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PATTERN CRIMINAL JURY INSTRUCTIONS Prepared by Sixth Circuit Committee on Pattern Criminal Jury Instructions Updated as of July 1 2019 Sixth Circuit Pattern Criminal Jury Instruction Committee 2019 Hon Gregory F Van Tatenhove Chair United States District Judge Eastern District of Kentucky Hon Denise Page Hood United States District Judge Eastern District of Michigan Hon Benita Y
Sixth Circuit,Pattern Criminal Jury Instruction Committee. Hon Gregory F Van Tatenhove Chair, United States District Judge Eastern District of Kentucky. Hon Denise Page Hood, United States District Judge Eastern District of Michigan. Hon Benita Y Pearson, United States District Judge Northern District of Ohio. Hon J Daniel Breen, United States District Judge Western District of Tennessee. Myrlene R Marsa, Assistant Federal Defender Eastern District of Tennessee Chattanooga. Kevin M Mulcahy, Assistant United States Attorney Eastern District of Michigan. Kevin Ritz, Assistant United States Attorney Western District of Tennessee. Kevin Michael Schad, Appellate Director Office of the Federal Public Defender Southern District of Ohio. Douglas W Squires, Assistant United States Attorney Southern District of Ohio. Jasna Tosic, Assistant Federal Public Defender Western District of Michigan. Kent Wicker,Louisville KY,Charles Wisdom, Assistant United States Attorney Eastern District of Kentucky. Sarah N Welling Reporter, Ashland Spears Distinguished Research Professor of Law University of Kentucky. Introduction,current through July 1 2019, The Sixth Circuit Pattern Criminal Jury Instruction Committee includes district judges. prosecutors defense attorneys and academics from around the circuit The members are listed. The instructions are designed for use at the end of trial However this should not be. interpreted as a recommendation against using preliminary instructions before the trial begins. To the contrary the Committee believes that preliminary instructions are helpful With. modifications these instructions can be used as preliminary instructions. The Committee uses simple language or plain English whenever possible. In the text of the instructions brackets indicate alternatives or language that is only. appropriate in limited circumstances Brackets with italicized type are notes to the court Use. Notes following the instructions briefly explain when bracketed language should be used and. other issues relating to the instructions, A committee commentary is provided with each instruction The commentaries cite the. authority for the instruction and explain the Committee s rationale. In the commentaries the Committee occasionally cites unpublished cases These are. widely available now in the electronic databases Lexis and Westlaw and in West s publication. the Federal Appendix The Committee uses unpublished cases only when there is no published. case on point or where the unpublished case is helpful Sixth Circuit Rule 28 g governs the. citation of unpublished decisions by counsel in briefs and oral arguments in the Sixth Circuit and. in the district courts See also Fed R App P 32 1 Unpublished decisions are not precedentially. binding under the doctrine of stare decisis but they may be of persuasive value United States v. Villareal 491 F 3d 605 610 6th Cir 2007 United States v Sanford 476 F 3d 391 396 6th. The instructions include an appendix which provides some charts diagraming a money. laundering crime, Approval of the content of the instructions must await a case by case review by the Court. of Appeals Each case is different and no set of pattern instructions can cover all the variables. which may arise These are suggested instructions only and should be tailored to fit the facts of. each individual case As the Sixth Circuit has cautioned although pattern instructions have. their place they should not be used without careful consideration being given to their. applicability to the facts and theories of the specific case being tried United States v Wolak. 