substance Act alleged in § 848(c)(1) and may not aggregate the drug amounts involved in the three predicates constituting the continuing series of violations described in § 848(c)(2).

• The Note to Instruction 2.100 (CONTROLLED SUBSTANCES—UNLAWFUL IMPORTATION 21 U.S.C. §§ 952(a) AND 960(a)(1)) now has a paragraph indicating that a deliberate ignorance instruction is almost always inappropriate. It ends with a paragraph discussing Burrage and proximate causation.

• The Note to Instruction 2.102 (RECEIVING OR POSSESSING UNREGISTERED FIREARMS 26 U.S.C. § 5861(d)) now indicates that each firearm that meets the criteria of § 5861(d) is a separate unit of prosecution, and that whether a device falls outside the definition of “destructive device” in 26 U.S.C. § 5845(f) is not an element of possession of unregistered destructive device; rather it is an affirmative defense available to the defendant.

• The Note to Instruction 2.103 (TAX EVASION 26 U.S.C. § 7201) now observes that there need not be a formal IRS assessment of a tax deficiency in order to prove a tax deficiency, and discusses the circuit split regarding whether the tax deficiency must be substantial. The final paragraph discusses the statute of limitations.

• The new elements list for Instruction 2.104A (FALSE STATEMENTS ON INCOME TAX RETURN 26 U.S.C. § 7206(1)) now suggest omision as an alternate theory. This is also discussed in the Note. The Note now defines materiality.

• The elements list for Instruction 2.104B (AIDING OR ASSISTING IN PREPARATION OF FALSE DOCUMENTS UNDER INTERNAL REVENUE LAWS 26 U.S.C. § 7206(2)) also includes omission or "failure to state" as an alternate theory, and adds a fifth element of willfulness. The Note now requires a modification of the second element to show what the return failed to state where the indictment charges the defendant with a material omission. It also now notes case law regarding the good-faith defense.

• Instruction 2.105 is retitled as "REPORTS ON EXPORTING AND IMPORTING MONETARY INSTRUMENTS 31 U.S.C. §§ 5316(a)(1)), 5322. The third element now requires willfulness. The Note has been thoroughly revised.

• The third element of Instruction 2.106 (STRUCTURING TRANSACTIONS TO EVADE REPORTING REQUIREMENTS 31 U.S.C. § 5324(a)(3)), which formerly read that "the purpose of the structured transaction was to evade that reporting obligation," now reads "the defendant so structured the transaction with the intent to evade that reporting obligation." The Note now has case notes setting out the elements for the substantive offense and enhanced penalties.

• The Introductions to Instruction 2.109A (SOLICITING OR RECEIVING KICKBACKS FOR REFERRALS TO FEDERAL HEALTH CARE PROGRAMS (“ANTI-KICKBACK STATUTE”) 42 U.S.C. § 1320a-7b(b)(1)(A)) and 2.109B (PAYING OR OFFERING TO PAY KICKBACKS FOR REFERRALS TO FEDERAL HEALTH CARE PROGRAMS (“ANTI-KICKBACK STATUTE”) 42 U.S.C. § 1320a-7b(b)(2)(A)) now apply to "services any [item or] service under a Federal [State] health care program."

  The Note to Instruction 2.109A now clarifies that the government need not prove that the defendant knew that the patients with respect to whom a kickback is received or solicited were covered by federal healthcare program, but must prove the defendant knowingly agreed to accept remuneration for referring patients that could be federally insured. It further observes that the trial court need not instruct on the safe harbor defense if the defensant does not sufficiently prove each element. No one factor is determinative. The Note to Note to Instruction 2.109A has been thoroughly rewritten.

• The Note to Instruction 2.110 (INTERFERENCE WITH SECURITY SCREENING PERSONNEL 49 U.S.C. § 46503) observes that the first element may need to be rewritten in cases involving United States possessions.

• The title to Instruction 2.111 now reads "INTERFERENCE WITH FLIGHT CREW MEMBERS AND OR ATTENDANTS 49 U.S.C. § 46504." The Note adds a case note confirming that words alone can constitute intimidation and addressing the application of the First Amendment to the use of profanity towards a flight attendant and crew member.

