MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE NINTH CIRCUIT Prepared by the Ninth Circuit Jury Instructions Committee _________ 2010 Edition NINTH CIRCUIT JURY INSTRUCTIONS COMMITTEE ____________ Members: District Judge Anna J. Brown, Chair Senior Circuit Judge A. Wallace Tashima District Judge David C. Bury District Judge John W. Sedwick District Judge Richard Seeborg Senior District Judge Robert H. Whaley Senior District Judge Thomas J. Whelan Magistrate Judge Alicia G. Rosenberg Reporter: Joseph Franaszek Staff: Debra Landis ii INTRODUCTION TO 2010 EDITION This Manual of Model Criminal Jury Instructions (“Manual”) has been prepared to help judges communicate more effectively with juries. The instructions in this Manual are models. They are not mandatory, and must be reviewed carefully before use in a particular case. They are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage judges from using their own forms and techniques for instructing juries. In addition to its ongoing consideration of legislative developments and appellate court decisions that may impact these model instructions, the Jury Instructions Committee (the Committee) welcomes suggestions from judges, staff and practitioners about possible revisions, additions and deletions. After careful assessment and research, the Committee updates and revises instructions from time to time as necessary. Revisions are available online. They are later compiled and published in the printed version of the Manual. The Committee strongly recommends that the online version of any instruction be consulted to be sure an up to date instruction is being considered. The Committee encourages users of this book to make suggestions for further revisions and updates. This 2010 edition incorporates new and modified instructions. However, the print publication of the Manual necessarily presents a snap-shot of an ongoing research and drafting process. Accordingly, even the most recently dated edition of the Manual does not guarantee that one is using instructions that are up to date. The entire publication and any later changes can be found at the Ninth Circuit’s website at this link: http://www.ce9.uscourts.gov/crim. This 2010 edition is current as to instructions approved as of July 2010. To assist users, the Committee has included a table listing the old instruction numbers in the 2003 edition and the corresponding numbers in the 2010 edition. These model instructions have been reviewed by various members of the federal bench and bar. The Committee extends its thanks to those who reviewed and commented on various parts of the book. The Committee also extends its thanks to former Committee members, Chief District Judge Roger L. Hunt and Judge Stephen G. Larson, for their contributions to this edition and to Ninth Circuit Office of the Circuit Executive staff member Debra Landis for her invaluable diligence, grace and expertise. In addition, the Committee acknowledges with gratitude the singular contributions of Joseph Franaszek, Esq. For many years, Mr. Franaszek has worked with the Committee on a voluntary basis, providing careful research and drafting assistance, as well as a unique “institutional memory” that enables the changing membership of the Committee to understand how existing instructions came to be formulated. Mr. Franaszek has performed an invaluable service to the bench and bar, and has earned the Committee’s enduring respect. iii CAVEAT These model jury instructions are written and organized by judges who are appointed to the Ninth Circuit Jury Instructions Committee by the Chief Circuit Judge. The Ninth Circuit Court of Appeals does not adopt these instructions as definitive. Indeed, occasionally the correctness of a given instruction may be the subject of a Ninth Circuit opinion. Ninth Circuit Jury Instructions Committee July 2010 iv JURY INSTRUCTION NUMBERS CONVERSION TABLE 2003 EDITION 2010 EDITION TITLE 1.1 1.1 Duty of Jury 1.2 1.2 The Charge—Presumption of Innocence 1.3 1.3 What Is Evidence 1.4 1.4 What Is Not Evidence 1.5 2.11 Evidence for Limited Purpose 1.6 1.5 Direct and Circumstantial Evidence 1.7 1.6 Ruling on Objections 1.8 1.7 Credibility of Witnesses 1.9 1.8 Conduct of the Jury 1.10 1.9 No Transcript Available to Jury 1.11 1.10 Taking Notes 1.12 1.11 Outline of Trial 1.13 1.12 Jury to Be Guided by Official English Translation/Interpretation 1.14 1.13 