9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
Go to Federal Model Instructions Table of Contents - Go to 9th Circuit Table of Contents

Instructions At End of Case

        Introductory Comment
        Cover Sheet
        3.1     Duties Of Jury To Find Facts And Follow Law
        3.2     Charge Against Defendant Not Evidence -- Presumption Of Innocence – Burden Of Proof
        3.3     Defendant's Decision Not To Testify
        3.4     Defendant's Decision To Testify
        3.5     Reasonable Doubt--Defined
        3.6     What Is Evidence
        3.7     What Is not Evidence
        3.8     Direct And Circumstantial Evidence
        3.9     Credibility Of Witnesses
        3.10   Evidence Of Other Acts Of Defendant Or Acts And Statements Of Others
        3.11   Activities Not Charged
        3.12   Separate Consideration Of Multiple Counts--Single Defendant
        3.13   Separate Consideration Of Single Count--Multiple Defendants
        3.14   Separate Consideration Of Multiple Counts – Multiple Defendants
        3.15   Lesser Included Offense
        3.16   Corruptly – Defined
        3.17   Intent To Defraud – Defined
        3.18   Possession – Defined
        3.19   Corporate Defendant
        3.20   Jury To Be Guided By Official English Translation/Interpretation

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

The FRCRP permit the court to instruct the jury before or after arguments, or at both times. FRCRP 30.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

DATED: ______________

________________________________
UNITED STATES DISTRICT JUDGE

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult.

It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.

In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you.

See Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 4.3.B and § 4.3.C (1998).

See also FRCRP 30.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The indictment is not evidence. The defendant has pleaded not guilty to the charge. The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.

The trial judge has wide discretion as to whether the jury should be provided with a copy of the indictment for use during jury deliberations. The Ninth Circuit has said that when a district judge permits the jury to have a copy of the indictment, the court should caution the jury that the indictment is not evidence. See United States v. Utz, 886 F.2d 1148, 1151–52 (9th Cir. 1989) (permissible to give each juror a copy of the indictment if judge cautions jury that indictment is not evidence), cert. denied, 497 U.S. 1005 (1990).

It is preferable to give a presumption of innocence instruction at the end of the case. United States v. Garcia-Guizar, 160 F.3d 511, 523 (9th Cir. 1998).

See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 4.4 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

270.3 Presumption Of Innocence: Specific Words And Phrases

A defendant in a criminal case has a constitutional right not to testify. No presumption of guilt may be raised, and no inference of any kind may be drawn, from the fact that the defendant did not testify.

It is preferable to tell the jury that no inference may be drawn from the fact that defendant failed to testify. United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996). The Committee recommends that this instruction be given in every criminal case in which the defendant does not testify unless objected to by the defendant. If the instruction is requested by the defendant, it must be given. Carter v. Kentucky, 450 U.S. 288 (1981); Shults v. Whitley, 982 F.2d 361 (9th Cir. 1992).

See Instruction 3.4 (Defendant's Decision to Testify) concerning the defendant’s decision to testify.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

3.4 Defendant's Decision to Testify

NCJIC Materials Related To This Instruction:

10.2.8 Reference To Defendant's Testimonial Rights During Voir Dire As Prejudicial Error

300.3.2 Due Process Violation For Arbitrary Denial Of State Created Right

The defendant has testified. You should treat this testimony just as you would the testimony of any other witness.

See Instruction 3.3 (Defendant's Decision Not to Testify) concerning the defendant’s decision not to testify.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

270.4 Reasonable Doubt Standard: General Principles

270.5 Reasonable Doubt Standard: Specific Words And Phrases

Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.

A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.

If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

The Committee strongly recommends that the jury be provided with a definition of reasonable doubt.

The Ninth Circuit has expressly approved a reasonable doubt instruction that informs the jury that the jury must be "firmly convinced" of the defendant's guilt. United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992).

In Victor v. Nebraska, 511 U.S. 1, 5 (1994), the Court held that any reasonable doubt instruction must (1) convey to the jury that it must consider only the evidence, and (2) properly state the government's burden of proof. See also Lisenbee v. Henry, 166 F.3d 997, 999 (9th Cir. 1999), cert. denied, 120 S. Ct. 82 (1999).

