10TH CIRCUIT CRIMINAL PATTERN JURY INSTRUCTIONS (2005) (Updated 2/2006)
Go to Federal Model Instructions Table of Contents - Go to 10th Circuit Table of Contents

GENERAL MATTERS

    1.01     Preliminary Instructions Before Trial
    1.02     Note-Taking by Jurors
    1.03     Introduction to Final Instructions
    1.04     Duty to Follow Instructions
    1.05     Presumption of Innocence—Burden of Proof—Reasonable Doubt
    1.05.1  Preponderance of Evidence
    1.06     Evidence—Defined
    1.07     Evidence—Direct and Circumstantial—Inferences
    1.08     Credibility of Witnesses
    1.08.1  Non-Testifying Defendant
    1.09     Evidence of Good Character
    1.09.1  Evidence of Reputation for Honesty
    1.10     Impeachment by Prior Inconsistencies
    1.11     Impeachment by Prior Conviction
    1.12     Impeachment by Prior Conviction
    1.13     Impeachment by Evidence of Untruthful Character
    1.14     Accomplice—Informant—Immunity
    1.15     Accomplice—Co–Defendant—Plea Agreement
    1.16     Witness’s Use of Addictive Drugs
    1.17     Expert Witness
    1.18     On or About
    1.19     Caution—Consider Only Crime Charged
    1.20     Caution—Punishment
    1.21     Multiple Defendants—Single Count
    1.22     Multiple Defendants—Multiple Counts
    1.23     Duty to Deliberate—Verdict For
    1.24     Unanimity of Theory
    1.25     Voluntariness of Statement by Defendant
    1.26     Confession-Statement—Voluntariness
    1.27     Entrapment
    1.28     Self-Defense or Defense of Another
    1.29     Identification Testimony
    1.30     Similar Acts
    1.31     Actual or Constructive Possession
    1.32     Attempt
    1.33     Lesser Included Offense
    1.34     Insanity
    1.35     Defendant’s Non–Involvement (Alibi)
    1.36     Coercion or Duress
    1.37     Knowingly—Deliberate Ignorance
    1.38     Willfully—To Act
    1.39     Interstate and Foreign Commerce—Defined
    1.40     Cautionary Instruction During Trial
    1.41     Summaries and Charts
    1.42     Modified Allen Instruction
    1.43     Communication with the Court

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

Members of the Jury:

At the end of the trial I will give you detailed guidance on the law and on how you will go about reaching your decision. But now I simply want to generally explain how the trial will proceed.

This criminal case has been brought by the United States government. I will sometimes refer to the government as the prosecution. The government is represented by an assistant United States attorney, _______. The defendant, _______, is represented by his lawyer, _______. [Alternative: The defendant, _______, has decided to represent himself and not use the services of a lawyer. He has a perfect right to do this. His decision has no bearing on whether he is guilty or not guilty, and it should have no effect on your consideration of the case.]

The indictment charges the defendant with [read or summarize the indictment, e.g.: having intentionally sold heroin]. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of guilt or anything else. The defendant pleaded not guilty and is presumed innocent. He may not be found guilty by you unless all twelve of you unanimously find that the government has proved his guilt beyond a reasonable doubt. [Addition for multi-defendant cases: There are multiple defendants in this case and you will have to give separate consideration to the case against each defendant as each is entitled to individual consideration.]

The first step in the trial will be the opening statements. The government in its opening statement will tell you about the evidence which it intends to put before you. Just as the indictment is not evidence, neither is the opening statement. Its purpose is only to help you understand what the evidence will be. It is a road map to show you what is ahead.

After the government's opening statement, the defendant's attorney may make an opening statement. [Change if the defendant reserves his statement until later or omit if the defendant has decided not to make an opening statement.]

Evidence will be presented from which you will have to determine the facts. The evidence will consist of the testimony of the witnesses, documents and other things received into the record as exhibits, and any facts about which the lawyers agree or to which they stipulate.

The government will offer its evidence. After the government's evidence, the defendant's lawyer may [make an opening statement and] present evidence, but he is not required to do so. I remind you that the defendant is presumed innocent and it is the government that must prove the defendant's guilt beyond a reasonable doubt. If the defendant submits evidence, the government may introduce rebuttal evidence.

At times during the trial, a lawyer may make an objection to a question asked by another lawyer, or to an answer by a witness. This simply means that the lawyer is requesting that I make a decision on a particular rule of law. Do not draw any conclusion from such objections or from my rulings on the objections. If I sustain an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given if I had allowed the answer. If I overrule the objection, treat the answer as any other. If I tell you not to consider a particular statement, you may not refer to that statement in your later deliberations. Similarly, if I tell you to consider a particular piece of evidence for a specific purpose, you may consider it only for that purpose.

During the course of the trial I may have to interrupt the proceedings to confer with the attorneys about the rules of law that should apply. Sometimes we will talk briefly, at the bench. But some of these conferences may take more time, so I will excuse you from the courtroom. I will try to avoid such interruptions whenever possible, but please be patient even if the trial seems to be moving slowly because conferences often actually save time in the end.

You are to consider all the evidence received in this trial. It will be up to you to decide what evidence to believe and how much of any witness's testimony to accept or reject.

After you have heard all the evidence on both sides, the government and the defense will each be given time for their final arguments.

[The final part of the trial occurs when I instruct you on the rules of law which you are to use in reaching your verdict.]

During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts in the case but am only trying to bring out facts that you may consider.

[Insert Instruction 1.02 here if material on note-taking by jurors is desired.]

[Insert discussion of the elements of the offense here if they are to be set out for the jury in the preliminary instruction.]

[Ordinarily, the attorneys will develop all the relevant evidence that will be necessary for you to reach your verdict. However, in rare situations, a juror may believe a question is critical to reaching a decision on a necessary element of the case. In that exceptional circumstance, you may write out a question and provide it to the courtroom deputy while the witness is on the stand. I will then consider that question with the lawyers. If it is determined to be a proper and necessary question, I will ask it. If I do not ask it, you should recognize that I have determined it is not a legally appropriate question and not worry about why it was not asked or what the answer would have been.]

During the course of the trial, you should not talk with any witness, or with the defendant, or with any of the lawyers at all. In addition, during the course of the trial you should not talk about the trial with anyone else. Also, you should not discuss this case among yourselves until I have instructed you on the law and you have gone to the jury room to make your decision at the end of the trial. It is important that you wait until all the evidence is received and you have heard my instructions on the controlling rules of law before you deliberate among yourselves. Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own that you think might be helpful. Do not engage in any outside reading on this case, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom.

The court reporter is making stenographic notes of everything that is said. This is basically to assist any appeals. However, a typewritten copy of the testimony will not be available for your use during deliberations. On the other hand, any exhibits will be available to you during your deliberations.

Now that the trial has begun you must not hear or read about it in the media. The reason for this is that your decision in this case must be made solely on the evidence presented at the trial.

With that introduction, Mr. _______, you may present the opening statement for the government.

The Tenth Circuit has recognized that the trial judge "must fairly and impartially state the issues and applicable law in logical sequence and in the common speech of man if the jury is to understand the issues and intelligently apply the law." Elbel v. United States, 364 F.2d 127, 134 (10th Cir. 1966). It is hoped these instructions will assist trial judges throughout the Circuit to fulfill this duty.