923 F 2d 1193 1198 6th Cir 1991, The instructions continue to use singular pronouns and verbs and to use masculine. pronouns only where the use of gender neutral language was awkward or lacked specificity The. instructions should be modified to fit the case including using female pronouns where. appropriate Some courts give a preliminary instruction on this issue for example. Any reference to he his and him within these jury instructions should be construed by. you as having equal applicability to any female participant in this trial The use of the. masculine pronouns is only for convenience in reading the instructions and not for the. purpose of giving emphasis to or providing focus upon any witness or particular aspect. of this case,TABLE OF CONTENTS,Committee Membership. Introduction,Table of Contents, Standard of Appellate Review for Jury Instructions Generally. General Instructions,Chapter 1 00 General Principles. 1 01 Introduction,1 02 Jurors Duties, 1 03 Presumption of Innocence Burden of Proof Reasonable Doubt. 1 04 Evidence Defined,1 05 Consideration of Evidence. 1 06 Direct and Circumstantial Evidence,1 07 Credibility of Witnesses. 1 08 Number of Witnesses,1 09 Lawyers Objections, Chapter 2 00 Defining the Crime and Related Matters. 2 01 Introduction, 2 01A Separate Consideration Single Defendant Charged with Multiple Crimes. 2 01B Separate Consideration Multiple Defendants Charged with a Single Crime. 2 01C Separate Consideration Multiple Defendants Charged with Same Crimes. 2 01D Separate Consideration Multiple Defendants Charged with Different Crimes. 2 02 Definition of the Crime,2 03 Definition of Lesser Offense. 2 04 On or About,2 05 Willfully,2 06 Knowingly,2 07 Specific Intent. 2 08 Inferring Required Mental State,2 09 Deliberate Ignorance. 2 10 Actual and Constructive Possession,2 10A Actual Possession. 2 11 Joint Possession,2 12 Use of the Word And in the Indictment. Chapter 3 00 Conspiracy, 3 01A Conspiracy to Commit an Offense 18 U S C 371 Basic Elements. 3 01B Conspiracy to Defraud the United States 18 U S C 371 Basic Elements. 3 02 Agreement,3 03 Defendant s Connection to the Conspiracy. 3 04 Overt Acts 18 U S C 371,3 05 Bad Purpose or Corrupt Motive. 3 06 Unindicted Unnamed or Separately Tried Co Conspirators. 3 07 Venue, 3 08 Multiple Conspiracies Material Variance From the Indictment. 3 09 Multiple Conspiracies Factors in Determining, 3 10 Pinkerton Liability for Substantive Offenses Committed by Others. 3 11A Withdrawal as a Defense to Conspiracy, 3 11B Withdrawal as a Defense to Substantive Offenses Committed by Others. 3 11C Withdrawal as a Defense to Conspiracy Based on the Statute of Limitations. 3 12 Duration of a Conspiracy,3 13 Impossibility of Success. 3 14 Statements by Co Conspirators,Chapter 4 00 Aiding and Abetting. 4 01 Aiding and Abetting,4 01A Causing an Act,4 02 Accessory After the Fact. Chapter 5 00 Attempts,5 01 Attempt Basic Elements,5 02 Sham Controlled Substance Cases. 5 03 Abandonment or Renunciation,Chapter 6 00 Defenses. 6 01 Defense Theory,6 02 Alibi,6 03 Entrapment,6 04 Insanity. 6 05 Coercion Duress,6 06 Self Defense,6 07 Justification. 6 08 Fraud Good Faith Defense,6 09 Entrapment by Estoppel. Chapter 7 00 Special Evidentiary Matters,7 01 Introduction. 7 02A Defendant s Election Not to Testify or Present Evidence. 7 02B Defendant s Testimony, 7 02C Witness Other than Defendant Invoking the Fifth Amendment. 7 03 Opinion Testimony, 7 03A Witness Testifying to Both Facts and Opinions. 7 04 Impeachment by Prior Inconsistent Statement Not Under Oath. 7 05A Impeachment of Defendant by Prior Conviction. 7 05B Impeachment of a Witness Other Than Defendant by Prior Conviction. 7 06A Testimony of a Paid Informant, 7 06B Testimony of an Addict Informant Under Grant of Immunity or Reduced. Criminal Liability, 7 07 Testimony of a Witness Under Grant of Immunity or Reduced Criminal Liability. 7 07A Testimony of a Witness under Compulsion,7 08 Testimony of an Accomplice. 7 09 Character and Reputation of Defendant,7 10 Age of Witness. 