Earlier model instructions instructed the jury to find the defendant guilty only if "you find the evidence so convincing that an ordinary person would be willing to make the most important decisions in his or her own life on the basis of such evidence." Ninth Circuit Manual of Model Jury Instructions 3.04 (1984); Ninth Circuit Manual of Model Jury Instructions 3.04 (1985). The Committee rejected this analogy because the most important decisions in life—choosing a spouse, buying a house, borrowing money, and the like—may involve a heavy element of uncertainty and risk-taking and are wholly unlike the decisions jurors ought to make in criminal cases. See United States v. Ramirez, 136 F.3d 1209, 1213-14 (9th Cir.), cert. denied, 119 S. Ct. 415 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

24.2 What Is Evidence

The evidence from which you are to decide what the facts are consists of:

(1) the sworn testimony of any witness;

(2) the exhibits which have been received into evidence; and

(3) any facts to which all the lawyers have stipulated.

See United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.) (material facts to which the parties voluntarily stipulate are to be treated as "conclusively established") (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976)), amended by 180 F.3d 1091 (1999).

In reaching your verdict you may consider only the testimony and exhibits received into evidence. Certain things are not evidence and you may not consider them in deciding what the facts are. I will list them for you:

1. Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.

2. Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the question, the objection, or the court's ruling on it.

3. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.

4. Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

See Comment to Instruction 1.5 (Evidence of a Limited Purpose) regarding case law on limiting instructions.

Turner v. Louisiana, 379 U.S. 466, 471-73 (1965), discusses the right to a jury influenced only by courtroom evidence. See also United States v. Harber, 53 F.3d 236, 239-41 (9th Cir. 1995) (finding introduction of government official's report into jury room during deliberations inherently prejudicial).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

25.12 Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

The Committee believes that a simple instruction on circumstantial evidence eliminates the need to explain what an inference is. The reasoning process described as drawing an inference may be treated in terms of circumstantial evidence. Such a general instruction obviates the need for instructions on particular inferences. Matters which might be the subject for such instructions (flight, resistance to arrest, etc.) are then better left to argument of counsel, subject to prior clearance with the court. See United States v. Beltran–Garcia, 179 F.3d 1200, 1206 (9th Cir. 1999) (in discussing jury instruction regarding inferring intent to possess for distribution from quantity of drugs, the Ninth Circuit stated that "[a]lthough the instructions in this case were not delivered in error, we do not hesitate to point out the 'dangers and inutility of permissive inference instructions.'" (citations omitted)), cert. denied, 528 U.S. 1097 (2000). See also United States v. Rubio–Villareal, 967 F.2d 294, 300 (9th Cir. 1992) (en banc) (Ninth Circuit disapproved of instructing the jury that knowledge of the presence of drugs in a vehicle may be inferred from the defendant being the driver). See also Introductory Comment to Part 4 (Consideration of Particular Evidence).

The word "infer"—or the expression "to draw an inference"—means to find that a fact exists based on proof of another fact. In deciding whether to draw an inference, you must consider all the facts in the light of reason, common sense and experience. After you have done that, it is for you to decide whether to draw a particular inference.

Approved 03/2006 (for 2002 version see below).

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2002 Version

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists, even though it has not been proved directly. You are to consider both kinds of evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

Comment

The Committee believes that a simple instruction on circumstantial evidence eliminates the need to explain what an inference is. The reasoning process described as drawing an inference may be treated in terms of circumstantial evidence. Such a general instruction obviates the need for instructions on particular inferences. Matters which might be the subject for such instructions (flight, resistance to arrest, etc.) are then better left to argument of counsel, subject to prior clearance with the court. See United States v. Beltran–Garcia, 179 F.3d 1200, 1206 (9th Cir. 1999) (in discussing jury instruction regarding inferring intent to possess for distribution from quantity of drugs, the Ninth Circuit stated that "[a]lthough the instructions in this case were not delivered in error, we do not hesitate to point out the ‘dangers and inutility of permissive inference instructions.’" (citations omitted)), cert. denied, 120 S. Ct. 838 (2000). See also United States v. Rubio–Villareal, 967 F.2d 294, 300 (9th Cir. 1992) (en banc) (Ninth Circuit disapproved of instructing the jury that knowledge of the presence of drugs in a vehicle may be inferred from the defendant being the driver). See also Introductory Comment to Part 4 (Consideration of Particular Evidence).