• The title to Instruction 2.112A now reads "CARRYING A CONCEALED WEAPON ON AN AIRCRAFT 49 U.S.C. §§ 46505(b)(1) AND (c)". The Instruction has a new definition of "willfully" and an extended discussion of the penalty enhancement. The Note now ends with an extended discussion of the penalty enhancement.

• The title to Instruction 2.112B now reads "PLACING A LOADED FIREARM ON AN AIRCRAFT 49 U.S.C. §§ 46505(b)(2) AND (c)." The introduction and first two elements now read:

  Title 49, United States Code, section 46505, makes it a crime for any individual, when on, or attempting to get on, an aircraft in, or intended for operation in, air transportation or intrastate air transportation to place [attempt to place] [attempt to have placed] a loaded firearm on that aircraft in property not accessible to passengers in flight on an aircraft an aircraft in, or intended for operation in, air transportation or intrastate air transportation.

  For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

  First: That the defendant was on, or attempting to get on, an aircraft that was in or was intended for operation in air transportation or intrastate air transportation; and That the defendant knowingly placed [attempted to place] [attempted to have placed] a loaded firearm on thatan aircraft in property not accessible to passengers, or intended for operation in flight; , air transportation or intrastate air transportation; and

  Second: that the loaded firearm was in property not accessible to passengers in flight.

  The definition of "willfully" and the discussion of penalty enhancements has been rewritten. The Note has been thoroughly rewritten.

• The title to Instruction 2.112C now reads "PLACING AN EXPLOSIVE DEVICE ON AN AIRCRAFT 49 U.S.C. §§ 46505(b)(3) AND (c). The introduction and elements list now reads:

  Title 49, United States Code, section 46505, makes it a crime for any individual, when on, or attempting to get on, an aircraft in, or intended for operation in, air transportation or intrastate air transportation to have on or about the individual [place] [attempt to place] [attempt to have placed] on thatan aircraft, an explosive or incendiary device.

  For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

  First: That the defendant was on, or attempting to get on, an aircraft that was in or was intended for operation in air transportation or intrastate air transportation; knowingly had on or about him [her] [placed] [attempted to place] [attempted to have placed] on that aircraft an explosive or incendiary device; on an aircraft in, or intended for operation in, air transportation or intrastate air transportation.

  [Second: That the defendant acted willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life];

  [Third: That death resulted to any person].

  The definition of "willfully" and the discussion of penalty enhancements has been rewritten. The Note has been thoroughly rewritten.

(09/15/24) (permalink)

Third Circuit updates its Model Civil Instructions

The Third Circuit has posted June 2024 revisions to its Model Civil Jury Instructions. The changes include the following:

• The Comment to Instruction 1.2 (Preliminary Instructions — Description of Case; Summary of Applicable Law) now addresses how the court should deal with persons wishing to be refered to by a nonbinary pronoun.

• The end of the Comment to Instruction 4.4.2 (Section 1983 – Action under Color of State Law – Determining When an Official Acted under Color of State Law) now adds as a factor in non-police officer defendant cases: "In the context of social media, whether the government official “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”

• The Comment to Instruction 4.6.3 (Section 1983 – Liability in Connection with the Actions of Another – Municipalities – General Instruction) now cites Mervilus v. Union County, 73 F.4th 185, 197 (3d Cir. 2023).

• The Comment to Instruction 4.7.2 (Section 1983 – Affirmative Defenses – Qualified Immunity) now cites Anglemeyer v. Ammons, 92 F.4th 184, 192 (3d Cir. 2024), Thomas v. City of Harrisburg, 88 F.4th 275, 285 (3d Cir. 2023), Rivera v. Redfern, 98 F.4th 419, 423-24 (3d Cir. 2024), Rush v. City of Philadelphia, 78 F.4th 610 (3d Cir. 2023).

• The Comment to Instruction 4.9 (Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or other “Seizure”) now cites Anglemeyer and Rush v. City of Philadelphia, 78 F.4th 610 (3d Cir. 2023).

• The Comment to Instruction 4.11.1 (Section 1983 – Conditions of Confinement – Convicted Prisoner – Denial of Adequate Medical Care) now cites Thomas v. City of Harrisburg.

