9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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Specific Defenses

        Introductory Comment
        6.1     Alibi
        6.2     Entrapment
        6.3     Entrapment Defense--Whether Witness Acted As Government Agent
        6.4     Insanity
        6.5     Duress, Coercion Or Compulsion (To Refute Element Of Offense)
        6.6     Duress, Coercion Or Compulsion (Legal Excuse)
        6.7     Self Defense
        6.8     Intoxication – Diminished Capacity
        6.9     Mere Presence
        6.10   Public Authority Or Government Authorization Defense

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

A defendant is entitled to an instruction on the theory of his or her case, but the instruction need not be given in the form requested. United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.) (holding that a defendant is "not entitled to any particular form of instruction nor is he entitled to an instruction that merely duplicates what the jury has already been told"), cert. denied, 506 U.S. 989 (1992). The failure to instruct on defendant’s theory of defense, where the law and evidence support such an instruction, is per se reversible error. United States v. Zuniga, 6 F.3d 569, 571 (9th Cir. 1993).

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251.2 Alibi

Evidence has been introduced that the defendant was not present at the time and place of the commission of the crime charged in the indictment. The government has the burden of proving beyond a reasonable doubt the defendant's presence at that time and place.

If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find the defendant not guilty.

See FRCRP 12.1 (Notice of Alibi) as to defendant's notice of defense.

It is error to refuse a request for an alibi instruction when there is evidence to support this theory. United States v. Hairston, 64 F.3d 491, 495 (9th Cir. 1995); United States v. Hoke, 610 F.2d 678, 679 (9th Cir. 1980); United States v. Ragghianti, 560 F.2d 1376, 1379 (9th Cir. 1977). "Even if the alibi evidence is 'weak, insufficient, inconsistent or of doubtful credibility,' the instruction should be given." Hairston, 64 F.3d at 495 (citations omitted).

This instruction is not appropriate in a case where the crime charged can be committed without proof that the defendant was present, such as in prosecutions where the government seeks a conviction on an aiding and abetting or conspiracy theory. United States v. Guillette, 547 F.2d 743, 752 (2d Cir. 1976), cert. denied, 434 U.S. 839 (1977); United States v. Lee, 483 F.2d 968, 970 (5th Cir. 1973).

"[A]n instruction [on alibi] is no less necessary when the government raises the issue." Hairston, 64 F.3d at 495.

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257.3 Entrapment

The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. The government must prove the following:

1. the defendant was predisposed to commit the crime before being contacted by government agents, or

2. the defendant was not induced by the government agents to commit the crime.

Where a person, independent of and before government contact, is predisposed to commit the crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.

Only slight evidence raising the issue of entrapment is necessary for submission of the issue to the jury. United States v. Kessee, 992 F.2d 1001, 1003 (9th Cir. 1993).

The government is not required to prove both lack of inducement and predisposition. United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995) ("If the defendant is found to be predisposed to commit a crime, an entrapment defense is unavailable regardless of the inducement."), cert. denied, 517 U.S. 1148 (1996); United States v. Simas, 937 F.2d 459, 462 (9th Cir. 1991) (in absence of inducement, evidence of lack of predisposition is irrelevant).

See also United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir.) ("Inducement is government conduct that creates a substantial risk that an otherwise law-abiding person will commit a crime."), cert. denied, 516 U.S. 851 (1995); United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994) (listing examples of types of conduct that may constitute inducement), cert. denied, 513 U.S. 1171 (1995); United States v. Garza–Juarez, 992 F.2d 896, 909 (9th Cir. 1993), cert. denied, 510 U.S. 1058 (1994).

When there is evidence of entrapment, an additional element may be added to the instruction on the substantive offense, e.g., "Fourth, the defendant was not entrapped." See also Instruction 6.7 (Self-Defense).

The defendant is not entitled to an instruction that the government must show prior violations to overcome a claim of entrapment. United States v. Martinez, 488 F.2d 1088, 1089 (9th Cir. 1973).

