The Federal Rules of Criminal Procedure permit the court to instruct the jury before or after arguments, or at both times. Fed. R. Crim. P. 30(c).
3.0 COVER SHEET
IN THE UNITED STATES DISTRICT COURT
_______ DISTRICT OF _______
IN THE UNITED STATES DISTRICT COURT
_______ DISTRICT OF _______
United States of America,) _________________, ) ) Plaintiff, ) ) v. ) ) ) No. __________ ) _________________, ) ) Defendant. ) ) ____________________ )
UNITED STATES DISTRICT JUDGE
3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW
Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. A copy of these instructions will be available in the jury room for you to consult.
It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.
You must follow all these instructions and not single out some and ignore others; they are all important. Please do not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you.
See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 4.5 (2013).
3.2 CHARGE AGAINST DEFENDANT NOT EVIDENCE—PRESUMPTION OFINNOCENCE—BURDEN OF PROOF
The indictment is not evidence. The defendant has pleaded not guilty to the charge[s]. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge[s] beyond a reasonable doubt.
The trial judge has wide discretion as to whether the jury should be provided with a copy of the indictment for use during jury deliberations. The Ninth Circuit has said that when a district judge permits the jury to have a copy of the indictment, the court should caution the jury that the indictment is not evidence. See United States v. Utz, 886 F.2d 1148, 1151–52 (9th Cir.1989) (permissible to give each juror a copy of the indictment if judge cautions jury that indictment is not evidence).
In United States v. Garcia-Guizar, 160 F.3d 511, 523 (9th Cir.1998), the Ninth Circuit held that failure to give a presumption-of-innocence instruction at the end of the case is not plain error. Nonetheless, "it is preferable for the court" to give one "when charging the jury." Id. "Although the Constitution does not require jury instructions to contain any specific language," the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt." Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004) (citing Victor v. Nebraska, 511 U.S. 1, 5 (1994)). "Any jury instruction that reduces the level of proof necessary for the Government to carry its burden is plainly inconsistent with the constitutionally rooted presumption of innocence." Id. The words "unless and until" adequately inform the jury of the presumption of innocence. United States v. Lopez, 500 F.3d 840, 847 (9th Cir.2007).
See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 4.6 (2013).
3.3 DEFENDANT’S DECISION NOT TO TESTIFY
A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.
Although the Committee recommends this instruction be given in every criminal case in which the defendant does not testify, "[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection." Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). If the instruction is requested by the defendant, it must be given. Carter v. Kentucky, 450 U.S. 288 (1981); see also United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008), and United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008).
3.4 DEFENDANT’S DECISION TO TESTIFY
The defendant has testified. You should treat this testimony just as you would the testimony of any other witness.
See Instruction 3.3 (Defendant’s Decision Not to Testify) if the defendant does not testify.
3.5 REASONABLE DOUBT—DEFINED
Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.
A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.
If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.
The Ninth Circuit has held that giving the language of this model instruction "did not constitute plain error." United States v. Ruiz,462 F.3d 1082, 1087 (9th Cir.2006) (citing United States v. Nelson, 66 F.3d 1036, 1045 (9th Cir.1995)). In United States v. Gomez, 725 F.3d 1121, 1131 (9th Cir.2013), the Ninth Circuit approved the conditional language in this model instruction regarding a jury’s duty in a criminal case. Nonetheless, "[t]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof." Id. (citing United States v. Artero, 121 F.3d 1256, 1258 (9th Cir.1997)). In addition, the Ninth Circuit has expressly approved a reasonable doubt instruction that informs the jury that the jury must be "firmly convinced" of the defendant’s guilt. United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir.1992).
In Victor v. Nebraska, 511 U.S. 1, 5 (1994), the Court held that any reasonable doubt instruction must (1) convey to the jury that it must consider only the evidence, and (2) properly state the government’s burden of proof. See also Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004), overruled on other grounds by Byrd v. Lewis, 566 F.3d 855 (9th Cir.2009), and United States v. Ramirez, 136 F.3d 1209, 1213-14 (9th Cir.1998).
3.6 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
(1) the sworn testimony of any witness; [and]
(2) the exhibits received in evidence[.] [; and]
[(3) any facts to which the parties have agreed.]
"When parties have entered into stipulations as to material facts, those facts will be deemed to have been conclusively established." United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976).
3.7 WHAT IS NOT EVIDENCE
In reaching your verdict you may consider only the testimony and exhibits received in evidence. The following things are not evidence and you may not consider them in deciding what the facts are:
1. Questions, statements, objections, and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer’s questions to understand the answers of a witness, the lawyer’s questions are not evidence. Similarly, what the lawyers have said in their opening statements, [will say in their] closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.
2. Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence. [In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.]
3. Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.
See Comment to Instruction 2.11 (Evidence for Limited Purpose) regarding case law on limiting instructions.
"A jury’s exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment." Raley v. Ylst, 470 F.3d 792, 803 (9th Cir.2006) (citing Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995)).
Supplemental instructions to the jury may be proper when counsel’s arguments to the jury are legally erroneous or inflammatory. See United States v. Blixt, 548 F.3d 882, 890 (9th Cir.2008).
3.8 DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which you can find another fact.
You are to consider both direct and circumstantial evidence. Either can be used to prove any fact. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
"[I]t is the exclusive function of the jury to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. Circumstantial and testimonial evidence are indistinguishable insofar as the jury fact-finding function is concerned, and circumstantial evidence can be used to prove any fact." United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir.1977) (citations omitted). See also United States v. Kelly, 527 F.2d 961, 965 (9th Cir.1976); and Payne v. Borg, 982 F.2d 335, 339 (9th Cir.1992).
The Committee believes that an instruction on circumstantial evidence generally eliminates the need to explain the same principle in terms of inferences. Thus, the Committee recommends against giving instructions on matters such as flight, resistance to arrest, a missing witness, failure to produce evidence, false or inconsistent exculpatory statements, failure to respond to accusatory statements, and attempts to suppress or tamper with evidence. These matters are generally better left to argument of counsel as examples of circumstantial evidence from which the jury may find another fact. See United States v. Beltran–Garcia, 179 F.3d 1200, 1206 (9th Cir.1999) (in discussing jury instruction regarding inferring intent to possess for distribution from quantity of drugs, the Ninth Circuit stated that "[a]lthough the instructions in this case were not delivered in error, we do not hesitate to point out the ‘dangers and inutility of permissive inference instructions.’" (citations omitted)), cert. denied,528 U.S. 1097 (2000). See also United States v. Rubio–Villareal, 967 F.2d 294, 300 (9th Cir.1992) (en banc) (Ninth Circuit disapproved of instructing the jury that knowledge of the presence of drugs in a vehicle may be inferred from the defendant being the driver).
It may be helpful to include an illustrative example in the instruction. If so, consider the following:
By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned-on garden hose, may provide an explanation for the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.
3.9 CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
(1) the witness’s opportunity and ability to see or hear or know the things testified to;
(2) the witness’s memory;
(3) the witness’s manner while testifying;
(4) the witness’s interest in the outcome of the case, if any;
(5) the witness’s bias or prejudice, if any;
(6) whether other evidence contradicted the witness’s testimony;
(7) the reasonableness of the witness’s testimony in light of all the evidence; and
(8) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.
3.10 ACTIVITIES NOT CHARGED
You are here only to determine whether the defendant is guilty or not guilty of the charge[s] in the indictment. The defendant is not on trial for any conduct or offense not charged in the indictment.
When evidence has been introduced during trial pursuant to Fed. R. Evid. 404(b), also use Instruction 4.3 (Other Crimes, Wrongs or Acts of Defendant).
When conduct necessary to satisfy an element of the offense is charged in the indictment and the government’s proof at trial includes uncharged conduct that would satisfy the same element, the court should instruct the jury that it must find the conduct charged in the indictment before it may convict. See United States v. Ward, 747 F.3d 1184, 1191 (9th Cir.2014) (reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment).
3.11 SEPARATE CONSIDERATION OF MULTIPLE COUNTS—SINGLE DEFENDANT
A separate crime is charged against the defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.
Use this instruction when there is one defendant charged with multiple counts. If the case involves multiple defendants and multiple counts, use Instruction 3.13 (Separate Consideration of Multiple Counts—Multiple Defendants) instead. If more than one defendant is charged with the same crime, use Instruction 3.12 (Separate Consideration of Single Count—Multiple Defendants).
When the counts are satisfactorily distinguished in the jury charge, the jury will be presumed to have followed instructions and not to have confused the evidence pertinent to the individual counts. United States v. Parker, 432 F.2d 1251, 1254 (9th Cir.1970).
3.12 SEPARATE CONSIDERATION OF SINGLE COUNT—MULTIPLE DEFENDANTS
A separate crime is charged against each defendant. The charges have been joined for trial. You must consider and decide the case of each defendant separately. Your verdict as to one defendant should not control your verdict as to any other defendant.
All the instructions apply to each defendant [unless a specific instruction states that it applies to only a specific defendant].
