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Eighth Circuit posts revised civil and criminal Model Instructions

The Eighth Circuit has posted its yearly revisions to its civil and criminal Model Jury Instruction.

I have posted a redline/strikeout document made up of changed sections of the civil Instructions.

Changes to the criminal instructions are as follows:

• Instruction 6.18.113(6) (ASSAULT RESULTING IN SERIOUS BODILY INJURY (18 U.S.C. § 113(A)(6))) has a new Note 5 explaining that proof of assault resulting in serious bodily injury does not require specific intent to cause serious bodily injury. The first paragraph of the Comment, dealing with the same issue, is deleted.

• Element two of Instruction 6.18.242 (DEPRIVATION OF CIVIL RIGHTS (18 U.S.C. § 242) has been amended to include the "right to be free from an unreasonable seizure, which includes the right to be free from the use of excessive force by a police officer." The bracketed definition of aggravated sexual abuse now includes "attempts to do so." It now concludes with an admonition to insert a paragraph describing the government’s or prosecution’s burden of proof. The Notes and Comments have been thoroughly revised, now referencing United States v. Thao, 76 F.4th 773, 777 (8th Cir 2023), and United States v. Boen, 59 F.4th 983, 993-94 (8th Cir. 2023).

• The end of Note 1 Instruction 6.18.666B (SOLICITATION OR ACCEPTANCE OF A BRIBE BY AN AGENT OF AN ORGANIZATION RECEIVING FEDERAL FUNDS (18 U.S.C. § 666(A)(1)(B))) has been amended to say that 18 U.S.C. § 1666 applies when the bribe is for the benefit of a business or similar entity, deleting the reference to an artificial entity. The beginning of Note 2 emphasizes that the "bribe and transaction at issue need not be related to the federal funds that give rise to federal jurisdiction." “[A]s a matter of statutory interpretation, § 666[((a)(1)(B)]) does not require the governmentGovernment to prove the bribe in question had any particular influence on federal funds….” United States v. Zimmermann, 509 F.3d 920, 926 (8th Cir. 2007) (quoting Salinas v. United States, 522 U.S. 52, 61 (1997));). Note 3 now cites by Snyder v. United States, 603 U.S. 1 (2024). The end of Note 5 no longer suggests selecting one or more of the alternatives definition of agents. Note 8, discussing Snyder. is new. The first paragraph of the Comments is deleted.

• The Notes and Comments to Instruction 6.18.666C (BRIBERY OF AN AGENT OF A PROGRAM RECEIVING FEDERAL FUNDS (18 U.S.C. § 666(A)(2))) have been completely rewritten in light of Snyder.

• The Comments to Instruction 6.18.875A (INTERSTATE TRANSMISSION OF A RANSOM DEMAND (18 U.S.C. § 875(A))) now end with a paragraph discussing Counterman v. Colorado, 143 S. Ct. 2160, 2113 (June 27, 2023).

• The discussion of Counterman in Instruction 6.18.875B (INTERSTATE TRANSMISSION OF AN EXTORTIONATE THREAT (18 U.S.C. § 875(B))) has been moved from Note 1 to Note 5.

• Element three of Instruction 6.18.875C (INTERSTATE TRANSMISSION OF A THREAT (18 U.S.C. § 875(C))) now adds "consciously disregarding a substantial risk" to the mental states. Note 3 has been substantially rewritten in light of Counterman.

• The discussion of Counterman in Instruction 6.18.875D (INTERSTATE TRANSMISSION OF AN EXTORTIONATE THREAT TO INJURE PROPERTY OR REPUTATION (18 U.S.C. § 875(D)))) has been moved from Note 1 to Note 5.

• Instruction 6.18.922A has been retitled as "FELON OR OTHER PROHIBITED PERSON IN POSSESSION OF FIREARM OR AMMUNITION (18 U.S.C. § 922(G)(1))." The elements have been edited accordingly. Bracketed language in the Instruction reads: "[In deciding whether the defendant knew [he][she] had been convicted of a crime punishable by imprisonment for more than one year[, as required by the third element], you may consider whether the defendant reasonably believed that [his][her] civil rights had been restored, including [his][her] right to possess a firearm.]" A definition of "ammunition" has been added.

  The Notes and Comments are substantially revised with discussions of Rahimi, Bruen, other Second Amendment cases, and justification.