The government must prove that the defendant was disposed to commit the crime prior to being approached by the government. Jacobson v. United States, 503 U.S. 540, 553 (1992). However, evidence gained after government contact with the defendant can be used to prove that the defendant was predisposed before the contact. Id. at 550-53. See also United States v. Burt, 143 F.3d 1215, 1218 (9th Cir. 1998) (previous Ninth Circuit Entrapment Instruction 6.02 erroneous "because it failed to state clearly the government’s burden of establishing ‘beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by the [g]overnment agents.’") (citing Jacobson).

A defendant need not concede that he or she committed the crime to be entitled to an entrapment instruction. United States v. Derma, 523 F.2d 981, 982 (9th Cir. 1975); cf. United States v. Paduano, 549 F.2d 145, 148 (9th Cir.), cert. denied, 434 U.S. 838 (1977).

The defendant is not entitled to an instruction allowing the jury to determine the fairness of government conduct, United States v. Gonzales, 539 F.2d 1238, 1240 n.1 (9th Cir. 1976), but unreasonable government conduct may result in a violation of due process. Such a violation is separate from an entrapment defense and is not a jury question. United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978).

There are a significant number of Ninth Circuit cases describing the five factors that should be considered when determining "predisposition." It may also be helpful to include the time period requirement imposed by Jacobsen, 503 U.S. 540 (1992), as a factor. See also United States v. Kim, 176 F.3d 1126, 1128 n. 1 (9th Cir. 1993), cert. denied, 120 S. Ct. 142 (1999). The following instruction could be given:

In determining whether the defendant was predisposed to commit the crime before being approached by government agents you may consider the following:

1) the defendant’s character and reputation;

2) whether the government initially suggested criminal activity;

3) whether the defendant engaged in activity for profit;

4) the nature of the government’s inducement; and

5) any other factors related to predisposition.

See United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir. 1998).

The Ninth Circuit has stated that an entrapment instruction should avoid instructing the jury

that a person is not entrapped if the person was "already" willing to commit the crime because of the ambiguity resulting there from. Kim, 176 F.3d at 1128.

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257.3.5 Entrapment: Who May Entrap

The defendant claims [he] [she] was entrapped by a government agent. Whether or not [witness] was acting as a government agent in connection with the crimes charged in this case, and if so, when that person began acting as a government agent, are questions for you to decide. In deciding those questions you should consider that, for purposes of entrapment, someone is a government agent when the government authorizes, directs, and supervises that person's activities and is aware of those activities. To be a government agent, it is not enough that someone has previously acted or been paid as an informant by other state or federal agencies, or that someone expects compensation for providing information.

In determining whether, and when, someone was acting as a government agent for purposes of this case, you must look to all of the circumstances existing at the time of that person's activities in connection with the crimes charged in this case, including but not limited to the nature of that person's relationship with the government, the purposes for which it was understood that person might act on behalf of the government, the instructions given to that person about the nature and extent of permissible activities, and what the government knew about those activities and permitted or used. This is not an exhaustive list of the factors to be considered, but provides examples of the types of factors you should consider in deciding whether and when a person was acting as a government agent when engaging in activities in connection with the crimes charged in this case.

See Sanchez v. United States, 50 F.3d 1448, 1452 (9th Cir. 1995); United States v. Fontenot, 14 F.3d 1364, 1369 (9th Cir.), cert. denied, 513 U.S. 966 (1994).

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256.4 Insanity

Defendant claims to have been insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

A defendant is insane if, but only if, at the time of the crime charged:

1. The defendant had a severe mental disease or defect; and

2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant must prove insanity at the time by clear and convincing evidence—that is, that it is highly probable that the defendant was insane. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

You may consider evidence of defendant's mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.

Your finding on the question of whether the defendant was insane at the time of the crime must be unanimous.

Comment

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2000 Version

Defendant claims to have been insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

A defendant is insane if, but only if, at the time of the crime charged:

1. The defendant had a severe mental disease or defect; and

2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant must prove insanity at the time by clear and convincing evidence—that is, that it is highly probable that the defendant was insane. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

You may consider evidence of defendant's mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.

See FRCRP 12.2 (Notice of Insanity Defense or Expert Testimony of Defendant’s Mental Condition), as to notice of insanity defense.

See 18 USC 4242 (determination of the existence of insanity at the time of the offense); FRE 704 (prohibiting expert testimony as to whether the defendant did or did not have the requisite mental state; such issues are left to the determination of the trier of fact).