Use this instruction when there is more than one defendant charged with the same crime. If the case involves multiple defendants and multiple counts, use Instruction 3.13 (Separate Consideration of Multiple Counts—Multiple Defendants) instead. If one defendant has been charged with multiple counts, use Instruction 3.11 (Separate Consideration of Multiple Counts—Single Defendant).
3.13 SEPARATE CONSIDERATION OF MULTIPLE COUNTS—MULTIPLE DEFENDANTS
A separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant on each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.
All the instructions apply to each defendant and to each count [unless a specific instruction states that it applies only to a specific [defendant] [count]].
Use this instruction when there is more than one defendant charged with multiple counts. If the case involves multiple defendants charged with the same count, use Instruction 3.12 (Separate Consideration of Single Count—Multiple Defendants) instead. If one defendant has been charged with multiple counts, use Instruction 3.11 (Separate Consideration of Multiple Counts—Single Defendant).
3.14 LESSER INCLUDED OFFENSE
The crime of [specify crime charged] includes the lesser crime of [specify lesser included crime]. If (1) [any] [all] of you are not convinced beyond a reasonable doubt that the defendant is guilty of [specify crime charged]; and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of [specify lesser included crime], you may find the defendant guilty of [specify lesser included crime].
In order for the defendant to be found guilty of the lesser crime of [specify lesser included crime], the government must prove each of the following elements beyond a reasonable doubt:
[List elements of lesser included crime.]
When a lesser included offense instruction is appropriate, a defendant has the right to elect whether all or only some of the jurors must not be convinced beyond a reasonable doubt of guilt of the greater offense. United States v. Warren, 984 F.2d 325, 330-31 (9th Cir.1993); United States v. Jackson, 726 F.2d 1466, 1468-70 (9th Cir.1984).
Pursuant to Fed. R. Crim. P. 31(c), "A defendant may be found guilty of . . . an offense necessarily included in the offense charged." Moreover, a defendant in a capital case has a due process right to a lesser included offense instruction when the facts would allow the jury to impose a life sentence rather than death. Beck v. Alabama, 447 U.S. 625 (1980). The Ninth Circuit has not yet decided whether a defendant’s right to a lesser included instruction in a noncapital case springs solely from Fed. R. Crim. P. 31(c) or also from the Fifth Amendment Due Process Clause. United States v. Torres-Flores, 502 F.3d 885, 887 n. 3 (9th Cir.2007).
Whether an offense is a lesser included offense of a charged crime is a question of law. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir.2007). "A defendant is entitled to an instruction on a lesser-included offense if the law and evidence satisfy a two-part test: 1) ‘the elements of the lesser offense are a subset of the elements of the charged offense.’ Schmuck v. United States, 489 U.S. 705, 716 (1989); and 2) ‘the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [her] of the greater,’ Keeble v. United States, 412 U.S. 205, 208 (1973)." Arnt, 474 F.3d at 1163. See United States v. Hernandez, 476 F.3d 791 (9th Cir.2007) (reversible error in prosecution for intent to distribute methamphetamine not to instruct on lesser offense of possession of controlled substances when evidence would permit a rational jury to find defendant guilty of lesser offense and acquit him of the greater offense); United States v. Torres-Flores, 502 F.3d at 887 (trial court appropriately refused lesser included offense instruction when jury could not have convicted on the lesser offense without also finding all elements of the greater offense); and United States v. Rivera-Alonzo, 584 F.3d 829, 835 (9th Cir.2009) (although simple assault is lesser included offense of both 8- and 20-year felonies described in 18 U.S.C. § 111, defendant was not entitled to lesser included offense instruction when there is "undisputed evidence of physical contact" that precludes conviction on simple assault).
Consult each statute that uses the term "corruptly" for the meaning of the term because "corruptly" is capable of different meanings in different statutory contexts.
In a prosecution under 18 U.S.C. § 1512(b)(2)(A) or (B) (making it a crime to "knowingly . . . or corruptly persuade[ ] another person . . . with intent to . . . cause [the] person" to "withhold" or "alter" documents for use in "an official proceeding"), the term "corruptly" must reflect some consciousness of wrongdoing. Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005).
In a prosecution under 26 U.S.C. § 7212(a) (making it a crime to "corruptly" endeavor to intimidate or impede the administration of tax laws), "the district court correctly instructed the jury that ‘corruptly’ means ‘performed with the intent to secure an unlawful benefit for oneself or another.’" United States v. Massey, 419 F.3d 1008, 1010 (9th Cir.2005) (citing United States v. Workinger, 90 F.3d 1409, 1414 (9th Cir.1996)).