In United States v. Blitstein, 626 F.2d 774, 779 (10th Cir. 1980), the Tenth Circuit noted the district court had given a preliminary instruction noting the basic jury function is a search for the truth, that jurors were the sole judges of the facts and that, because of the presumption of innocence, defendant must be acquitted unless jurors, after an impartial trial of all the evidence, were convinced of guilt beyond a reasonable doubt. In United States v. Coppola, 526 F.2d 764, 775–76 (10th Cir. 1975), the Tenth Circuit recognized that while it is the better practice to repeat the admonition against receiving media coverage throughout the trial, the failure to do so was harmless where the preliminary instruction contained such a caution.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

12.3.5 Preliminary Instructions: Juror Note Taking

16.8 Juror Note Taking

ALTERNATIVE A

You may not take notes during the course of the trial. There are several reasons for this. It is difficult to take notes and, at the same time, pay attention to what a witness is saying. Furthermore, in a group the size of yours, certain persons will take better notes than others, and there is the risk that the jurors who do not take good notes will depend upon the notes of others. The jury system depends upon all twelve jurors paying close attention and arriving at a unanimous decision. I believe that the jury system works better when the jurors do not take notes.

ALTERNATIVE B

If you would like to take notes during the trial, you may. On the other hand, you are not required to take notes.

If you do decide to take notes, be careful not to get so involved in note taking that you become distracted, and remember that your notes will not necessarily reflect exactly what was said, so your notes should be used only as memory aids. Therefore, you should not give your notes precedence over your independent recollection of the evidence. You should also not be unduly influenced by the notes of other jurors. If you do take notes, leave them in the jury room at night and do not discuss the contents of your notes until you begin deliberations.

The Tenth Circuit held it was within the discretion of the district court to permit the jurors to take notes in United States v. Riebold, 557 F.2d 697, 705–06 (10th Cir. 1977).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

16.2 Conduct And Duty Of The Jury During Trial

16.3 Duty Of Jury As To The Evidence

You, as jurors, are the judges of the facts. But in determining what actually happened–that is, in reaching your decision as to the facts–it is your sworn duty to follow all of the rules of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. However, you should not read into these instructions, or anything else I may have said or done, any suggestion as to what your verdict should be. That is entirely up to you.

It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took.

"The [jury] instructions as a whole need not be flawless, but ... upon hearing the instructions, the jury [must be able to understand] the issues to be resolved and its duty to resolve them." United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003) (quotation omitted).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

"[T]he reasonable doubt standard is a constitutional cornerstone of the criminal justice system. A defendant is entitled to have his jury apprised of this standard and its corollary, the presumption of innocence, and is entitled to have the meaning of reasonable doubt explained to the jury." United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974). In defining reasonable doubt, "[i]t is not required that the government prove guilt beyond all possible doubt." United States v. Jacobson, 578 F.2d 863, 866 (10th Cir. 1978) (quotation omitted). The Tenth Circuit has repeatedly criticized instructions which define reasonable doubt in terms of "substantial doubt" combined with "an abiding conviction of the defendant's guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs." Tillman v. Cook, 215 F.3d 1116, 1126 (10th Cir. 2000); United States v. Barrera–Gonzales, 952 F.2d 1269, 1271 (10th Cir. 1992); Monk v. Zelez, 901 F.2d 885, 890 (10th Cir. 1990); United States v. Smaldone, 485 F.2d 1333, 1347–48 (10th Cir. 1973); see also Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., concurring) (suggesting a fundamental difference between decisions people normally make and jury decisions). The definition of reasonable doubt derives primarily from Tillman and is also consistent with the instruction approved in United States v. Litchfield, 959 F.2d 1514, 1520–21 (10th Cir. 1992).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

24.2 What Is Evidence

24.3 What Is Not Evidence

You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way.

The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and the facts that I have judicially noticed.

Nothing else is evidence. The lawyers' statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence.

During the trial, I did not let you hear the answers to some of the questions that the lawyers asked. I also ruled that you could not see some of the exhibits that the lawyers wanted you to see. And sometimes I ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all of these things. Do not even think about them. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way.

This instruction is consistent with federal practice generally. United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002); United States v. Sanders, 929 F.2d 1466, 1470 (10th Cir. 1991).

Paragraph (2) should be tailored to delete any references to kinds of evidence not relevant to the particular trial. If the court has taken judicial notice of a fact, the term "judicial notice" should be explained to the jury.

Paragraph (4) should also be tailored depending on what has happened during trial.

It is settled practice to give a general instruction defining what is and is not evidence.

In some cases, there may not be any stipulations, or any judicially noticed facts. In such cases, paragraph (2) should be tailored to eliminate the unnecessary and irrelevant language. The strongly worded admonition in paragraph (4) regarding proffered evidence that was rejected or stricken may be necessary to counteract the jurors' natural curiosity and inclination to speculate about these matters. This paragraph should be tailored to fit the particular facts of the case. If, for example, there was no occasion during the course of the trial to order that things the jurors saw or heard be stricken from the record, the language in this paragraph dealing with such matters should be omitted.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

25.12 Circumstantial Evidence

[There are, generally speaking, two types of evidence from which a jury may properly determine the facts of a case. One is direct evidence, such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, the proof of a chain of facts which point to the existence or non-existence of certain other facts.]

[As a general rule, the law makes no distinction between direct and circumstantial evidence. The law simply requires that you find the facts in accord with all the evidence in the case, both direct and circumstantial.]

While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in the light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved.

By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case.

See United States v. Rahseparian, 231 F.3d 1267, 1271–72 (10th Cir. 2000); United States v. Ortiz–Ortiz, 57 F.3d 892, 895 (10th Cir. 1995); United States v. McIntyre, 997 F.2d 687, 702–03 & nn.16–18 (10th Cir. 1993).

The bracketed first two paragraphs are optional. Some judges instruct before closing argument, some after. If instructions are given after closing argument, the Committee suggests that this instruction be modified depending on whether the attorneys have referred to the distinction between direct and circumstantial evidence during their closing arguments.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 27: Witness Credibility

I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or "believability" of each witness and the weight to be given to the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses [including the defendant] who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon.

[The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness.]

[The defendant did not testify and I remind you that you cannot consider his decision not to testify as evidence of guilt. I want you to clearly understand, please, that the Constitution of the United States grants to a defendant the right to remain silent. That means the right not to testify or call any witnesses. That is a constitutional right in this country, it is very carefully guarded, and you should understand that no presumption of guilt may be raised and no inference of any kind may be drawn from the fact that a defendant does not take the witness stand and testify or call any witnesses.]

In reaching a conclusion on particular point, or ultimately in reaching a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other.

This instruction is consistent with United States v. Arias–Santos, 39 F.3d 1070, 1074 (10th Cir. 1994); see also United States v. Coleman, 7 F.3d 1500, 1505–06 (10th Cir. 1993).

Use Note

If the defendant did not testify, please refer to Instruction 1.08.1, which follows.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

270.3 Presumption Of Innocence: Specific Words And Phrases

The defendant did not testify and I remind you that you cannot consider his decision not to testify as evidence of guilt. You must understand that the Constitution of the United States grants to a defendant the right to remain silent. That means the right not to testify. That is a constitutional right in this country, it is very carefully guarded, and you must not presume or infer guilt from the fact that a defendant does not take the witness stand and testify or call any witnesses.