If an instruction defining the word "inference" is desired, the following language is suggested:

The word "infer"—or the expression "to draw an inference"—means to find that a fact exists based on proof of another fact. In deciding whether to draw an inference, you must consider all the facts in the light of reason, common sense and experience. After you have done that, it is for you to decide whether to draw a particular inference.

It may be helpful to include an illustrative example in the instruction:

By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

Chapter 27 Witness Credibility

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

1. the opportunity and ability of the witness to see or hear or know the things testified to;

2. the witness' memory;

3. the witness' manner while testifying;

4. the witness' interest in the outcome of the case and any bias or prejudice;

5. whether other evidence contradicted the witness' testimony;

6. the reasonableness of the witness' testimony in light of all the evidence; and

7. any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

You are here only to determine whether the defendant is guilty or not guilty of the charge[s] in the indictment. Your determination must be made only from the evidence in the case. The defendant is not on trial for any conduct or offense not charged in the indictment. You should consider evidence about the acts, statements, and intentions of others, or evidence about other acts of the defendant, only as they relate to this charge against this defendant.

This instruction should only be used when FRE 404(b) evidence has been introduced during trial. It is also necessary to give Instruction 4.3 (Other Crimes, Wrongs, Acts of Defendant) in connection with this instruction. Otherwise, see Instruction 3.9 (Credibility of Witnesses).

FRE 404 states the circumstances under which evidence of other crimes may be admissible.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

26.5 Uncharged Bad Acts To Prove Issues Other Than Propensity

The defendant is on trial only for the crime[s] charged in the indictment, not for any other activities.

This instruction should be given only when FRE 404(b) evidence has not been admitted at trial.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

Chapter 274 Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)

A separate crime is charged against the defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.

This instruction should be given when there is one defendant charged with multiple counts. If the case involves multiple defendants and multiple counts, Instruction 3.14 (Separate Consideration of Multiple Counts—Multiple Defendants) should be given instead. If more than one defendant is charged with the same crime, Instruction 3.13 (Separate Consideration of Single Count—Multiple Defendants) should be given.

When the counts are satisfactorily distinguished in the jury charge, the jury will be presumed to have followed instructions and not to have confused the evidence pertinent to the individual counts. United States v. Parker, 432 F.2d 1251, 1254 (9th Cir. 1970), cert. denied, 404 U.S. 836 (1971). An instruction to consider particular evidence only in connection with a certain count may be requested, but need not be given sua sponte. See United States v. Brashier, 548 F.2d 1315, 1323–24 (9th Cir. 1976), cert. denied, 429 U.S. 1111 (1977).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

276.7 Deliberation: Multiple Defendants

A separate crime is charged against each defendant. The charges have been joined for trial. You must consider and decide the case of each defendant separately. Your verdict as to one defendant should not control your verdict as to any other defendant.

All of the instructions apply to each defendant [unless a specific instruction states that it applies to only a specific defendant].

This instruction should be given when there is more than one defendant charged with the same crime. If the case involves multiple defendants and multiple counts, Instruction 3.14 (Separate Consideration of Multiple Counts—Multiple Defendants) should be given instead. If one defendant has been charged with multiple counts, Instruction 3.12 (Separate Consideration of Multiple Counts—Single Defendant) should be given.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

276.7 Deliberation: Multiple Defendants

A separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant on each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.

All of the instructions apply to each defendant and to each count [unless a specific instruction states that it applies only to a specific [defendant] [count].

This instruction should be given when there is more than one defendant charged with multiple counts. If the case involves multiple defendants charged with the same count, Instruction 3.13 (Separate Consideration of Single Count—Multiple Defendants) should be given instead. If one defendant has been charged with multiple counts, Instruction 3.12 (Separate Consideration of Multiple Counts—Single Defendant) should be given.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

LESSER OFFENSES (VOLUME 12)

The crime of [crime charged] includes the lesser crime of [lesser included crime]. If (1) [any] [all] of you are not convinced beyond a reasonable doubt that the defendant is guilty of [crime charged]; and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of [lesser included crime], you may find the defendant guilty of [lesser included crime].