7 11 Identification Testimony, 7 12 Summaries and Other Materials Not Admitted in Evidence. 7 12A Secondary Evidence Summaries Admitted in Evidence. 7 13 Other Acts of Defendant, 7 14 Flight Concealment of Evidence False Exculpatory Statements. 7 15 Silence in the Face of Accusation withdrawn,7 16 Possession of Recently Stolen Property. 7 17 Transcriptions of Recordings, 7 18 Separate Consideration Evidence Admitted Against Certain Defendants Only. 7 19 Judicial Notice,7 20 Statement by Defendant,7 21 Stipulations. Chapter 8 00 Deliberation and Verdict,8 01 Introduction. 8 02 Experiments Research Investigation and Outside Communications. 8 03 Unanimous Verdict,8 03A Unanimity of Theory withdrawn. 8 03B Unanimity Not Required Means, 8 03C Unanimity Required Statutory Maximum Penalty Increased Controlled. Substances withdrawn and replaced with Instruction 14 07A. 8 04 Duty to Deliberate,8 05 Punishment,8 06 Verdict Form. 8 07 Lesser Offense Order of Deliberations Verdict Form. 8 08 Verdict Limited to Charges Against This Defendant. 8 09 Court Has No Opinion,8 10 Juror Notes,Chapter 9 00 Supplemental Instructions. 9 01 Supplemental Instructions in Response to Juror Questions. 9 02 Rereading of Testimony,9 03 Partial Verdicts,9 04 Deadlocked Jury. 9 05 Questionable Unanimity After Polling,Elements Instructions. Chapter 10 00 Fraud Offenses,10 01 Mail Fraud 18 U S C 1341. 10 02 Wire Fraud 18 U S C 1343, 10 03A Bank Fraud Scheme to Defraud a Bank 18 U S C 1344 1. 10 03B Bank Fraud Scheme to Obtain Bank Property by Means of False or Fraudulent. Representations 18 U S C 1344 2,10 04 Fraud Good Faith Defense. 10 05 Health Care Fraud 18 U S C 1347,Chapter 11 00 Money Laundering Offenses. 11 01 Money Laundering Domestic Financial Transaction 18 U S C 1956 a 1 A. intent to promote the carrying on of specified unlawful activity. 11 02 Money Laundering Domestic Financial Transaction 18 U S C 1956 a 1 B. knowing the transaction is designed to conceal facts related to proceeds. 11 03 Money Laundering International Transportation 18 U S C 1956 a 2 A. intent to promote the carrying on of specified unlawful activity. 11 04 Money Laundering International Transportation 18 U S C 1956 a 2 B. knowing that the transportation involves proceeds of some form of unlawful. activity and that it is designed to conceal facts related to proceeds. 11 05 Money Laundering Undercover Investigation 18 U S C 1956 a 3. 11 06 Money Laundering Engaging in Monetary Transactions in Property Derived. from Specified Unlawful Activity 18 U S C 1957,Chapter 12 00 Firearms Offenses. 12 01 Firearms Possession of Firearm or Ammunition by Convicted Felon 18 U S C. 12 02 Firearms Using or Carrying a Firearm During and in Relation to a Crime of. Violence or Drug Trafficking Crime 18 U S C 924 c 1 A i. 12 03 Firearms Possessing a Firearm in Furtherance of a Crime of Violence or Drug. Trafficking Crime 18 U S C 924 c 1 A i, 12 04 Aiding and Abetting Using or Carrying a Firearm During and in Relation to a. Crime of Violence or Drug Trafficking Crime 18 U S C 924 c 1 A i and. 12 05 Aiding and Abetting Possession of a Firearm in Furtherance of a Crime of. Violence or Drug Trafficking Crime 18 U S C 924 c 1 A i and 2. Chapter 13 00 False Statements to the United States Government. 13 01 Concealing a Material Fact in a Matter within the Jurisdiction of the United States. Government 18 U S C 1001 a 1, 13 02 Making a False Statement in a Matter within the Jurisdiction of the United States. Government 18 U S C 1001 a 2, 13 03 Making or Using a False Writing in a Matter within the Jurisdiction of the United. States Government 18 U S C 1001 a 3,Chapter 14 00 Controlled Substances Offenses. 14 01 Possession of a Controlled Substance with Intent to Distribute 21 U S C. 14 02A Distribution of a Controlled Substance 21 U S C 841 a 1. 14 02B Distribution of a Controlled Substance when Death or Serious Bodily Injury. Results 21 U S C 841 a 1 b 1 A C and b 1 E i ii, 14 03A Manufacture of a Controlled Substance 21 U S C 841 a 1. 