This instruction is consistent with United States v. Coleman, 7 F.3d 1500, 1505–06 (10th Cir. 1993).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

251.4 Good Character Of Defendant

[The defendant has offered evidence of his reputation for good character.] [The defendant has offered evidence of someone's opinion as to his good character.] You should consider such evidence along with all the other evidence in the case.

Evidence of good character may be sufficient to raise a reasonable doubt whether the defendant is guilty, because you may think it improbable that a person of good character would commit such a crime. Evidence of a defendant's character, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt.

You should also consider any evidence offered to rebut the evidence offered by the defendant.

You should always bear in mind, however, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

The Committee suggests that United States v. McMurray, 656 F.2d 540, 550–51 (10th Cir. 1980), neither mandates nor precludes the use of the word "alone." See United States v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990), overruling on other grounds recognized by United States v. Schleibaum, 130 F.3d 947, 949 (10th Cir. 1997). The matter is, however, subject to some debate.

There is no per se rule that the "evidence of good character alone" instruction must be given either sua sponte or upon request. The trial courts should consider this issue on a case-by-case basis, and give the "evidence of good character alone" instruction when the circumstances of a particular case so require. See, e.g., Michelson v. United States, 335 U.S. 469, 476 (1948); Edgington v. United States, 164 U.S. 361, 366 (1896); Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1966) (en banc); Bird City Equity Mercantile Exch. v. United States, 338 F.2d 790, 791–92 (10th Cir. 1964).

Cf. Instruction 1.13 (Impeachment By Evidence of Untruthful Character).

The word "alone" can be inserted in the second paragraph, when appropriate:

"Evidence of good character alone may be sufficient.... "

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

251.4 Good Character Of Defendant

The defendant has offered evidence in the form of reputation for honesty and integrity. You should consider such evidence along with all the other evidence in the case.

Evidence in the form of reputation for honesty and integrity may be sufficient to raise a reasonable doubt whether the defendant is guilty, because you may think it improbable that a person of honesty and integrity would commit such a crime. Evidence in the form of reputation of a defendant's honesty and integrity may be inconsistent with those traits of character ordinarily involved in the commission of the crime charged, and may give rise to a reasonable doubt.

You should also consider any evidence offered to rebut the evidence offered by the defendant.

You will always bear in mind, however, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

Cf. Comment to preceding instruction, 1.09, for discussion of use of the word "alone."

It seems to be the better practice to give this instruction when the defense offers character evidence, especially if the character evidence may be the defense theory of the case. The instruction is consistent with United States v. McMurray, 656 F.2d 540, 550–51 (10th Cir. 1980), and United States v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990), overruling on other grounds recognized by United States v. Schleibaum, 130 F.3d 947, 949 (10th Cir. 1997).

However, there is no per se rule that the "evidence of good character alone" instruction must be given either sua sponte or upon request. The trial courts should consider this issue on a case-by-case basis, and give the "evidence of good character alone" instruction when the circumstances of a particular case so require. See, e.g., Michelson v. United States, 335 U.S. 469, 476 (1948); Edgington v. United States, 164 U.S. 361, 366 (1896); Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1966); Bird City Equity Mercantile Exch. v. United States, 338 F.2d 790, 791–92 (10th Cir. 1964).

Cf. Instruction 1.13 (Impeachment by Evidence of Untruthful Character).

The word "alone" can be inserted in the second paragraph, when appropriate: "Evidence in the form of reputation for honesty and integrity alone may be sufficient.... "

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

You have heard the testimony of [name of witness]. You have also heard that, before this trial, he made a statement that may be different from his testimony here in court.

This earlier statement was brought to your attention only to help you decide how believable his testimony in this trial was. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court.

This instruction must be given when a prior inconsistent statement which does not fall within FRE 801(d)(2)(A) has been admitted. If several prior inconsistent statements were admitted, some for impeachment purposes and others as substantive evidence, this instruction should identify which statements were offered for impeachment purposes. It should also be given during trial as a limiting instruction, if requested under FRE 105. This seems consistent with United States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

27.3.2 Prior Conviction Of Defendant

You have heard evidence that the defendant has been convicted of a felony, that is, a crime punishable by imprisonment for a term of years. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of his testimony you will believe in this trial. The fact that the defendant has been convicted of another crime does not mean that he committed the crime charged in this case, and you must not use his prior conviction as proof of the crime charged in this case. You may find him guilty of the crime charged here only if the government has proved beyond a reasonable doubt that he committed it.

The court should consider giving this instruction at the conclusion of the defendant's testimony as well as at the conclusion of the trial.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a [felony, that is, of a crime punishable by imprisonment for a term of years] or of a [crime of dishonesty or false statement]. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any [prior felony conviction] [crime of dishonesty] that was used to impeach a witness.

FRE 609 expressly requires that evidence of a felony conviction shall be admitted, subject to Rule 403. It is important that the court conduct, on the record, a Rule 403 balancing before determining whether to admit or exclude evidence of a felony conviction. United States v. Howell, 285 F.3d 1263, 1269–70 (10th Cir. 2002). Rule 403 balancing is not required if the prior crime involves dishonesty or false statements. United States v. Begay, 144 F.3d 1336, 1338 (10th Cir. 1998). A crime of dishonesty or false statement does not need to be a felony. Care must be exercised, however, because some offenses that may sound like crimes of dishonesty may not be. See, e.g., United States v. Dunson, 142 F.3d 1213, 1215–16 (10th Cir. 1998) (holding that shoplifting is not "automatically" a crime of dishonesty or false statement).

The court should consider giving this instruction at the conclusion of the witness's testimony, as well as at conclusion of the trial.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Comment

Under FRE 608(a), a witness is not limited to reputation testimony, but may also state his opinion as to the character of another witness for truthfulness.

This instruction should be rarely, if ever, needed.

Cf. Instructions 1.09 (Evidence of Good Character) and 1.09.1 (Evidence of Reputation for Honesty).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

25.6 Accomplices: Cautionary Instructions

25.6.2 Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution

25.5 Witness Immunity

An accomplice is someone who joined with another person in committing a crime, voluntarily and with common intent. The testimony of an accomplice may be received in evidence and considered by you, even though it is not supported by other evidence. You may decide how much weight it should have.

You are to keep in mind, however, that accomplice testimony should be received with caution and considered with great care. You should not convict a defendant based on the unsupported testimony of an alleged accomplice, unless you believe the unsupported testimony beyond a reasonable doubt.

An informant is someone who provides evidence against someone else for a personal reason or advantage. The testimony of an informant alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilt, even though not corroborated or supported by other evidence. You must examine and weigh an informant's testimony with greater care than the testimony of an ordinary witness. You must determine whether the informant's testimony has been affected by self-interest, by an agreement he has with the government, by his own interest in the outcome of the case, or by prejudice against the defendant.

You should not convict a defendant based on the unsupported testimony of an informant, unless you believe the unsupported testimony beyond a reasonable doubt.

A person may testify under a grant of immunity (an agreement with the government). His testimony alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilt even though it is not corroborated or supported by other evidence. You should consider testimony given under a grant of immunity with greater care and caution than the testimony of an ordinary witness. You should consider whether testimony under a grant of immunity has been affected by the witness's own interest, the government's agreement, the witness's interest in the outcome of the case, or by prejudice against the defendant.

On the other hand, you should also consider that an immunized witness can be prosecuted for perjury for making a false statement. After considering these things, you may give testimony given under a grant of immunity such weight as you feel it deserves.

You should not convict a defendant based on the unsupported testimony of an immunized witness, unless you believe the unsupported testimony beyond a reasonable doubt.