• Instruction 6.18.922B has been retitled as DRUG USER IN POSSESSION OF FIREARM OR AMMUNITION (18 U.S.C. § 922(G)(3)). Some of the language has been moved to a spot later in the Instruction, but the language is not changed. A definition of "ammunition" has been added. The Notes and Comments have been substantially revised in much the same way as 922A.

• Instruction 6.18.922C has been retitled as "DOMESTIC VIOLENCE MISDEMEANANT IN POSSESSION OF FIREARM OR AMMUNITION (18 U.S.C. § 922(G)(9)). Note 1 is new, citing United States v. Hoeft, 128 F.4th 917, 921 (8th Cir. 2025). Note 5 is new, discussing multipliciy issues. Note 7, discussing knowledge of interstate shipping, is new. The Comment is thoroughly revised, addressing Second Amendment issues and justification.

• Instruction 6.18.922D (PROHIBITED PERSON IN POSSESSION OF FIREARM OR AMMUNITION (18 U.S.C. § 922(g))) is new.

• Former Instruction 6.18.922D (POSSESSION OR SALE OF A STOLEN FIREARM (18 U.S.C. § 922(J))) has been renumbered as 6.18.922E.

• Instruction 6.18.924E (ESTABLISHING SEPARATE PREDICATE OFFENSES UNDER THE ARMED CAREER CRIMINAL ACT) is new, added in response to Erlinger v. United States, 602 U.S. 821 (2024).

• Instructions 6.18.2241A (AGGRAVATED SEXUAL ABUSE BY FORCE OR THREAT (18 U.S.C. § 2241(A))), 6.18.2241B-1 (AGGRAVATED SEXUAL ABUSE BY RENDERING UNCONSCIOUS (18 U.S.C. § 2241(B)(1))), 6.18.2241B-2 (AGGRAVATED SEXUAL ABUSE BY ADMINISTRATION OF DRUG, INTOXICANT, OR OTHER SUBSTANCE (18 U.S.C. § 2241(B)(2))), 6.18.2241C-1 (AGGRAVATED SEXUAL ABUSE OF A CHILD UNDER 12 (18 U.S.C. § 2241(C))), 6.18.2241C-2 (AGGRAVATED SEXUAL ABUSE OF A CHILD BETWEEN 12 AND 16 BY FORCE OR THREAT (18 U.S.C. § 2241(C))), 6.18.2242A (SEXUAL ABUSE BY THREAT (18 U.S.C. § 2242(1))), 6.18.2242B (SEXUAL ABUSE OF AN INCAPACITATED PERSON (18 U.S.C. § 2242(2))), and 6.18.2242C (SEXUAL ABUSE WITHOUT CONSENT (18 U.S.C. § 2242(3))) are new.

• The Comment to Instruction 6.18.2261A (STALKING (18 U.S.C. § 2261A)) now discusses First Amendment defenses post Counterman.

• Instruction 6.26.7203 has been retitled FAILURE TO FILE A TAX RETURN, SUPPLY INFORMATION, OR PAY TAX (26 U.S.C. § 7203). The language of the instructions was changed to reflect those alternate theories. The discussion of legal preconditions to file has been deleted. An admonition to insert language regarding the burden of proof was added. The Comments and Notes have been thoroughly rewritten.

• Instruction 6.26.7206 has been retitled MAKING AND SUBSCRIBING A FALSE INCOME TAX RETURN, STATEMENT, OR DOCUMENT (26 U.S.C. § 7206(1)). The language of the instructions was changed to reflect those alternate theories. The paragraph discussing materiality has been revised. The Comments and Notes have been thoroughly rewritten.

• Instruction 6.33.1311(A) has been retitled KNOWING DISCHARGE OF POLLUTANT IN VIOLATION OF THE CLEAN WATER ACT (33 U.S.C. §§ 1311) , 1319(C)(2)(A)). The Instruction has been rewritten to reflect the additional theory. "Conditional contaminant" has been removed from the definition of "pollutant." "This term does not include agricultural storm water discharges/runoffs and return flows from irrigated agriculture" has been removed from the definition of "point source." The definition of "navigable waters" and "waters of the United States" now read:

  “Navigable waters” means the waters A “water of the United States, including" includes only relatively permanent, standing or continuously flowing bodies of water forming geographical features that are ordinarily described as streams, oceans, rivers, and lakes.