14 03B Manufacture of a Controlled Substance when Death or Serious Bodily. Injury Results 21 U S C 841 a 1 b 1 A C and b 1 E i ii. 14 04 Possession of a Controlled Substance 21 U S C 844. 14 05 Conspiracy 21 U S C 846, 14 06 Distribution in or near Schools or Colleges 21 U S C 860 a. 14 07A Unanimity Required Determining Amount of Controlled Substance 841 and. Special Verdict Forms 14 07A 1 and 14 07A 2, 14 07B Unanimity Required Determining Amount of Controlled Substance 846 and. Special Verdict Forms 14 07B 1 and 14 07B 2,Chapter 15 00 Identity and Access Device Crimes. 15 01 Fraud and Related Activity in Connection with Identification Documents. Authentication Features and Information 18 U S C 1028 a 1 producing an. identification document authentication feature or false identification document. 15 02 Fraud and Related Activity in Connection with Identification Documents. Authentication Features and Information 18 U S C 1028 a 3 possessing. with intent to use unlawfully or transfer unlawfully five or more identification. documents authentication features or false identification documents. 15 03 Fraud and Related Activity in Connection with Identification Documents. Authentication Features and Information 18 U S C 1028 a 6 possessing an. identification document or authentication feature which was stolen or produced. without lawful authority, 15 04 Aggravated Identity Theft 18 U S C 1028A a 1. 15 05 Fraud and Related Activity in Connection with Access Devices 18 U S C. 1029 a 2 trafficking in or using one or more unauthorized access devices. during a one year period,Chapter 16 00 Child Exploitation Offenses. Section 2251 Offenses Production, 16 01 Sexual Exploitation of Children Using a Minor to Engage in Sexually. Explicit Conduct to Produce a Visual Depiction 18 U S C 2251 a. 16 02 Sexual Exploitation of Children Transporting a Minor to Engage in. Sexually Explicit Conduct to Produce a Visual Depiction 18 U S C. 16 03 Sexual Exploitation of Children Permitting a Minor to Engage in. Sexually Explicit Conduct to Produce a Visual Depiction 18 U S C. Section 2252 a Offenses, 16 04 Material Involving the Sexual Exploitation of Minors Transporting or. Shipping a Visual Depiction 18 U S C 2252 a 1, 16 05 Material Involving the Sexual Exploitation of Minors Receiving. Distributing or Reproducing for Distribution a Visual Depiction 18. U S C 2252 a 2, 16 06 Material Involving the Sexual Exploitation of Minors Possessing a Visual. Depiction 18 U S C 2252 a 4 B,Section 2252A a Offenses. 16 07 Receiving or Distributing Child Pornography 18 U S C 2252A a 2. 16 08 Possessing or Accessing Child Pornography 18 U S C 2252A a 5. Section 2422 b Offense, 16 09 Coercion and Enticement Persuading a Minor to Engage in Prostitution or. Unlawful Sexual Activity 18 U S C 2422 b,Section 2423 Offenses. 16 10 Transporting a Minor with Intent that the Minor Engage in Criminal. Sexual Activity 18 U S C 2423 a, 16 11 Traveling with Intent to Engage in Illicit Sexual Conduct 18 U S C. Section 1591 Offense,16 12 Sex Trafficking 18 U S C 1591 a 1. Chapter 17 00 Hobbs Act Offenses, 17 01 Hobbs Act Extortion by Force Violence or Fear 18 U S C 1951 a. 17 02 Hobbs Act Extortion Under Color of Official Right 18 U S C 1951 a. 17 03 Hobbs Act Robbery 18 U S C 1951 a, Chapter 18 00 Transmission of a Threat to Kidnap or Injure. 18 01 Transmission of a Threat to Kidnap or Injure 18 U S C 875 c. List of elements instructions based on statutory cite. 18 U S C 1956 Laundering of monetary instruments diagrams of offense. The Standard of Appellate Review for Jury Instructions Generally. current through July 1 2019, Generally jury instructions are reviewed as a whole to determine whether they fairly and. adequately submit the issues and applicable law to the jury United States v Williams 952 F 2d. 1504 1512 6th Cir 1991 The district court s choice of jury instructions is reviewed according. to an abuse of discretion standard United States v Beaty 245 F 3d 617 621 22 6th Cir 2001. citing United States v Prince 214 F 3d 740 761 6th Cir 2000 If the parties request particular. language it is not error to fail to use the language requested by the parties if the instruction as. given is accurate and sufficient Williams 952 F 2d at 1512 quoting United States v Horton. 