Comment

United States v. Bridwell, 583 F.2d 1135, 1142 (10th Cir. 1978).

When the immunity instruction is given, the nature of the agreement with the government should be spelled out in the instruction. United States v. Valdez, 225 F.3d 1137, 1139–41 (10th Cir. 2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

25.5 Witness Immunity

25.6 Accomplices: Cautionary Instructions

The government called as one of its witnesses an alleged accomplice, who was named as a co-defendant in the indictment. The government has entered into a plea agreement with the co-defendant, providing [e.g., for the dismissal of some charges and a recommendation of a lesser sentence than the co-defendant would otherwise likely receive]. Plea bargaining is lawful and proper, and the rules of this court expressly provide for it.

An alleged accomplice, including one who has entered into a plea agreement with the government, is not prohibited from testifying. On the contrary, the testimony of an alleged accomplice may, by itself, support a guilty verdict. You should receive this type of testimony with caution and weigh it with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a guilty plea to the offense charged is not evidence of the guilt of any other person.

The bracketed material in the first paragraph should be adapted to the particular case.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

The testimony of a drug abuser must be examined and weighed by the jury with greater caution than the testimony of a witness who does not abuse drugs.

[Name of witness] may be considered to be an abuser of drugs.

You must determine whether the testimony of that witness has been affected by the use of drugs or the need for drugs.

The use of an addict instruction was discussed with approval by the Tenth Circuit in United States v. Smith, 692 F.2d 658, 660–61 (10th Cir. 1982); there, however, the Court declined to find error in the trial court's refusal to give such instruction in light of the instructions read as a whole. See also United States v. Nicholson, 983 F.2d 983, 991 (10th Cir. 1993).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 29: Expert Opinion Testimony

[During the trial you heard the testimony of _______ who expressed opinions concerning _______.] In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters.

You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.

In the typical one-expert case (e.g., drugs), the bracketed sentence may be omitted. Where expert opinions are in issue, the names of the experts and a description of their opinions might be inserted.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

You will note that the indictment charges that the crime was committed on or about [date]. The government must prove beyond a reasonable doubt that the defendant committed the crime reasonably near [date].

A similar instruction was approved in United States v. Agnew, 931 F.2d 1397, 1401, 1410–11 (10th Cir. 1991). In United States v. Poole, 929 F.2d 1476, 1482 (10th Cir. 1991), the court wrote: "the 'on or about' instruction ... has been approved by this Circuit on numerous occasions."

Care should be taken in giving this instruction if the defendant has raised an alibi defense. See Brian H. Redmond, Annotation, Propriety And Prejudicial Effect Of "On or About" Instruction Where Alibi Evidence In Federal Criminal Case Purports To Cover Specific Date Shown By Prosecution Evidence, 92 A.L.R. Fed. 313 (1989).

The district court, however, retains the discretion to give an "on or about" instruction even when an alibi defense is raised. United States v. Phillips, 869 F.2d 1361, 1368–69 (10th Cir. 1988); United States v. Lucero, 601 F.2d 1147, 1150 (10th Cir. 1979). The district court will consider the coincidence, or lack thereof, of a specific date upon which the crime was committed, as alleged and proved, with the specific date of the alibi.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or crime not charged in the indictment.

It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defense to a criminal charge.

The question of the possible guilt of others should not enter your thinking as you decide whether this defendant has been proved guilty of the crime charged.

See United States v. Oberle, 136 F.3d 1414, 1422–23 (10th Cir. 1998), approving instruction directing jury not to concern themselves with the guilt of anyone except the defendant over objection that it directed jurors to ignore defendant's defense of mistaken identity.

The Committee suggests that this instruction be given if the defendant has an instruction as to a person other than the defendant being guilty of the crime.

Modification of this instruction will be necessary in those cases where the evidence necessarily raises the question of the guilt of others such as conspiracy or aiding and abetting.

Modification should also be considered in cases in which an alibi or mistaken identification is raised.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict

If you find the defendant guilty, it will be my duty to decide what the punishment will be. You should not discuss or consider the possible punishment in any way while deciding your verdict.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

276.7 Deliberation: Multiple Defendants

The rights of each of the defendants in this case are separate and distinct. You must separately consider the evidence against each defendant and return a separate verdict for each.

Your verdict as to one defendant, whether it is guilty or not guilty, should not affect your verdict as to any other defendant.

This instruction is based on Kotteakos v. United States, 328 U.S. 750, 772 (1946); United States v. Edwards, 69 F.3d 419, 434 n.8 (10th Cir. 1995).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

276.7 Deliberation: Multiple Defendants

A separate crime is charged against one or more of the defendants in each count of the indictment. You must separately consider the evidence against each defendant on each count and return a separate verdict for each defendant.

Your verdict as to any one defendant or count, whether it is guilty or not guilty, should not influence your verdict as to any other defendants or counts.

This instruction combines the concepts contained in "Single Defendants–Multiple Counts" and "Multiple Defendants–Single Count" instructions.

The second paragraph should be modified when guilt of one charge is a prerequisite for conviction of another charge. See, e.g., 18 USC 1961 (R.I.C.O. conviction requires proof of two predicate offenses).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 278: Duty Of Jury To Deliberate

Chapter 287: Verdict

In a moment the bailiff will escort you to the jury room and provide each of you with a copy of the instructions that I have just read. Any exhibits admitted into evidence will also be placed in the jury room for your review.

When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. [The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions.]

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.

You must consult with one another and deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges—judges of the facts. You must decide whether the government has proved the defendant guilty beyond a reasonable doubt.

A form of verdict has been prepared for your convenience.

[Explain the Verdict Form]

The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict.

If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the bailiff. I will either reply in writing or bring you back into the court to respond to your message. Under no circumstances should you reveal to me the numerical division of the jury.

Concerning the admonition against disclosure of the numerical division of the jury, see Brasfield v. United States, 272 U.S. 448, 449–50 (1926).

The bracketed material in the second paragraph might be appropriate when the trial judge provides the jurors with written copies of the instructions.

The Committee recognizes that many judges do not routinely instruct on the verdict form. For those who do, the bracketed notation "Explain the Verdict Form" indicates an appropriate place for that instruction to be given.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

See NCJIC 88.4.3.11 [Possession Of Drugs, Controlled Substances: Defense Theory Of Juror Unanimity As To Individual Units Of Contraband].

See NCJIC 88.6.3.1 [Possession Of Drugs, Controlled Substances For Sale: Juror Unanimity As To Individual Units Of Contraband].

Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity).

Your verdict must be unanimous. Count _______ of the indictment accuses the defendant of committing the following acts: [description of individual acts].

The government does not have to prove all of these different acts for you to return a guilty verdict on count _______.

But in order to return a guilty verdict, all twelve of you must agree upon which of the listed acts, if any, the defendant committed and that he committed at least [number of acts identified above] of the acts listed.

This instruction is modeled on language from Richardson v. United States, 526 U.S. 813, 817–18, 824 (1999).