• The Comment to Instruction 4.12 (Section 1983 – Unlawful Seizure)now cites United States v. Goerig, 2024 WL 3659600 (3d Cir., amended Aug. 6, 2024), and United States v. Amos, 88 F.4th 446, 453 (3d Cir. 2023).

• The Comment to Instruction 4.12.1 (Section 1983 – Unlawful Seizure – Terry Stop and Frisk) now cites Goerig, United States v. Stewart, 92 F.4th 461, 467 (3d Cir. 2024), and United States v. Hunter, 88 F.4th 221, 226 (3d Cir. 2023).

• The Comment to Instruction 4.12.3 (Section 1983 – Unlawful Seizure – Arrest – Warrant Application) now cites Pinkney v. Meadville, Pennsylvania, 95 F.4th 743 (3d Cir. 2024), United States v. Savage, 85 F.4th 102 (3d Cir. 2023), and United States v. Stanford, 75 F.4th 309 (3d Cir. 2023).

• The Comment to Instruction 4.13 (Section 1983 – Malicious Prosecution) now cites Mervilus.

• The Discrimination because of religion section of the Comment to Instruction 5.0 (Title VII Introductory Instruction) now discusses Groff v. DeJoy, 123 S. Ct. 2279 (2023).

• The elements list in Instructions 5.1.1 (Elements of a Title VII Claim — Disparate Treatment — Mixed-Motive) and 5.1.2 (Elements of a Title VII Claim – Disparate Treatment — Pretext) have been revised as follows:

  First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment] ; and

  Second: such action\ resulted in harm or injury to plaintiff; and

  Third: [Plaintiff’s] [protected status] was a motivating factor in [defendant's] decision.

• The Comment to Instruction 5.1.1 now cires Qing Qin v. Vertex, Inc., 100 F.4th 458 (3d Cir. 2024).The Adverse Employment Action section of the Instruction now expensively discusses Muldrow v. City of St. Louis, 144 S. Ct. 967, 974 (2024). The Discrimination because of religion section now discusses Groff v. DeJoy, 123 S. Ct. 2279 (2023).

• The Adverse Employment Action section of Instruction 5.1.2 was revised in light of Muldrow.

• The Comments to Instructions 5.1.4 (Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action), 5.1.5 (Elements of a Title VII Claim — Harassment — Hostile Work Environment — No Tangible Employment Action), and 5.1.7 (Elements of a Title VII Claim — Retaliation) now cite Qing Qin.

• The first element of Instruction 6.1.2 (Elements of a Section 1981 Claim— Disparate Treatment— Pretext) has been revised:

  "First: [Defendant] [failed to hire [plaintiff]] [failed to renew impaired [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious right to make and tangible way with respect to [plaintiff’s] compensation enforce contracts, which includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions, or privileges of employment of the contractual relationship by [describe action]; and"

  The Adverse Employment Action section now discusses Mudrow.

• The Comment to Instruction 7.4 (Employment Discrimination – Retaliation – First Amendment) now cites Lindke v. Freed, 601 U.S. 187, 191 (2024), and Fenico v. City of Philadelphia, 70 F.4th 151 (3d Cir. 2023).

• The elements list of Instruction 8.1.1 (Elements of an ADEA Claim— Disparate Treatment) has been revised:

  First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment] ; and

  Second: such action resulted in harm to plaintiff; and

  Third: [Plaintiff’s] age was a determinative factor in [defendant's] decision.

  The Adverse Employment Action section now discusses Muldrow.

• Instructions 9.1.1 (Elements of an ADA Claim— Disparate Treatment — Mixed-Motive) and 9.1.2 (Elements of an ADA Claim – Disparate Treatment — Pretext) have a new fourth element: "[Defendant’s] decision affected [job application procedures applicable to [plaintiff], [the hiring, advancement, or discharge of] [plaintiff], [plaintiff”s] [compensation], [job training], [other terms, conditions, and privileges of] [his/her] employment] and [plaintiff] suffered some harm or injury as a result of that decision."

  The Adverse Employment Action sections of each of these instructions, and 10.1.1 (Elements of an FMLA Claim— Interference With Right to Take Leave), 10.1.2 (Elements of an FMLA Claim — Discrimination — Mixed-Motive), and 10.1.3 (Elements of an FMLA Claim— Discrimination —Pretext) now discuss Muldrow.

(08/16/24) (permalink)