In a prosecution under 18 U.S.C. § 201(b)(2)(B) (making it a crime to "corruptly" receive something of value in return for being influenced in the performance of an official act), the district court properly rejected a defendant’s requested instruction that would have required the government to prove an official acts "corruptly" when the official uses his official position to commit or aid in the commission of fraud. United States v. Leyva, 282 F.3d 623, 625(9th Cir.2002).
In United States v. Sanders, 421 F.3d 1044 (9th Cir.2005), the Ninth Circuit noted it had not yet ruled as to whether a defendant violates 18 U.S.C. § 1512(b) when he "corruptly persuades" others to invoke their Fifth Amendment right to remain silent. Id. at 1050-51. Section 1512 does not apply when a defendant’s efforts to persuade a witness to exercise a legal right or privilege not to testify are not "corrupt." United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir.2011). "[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law enforcement officials—as opposed to actively lying—falls within the ambit of § 1512(b)." United States v. Khatami, 280 F.3d 907, 913 (9th Cir.2002).
In a prosecution under 18 U.S.C. § 1512(c) (making it a crime corruptly to obstruct, influence or impede any official proceeding, or attempt to do so), the district court did not err by failing to include the words "evil" and "wicked" in its instructions defining the word "corruptly." United States v. Watters, 717 F.3d 733, 735 (9th Cir.2013).
3.16 INTENT TO DEFRAUD—DEFINED
An intent to defraud is an intent to deceive or cheat.
In United States v. Shipsey, 363 F.3d 962, 967-68 (9th Cir.), cert. denied, 543 U.S. 1004 (2004), the Ninth Circuit explicitly approved the language of this instruction and, because the trial court gave this instruction, the panel held that "no good faith instruction was necessary at all." Id. See also United States v. Crandall, 525 F.3d 907, 911-12 (9th Cir.2008), in which the Ninth Circuit rejected a contention based on Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005), an obstruction of justice case, that intent to deceive requires proof of "consciousness of wrongdoing" in a prosecution for mail or wire fraud and said that the Ninth Circuit model instruction that was given "adequately covered the defense theory of lack of intent."
As to whether the defendant acted in good faith, and therefore did not act with an intent to defraud, see United States v. Molinaro, 11 F.3d 853, 863 (9th Cir.1993), in which the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:
You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.
A person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.
[More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.]
The Committee believes this instruction is all-inclusive, and there is no need to attempt to distinguish further between actual and constructive possession and sole and joint possession.
The Ninth Circuit has approved language similar to that contained in this instruction. United States v. Cain,130 F.3d 381, 382-84 (9th Cir.1997).
In the event the case involves use or possession of a firearm under 18 U.S.C. § 924(c), see Instructions 8.71 (Firearms—Using or Carrying in Commission of Crime of Violence or Drug Trafficking Crime) and 8.72 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime). See also United States v. Johnson, 459 F.3d 990, 998 (9th Cir.2006) (citing with approval an out-of-circuit case rejecting premise that "passing control" of a firearm does not constitute possession).
3.18 CORPORATE DEFENDANT
The fact that a defendant is a corporation should not affect your verdict. Under the law a corporation is considered a person and all persons are equal before the law. Corporations are entitled to the same fair and conscientious consideration by you as any other person.
3.19 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION
The [specify the foreign language] language has been used during this trial.
The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the [specify the foreign language] language, it is important that all jurors consider the same evidence. Therefore, you must accept the evidence presented in the English [interpretation] [translation] and disregard any different meaning.
When there is no dispute as to the accuracy of the translation of evidence in a foreign language, the jury may be instructed that "it is not free to disagree with a translated transcript of a tape recording." United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (to hold otherwise would be "nonsensical"). See also United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995). When the accuracy of a foreign language translation is disputed, see United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.1999).
3.20 ON OR ABOUT—DEFINED
The indictment charges that the offense alleged [in Count_______] was committed "on or about" a certain date.
Although it is necessary for the government to prove beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in [Count _______of] the indictment, it is not necessary for the government to prove that the offense was committed precisely on the date charged.
See United States v. Loya, 807 F.2d 1483, 1493-94 (9th Cir.1987) (approving similarly worded "on or about" jury instruction).
If the defendant asserts an alibi defense, this instruction should be coordinated with Instruction 6.1 (Alibi). See Id. If the case involves a continuing offense or theory of defense, this instruction will need to be modified. See, e.g., the Comment to Instruction 6.4 (Insanity).