This instruction should be used when the government introduces evidence that the defendant has committed multiple acts which may constitute an element of the crime. See, e.g., 21 USC 848 (Continuing Criminal Enterprise) (may require proof of a series of federal drug violations). See Richardson v. United States, 526 U.S. 813, 817–18, 824 (1999). In that instance the jury must agree on which acts were committed and the requisite number of acts, if multiple acts are required by the statute, before a guilty verdict may be returned. This instruction should not be given when evidence concerning various means of committing the crime has been introduced. See United States v. Weller, 238 F.3d 1215, 1219–20 (10th Cir. 2001); United States v. Powell, 226 F.3d 1181, 1194–95 (10th Cir. 2000).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 28: Out Of Court Statements By Defendant

Evidence has been presented about a statement attributed to the defendant alleged to have been made after the commission of the crime (or crimes) charged in this case but not made in court. Such evidence should always be considered by you with caution and weighed with care. Any such statements should be disregarded entirely unless the other evidence in the case convinces you by a preponderance of the evidence that the statement was made knowingly and voluntarily.

In determining whether any such statement was knowingly and voluntarily made, consider, for example, the age, gender, training, education, occupation, and physical and mental condition of the defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement.

If, after considering all this evidence, you conclude by a preponderance of the evidence that the defendant's statement was made knowingly and voluntarily, you may give such weight to the statement as you feel it deserves under all the circumstances.

Comment

The Committee has not used the terms "confession" and "admission." These labels that the law gives to statements may be confusing in jury instructions. " '[S]tatements' is a more neutral description than 'confession,' and should be used in its place ... unless the statements can be considered a 'complete and conscious admission of guilt–a strict confession,' " United States v. Gardner, 516 F.2d 334, 346 (7th Cir. 1975) (quoting Opper v. United States, 348 U.S. 84, 91 (1954)), in which case the instruction may be adapted by the trial judge.

In Lego v. Twomey, 404 U.S. 477 (1972), the Supreme Court set the minimum burden of proof required to establish that a confession is voluntary when such confession has been challenged as involuntary. The Court stated that the burden must be "at least by a preponderance of the evidence." The court stated that the states are free to adopt a higher standard as a matter of state law. In United States v. McCullah, 76 F.3d 1087, 1100 (10th Cir. 1996), the Tenth Circuit incorporated the language of Lego, "at least by a preponderance of the evidence," thereby establishing the burden for this circuit.

United States v. Toles, 297 F.3d 959, 965–66 (10th Cir. 2002), discusses voluntariness analysis but does not include gender specifically among factors to be considered. Nothing in Toles seems to suggest that those factors specifically referred to are exhaustive. According to Toles, the determination of voluntariness is based on the totality of circumstances, including the characteristics of the accused and the details of the interrogation. See also United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999). Such factors include age, intelligence, education of the defendant, length of detention, length and nature of questioning, whether defendant was advised of constitutional rights and whether defendant was subjected to physical punishment. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997).

The instruction is consistent with United States v. March, 999 F.2d 456, 462–63 (10th Cir. 1993), and United States v. Janoe, 720 F.2d 1156, 1163–64 (10th Cir. 1983).

Use Note

See Instruction 1.05.1 for "preponderance of evidence."

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

1.26
CONFESSION-STATEMENT—VOLUNTARINESS
(Multiple Defendants)

Chapter 28: Out Of Court Statements By Defendant

Evidence relating to any statement attributed to the defendant alleged to have been made after the commission of the crime (or crimes) charged in this case but not made in court, should always be considered by you with caution and weighed with care. Any such statements should be disregarded entirely unless the other evidence in the case convinces you by a preponderance of the evidence that the statement was made knowingly and voluntarily.

In determining whether any such statement was knowingly and voluntarily made, you should consider, for example, the age, gender, training, education, occupation, and physical and mental condition of the defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement.

If, after considering all this evidence, you conclude by a preponderance of the evidence that the defendant's statement was made knowingly and voluntarily, you may give such weight to the statement as you feel it deserves under all the circumstances.

Of course, any such statement should not be considered in any way whatsoever as evidence with respect to any other defendant on trial.

See Comment to Instruction 1.25.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

257.3 Entrapment

257.3.5 Entrapment: Who May Entrap

As a defense to the crimes charged in the indictment, the defendant has asserted that he was entrapped.

The defendant was entrapped if

-the idea for committing the crime(s) originated with government agents, and

-the government agents then persuaded or talked the defendant into committing the crime(s), and

-the defendant was not already willing to commit the crime(s).

When a person has no previous intent or purpose to violate the law, but is induced or persuaded by officers or agents to commit a crime, he is entrapped and the law, as a matter of policy, forbids his conviction in such a case. On the other hand, when a person already has the readiness and willingness to violate the law, and the officers or agents merely provide him with an opportunity to commit the crime and do so even by disguise or ruse, there is no entrapment.

In order to return a verdict of guilty as to [the defendant] for the crime(s) of [name crime or crimes charged], you must find beyond a reasonable doubt that the defendant was not entrapped.

[Add as appropriate:

For purposes of this case, [_______], the informant, was an agent of the law enforcement officers.]

The Committee has chosen not to use the word "predisposition" as it sounds overly technical and thus may be confusing to the average juror.

This instruction is based on United States v. Scull, 321 F.3d 1270, 1274–76 (10th Cir. 2003), and United States v. Cerrato–Reyes, 176 F.3d 1253, 1262–63 (10th Cir. 1999) (and Tenth Circuit cases cited therein).

To establish a defense of entrapment, Scull seems to require proof of more than persuasion by the government agent. " 'Inducement' is 'government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.' " 321 F.3d at 1275 (quoting United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986)). Inducement is neither established by evidence of solicitation, standing alone, nor " 'by evidence that the government agent initiated the contact with the defendant or proposed the crime.' " Id. (quoting Ortiz, 804 F.2d at 1165).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

The defendant [name the defendant] has offered evidence that he was acting in [self-defense] [defense of another].

A person is entitled to defend [himself] [another person] against the immediate use of unlawful force. But the right to use force in such a defense is limited to using only as much force as reasonably appears to be necessary under the circumstances.

[A person may use force which is intended or likely to cause death or great bodily harm only if he reasonably believes that force is necessary to prevent death or great bodily harm to [himself] [another]].

To find the defendant guilty of the crime charged in the indictment, you must be convinced that the government has proved beyond a reasonable doubt:

Either, the defendant did not act in [self-defense] [defense of another],

Or, it was not reasonable for the defendant to think that the force he used was necessary to defend [himself] [another person] against an immediate threat.

Comment

As with most affirmative defenses, once the defendant raises the defense, the government must establish beyond a reasonable doubt that the defendant's action was not in self-defense. United States v. Corrigan, 548 F.2d 879, 881–84 (10th Cir. 1977).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 31: Identification: Eyewitness (Mistaken Identity)

The government must prove, beyond a reasonable doubt, that the offense(s) charged in this case was actually committed and that it was the defendant who committed it. Thus, the identification of the defendant as the person who committed the offense(s) charged is a necessary and important part of the government's case.

You should evaluate the credibility of any witness making an identification in the same manner as you would any other witness. You should also consider at least the following questions:

Did the witness have the ability and an adequate opportunity to observe the person who committed the offense(s) charged? You should consider, in this regard, such matters as the length of time the witness had to observe the person in question, the lighting conditions at that time, the prevailing visibility, the distance between the witness and the person observed, and whether the witness had known or observed the person before.

Is the testimony about an identification made after the commission of the crime(s) the product of the witness's own recollection? In this regard, you should consider very carefully the circumstances under which the later identification was made, including the manner in which the defendant was presented to the witness for identification and the length of time that elapsed between the crime(s) and the witness's subsequent identification.