Clear and convincing evidence requires that the existence of a disputed fact be highly probable. Colorado v. New Mexico, 467 U.S. 310, 316 (1984). See also United States v. Still, 857 F.2d 671, 672 (9th Cir. 1988) (failing to instruct as to definition of clear and convincing evidence is not plain error).

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254.1 Duress/Coercion

The defendant does not act [willfully] [intentionally] [voluntarily] if the defendant acts under [duress] [coercion] [compulsion] at time of the offense charged. The defendant must prove [duress] [coercion] [compulsion] by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.

A defendant acts under [duress] [coercion] [compulsion] only if at the time of the offense charged:

1. there was an immediate threat of death or serious bodily injury to [the defendant] [a family member of the defendant] if the defendant did not [commit] [participate in the commission of] the crime; and

2. the defendant had a [well-grounded fear] [well-founded fear] that the threat of death or serious bodily injury would be carried out; and

3. the defendant had no reasonable opportunity to escape the threatened harm.

If you find that each of these things has been proved by a preponderance of the evidence, your verdict should be for the defendant.

In Dixon v. United States, 126 S. Ct. 2437 (2006), the Supreme Court decided the issue of the burden of proof announced in this instruction, changing what had previously been the law in the Ninth Circuit. The Court in Dixon held that "[i]n the context of the firearms offenses at issue--as will usually be the case, given the long-established common-law rule--we presume that Congress intended the [defendant] to bear the burden of proving the defense of duress by a preponderance of the evidence." Id. at 2247-48.

This instruction is to be used only when the offense charged has a mens rea element and duress is raised to rebut this element. United States v. Dominguez–Mestas, 929 F.2d 1379, 1381 (9th Cir.), cert. denied, 502 U.S. 958 (1991) (no implicit mens rea for crime of importation of heroin). In all other cases where duress is raised, use Instruction 6.6 (Duress, Coercion or Compulsion (Legal Excuse)).

Ninth Circuit decisions have used the language "well grounded" and "well founded" to describe the second element. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990); United States v. Beltran–Rios, 878 F.2d 1208, 1213 (9th Cir. 1989). The Committee interprets "well founded" and "well grounded" to be an objective test and a judge may wish to use the language "reasonable belief" in describing the second element.

It is not error to refuse a duress instruction in the absence of substantial evidence of duress. United States v. Shapiro, 669 F.2d 593, 597 (9th Cir. 1982); United States v. Hernandez, 608 F.2d 741, 750 (9th Cir. 1979); United States v. Hearst, 563 F.2d 1331, 1337 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

Duress is not a defense to murder, nor will it mitigate murder to manslaughter. United States v. LaFleur, 971 F.2d 200, 206 (9th Cir. 1991), cert. denied, 507 U.S. 924 (1993).

Where the defendant alleges that by virtue of duress, coercion, or compulsion, the defendant knowingly or intentionally committed the criminal act, use Instruction 6.6 (Duress, Coercion or Compulsion (Legal Excuse)). See United States v. Meraz–Solomon, 3 F.3d 298, 300 (9th Cir. 1993) (in prosecution for importation of cocaine, burden is on defendant to prove duress, coercion or compulsion by a preponderance of the evidence).

In United States v. Solorzano-Rivera, 368 F.3d 1073, 1079-81 (9th Cir. 2004), the Ninth Circuit, citing with approval the Comments to Model Instructions 6.5 and 6.6, noted Instruction 6.5 is to be used when the charged offense has a mens rea element and duress is raised to rebut that element; and Instruction 6.6 is to be used when a defendant alleges an offense was committed as a result of duress, coercion, or compulsion. In the first instance, the defense negates an element of the crime, whereas, in the second instance, it precludes conviction even if the elements of the offense have been proved.

The standard of reasonableness applicable to the third element of this defense is "to be determined by what a reasonable person would do under the same or similar circumstances . . . Generally, once a defendant has reached a position where he can safely turn himself in to the authorities he will have a reasonable opportunity to escape the threatened harm . . ." United States v. Verduzco, 373 F.3d 1022, 1030-31 (9th Cir.2004).