  [A “water of the United States” includes interstate waters and their tributaries.]

  [A wetland is part of “a water of the United States” if the wetland is adjacent to, and as a practical matter, indistinguishable from a body of water that itself constitutes a “water of the United States”].

  [A “water of the United States” also includes territorial seas].

  The last sentence of the Instruction has been deleted. The Notes and Comments have been thoroughly rewritten.

• Instruction 7.06 (CORRUPTLY) is new.

(01/21/26) (permalink)

2025 Justice Manual revisions

I am the author of Federal Crimes, a survey of the most commonly charged federal felonies. It gets updated every year. That's an extraordinarily broad subject, and I rely on a number of secondary sources to help me keep up with all of the law in all of the circuits.

As explained here, the most important resources are the official pattern jury instructions and their accompanying annotations. I regularly check in on each circuit, and write blog entries here describing the specific changes when a circuit publishes revised instructions (working on Eighth Circuit civil and criminal instructions now). I keep a mailing list for folks who want to be notified when I post these blog entries.

I also try to note relevant sections in the Justice Manual (JM) (formerly titled as the United States Attorneys' Manual or USAM). The JM is a compendium of Department of Justice policy memoranda. With the deadline for the 2026 edition of Federal Crimes coming up, I wanted to make sure that my references to the JM were accurate and up-to-date.

Here is how I did it. I searched the Internet for 2025 additions or revisions to the JM using the query "2025]" site:justice.gov/jm, and compiled the results into a list. Ordinarily, I would have brought up prior versions of these JM provisions using the Wayback Machine database on archive.org. At that point I could have block copied text from both versions, plugged them into Word, and generated a redline/strikeout, but that was going to be a bit labor intensive.

Instead, I decided to try using artificial intelligence, specifically Copilot AI. I am certainly aware of controversies regarding AI legal research. That being said, for my purposes the AI summaries, edited for concision, are just there to help me flag relevant changes with links to the official text. I thought that readers of this site might be similarly interested in such a survey.

There are a couple dozen changed provisions in all (a large number perhaps occasioned by the change in administrations). Feel free to share this post with others who might be interested in keeping up with JM changes, and let me know if you spot an error.

1-9.000 - Personal Use of Social Media

• Broader definition of “social media” and explicit inclusion of major platforms.
• Stronger prohibitions on posting anything that could appear political, biased, or inconsistent with an employee’s official duties.
• New restrictions on reposting or commenting on DOJ work, even from personal accounts.
• Expanded confidentiality and safeguarding requirements, emphasizing privileged, sensitive, and privacy-protected information.
• Explicit bans on anonymous or pseudonymous online activity used to circumvent conduct rules.
• More detailed guidance for DOJ attorneys, tying specific behaviors to Model Rules of Professional Conduct.
• Clearer standards for what constitutes harassment, discrimination, or statements undermining workplace trust.
• Clarified exceptions for DOJ leadership engaging in coordinated public communications.

1-16.200 — Use of Deadly Force and Prohibited Restraint Techniques

• The 2025 update centers on restraint prohibitions. Reaffirms and sharpens the ban on chokeholds and carotid restraints. Clarifies definitions of “chokehold” and “carotid restraint” to remove ambiguity. Tightens the exception: these techniques may only be used when the deadly-force necessity standard is met.
• Expands the scope to explicitly include task force officers acting under DOJ authority. Requires DOJ components to maintain internal policies reflecting the prohibition.

1-23.100 — Introduction

• This is a newly added section in 2025.
• Introduction to the Office of the Executive Secretariat (OES)(OES originated in 1982 as an internal liaison and document-coordination function).
• Defines the office’s core purpose: ensuring that leadership decisions are made with proper consultation, accurate information, and timely coordination.
• Clarifies OES’s central role in managing the flow of official documents and information across DOJ leadership offices and components.