If, after examining all of the testimony and evidence in this case, you have a reasonable doubt as to the identity of the defendant as the person who committed the offense(s) charged, you must find the defendant not guilty.

Comment

This instruction should be given whenever identification testimony has become an issue because of lack of corroboration or limited opportunity for observation, because the witness's memory has faded by the time of trial, or because of law-enforcement induced problems that might affect the reliability of identification testimony.

This instruction takes account of United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972). An instruction consisting only of the first and last paragraphs may be consistent with United States v. Pena, 930 F.2d 1486, 1492–93 (10th Cir. 1991), and United States v. Thoma, 713 F.2d 604, 607–08 (10th Cir. 1983) (discussing when cautionary instruction is needed).

The Committee believes that elaboration on the specific circumstances surrounding an identification is best left to argument at trial.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You have heard evidence of other [crimes] [acts] [wrongs] engaged in by the defendant. You may consider that evidence only as it bears on the defendant's [e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident] and for no other purpose. Of course, the fact that the defendant may have previously committed an act similar to the one charged in this case does not mean that the defendant necessarily committed the act charged in this case.

This instruction is based on the Ninth Circuit's Model Jury Instruction (criminal) 4.3. It follows Tenth Circuit precedent. See, e.g., United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir. 1988). It respects the four factors of proper limited purpose, relevance, prejudice analysis, and the right to a limiting instruction mentioned in Huddleston v. United States, 485 U.S. 681, 691–92 (1988).

Merely reading the text of Federal Rule of Evidence 404(b) is not the best way to instruct the jury. United States v. Doran, 882 F.2d 1511, 1524 (10th Cir. 1989). This instruction should be given during trial when requested under FRE 105, see Huddleston v. United States, 485 U.S. 681, 691–92 (1988), and in closing instructions.

The government bears the burden of demonstrating how the proffered evidence is relevant to an issue in the case. In demonstrating the relevance of proffered other acts evidence, " '[t]he Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts.' " Cuch, 842 F.2d at 1176 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985)). Before such evidence is admitted "it must tend to establish intent, knowledge, motive or one of the enumerated exceptions; must have real probative value, not just possible worth; and must be reasonably close in time to the crime charged." Id.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

1.31
ACTUAL OR CONSTRUCTIVE POSSESSION

Chapter 56: Possession

The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over an object or thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.

[More than one person can be in possession of an object if each knows of its presence and has the power to control it.]

[A defendant has joint possession of an object when two or more persons share actual or constructive possession of it. However, merely being present with others who have possession of the object does not constitute possession.]

[In the situation where the object is found in a place (such as a room or car) occupied by more than one person, you may not infer control over the object based solely on joint occupancy. Mere control over the place in which the object is found is not sufficient to establish constructive possession. Instead, in this situation, the government must prove some connection between the particular defendant and the object.]

[In addition, momentary or transitory control of an object is not possession. You should not find that the defendant possessed the object if he possessed it only momentarily, or did not know that he possessed it.]

United States v. Colonna, 360 F.3d 1169, 1178–79 (10th Cir. 2004); United States v. Holland, 116 F.3d 1353, 1358 (10th Cir. 1997) (possession instruction set out and not challenged), overruled on other grounds by Bousley v. United States, 523 U.S. 614, 622–24 (1998); United States v. Valadez–Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998) (in joint occupancy case, government must show connection linking defendant to contraband); United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (control of premises alone is insufficient); United States v. Adkins, 196 F.3d 1112, 1114–15 (10th Cir. 1999) (discussing "fleeting possession" instruction). See United States v. Avery, 295 F.3d 1158, 1177–81 (10th Cir. 2002) (discussing possession in various situations).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 66: Attempt

The defendant may be found guilty of attempting to commit a crime, even though he did not do all of the acts necessary in order to commit the crime. However, the defendant may not be found guilty of attempting to commit any crime merely by thinking about it, or even by making some plans or some preparation for the commission of a crime.

Instead, in order to prove an attempt, the government must prove beyond a reasonable doubt that (1) the defendant intended to commit the crime; and that (2) the defendant took a substantial step towards commission of that crime.

A "substantial step" is something beyond mere preparation. A substantial step is an act which, in the ordinary and likely course of events, would lead to the commission of the particular crime. The step must be a strong indication of the defendant's criminal intent, and must unequivocally mark the defendant's acts as criminal. It should demonstrate commitment to the crime charged.

Comment

United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979) (discussing necessary element of overt act for attempt); United States v. DeSantiago–Flores, 107 F.3d 1472, 1478–79 (10th Cir. 1997) (defining elements and 'substantial step'), overruled on other grounds by United States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir. 1997); United States v. Smith, 264 F.3d 1012, 1016–17 (10th Cir. 2001) (same).

"Under Fed. R. Crim. P. 31(c), '[t]he defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.' " United States v. Dhinsa, 243 F.3d 635, 674 (2d Cir. 2001).

"[I]t is well settled that the only attempts to commit crimes which are made Federal crimes are those specifically so proscribed by Federal Law." United States v. Joe, 452 F.2d 653, 654 (10th Cir. 1971); see also United States v. Padilla, 374 F.2d 782, 787 n.7 (2d Cir. 1967) ("An attempt to commit a federal crime is punishable only where the section defining the crime specifically includes an attempt within its proscription."); United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983) ("There is no general federal 'attempt' statute," and hence, the trial court properly refused to give the proposed lesser included offense instruction of attempted bank larceny under 18 USC 2113 (b)). "A number of federal criminal statutes specifically mention attempts." Padilla, 374 F.2d at 787 n.7. And see 18 USC 751 (escape or attempt to escape by prisoners); 18 USC 472 (uttering counterfeit obligations or attempt to do so); 18 USC 1113 (attempt to commit murder or manslaughter); 18 USC 2113(a) (bank robbery or attempt).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

LESSER OFFENSES (VOLUME 12)

If you unanimously find the defendant not guilty of the offense charged, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of [_______].

The difference between these two offenses is that, to convict the defendant of [_______], the government does not have to prove [insert element]. This is an element of the greater offense, but not of the lesser included offense.

For you to find the defendant guilty of [_______], the government must prove each of the following elements beyond a reasonable doubt: [insert elements of lesser offense].

If you are convinced that the government has proved all of these elements beyond a reasonable doubt, you may find the defendant guilty of the lesser included offense. If you have a reasonable doubt about any of these elements, then you must find the defendant not guilty of the lesser included offense.

Schmuck v. United States, 489 U.S. 705, 716 (1989) (offense is not necessarily included within another unless the elements of the lesser are a subset of the greater offense); United States v. Moore, 108 F.3d 270, 273 (10th Cir. 1997) (noting that "[o]nly when an appellate court is convinced that the evidence issues are such that a rational jury could acquit on the charged crime but convict on the lesser crime may the denial of a lesser included offense be reversed," and, based on the evidence, holding no error in refusing to charge on simple possession as a lesser included offense of possession with intent to distribute); United States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (proof of differentiating element must be sufficiently in dispute).

This instruction has been drafted to allow a lesser included instruction to be given, not only when the jury finds the defendant not guilty of the greater offense, but also when the jury cannot unanimously reach a verdict, and the defendant requests such instruction. Although the Tenth Circuit has not decided whether such an instruction is appropriate, the weight of authority supports giving such instruction, at least when the defendant requests it. See Darks v. Mullin, 327 F.3d 1001, 1008 n.2 (10th Cir. 2003).