Approved 1/2007 (For 2000 version see below).

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2000 Version

The defendant does not act [willfully] [intentionally] [voluntarily] if the defendant acts under [duress] [coercion] [compulsion] at time of the offense charged. If the government fails to prove the absence of duress beyond a reasonable doubt, then you must find the defendant not guilty.

A defendant acts under [duress] [coercion] [compulsion] only if at the time of the offense charged:

1. there was an immediate threat of death or serious bodily injury to [the defendant] [a family member of the defendant] if the defendant did not [commit] [participate in the commission of] the crime; and

2. the defendant had a [well-grounded fear] [well-founded fear] that the threat of death or serious bodily injury would be carried out; and

3. the defendant had no reasonable opportunity to escape the threatened harm.

This instruction is to be used only when the offense charged has a mens rea element and duress is raised to rebut this element. United States v. Dominguez–Mestas, 929 F.2d 1379, 1381 (9th Cir.), cert. denied, 502 U.S. 958 (1991) (no implicit mens rea for crime of importation of heroin). In all other cases where duress is raised, use Instruction 6.6 (Duress, Coercion or Compulsion (Legal Excuse)).

Ninth Circuit decisions have used the language "well grounded" and "well founded" to describe the second element. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990); United States v. Beltran–Rios, 878 F.2d 1208, 1213 (9th Cir. 1989). The Committee interprets "well founded" and "well grounded" to be an objective test and a judge may wish to use the language "reasonable belief" in describing the second element.

It is not error to refuse a duress instruction in the absence of substantial evidence of duress. United States v. Shapiro, 669 F.2d 593, 597 (9th Cir. 1982); United States v. Hernandez, 608 F.2d 741, 750 (9th Cir. 1979); United States v. Hearst, 563 F.2d 1331, 1337 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

Duress is not a defense to murder, nor will it mitigate murder to manslaughter. United States v. LaFleur, 971 F.2d 200, 206 (9th Cir. 1991), cert. denied, 507 U.S. 924 (1993). Where the defendant alleges that by virtue of duress, coercion, or compulsion, the defendant knowingly or intentionally committed the criminal act, use Instruction 6.6 (Duress, Coercion or Compulsion (Legal Excuse)). See United States v. Meraz–Solomon, 3 F.3d 298, 300 (9th Cir. 1993) (in prosecution for importation of cocaine, burden is on defendant to prove duress, coercion or compulsion by a preponderance of the evidence).

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254.1 Duress/Coercion

[Duress] [coercion] [compulsion] legally excuses the crime of [crime charged].

The defendant must prove [duress] [coercion] [compulsion] by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.

A defendant acts under [duress] [coercion] [compulsion] only if at the time of the crime charged:

1. there was an immediate threat of death or serious bodily injury to [the defendant] [a family member of the defendant] if the defendant did not [commit] [participate in the commission of] the crime;

2. the defendant had a [well-grounded fear] [well-founded fear] that the threat of death or serious bodily injury would be carried out; [and]

3. the defendant had no reasonable opportunity to escape the threatened harm; [and]

[4. the defendant surrendered to authorities as soon as it was safe to do so].

If you find that each of these things has been proved by a preponderance of the evidence, your verdict should be for the defendant.

This instruction is to be used only when the offense charged does not have a mens rea element of the offense. United States v. Dominguez–Mestas, 929 F.2d 1379, 1383 (9th Cir.) (defendant has burden of proving duress in prosecution for importation of heroin), cert. denied, 502 U.S. 958 (1991). See also United States v. Hernandez–Franco, 189 F.3d 1151, 1157-58 (9th Cir. 1999) (a defendant claiming duress in a prosecution for attempt to smuggle undocumented aliens in violation of 8 USC 1324(a), must prove duress by a preponderance of the evidence). Where duress rebuts a mens rea element of the offense, use Instruction 6.5 (Duress, Coercion or Compulsion (To Refute Element of Offense)).

Use this instruction when the defendant alleges that by virtue of duress, coercion or compulsion, the defendant knowingly or intentionally committed the criminal act. See United States v. Meraz–Solomon, 3 F.3d 298, 299 (9th Cir. 1993) (in prosecution for importation of cocaine, burden is on defendant to prove duress, coercion or compulsion by a preponderance of the evidence).