1-23.200 — Coordination Functions of the Office of the Executive Secretariat

• This is a newly added section in 2025.
• Creates a formal, enumerated list of OES coordination functions.
• Defines OES as the central clearing and tracking hub for all official documents requiring review, approval, or signature by DOJ leadership (AG, DAG, ASG).
• Adds explicit responsibility for managing senior-level correspondence, including communications addressed to DOJ leadership from internal and external stakeholders.
• Introduces structured oversight of interagency requests, both incoming and outgoing, when they involve DOJ leadership.
• Formalizes OES’s role in departmental clearances, including submissions from other federal agencies that require DOJ review.
• Clarifies that the listed functions are non-exhaustive, giving OES broad authority to manage document flow and coordination across DOJ.

1-23.300 – Matters to Be Routed Through the Office of the Executive Secretariat

• This is a newly added section in 2025.
• Creates a formal routing rulebook for what must pass through the Office of the Executive Secretariat (OES).
• Defines five major categories of documents that must be routed through OES, including Official records or decision documents requiring AG/DAG/ASG signature, correspondence addressed to DOJ leadership, interagency requests requiring DOJ leadership approval or concurrence, select departmental clearances coordinated by OES, and any additional materials designated by leadership offices.
• Adds explicit exceptions for certain rulemakings, clarifying when OES routing does not apply. Clarifies relationship to JM 1-8.000, stating that nothing in 1-23.300 supersedes the Congressional and White House Relations chapter.

1-24.000 – Crisis Management Program for United States Attorneys’ Offices

• New section added in 2025.
• Establishes a formal district-level framework for responding to “critical incidents,” including terrorism, mass-casualty events, or extraordinary criminal events requiring coordinated federal action.
• Creates explicit requirements for Critical Incident Response Plans (CIRPs) in every USAO, Critical Incident Response Teams (CIRTs),
• Mandatory coordination with FBI Field Divisions,
• Mandatory notifications (NSD/CTS, EOUSA Urgent Reports, JCC, federal law enforcement, federal courts, and state/local authorities as appropriate)
• Defines detailed roles and responsibilities for: U.S. Attorneys, Crisis Management Coordinators (CMCs), National Security/ATAC Coordinators, EOUSA, NSD
• Introduces annual exercise requirements, after-action reviews, and annual CIRP updates. Clarifies division of responsibility between the CMC and National Security/ATAC Coordinator depending on whether an incident is or is not believed to be terrorism-related.
• Explicitly supersedes any prior inconsistent guidance.

7-1.320 - Criminal Offices and Sections

• The update centers on expanding and clarifying the description of the Procurement Collusion Strike Force (PCSF) and its operational model.
• Adds a significantly expanded description of the PCSF, which earlier versions treated more briefly.
• Clarifies PCSF’s structure as an interagency partnership led by the Antitrust Division and staffed by attorneys from the Division’s criminal enforcement program.
• Updates the list of interagency partners, now explicitly noting that current partners are listed on the PCSF’s public website.
• Adds detail on the district-based operational model, describing how each district team includes: at least one Antitrust Division attorney, an Assistant U.S. Attorney, and agents from each national law-enforcement partner
• Reinforces PCSF’s mission: outreach, training, investigations, and prosecutions related to collusion in public procurement. The introductory paragraph describing the Division’s criminal enforcement mission remains substantively unchanged from prior versions.

7-1.330 — Civil Sections

• Adds a new paragraph describing the Task Force on Healthcare Monopolies and Collusion, which did not appear in earlier archived versions.
• This addition highlights DOJ’s increased emphasis on antitrust enforcement in healthcare markets.
• Refines the description of the civil enforcement program’s mission, keeping the core functions intact but tightening the language around merger review, anticompetitive conduct, and damages recovery.
• Clarifies the Division’s role in administering the Hart-Scott-Rodino Act in coordination with the FTC.
• Updates the structure and flow of the section to align with the 2025 formatting used across Title 7.

7-1.380 — Litigation Program

• This is a newly added section in 2025.
• Creates a new, standalone description of the Antitrust Division’s Litigation Program, which previously had no dedicated section.
• Defines the program’s mission as strengthening litigation readiness across both criminal and civil enforcement.
• Introduces three core functions: Providing experienced litigators and trial advisors to partner with trial teams, developing and maintaining knowledge-management resources on litigation topics, and offering logistical and administrative support throughout the trial lifecycle.
• Clarifies the program’s cross-cutting role, supporting all enforcement sections rather than operating as a standalone prosecutorial unit.