847 F 2d 313 322 6th Cir 1988, When a district court refuses to give a requested instruction the Sixth Circuit holds that it. is reversible only if that instruction is 1 a correct statement of the law 2 not substantially. covered by the charge actually delivered to the jury and 3 concerns a point so important in the. trial that the failure to give it substantially impairs the defendant s defense Williams 952 F 2d. at 1512 citing United States v Parrish 736 F 2d 152 156 5th Cir 1984 See also United. States v Sassak 881 F 2d 276 279 6th Cir 1989 citing Parrish 736 F 2d at 156. When a defendant fails to object to a jury instruction at trial the appellate court reviews. only for plain error Federal Rule of Criminal Procedure 52 b United States v Olano 507 U S. 725 732 1993 B efore an appellate court can correct an error not raised at trial there must. be 1 error 2 that is plain and 3 that affect s substantial rights Johnson v United. States 520 U S 461 466 67 1997 quoting Olano 507 U S at 732 If all three conditions are. met an appellate court may then exercise its discretion to notice a forfeited error but only if 4. the error seriously affect s the fairness integrity or public reputation of judicial proceedings. Johnson 520 U S at 467 quoting Olano 507 U S at 732 In Olano the Supreme Court. discussed but did not adopt the miscarriage of justice standard noting that the miscarriage of. justice standard in the collateral review jurisprudence of the Supreme Court meant actual. innocence and that it had never held that the Rule 52 b remedy was limited to cases of actual. innocence Olano 507 U S at 736 see also United States v Thomas 11 F 3d 620 630 6th Cir. 1993 While the Court in Olano referred to the miscarriage of justice standard it remarked. that it had never held a Rule 52 b remedy was warranted only in cases of actual innocence. Although the Court did not adopt the miscarriage of justice standard the Sixth Circuit has. occasionally cited this standard See e g United States v King 169 F 3d 1035 1040 6th Cir. 1999 An instruction is not plainly erroneous unless there was an egregious error one that. directly leads to a miscarriage of justice United States v Wilkinson 26 F 3d 623 625 6th. In reviewing the substance of given instructions for plain error the Sixth Circuit held. that In determining the adequacy of a jury instruction the instruction must be viewed in its. entirety and a misstatement in one part of the charge does not require reversal if elsewhere in the. instruction the correct information is conveyed to the jury in a clear and concise manner. United States v Nelson 27 F 3d 199 202 6th Cir 1994 quoting United States v Pope 561. F 2d 663 670 6th Cir 1977, In reviewing the omission of an instruction for plain error the court has stated that. A n omitted or incomplete instruction is even less likely to justify reversal since such an. instruction is not as prejudicial as a misstatement of the law United States v Sanderson 966. F 3d 184 187 6th Cir 1992 quoting United States v Hook 781 F 2d 1166 1172 73 6th Cir. The standard for review of jury instructions may be affected if the defendant jointly. submitted the instruction or stipulated to it In United States v Sharpe 996 F 2d 125 6th Cir. 1993 the defendant and the government jointly submitted an instruction that the defendant. sought to challenge on appeal The court declined to review the instruction citing the fact that. the defendant did not object to the instructions and in fact jointly submitted them Id at 128 29. citing United States v Young 745 F 2d 733 752 2d Cir 1984 and United States v Thurman. 