In order for the defendant to be found guilty of the lesser crime of [lesser included crime], the government must prove each of the following elements beyond a reasonable doubt:

[List elements of lesser included crime.]

This instruction is appropriate where a lesser offense is identified within the charged offense and a rational jury could find the defendant guilty of the lesser offense but not guilty of the greater one. United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982), cert. denied, 463 U.S. 1229 (1983). The lesser offense must not include all of the elements of the greater offense. Sansone v. United States, 380 U.S. 343, 349–50 (1965). It cannot include an additional element to those in the greater offense. It is "identified" within the greater offense only if it is "necessarily presented as part of the showing of the greater offense, and both crimes relate to the protection of the same interests." E.g., United States v. Raborn, 575 F.2d 688, 691 (9th Cir. 1978).

The lesser included offense instruction must be given if it is requested and is appropriate to the case. E.g., Keeble v. United States, 412 U.S. 205, 208 (1973). Either side may request the instruction, but the prosecution is limited to those offenses of which the defendant had notice in the allegations of the indictment. United States v. Johnson, 637 F.2d 1224, 1239 (9th Cir. 1980). The instruction need not be given sua sponte by the court, United States v. Lone Bear, 579 F.2d 522, 524 (9th Cir. 1978); United States v. Carey, 475 F.2d 1019, 1022 (9th Cir. 1973), except possibly where the lesser offense is inevitably included in the greater and omission of the instruction could be highly prejudicial. See Walker v. United States, 418 F.2d 1116, 1119 (D.C.Cir. 1969). The court should exercise caution in acting sua sponte, as the failure to request a lesser included offense instruction may represent a tactical decision by counsel.

When a lesser included offense instruction is appropriate, a defendant has the right to elect whether all or only some of the jurors must not be convinced beyond a reasonable doubt of guilt of the greater offense. United States v. Warren, 984 F.2d 325, 330-31 (9th Cir. 1993); United States v. Jackson, 726 F.2d 1466, 1468-70 (9th Cir. 1984).

If the jury convicts on the greater offense, a conviction on the lesser included offense cannot stand. United States v. Crawford, 576 F.2d 794, 800 (9th Cir.), cert. denied, 439 U.S. 851 (1978). This instruction makes this clear.

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Consult each statute that uses the term "corruptly" for the meaning of the term. "Corruptly" is capable of different meanings in different contexts. See United States v. Dorri, 15 F.3d 888, 894-95 (9th Cir.) (dissent) (discussing the difficulty in defining "corruptly" and recommending that it be defined on a case by case basis), cert. denied, 513 U.S. 1004 (1994).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

An intent to defraud is an intent to deceive or cheat.

One facet of intent to defraud is whether the defendant acted in good faith. In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), cert. denied, 513 U.S. 1059 (1994) the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

Chapter 56: Possession

A person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.

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

This instruction is all-inclusive. There is no need to attempt to distinguish further between actual and constructive possession and sole and joint possession.

The Ninth Circuit has approved language similar to that contained in this instruction. United States v. Cain, 130 F.3d 381, 382-84 (9th Cir. 1997); United States v. Perez, 67 F.3d 1371, 1379-80 (9th Cir. 1995), opinion withdrawn in part by 116 F.3d 840 (1997); United States v. Terry, 911 F.2d 272, 280 (9th Cir. 1990).

In the event the case involves use of a firearm under 18 USC 924(c)(1), see Instruction 8.65 (Firearms—Using or Carrying in the Commission of Drug Trafficking Crime or Crime of Violence).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

69.1 Personal Responsibility Of Corporate Agent

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

NCJIC Materials Related To This Instruction:

16.16.1 Jurors To Be Guided By Official English Translation/Interpretation

Languages other than English have been used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning of the non-English words.

Where there is no dispute as to the accuracy of the translation of a tape-recording of a foreign language conversation, the jury may be instructed that "it is not free to disagree with a translated transcript of a tape recording." United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (to hold otherwise would be "nonsensical"). See also United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).