2.1 CAUTIONARY INSTRUCTION—FIRST RECESS
We are about to take our first break. Remember, until the trial is over, do not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, and do not allow others to discuss the case with you. This includes discussing the case in Internet chat rooms or through Internet blogs, Internet bulletin boards, emails or text messaging. If anyone tries to communicate with you about the case, please let me know about it immediately. Do not read, watch, or listen to any news reports or other accounts about the trial or anyone associated with it, including any online information. Do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own. Finally, keep an open mind until all the evidence has been presented and you have heard the arguments of counsel, my instructions on the law, and the views of your fellow jurors.
If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] to give to me.
2.2 BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to take up legal matters with the attorneys privately, either by having a conference at the bench or, when necessary, by calling a recess.
We will do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney’s request for a conference.
Conducting bench conferences is within the discretion of the court. Regarding the defendant’s right to be present at bench conferences, see Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 1.6 (2013).
2.3 STIPULATED TESTIMONY
The parties have agreed what [name of witness]’s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.
There is a difference between stipulating that a witness would give certain testimony and stipulating that the facts to which a witness might testify are true. United States v. Lambert, 604 F.2d 594, 595 (8th Cir.1979); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir.1977). On the latter, see Instruction 2.4 (Stipulations of Fact).
2.4 STIPULATIONS OF FACT
The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.
"Stipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions." United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986). "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) (citations omitted). "[W]hen a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant’s acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agrees to it through his or her attorney. Unless a criminal defendant indicates objection at the time the stipulation is made, he or she is ordinarily bound by such stipulation." United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir.1980). In any event, a trial judge need not make as probing an inquiry as is required by Fed. R. Crim. P. 11 when considering whether a defendant’s factual stipulation is knowing and voluntary. United States v. Miller, 588 F.2d 1256, 1263-64 (9th Cir.1978). See also Old Chief v. United States, 519 U.S. 172, 186 (1997) (acceptance of a stipulation regarding prior conviction may be appropriate even where government objects under Fed. R. Evid. 403);Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 1.1.B (2013).
2.5 JUDICIAL NOTICE
The court has decided it is not necessary to receive evidence of the fact that [insert fact noticed e.g., the city of San Francisco is north of the city of Los Angeles] [because this fact is of such common knowledge]. You may, but are not required to, accept this fact as true.
An instruction regarding judicial notice should be given at the time notice is taken. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Although the court must instruct a jury in a civil case to accept as conclusive any fact judicially noticed, "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." Fed. R. Evid. 201(g). Thus, in United States v. Chapel, 41 F.3d 1338 (9th Cir.1994), the trial court correctly took judicial notice of a bank’s FDIC status because the evidence established its status "was not subject to reasonable dispute." Id. at 1342. Moreover, the court did not "usurp the jury’s fact-finding role by taking judicial notice" when it instructed the jury that "you may accept the court’s declaration as evidence and regard as proved the fact or event which has been judicially noticed. You are not required to do so, however, since you are the sole judges of the facts." Id.
2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE
When a person is unavailable to testify at trial, the deposition of that person may be used at the trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.
The deposition of [name of witness], which was taken on [date], is about to be presented to you. You should consider deposition testimony in the same way that you consider the testimony of the witnesses who have appeared before you. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]
Use this instruction only when the court concludes testimony by deposition may be received as substantive evidence in light of the rules of evidence and the defendant's confrontation rights. The Committee recommends that it be given immediately before a deposition is read. The bracketed last sentence of the instruction would not be used when the deposition is presented by video or audio recording.
See Fed. R. Crim. P. 15.
2.7 TRANSCRIPT OF RECORDING IN ENGLISH
You are about to [hear] [watch] a recording that has been received in evidence. A transcript of the recording is being provided to help you identify speakers and to help you decide what the speakers say. Remember that the recording is the evidence, not the transcript. If you hear something different from what appears in the transcript, what you heard is controlling. Listen carefully; the transcript will not be available during your deliberations.
See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998).
The Committee recommends that this instruction be given immediately before a recording is played so that the jury is alerted to the fact that what they hear is controlling. It need not be repeated if more than one recording is played. However, the judge should remind the jury that the recording and not the transcript is the evidence and that they should disregard anything in the transcript that they do not hear. If the instruction is also to be given as part of the closing instructions, it should be modified appropriately.
2.8 TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You are about to [hear] [watch] a recordingin the [specify the foreign language] language. A transcript of the recording has been admitted into evidence. The transcript is an official English-language translation of the recording.
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 English translation contained in the transcript even if you would translate it differently.