417 F 2d 752 753 D C Cir 1959 In United States v Barrow 118 F 3d 482 6th Cir 1997. the defendant stipulated to an instruction that he sought to challenge on appeal The court. recounted the Sharpe holding but concluded that the invited error doctrine did not foreclose. relief when the interests of justice demand otherwise Id at 491 The analysis of the interests of. justice is left to the appellate court s discretion Here the court decided that the interests of. justice supported review of the defendant s challenge to the instructions for two reasons the. government was as much at fault as the defendant for the stipulated instruction and the. defendant was claiming not just that the instruction was wrong but that it deprived him of his. constitutional rights Id The court cited this latter factor as the distinction between this case and. the Sharpe case After concluding that review was warranted the court stated that This does. not mean however that the fact that the parties stipulated to the instruction will not play a role in. our analysis of some of defendant s claims Id The court decided to treat the stipulated. instructions the same as it would treat instructions that were not objected to by applying the. plain error standard Id, Finally in reviewing denial of a collateral attack under 28 U S C 2255 the Sixth. Circuit held that to obtain post conviction relief for an erroneous jury instruction to which no. objection was made at trial a defendant must show both cause excusing his procedural default. and actual prejudice from the alleged error United States v Rattigan 151 F 3d 551 554 6th. PATTERN CRIMINAL,JURY INSTRUCTIONS,Chapter 1 00,GENERAL PRINCIPLES. Table of Instructions,Instruction,1 01 Introduction. 1 02 Jurors Duties, 1 03 Presumption of Innocence Burden of Proof Reasonable Doubt. 1 04 Evidence Defined,1 05 Consideration of Evidence. 1 06 Direct and Circumstantial Evidence,1 07 Credibility of Witnesses. 1 08 Number of Witnesses,1 09 Lawyers Objections,1 01 INTRODUCTION. 1 Members of the jury now it is time for me to instruct you about the law that you must. follow in deciding this case, 2 I will start by explaining your duties and the general rules that apply in every criminal case. 3 Then I will explain the elements or parts of the crime that the defendant is accused of. committing,4 Then I will explain the defendant s position. 5 Then I will explain some rules that you must use in evaluating particular testimony and. 6 And last I will explain the rules that you must follow during your deliberations in the jury. room and the possible verdicts that you may return. 7 Please listen very carefully to everything I say. Bracketed paragraph 4 should be included only when the defendant has raised a defense. that requires some explanation like alibi entrapment insanity duress or self defense or when a. defense theory instruction will be given,Committee Commentary 1 01. current through July 1 2019, This instruction is designed to give the jurors an outline of the instructions that follow. The Committee believes that the jurors will follow the instructions better if they are provided. with explanatory introductions and transitions, The general organization of the jury instructions is a matter within the trial court s. discretion United States v Dunn 805 F 2d 1275 1283 6th Cir 1986 The Committee. suggests that instructions about case specific evidentiary matters such as impeachment by prior. convictions expert testimony and the like should be given after the instructions defining the. elements of the crime not before as other circuits have suggested The Committee s rationale is. that the jurors should be told what the government must prove before they are told how special. evidentiary rules may affect their determination This is the approach suggested by Devitt and. Blackmar Federal Jury Practice and Instructions 3d ed By suggesting this approach the. Committee does not intend to foreclose other approaches or to suggest that the choice of one. approach over the other should give rise to an appellate issue. Paragraph 4 of this instruction is bracketed to indicate that it should not be used in. every case It should be included only when the defendant has raised a defense that requires. some explanation like alibi entrapment insanity duress or self defense or when a defense.