9-5.002 — Criminal Discovery

• The 2025 update reorganizes the guidance, expands several obligations, and modernizes the structure of DOJ’s criminal-discovery policy. The core legal authorities remain the same, but the methodology and expectations for prosecutors are more detailed than in prior versions.
• Reorganizes the section around a four-step framework: Gathering and reviewing discoverable information, conducting the review, making disclosures, and making a record.
• Expanded guidance on defining the “prosecution team.”
• New, detailed expectations for reviewing agency files.
• Expanded the discussion of: Access to investigative files, review of confidential informant/source files, handling of “substantive” case-related communications, treatment of agent notes and witness-statement variations.
• More explicit guidance on Giglio-related review, with clearer expectations for conversations with law-enforcement witnesses, handling Giglio information for non-law-enforcement witnesses, reviewing benefits, agreements, and credibility-related material.
• The 2025 revision strengthens DOJ’s emphasis on: early and broad disclosure when appropriate, balancing disclosure with witness safety, privacy, national security, and investigative integrity.
• Avoiding the phrase “open file” to prevent misunderstandings.
• New emphasis on record-keeping.

9-13.150 — Processing Ballistics Evidence in Connection with Criminal Investigations

• This is a newly added section in 2025.
• Creates a new DOJ-wide requirement that all DOJ agents and investigators must enter ballistics evidence into NIBIN, following ATF procedures.
• Expands the scope to include firearms and fired cartridge casings recovered during any criminal investigation, including those involving state, local, Tribal, or territorial partners.
• Clarifies responsibility: the obligation applies regardless of which agency physically possesses the evidence.
• Adds a timeliness mandate.
• Introduces logistical support language: ATF will assist agencies lacking a nearby NIBIN acquisition site, including through ATF Field Divisions and national NIBIN labs.
• Emphasizes NIBIN’s investigative value, highlighting increased entries and investigative leads as part of the justification for the new mandate.

9-13.400 - Obtaining Information From, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media

• The update replaces the prior version with a modernized, more detailed framework aligned with the Attorney General’s 2025 News Media Policy.
• Re-centers the policy on balancing law-enforcement needs with the protection of lawful newsgathering.
• Reinforces that compulsory legal process targeting news media is an extraordinary measure and a last resort.
• Adds more explicit requirements for Attorney General authorization before: Issuing subpoenas to news media members, obtaining their communications or business records from third parties, applying for search warrants targeting news media premises or property.
• Clearer definitions and scope rules; clarifies who qualifies as a member of the news media and what constitutes lawful newsgathering, emphasizing case-by-case determinations.
• Adds explicit exclusions for individuals engaged in terrorism, foreign-agent activity, or aiding such conduct.
• Detailed standards for subpoenas and compulsory process (requires prosecutors to show that the information is essential, narrowly tailored, and unavailable from alternative sources).
• Strengthens requirements for voluntary negotiations with media before compulsory process is used, unless doing so would jeopardize the investigation.
• Adds a structured timeline for notifying affected media members when their records are obtained from third parties.
• Allows limited, AG-approved delays when notice would threaten investigative integrity or safety.
• New and expanded rules for questioning, arresting, or charging journalists Requires Attorney General authorization before questioning, arresting, or charging a journalist for conduct related to newsgathering.
• Adds a narrow exigent-circumstances exception for imminent threats (terrorism, death, serious bodily harm, etc.).
• Integrates with 28 C.F.R. § 50.10, directing attorneys to the full rule for operational details.

9-13.420 - Searches of Premises of Subject Attorneys

• “Premises” now explicitly includes electronic devices, communications content, and third‑party provider accounts (email, social media, cloud).
• The policy now expressly covers employees, contractors, agents, paralegals, accountants, consultants, and unlicensed/disbarred practitioners when client‑related materials may be present.
• The 2025 version adds a new clause covering business organizations when legal‑advisor materials are involved.
• The former version lacked all electronic‑content language and the extended list of covered individuals.
• The scope is now far more explicit and technologically current, and it captures a wider set of people and storage locations.
• "Alternatives to Search Warrants" was expanded and modernized, adding communications content held by third-party providers to the examples of evidence sought.
• The prior version only referenced “an attorney actively engaged in the practice of law,” not electronic content.
• The “least intrusive means” analysis is now explicitly tied to modern data sources.
• The Consultation Requirements now require prosecutors to submit a PSEU intranet form, including attached special instructions and filter protocols.
• It uses the term “filter team” instead of “privilege team.”
• The 2025 version emphasizes early information sharing and deadlines more explicitly.
• Requirement to discuss protocols with the filter team before the search, explicit instructions about preventing taint, option to attach protocols to the affidavit, more detailed expectations for electronic-evidence handling.
• Expands references to electronic devices, electronic records, and third‑party communications content. The former version Only references “computers” and older CCIPS guidance.