The Committee recommends giving this instruction immediately before the jury hears a recorded conversation in a foreign language if the accuracy of the translation is not in issue. As the court noted in United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998):
The district court also correctly held that the relation between tapes and transcripts changes when the tapes are in a foreign language. When tapes are in English, they normally constitute the actual evidence and transcripts are used only as aids to understanding the tapes; the jury is instructed that if the tape and transcript vary, the tape is controlling. See United States v. Turner, 528 F.2d 143, 167-68 (9th Cir.1975). When the tape is in a foreign language, however, such an instruction is "not only nonsensical, it has the potential for harm where the jury includes bilingual jurors." United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995). We therefore have upheld a trial court’s instruction that a jury is not free to disagree with a translated transcript of tape recordings. See id.
When the accuracy of the translation is in issue, see United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.1999).
2.8A DISPUTED TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE
You are about to [hear] [watch] a recording in the [specify the foreign language] language. A transcript of the recording has been admitted into evidence. The transcript is an official English-language translation of the recording. The accuracy of the transcript is disputed in this case.
Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the words spoken in a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, the audibility of the recording, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.
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 not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcript must be based on the evidence in the case.
This instruction is appropriate where parties are unable to produce an official transcript or stipulate to a transcript. The court should encourage the parties to produce an official or stipulated transcript of the foreign language recording that satisfies all sides. United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.1985); United States v. Wilson, 578 F.2d 67, 69–70 (5th Cir.1978). If the parties are unable to do so, then they should submit competing translations of the disputed passages, and each side may submit evidence supporting the accuracy of its version or challenging the accuracy of the other side. Cruz, 765 F.2d at 1023; Wilson, 578; F.2d at 70; United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998).
Jurors should be instructed to rely only on the English translation, not on any knowledge they may have of the foreign language spoken on the recording. United States v. Fuentes-Montijo, 68 F.3d 353, 355 (9th Cir.1995).
See also Instructions 1.12 (Jury to be Guided by Official English Translation/Interpretation);2.7 (Transcript of Recording in English); 2.8 (Transcript of Recording in Foreign language); and 2.9 (Foreign Language Testimony).
2.9 FOREIGN LANGUAGE TESTIMONY
You are about to hear testimony of a witness who will be testifying in the [specify the foreign language] language. This witness will testify through the official court interpreter. Although some of you may know [specify the foreign language] language, it is important that all jurors consider the same evidence. Therefore, you must accept the official English translation of the witness’s testimony even if you would translate it differently. In this way, all jurors are considering the same evidence.
This instruction should be given immediately before the jury hears testimony in a foreign language. Cf. United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).
2.10 OTHER CRIMES, WRONGS OR ACTS OF DEFENDANT
You are about to hear evidence that the defendant committed other [crimes] [wrongs] [acts] not charged here. You may consider this evidence only for its bearing, if any, on the question of the defendant’s [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose. [You may not consider this evidence as evidence of guilt of the crime for which the defendant is now on trial.]
"Under Federal Rule of Evidence 404(b), evidence of other acts may be admissible to prove, among other things, motive, opportunity, intent, or knowledge. In order for other act evidence to be admissible, (1) the evidence must tend to prove a material issue in the case, (2) the acts must be similar to the offense charged, (3) proof of the other acts must be based upon sufficient evidence, and (4) the acts must not be too remote in time. See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.1998)." United States v. Fuchs, 218 F.3d 957, 965 (9th Cir.2000). See also Fed. R. Evid. 413 and 414 (Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases).
In Montgomery, the Ninth Circuit concluded the trial court’s giving of the following limiting instruction supported a finding that admitting the other acts evidence was not an abuse of discretion: "You have heard evidence that defendant [ ] has previously been convicted of conspiracy to manufacture methamphetamine. You may consider that evidence only as it bears on intent, knowledge, or lack of mistake and for no other purpose. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial." Montgomery, 150 F.3d at 1001.
Such a limiting instruction must be given if requested, Fed. R. Evid. 105, and it may be appropriate to give such an instruction sua sponte. Nonetheless, it is "well-settled that where no limiting instruction is requested concerning evidence of other criminal acts, the failure of the trial court to give such an instruction sua sponte is not reversible error." United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir.1984).
2.11 EVIDENCE FOR LIMITED PURPOSE
You are about to hear evidence that [describe evidence to be received for limited purpose]. I instruct you that this evidence is admitted only for the limited purpose of [describe purpose] and, therefore, you must consider it only for that limited purpose and not for any other purpose.