Separate Consideration for Each Defendant 2.1 2.1 Cautionary Instruction—First Recess 2.2 2.2 Bench Conferences and Recesses 2.3 2.3 Stipulated Testimony 2.4 2.4 Stipulations of Fact 2.5 2.5 Judicial Notice 2.6 2.6 Deposition as Substantive Evidence 2.7 2.7 Transcript of Recording in English 2.8 2.8 Transcript of Recording in Foreign Language 2.9 2.9 Foreign Language Testimony v 2.10 2.10 Other Crimes, Wrongs or Acts Evidence (retitled: Other Crimes, Wrongs or Acts of Defendant) 1.5 2.11 Evidence for Limited Purpose 2.11 2.12 Photographs of Defendant, “Mugshots” 2.12 2.13 Dismissal of Some Charges Against Defendant 2.13 2.14 Disposition of Charge Against Codefendant 2.15 2.15 Defendant’s Previous Trial 3.0 3.0 Cover Sheet 3.1 3.1 Duties of Jury to Find Facts and Follow Law 3.2 3.2 Charge Against Defendant Not Evidence—Presumption of Innocence—Burden of Proof 3.3 3.3 Defendant’s Decision Not to Testify 3.4 3.4 Defendant’s Decision to Testify 3.5 3.5 Reasonable Doubt—Defined 3.6 3.6 What Is Evidence 3.7 3.7 What Is Not Evidence 3.8 3.8 Direct and Circumstantial Evidence 3.9 3.9 Credibility of Witnesses 3.10 3.10 Evidence of Other Acts of Defendant or Acts and Statements of Others (retitled: Activities Not Charged) 3.11 3.10 Activities Not Charged 3.12 3.11 Separate Consideration of Multiple Counts—Single Defendant 3.13 3.12 Separate Consideration of Single Count—Multiple Defendants 3.14 3.13 Separate Consideration of Multiple Counts—Multiple Defendants vi 3.15 3.14 Lesser Included Offense 3.16 3.15 Corruptly—Defined 3.17 3.16 Intent to Defraud—Defined 3.18 3.17 Possession—Defined 3.19 3.18 Corporate Defendant 3.20 3.19 Jury to Be Guided by Official English Translation/Interpretation 4.1 4.1 Statements by Defendant 4.2 4.2 Silence in the Face of Accusation 4.3 4.3 Other Crimes, Wrongs or Acts of Defendant 4.4 4.4 Character of Defendant 4.5 4.5 Character of Victim 4.6 4.6 Impeachment, Prior Conviction of Defendant 4.7 4.7 Character of Witness for Truthfulness 4.8 4.8 Impeachment Evidence—Witness 4.9 [4.10-4.12 4.9 Testimony of Witnesses Involving Special reserved] Circumstances—Immunity, Benefits, Accomplice, Plea 4.13 4.10 Government’s Use of Undercover Agents and Informants 4.14 4.11 Eyewitness Identification 4.15 4.12 Child Witness 4.16 4.13 Missing Witness 4.17 4.14 Opinion Evidence, Expert Witness 4.18 4.15 Summaries Not Received in Evidence 4.19 4.16 Charts and Summaries in Evidence -- 4.17 Flight/Concealment of Identity vii 5.1 5.1 Aiding and Abetting 5.2 5.2 Accessory After the Fact 5.3 5.3 Attempt 5.4 5.4 Specific Intent—General Intent 5.5 5.5 Willfully 5.6 5.6 Knowingly—Defined 5.7 5.7 Deliberate Ignorance 5.8 5.8 Presumptions 5.9 5.9 Advice of Counsel 6.1 6.1 Alibi 6.2 6.2 Entrapment 6.3 6.3 Entrapment Defense—Whether Witness Acted as Government Agent (retitled: Entrapment Defense—Whether Person Acted as Government Agent) 6.4 6.4 Insanity 6.5 -- Duress, Coercion or Compulsion (to Refute Element of Offense 6.6 6.5 Duress, Coercion or Compulsion (Legal Excuse) -- 6.6 Necessity (Legal Excuse) -- 6.7 Justification (Legal Excuse) 6.7 6.8 Self–Defense 6.8 6.9 Intoxication—Diminished Capacity 6.9 6.10 Mere Presence 6.10 6.11 Public Authority or Government Authorization Defense 7.1 7.1 Duty to Deliberate viii 7.2 7.2 Consideration of Evidence (retitled: Consideration of Evidence—Conduct of the Jury) 7.3 7.3 Use of Notes 7.4 7.4 Jury Consideration of Punishment 7.5 7.5 Verdict Form 7.6 7.6 Communication With Court 7.7 7.7 Deadlocked Jury 7.8 7.8 Script for Post-Allen Charge Inquiry 7.9 7.9 Specific Issue Unanimity 8.1 8.1 Arson (retitled: Arson or Attempted Arson) (18 U.S.C. § 81) -- 8.2 Conspiracy to Commit Arson (18 U.S.C. § 81) -- 8.3 Assault on Federal Officer or Employee (18 U.S.C. § 111(a)) 8.2 8.4 Assault on Federal Officer or Employee [With a Deadly or Dangerous Weapon] [Which Inflicts Bodily Injury] (18 U.S.C. § 111(b)) 8.3 8.5 Assault on Federal Officer or Employee—Defenses 8.4 8.6 Assault With Intent to Commit Murder or Other Felony (18 U.S.C. § 113(a)(1) and (2)) 8.5 8.7 Assault With Dangerous Weapon (18 U.S.C. § 113(a)(3)) 8.6 -- Assault by Striking, Beating or Wounding (18 U.S.C. § 113(a)(4)) -- 8.8 Simple Assault of Person under Age 16 (18 U.S.C. § 113(a)(5)) 8.7 8.9 Assault Resulting in Serious Bodily Injury (18 U.S.C. § 113(a)(6)) -- 8.10 Assault of Person under Age 16 Resulting in Substantial Bodily Injury (18 U.S.C.