Where the evidence would prevent any rational jury from acquitting a defendant of the greater offense charged and convicting him of the lesser included offense, the district court does not abuse its discretion in denying a request for a jury instruction on the lesser included offense. United States v. Harris, 313 F.3d 1228, 1240–41 (10th Cir. 2002) (discussing four-part test).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

256.4 Insanity

18 USC 17(a) provides that insanity is an affirmative defense:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

A defendant is not entitled to an insanity instruction unless the evidence shows a mental disease or defect that rendered him unable to appreciate the nature and quality or wrongfulness of his acts. United States v. Holsey, 995 F.2d 960, 963 (10th Cir. 1993).

18 USC 17(b) places the burden of proof by clear and convincing evidence upon the defendant. While the "clear and convincing" standard is a fairly high one, it does not call for the highest levels of proof. "If evidence would permit the jury to find to a high probability that the defendant was insane, an insanity instruction is required." United States v. Denny–Shaffer, 2 F.3d 999, 1016 (10th Cir. 1993) (discussing multiple personality disorder for purposes of insanity defense) (italics and quotations omitted).

The Supreme Court has held that the Insanity Defense Reform Act of 1984, 18 USC 4241–4247, does not require an instruction concerning the consequences of a not guilty by reason of insanity (NGI) verdict, and that "such an instruction is not to be given as a matter of general practice." Shannon v. United States, 512 U.S. 573, 587 (1994); see Neely v. Newton, 149 F.3d 1074, 1085–86 (10th Cir. 1998) (rejecting claims that the New Mexico guilty but mentally ill (GBMI) statute violated due process, and that the jury should have been told of consequences of NGRI and GBMI).

The three possible verdicts are set forth in 18 USC 4242(b), Special verdict.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

251.2 Alibi

Evidence has been introduced tending to establish an alibi—that the defendant was not present at the time when, or at the place where, the defendant is alleged to have committed the offense charged in the indictment.

The government has the burden of proving that the defendant was present at that time and place. Unless the government proves this beyond a reasonable doubt, you must find the defendant not guilty.

United States v. Haala, 532 F.2d 1324, 1329–30 (10th Cir. 1976) (discussing when alibi defense instruction not necessary). Alibi is not an affirmative defense, but an evidentiary matter. Popularization of the term "alibi" has led to a negative connotation. This draft instruction tries to avoid that negative connotation and to avoid confusion as to the burden of proof.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

254.1 Duress/Coercion

The defendant has offered evidence that he was coerced, or forced, to commit the crime.

Under the law, the defendant is not guilty of a crime if, at the time it was committed, (1) there was an immediate threat of death or bodily injury to the defendant (or others); (2) the defendant had a well-grounded fear that the threat would be carried out; and (3) the defendant had no reasonable opportunity to escape the threatened harm.

On this issue, the government must prove beyond a reasonable doubt that defendant was not coerced. In other words, for you to find defendant guilty, the government must prove that (1) there was no immediate threat; or (2) defendant's fear that the threat would be carried out was not well-grounded; or (3) defendant had a reasonable opportunity to escape the threatened harm.

This instruction, if given, should be given immediately after the instruction setting forth the elements of the offense.

This instruction does not limit "others" to members of the defendant's immediate family. The Committee concluded that an instruction limited to kinship could be too narrow in some circumstances. For instance, in some situations a person might violate the law in order to protect a small child who is a complete stranger.

To be entitled to a coercion instruction, the defendant bears the threshold burden to introduce sufficient evidence as to all elements of the coercion defense. United States v. Glass, 128 F.3d 1398, 1409 (10th Cir. 1997); United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990) ("A defendant who fails to present sufficient evidence to raise a triable issue of fact concerning the absence of any reasonable opportunity to escape the threatened harm is not entitled to an instruction on the defense of coercion."). Once the defendant has made the threshold showings to trigger the instruction, the burden is on the government to prove beyond a reasonable doubt that the defendant was not coerced. See United States v. Falcon, 766 F.2d 1469, 1477 (10th Cir. 1985). The government carries its burden if it disproves even one of the three elements. See United States v. Toney, 27 F.3d 1245, 1248, 1252 (7th Cir. 1994); United States v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992); United States v. Mitchell, 725 F.2d 832, 836 (2d Cir. 1983).

It should be emphasized that if it is uncontested that a defendant had a full opportunity to avoid the criminal act without danger to himself or others, he is not entitled to a coercion instruction. Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935).

In United States v. Bailey, 444 U.S. 394 (1980) (prosecution for escape from a federal prison), the Supreme Court held that in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, the escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. Id. at 412–13.

For a general discussion (in dicta) regarding the lack of clarity on the question of third-party duress in the prison context, see United States v. Haney, 318 F.3d 1161, 1166–67 (10th Cir. 2003) (en banc).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

1.37
KNOWINGLY—DELIBERATE IGNORANCE

Chapter 47: Knowledge

47.4 Deliberate Ignorance/Willful Blindness

When the word "knowingly" is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of [the fact in question], unless the defendant did not actually believe [the fact in question].

Although the deliberate ignorance instruction in general was discouraged, it may be given "when the Government presents evidence that the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of prosecution." United States v. Delreal–Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000) (internal quotation marks omitted). If given, a similar deliberate ignorance instruction was approved as the preferred language in Delreal-Ordones. Id. at 1267; see also United States v. Glick, 710 F.2d 639, 643 (10th Cir. 1983). "The purpose of the instruction is to alert the jury that the act of avoidance could be motivated by sufficient guilty knowledge to satisfy the knowing element of the crime." Delreal-Ordones, 213 F.3d at 1268–69 (quotation marks and brackets omitted). "The district court need not insist upon direct evidence of conscious avoidance of a fact before tendering a deliberate ignorance instruction. To establish a defendant's 'deliberate ignorance,' the Government is entitled to rely on circumstantial evidence and the benefit of the favorable inferences to be drawn therefrom." Id. at 1268 (citation omitted).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 46: Willfulness

The Committee does not recommend any general instruction defining the term "willfully" because no single instruction can accurately encompass the different meanings this term has in federal criminal law. This term is "a word 'of many meanings, its construction often being influenced by its context.' " Screws v. United States, 325 U.S. 91, 101 (1945), quoting Spies v. United States, 317 U.S. 492, 497 (1943).

In light of the confusion in the law regarding the meaning of the word "willful," the Committee suggests that, when a statute uses this word, care should be taken to distinguish between its meanings. A "willfulness" requirement may impose on the government the burden of proving that the defendant had knowledge of his conduct, or that his conduct was unlawful, or of the precise legal duty, the violation of which forms the substance of the charges against the defendant.

The following commentary is intended to highlight the difficulty surrounding the willfulness requirement.

"The word 'willfully' is sometimes said to be 'a word of many meanings' whose construction is often dependent on the context in which it appears." Bryan v. United States, 524 U.S. 184, 191 (1998). "Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind." Id. "As a general matter, when used in the criminal context, a 'willful' act is one undertaken with a 'bad purpose.' " Id.

Although the term "willful" can denote a specific intent requirement, this is not always the case. See United States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (discussing specific intent); United States v. Jackson, 248 F.3d 1028, 1031 n.2 (10th Cir. 2001) ("the word 'willfully' does not always require specific intent"); United States v. Youts, 229 F.3d 1312, 1315–16 (10th Cir. 2000) (term "willfully" used in train wreck statute does not require for conviction proof of specific intent to wreck a train).