Federal Rule of Evidence 105 provides that when evidence is admitted for a limited purpose, the court, when requested, must provide a limiting instruction. Furthermore, the court must provide an appropriate limiting instruction sua sponte if failure to do so would affect the defendant’s "substantial rights." See United States v. Armijo, 5 F.3d 1229, 1232 (9th Cir.1993). For example, in United States v. Sauza-Martinez, 217 F.3d 754, 760 (9th Cir.2000), the Ninth Circuit held the trial court "had no alternative" but to give the jury alimiting instruction sua sponte when a testifying co-defendant’s post-arrest statements were admitted as substantive evidence against her under Fed. R. Evid. 801(d)(2)(A), but were not admissible against another co-defendant "under any theory" (emphasis in original). Under the circumstances of the case, it was plain error to fail to give the limiting instruction sua sponte. Id. at 761.
The Committee recommends judges use limiting instructions whenever evidence is received for a limited purpose. "We have repeatedly held that a district court’s careful and frequent limiting instructions to the jury, explaining how and against whom certain evidence may be considered, can reduce or eliminate any possibility of prejudice arising from a joint trial." United States v. Fernandez, 388 F.3d 1199, 1243 (9th Cir.2004) (internal citations omitted).
2.12 PHOTOS OF DEFENDANT, "MUGSHOTS"
You have heard evidence that a photo of the defendant was shown to [name of witness]. You may consider this evidence only for [specify admissible purpose] and not for any other purpose. [Because the government obtains photos of many people from many different sources and for many different purposes, you must not infer the defendant committed this or any other crime from the fact that the government obtained and displayed the defendant’s photo.]
See United States v. Monks, 774 F.2d 945, 954-55 (9th Cir.1985), in which the Ninth Circuit held the trial court did not abuse its discretion in denying a motion for mistrial after the defendant declined the trial court’s offer of a limiting instruction to address a witness’s unintentional reference to a photo lineup as "mugshots."
2.13 DISMISSAL OF SOME CHARGES AGAINST DEFENDANT
At the beginning of the trial, I described the charge[s] against the defendant. For reasons that do not concern you, [specify count[s] or charge[s]] [is] [are] no longer before you. Do not speculate about why the charge[s] [is] [are] no longer part of this trial.
The defendant is on trial only for the charge[s] of [remaining count[s]]. You may consider the evidence presented only as it relates to the remaining count[s].
See United States v. de Cruz, 82 F.3d 856, 865 (9th Cir.1996) (concluding that the district court’s instruction adequately informed the jury that the dismissed counts were not before them, that the defendant was on trial only for the remaining counts, and that the evidence could only be considered as it related to the remaining charged counts or as it related to the defendant’s intent).
2.14 DISPOSITION OF CHARGE AGAINST CODEFENDANT
For reasons that do not concern you, the case against codefendant [name] is no longer before you. Do not speculate why. This fact should not influence your verdict[s] with reference to the remaining defendant[s], and you must base your verdict[s] solely on the evidence against the remaining defendant[s].
Although it is not plain error to give a similar instruction when a codefendant dies after the jury begins to deliberate, it would be advisable under certain circumstances to give a "simple and honest" explanation to a jury as to why a codefendant is no longer in the case, particularly if the codefendant’s removal from the case occurred early in the trial. United States v. Bussell, 414 F.3d 1048, 1054 (9th Cir.2005). The later in the trial the codefendant is "removed," the more likely the jury would be influenced by a fact-specific disclosure, especially if the remaining defendant[s] had a close relationship with the withdrawn defendant, and therefore a better approach at that stage might be simply informing the jury that the codefendant "was no longer a defendant in the case." Id.
No reference should ordinarily be made in this situation to a plea of guilty by the codefendant. See, e.g., United States v. Barrientos, 758 F.2d 1152, 1159-60 (7th Cir.1985) (when a codefendant becomes absent from a trial for any reason, a trial court should acknowledge the codefendant’s absence to the jury and instruct them on their duty to consider the evidence of guilt or innocence as to the remaining defendant without any reference to any implications of the codefendant’s absence). See also United States v. Carraway, 108 F.3d 745, 755 (7th Cir.1997); United States v. Rapp, 871 F.2d 957, 967-68 (11th Cir.1989).
See also United States v. Candoli, 870 F.2d 496, 501-02 (9th Cir.1989) ("flight" instruction on codefendant’s midtrial disappearance did not prejudice defendant when instruction did not require jury to consider codefendant’s absence as evidence of guilt and provided that evidence of codefendant’s flight was not admissible against defendant).
2.15 DEFENDANT’S PREVIOUS TRIAL
You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.
A preferable practice is to avoid all reference to prior trials.