The fourth element is to be used only in cases of prison escape. United States v. Solano, 10 F.3d 682, 683 (9th Cir. 1993).

This instruction requires that the defendant prove duress, coercion or compulsion by a preponderance of the evidence. Compare Instruction 6.5 (Duress, Coercion or Compulsion (to Refute Element of Offense) (requiring that the government disprove duress, coercion or compulsion beyond a reasonable doubt).

Ninth Circuit decisions have used the language "well grounded" and "well founded" to describe the second element. United States v. Beltran–Rios, 878 F.2d 1208, 1213 (9th Cir. 1989); United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). The Committee interprets "well founded" and "well grounded" to be an objective test and a judge may wish to use the language "reasonable belief" in describing the second element.

It is not error to refuse a duress instruction in the absence of substantial evidence supporting the elements of the defense. United States v. Shapiro, 669 F.2d 593, 597 (9th Cir. 1982); United States v. Hernandez, 608 F.2d 741, 750 (9th Cir. 1979); United States v. Hearst, 563 F.2d 1331, 1337 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

Duress is not a defense to murder, nor will it mitigate murder to manslaughter. United States v. LaFleur, 971 F.2d 200, 206 (9th Cir. 1991), cert. denied, 507 U.S. 924 (1993).

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

The defendant has offered evidence of having acted in self-defense. Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary under the circumstances.

Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.

The government must prove beyond a reasonable doubt that the defendant did not act in reasonable self-defense.

The first two paragraphs of this instruction are identical to the self defense instructions contained in previous editions.  See, e.g., MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, 6.5 (1997).  The Ninth Circuit had found that the first two paragraphs of this instruction adequately inform the jury of defendant's defense where "[t]he court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the defendant had not acted in reasonable self defense."  United States v. Keiser, 57 F.3d 847, 850-52 (9th Cir.), cert. denied, 516 U.S. 1029 (1995) (discussing Criminal Jury Instruction 6.05, 1992 edition).

Failure of the trial court to instruct the jury that the government has "to disprove beyond a reasonable doubt any claim of self defense" is reversible error. United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998).

A defendant is entitled to a self defense instruction when "there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility." United States v. Sanchez-Lima, 161 F.3d at 549.

See also Comment to Instruction 4.5 (Character of Victim) for a discussion of the admissibility of the victim’s character where self defense is claimed.

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256.6 Intoxication, Voluntary

You may consider evidence of [intoxication] [abnormal mental condition] in deciding whether the government has proved beyond a reasonable doubt that the defendant acted with the intent to commit [crime charged].

"A defense based on voluntary intoxication is available only for a specific intent crime." (citations omitted). United States v. Burdeau, 168 F.3d 352, 355 (9th Cir.), cert. denied, 120 S. Ct. 388 (1999).

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251.6 Mere Presence, Knowledge, Association, Etc.

Mere presence at the scene of a crime or mere knowledge that a crime is being committed is not sufficient to establish that the defendant committed the crime of [crime charged], unless you find that the defendant was a participant and not merely a knowing spectator. The defendant's presence may be considered by the jury along with other evidence in the case.

A "mere presence" instruction is unnecessary if the government’s case is not solely based on the defendant’s presence and the jury has been instructed on the elements of the crime. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992).

Where the government's case rests primarily on the defendant's presence and nothing more, a mere presence instruction should be given. United States v. Medrano, 5 F.3d 1214, 1218 (9th Cir. 1993).

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257.4 Equitable Estoppel

If a defendant engages in conduct violative of a criminal statute at the request of a government enforcement officer, with the reasonable belief that the defendant is acting as an authorized government agent to assist in law enforcement activity, then the defendant may not be convicted of violating the criminal statute, because the requisite criminal intent is lacking. The government must prove beyond a reasonable doubt that the defendant did not have a reasonable belief that [he] [she] was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment.

See FRCRP 12.3 (Notice of Defense Based Upon Public Authority) regarding giving notice of the defense.

See United States v. Davis, 76 F.3d 311, 314 (9th Cir. 1996); United States v. Mason, 902 F.2d 1434, 1440–41 (9th Cir. 1990).