9-13.600 — Guidance on No-Knock Warrants

• This is a newly added in 2025.
• Creates a formal DOJ-wide standard for no-knock warrants
• Establishes a presumption against no-knock entries. The new policy makes it clear that no-knock warrants are disfavored and may be used only when announcing presence would create an imminent threat of physical harm, or announcing presence would likely result in the destruction of evidence essential to the case.
• Adds mandatory supervisory approval. Before seeking a no-knock warrant, agents must obtain: Supervisory approval within their agency, and Prosecutorial review to ensure the legal and factual basis meets DOJ’s heightened standard.
• Requires detailed justification in the warrant affidavit. The affidavit must now include specific facts supporting the need for a no-knock entry, an explanation of why alternative tactics are insufficient, and a description of risk-mitigation planning.
• Adds operational safety requirements: Pre-operation briefings, consideration of time-of-day and occupant information, use of de-escalation tactics when feasible, coordination with prosecutors on risk assessment.
• Clarifies that state and local task-force officers must follow DOJ policy. Even when operating under state law, deputized task-force officers must comply with DOJ’s stricter federal standard.

9-47.120 — Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy

• The policy no longer applies only to FCPA cases. It now governs all corporate criminal matters handled by the Criminal Division, including fraud, money laundering, FEPA, and other corporate-crime statutes.
• Presumption of declination for qualifying companies. Companies that voluntarily self-disclose, fully cooperate, and timely and appropriately remediate will receive a presumption of declination, absent aggravating circumstances.
• Expanded definition and requirements for voluntary self-disclosure. Must disclose all relevant non-privileged facts, including about individuals. Disclosure must occur before an imminent threat of government investigation.
• Detailed standards for “full cooperation.” Requires attribution of facts to specific sources (when not privileged), rolling updates during internal investigations, proactive identification of evidence not in the company’s possession, voluntary preservation and production of overseas documents, and making employees (including overseas personnel) available for interviews.
• New, more prescriptive remediation requirements.
• Mandatory root-cause analysis.
• Detailed compliance-program criteria (governance, independence, testing, compensation structure).
• Requirements for record-retention controls, including restrictions on ephemeral messaging. Mandatory discipline for responsible employees.
• Revised treatment of aggravating circumstances. Aggravating factors (e.g., executive involvement, pervasive misconduct, recidivism) may defeat the presumption of declination, but companies may still receive a declination if they meet extraordinary cooperation/remediation standards. This “extraordinary cooperation” pathway is new.
• New fine-reduction framework. If a criminal resolution is warranted companies with voluntary self-disclosure receive 50%–75% off the low end of the Guidelines range. Companies without voluntary disclosure but with full cooperation may receive up to 50% off. Recidivists are treated differently, with reductions not anchored to the low end.
• Integration with DOJ’s 2023 M&A Policy. It incorporates the Department-wide M&A safe-harbor policy (misconduct discovered in pre- or post-acquisition diligence may qualify for a presumption of declination if disclosed within 180 days and remediated within one year).
• Public release of declinations.

9-105.100 — Introduction

• Clearer statement of MLARS’s role as the primary component responsible for notification requirements, consultation, and approvals, and the involvement of the Tax Division, U.S. Attorneys, and Criminal Division Deputy Assistant Attorneys General. 4. New emphasis on cross-Manual coordination, depending whether JM Chapters 9-47.000 (foreign corruption), 9-51.000 (cyber-enabled crimes), and JM 9-90.020 (national security) are involved.