An example of willfulness understood as intentional conduct is found in United States v. Hilliard, 31 F.3d 1509, 1517 n.5 (10th Cir. 1994) ("willfully" is proved where the defendant "knowingly performed an act, deliberately and intentionally 'on purpose' as contrasted with accidently, carelessly or unintentionally").

Willfulness understood as intentional conduct that the actor knows to be a violation of law is developed in a series of Supreme Court cases. In Cheek v. United States, 498 U.S. 192 (1991), the Court held that, because of the complexity of the tax laws, "willfulness" requires proof of a "voluntary, intentional violation of a known legal duty." Id. at 201.

The Supreme Court applied the teachings of Cheek to the Bank Secrecy Act in Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (willful violation of antistructuring provision required proof that defendant "knew the structuring in which he engaged was unlawful").

More recently, in Bryan, 524 U.S. at 196–98, the Supreme Court examined the federal firearm licensing requirement of 18 USC 924(a)(1)(D), and interpreted the willfulness element to require proof that the defendant knew his conduct was unlawful, but not that the defendant knew the precise legal duty which he was charged with violating.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Interstate commerce means commerce or travel between one state, territory or possession of the United States and another state, territory or possession of the United States, including the District of Columbia. Commerce includes travel, trade, transportation and communication.

If you decide that there was any effect at all on interstate commerce, then that is enough to satisfy this element. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce.

Foreign commerce means commerce between any part of the United States (including its territorial waters), and any other country (including its territorial waters).

"Commerce" is taken from United States v. Grassie, 237 F.3d 1199, 1206 n.5 (10th Cir. 2001).

"Interstate commerce" is discussed at length in Grassie, id. at 1205–12, from which the interstate commerce portion of this instruction is taken almost verbatim. See id. at 1206 n.5. Grassie follows Jones v. United States, 529 U.S. 848 (2000), which also discusses interstate commerce at length.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

25.9 Electronic Recordings

During this trial, you have heard sound recordings of certain conversations. These conversations were legally recorded; they are a proper form of evidence and may be considered by you as you would any other evidence. You were also given transcripts of those recorded conversations.

Keep in mind that the transcripts are not evidence. They were given to you only as a guide to help you follow what was being said. The recordings themselves are the evidence. If you noticed any differences between what you heard on the recordings and what you read in the transcripts, you must rely on what you heard, not what you read. If you could not hear or understand certain parts of the recordings, you must ignore the transcript as far as those parts are concerned.

The decision to admit sound recordings into evidence rests with the trial court. See United States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979). Transcripts may be admitted to assist the trier of fact. United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995). When transcripts are used, a cautionary instruction that the transcripts are only an aid in understanding the sound recording is preferred. Id. at 1527 n.15; United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United States v. Mayes, 917 F.2d 457, 463 (10th Cir. 1990); see also United States v. Caballero, 277 F.3d 1235, 1248 (10th Cir. 2002). A similar instruction was approved in United States v. Devous, 764 F.2d 1349, 1353 n.3 (10th Cir. 1985) (quoting United States v. Robinson, 707 F.2d 872, 878 (6th Cir. 1983)); see also Gomez, 67 F.3d at 1527 n.15 (citing Robinson); United States v. Lucero, 601 F.2d 1147, 1149 (10th Cir. 1979) (discussing a cautionary instruction). In the event of a dispute concerning the accuracy of a transcript, the Tenth Circuit has suggested various procedures, including the possibility of a government and defense transcript. See Devous, 764 F.2d at 1355; Lucero, 601 F.2d at 1149.

This instruction should be given when the sound recording is played and again in the final charge.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

25.3 Charts, Summaries, Etc.

Certain charts and summaries have been shown to you to help explain the evidence in this case. Their only purpose is to help explain the evidence. These charts and summaries are not evidence or proof of any facts.

No instruction.

Comment

Summaries not in evidence should only be used with a limiting instruction. Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1335 (10th Cir. 1996).

No instruction should be given if the summaries and charts have been admitted into evidence under FRE 1006 and the underlying materials have not been. Under FRE 1006, the underlying materials need not be admitted, but they must be admissible. United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999). In such a case, the charts or summaries are themselves evidence. See United States v. Osum, 943 F.2d 1394, 1405 n.9 (5th Cir. 1991).

Where the underlying evidence has been introduced along with the summaries or charts, the Tenth Circuit has suggested, in the context of tax prosecutions, that limiting instructions are proper. See United States v. Mann, 884 F.2d 532, 539 (10th Cir. 1989); United States v. Kapnison, 743 F.2d 1450, 1458 (10th Cir. 1984); United States v. Harenberg, 732 F.2d 1507, 1513–14 (10th Cir. 1984); United States v. Kaatz, 705 F.2d 1237, 1245 (10th Cir. 1983). These cases rely upon United States v. Scales, 594 F.2d 558, 563–64 (6th Cir. 1979), which suggests that in a criminal case, cautionary instructions should be given concerning summaries. Such a cautionary instruction might explain: "Summaries or charts are not themselves evidence, but are summaries, the accuracy and reliability of which are to be determined by the testimony and exhibits admitted into evidence." Mann, 884 F.2d at 539 n.4; Kapnison, 743 F.2d at 1457.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 286: Deadlock

Members of the jury, I am going to ask that you return to the jury room and deliberate further. I realize that you are having some difficulty reaching a unanimous agreement, but that is not unusual. Sometimes, after further discussion, jurors are able to work out their differences and agree.

This is an important case. If you should fail to agree upon a verdict, the case is left open and must be tried again. Obviously, another trial would require the parties to make another large investment of time and effort, and there is no reason to believe that the case can be tried again by either side better or more exhaustively than it has been tried before you.

You are reminded that the defendant is presumed innocent, and that the government, not the defendant, has the burden of proof and it must prove the defendant guilty beyond a reasonable doubt. Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt. In short, every individual juror should reconsider his or her views.

It is your duty, as jurors, to consult with one another and deliberate with a view toward reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.

I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions I have previously given you.

This instruction is designed for use when the court concludes that the jury has reached an impasse and that a modified Allen charge is appropriate. It is the preferred practice that the substance of this instruction be given as part of the court's original set of jury instructions, before the jury reaches impasse or deadlock. United States v. Rodriguez–Mejia, 20 F.3d 1090, 1092 (10th Cir. 1994). The ultimate issue concerning the use of an Allen charge is whether it is impermissibly coercive given the facts and circumstances of each case. Lowenfield v. Phelps, 484 U.S. 231, 237–41 (1988). Several cases have upheld the use of a modified Allen charge after the jury reached deadlock upon finding the circumstances did not render the instruction coercive. See, e.g., United States v. Arney, 248 F.3d 984, 987 (10th Cir. 2001); United States v. Butler, 904 F.2d 1482, 1488 (10th Cir. 1990); United States v. McKinney, 822 F.2d 946, 951 (10th Cir. 1987). In United States v. McElhiney, 275 F.3d 928, 949 (10th Cir. 2001), the Tenth Circuit strongly urged that to avoid impermissible coercion, the instruction should incorporate cautionary language "(1) that no juror should relinquish his or her conscientiously held convictions simply to secure a verdict and (2) that every individual juror should reconsider his or her views, whether in the majority or in the minority." Id. Additionally, there should be "a reminder to the jury of the burden of proof." Id.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Chapter 283: Communication With Jury