9-105.200 — Consultation and Approval Requirements for Certain Cases Involving Money Laundering and/or Financial Institutions

• Expands MLARS authority, restructures the approval framework, and adds new categories of cases requiring notification, consultation, or formal authorization.
• Broadens the categories of cases that require notification to MLARS when an investigation opens, and MLARS approval before filing charges or resolving a case. The four categories now requiring MLARS authorization are: Extraterritorial-jurisdiction cases under §§ 1956/1957, transactions involving attorneys’ fees, cases where a financial institution is a defendant or unindicted co-conspirator, and individual culpability for certain BSA/AML program violations.
• New, detailed submission requirements for approvals. A prosecution memo must accompany approval requests. Draft charging documents or resolution documents must be submitted to MLARS.Approvals@usdoj.gov. Prosecutors are encouraged to engage MLARS early and regularly.
• Expanded list of matters requiring MLARS consultation. Three categories now require mandatory consultation before charges or civil actions: Forfeiture of businesses or assets tied to unlicensed money transmitting, civil actions under § 1956(b), and “receipt and deposit” cases involving SUA proceeds placed into accounts belonging to the offender. The “receipt and deposit” guidance is more explicit than in prior versions, emphasizing when such charges are inappropriate.
• A new two-step process for identifying and resolving potential “merger” problems—where the SUA and the money-laundering transaction overlap so closely that charging both may be improper, with expanded examples of merger-issue scenarios.
• The revision clarifies that Tax Division approval is required when the principal purpose of the § 1956(a)(1)(A)(ii) transaction is tax evasion, or when the indictment includes other charges requiring Tax Division approval.

9-105.300 — Reporting Requirements for Certain Convictions Involving Financial Institutions

• Modernizes DOJ’s internal reporting workflow to ensure the Attorney General can meet statutory notification duties under 18 U.S.C. § 1956(g).
• Expanded and more explicit list of covered offenses: 18 U.S.C. §§ 1956, 1957, 1960. and 31 U.S.C. § 5324.
• More precise definition of “financial institution.”
• The update clarifies that reporting applies when the defendant is a national bank, federal savings association, federal credit union, or federally insured state depository institution Or an officer, director, or employee of such an institution.
• Components must send MLARS a certified copy of the judgment of conviction, including the lead prosecutor’s name and investigative agency, submitted via the MLARS.
• Clarifies that reporting is required even if MLARS was not previously involved.

9-105.400 — Bona Fide Fees Paid to Attorneys for Representation in a Criminal Matter

• The revision is stylistic and clarifying, not a substantive policy shift.
• DOJ will not prosecute an attorney under § 1957 for receiving bona fide fees for legitimate criminal-defense representation unless there is: Proof beyond a reasonable doubt of actual knowledge of the illicit source, and That proof does not rely on privileged or confidential client communications.
• Expanded explanation of what counts as a “bona fide fee”: Fees paid in good faith for representation of the client’s own criminal liability, Third-party payments that do not create conflicting obligations, Exclusion of sham or fraudulent transactions designed to shield assets.
• More explicit treatment of “actual knowledge.” Actual knowledge cannot be based solely on willful blindness. Actual knowledge cannot be established using: Pre-representation confidential communications, communications during representation, or information obtained in the course of representation.
• New examples and illustrations. The 2025 text adds more concrete examples of when prosecution may or may not be appropriate, such as: Attorneys functioning as “in-house counsel” to a criminal enterprise, attorneys hearing non-privileged admissions before representation begins, or situations where pre-representation publicity is not enough to establish knowledge.
• Clarified relationship to § 1957(f)(1)’s Sixth Amendment carve-out.

9-105.500 — Tax-Related Money Laundering Offenses Under § 1956(a)(1)(A)(ii)

• Tax Division approval is required when: The indictment also includes charges that independently require Tax Division approval (e.g., tax-fraud conspiracy), or the sole or principal purpose of the financial transaction is to violate 26 U.S.C. § 7201 (tax evasion) or § 7206 (false return).
• Reorganized explanation of the statutory background.
• The revision clarifies that approval is not required when: The principal purpose of the transaction is something other than tax evasion (e.g., promoting drug trafficking), the circumstances do not warrant filing substantive tax charges, or any tax-evasion motive is merely secondary and apparent from the nature of the laundering transaction.
• More explicit cross-references to normal review procedures. The update clarifies that, except in OCDETF cases, Tax Division approval follows the standard process, including IRS review.

(01/19/26) (permalink)

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.

The criminal instructions were updated in October 2025.

(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)