CRIMINAL PATTERN JURY INSTRUCTIONS

1 CRIMINAL PATTERNJURY INSTRUCTIONSP repared by theCriminal PATTERN JuryInstruction Committeeof the United StatesCourt of Appeals for theTenth Circuit 2021 EditionFor Customer Assistance Call 1-800-328-4880 Mat #42869766 The Uniform CRIMINAL jury INSTRUCTIONS Committee wishes tothank all who have assisted in the preparation of theseinstructions. We are especially appreciative of the efforts of Rob-ert J. Tepper, Esq., permanent law clerk of Judge Kelly, and theOffice of Staff Counsel for the Tenth Circuit. Special thanks areaccorded to Niki Heller, Esq., Chief Staff Counsel to the TenthCircuit, and our Reporter, Professor Justin Marceau, Esq., of theUniversity of Denver, Sturm College of Honorable Paul J. Kelly, , Circuit JudgeHonorable Bobby R.

2 Circuit JudgeHonorable Phillip A. BrimmerUnited States District Judge, District of ColoradoHonorable Timothy D. DeGiustiUnited States District Judge, Western District of OklahomaProfessor Justin Marceau, Esq. (Reporter)University of Denver, Sturm College of LawNiki Esmay HellerChief Staff CounselJames C. Murphy, United States AttorneyNorm Mueller, , Morgan, Mueller, Jordan, Mackey & Foreman, Rossman, Federal Public DefenderiiiJUDICIAL COUNCIL OF THETENTH CIRCUIT RESOLUTION Resolved that the Committee on PATTERN jury INSTRUCTIONS ofthe Judicial Council of the Tenth Circuit is hereby authorized todistribute to the District Judges of the Circuit for their aid andassistance, and to otherwise publish, the Committee s PatternJury Instruction, CRIMINAL Cases, Tenth Circuit (2005).

3 Provided,however, that this resolution shall not be construed as anadjudicative approval of the content of such INSTRUCTIONS , whichmust await case-by-case review by the JudgeUnited States Court of AppealsFor the CouncilDate: September 1, 2005vBRIEF INTRODUCTION TO THE THIRD EDITION In the ten years since the second edition of these Instructionswas issued, the Committee has engaged in a process of continualreview and revision of the INSTRUCTIONS , Comments and UseNotes. Feedback has come not only from Supreme Court andTenth Circuit decisions, but from trial judges, practitioners, andthe Committee Members themselves. The Committee has metregularly to discuss various changes which, when adopted, havebeen placed on the Tenth Circuit website pending the first edition s Introduction should be read by users ofthese PATTERN INSTRUCTIONS as the principles set forth there arestill applicable.

4 The Committee has endeavored to evaluate theInstructions and commentary for conformity with current andevolving statutory and case law and has revised accordingly. TheCommittee has endeavored to render correct statements of thelaw, and these PATTERN INSTRUCTIONS are intended to assist judgesand practitioners in instructing the jury in individual cases. Asthe law continually develops, the Committee will continue Committee expresses its thanks to its former membersand advisers for their foundational work on these NOTE The Committee notes that the use of these INSTRUCTIONS is amatter committed to the discretion of the trial court. They neverneed to be givenverbatim, and the presence or absence of a par-ticular instruction is not indicative of the Committee s view thatthe instruction should or should not be given.

5 The Committeerecommends that the titles of individual INSTRUCTIONS not be givento the Committee does not recommend the use of language liftedfrom cases when drafting INSTRUCTIONS . Case law employslanguage written for lawyers, not for jurors. The Committeerecommends drafting INSTRUCTIONS in plain we recognize that the matter is ultimately left to thedistrict court s discretion, the Committee suggests that thedefendant s name be used in the INSTRUCTIONS (rather than generi-cally referring to the defendant ).The pronoun he has been used throughout. It should bereplaced as indicate optional material, or material that needs tobe adapted to a given case. Where additional INSTRUCTIONS wouldbe helpful in light of certain defenses having been raised, the ad-ditional INSTRUCTIONS may be found in the Use Notes following themodel INSTRUCTIONS .

6 Comment indicates source material forinstructions. Use Note indicates suggestions regarding use Committee has attempted to insert a Use Note whereverApprendi v. New Jersey, 530 466 (2000), would require that sentence enhancers be proved before a jury at trial, beyond areasonable doubt. The Committee recommends that wherever anissue raised under Apprendi v. New Jersey, 530 466 (2000),and its progeny, is submitted to the jury , the resolution of that is-sue be included in the verdict absence of a Tenth Circuit case citation with a particularinstruction indicates that no relevant Tenth Circuit case wasfound. Updates will be issued periodically by the Circuit, or byixthe publisher of these its work, the Committee relied on the model INSTRUCTIONS ofother circuits, INSTRUCTIONS submitted to the Committee byDistrict Judges throughout the Tenth Circuit, the independentresearch by the members of the Committee, and comments madeduring the public comment period.

7 In order to avoid confusion,source references are not indicated in the model INSTRUCTIONS . TheCommittee was concerned that, should sources be indicated,alterations in the source material might be construed as implyingalterations in the model INSTRUCTIONS . Nevertheless, the Commit-tee acknowledges that the RICO INSTRUCTIONS and comments arederived from 3 Leonard B. Sand, John S. Siffert, Walter & Steven A. Reiss, Modern Federal jury INSTRUCTIONS , CRIMINAL , ch. 52 (2002).The Committee has used Comments and Use Notes toindicate source material and identify issues. The Committee s ap-proach was to generate generic minimalist INSTRUCTIONS thatwould be tailored to individual CRIMINAL jury INSTRUCTIONSxTABLE OF CONTENTSGENERAL Preliminary INSTRUCTIONS Before Note-Taking by Introduction to Final Duty to Follow Presumption of Innocence Burden of Proof Reasonable Preponderance of Evidence Evidence Direct and Circumstantial Credibility of Non-Testifying Evidence of Good Evidence of Reputation for Impeachment by Prior Impeachment by Prior Impeachment by Prior Impeachment by Evidence of Untruthful Accomplice Informant Accomplice Co-Defendant Plea Witness s Use of Addictive Expert On

8 Or Caution Consider Only Crime Caution Multiple Defendants Single Multiple Defendants Multiple Duty to Deliberate Verdict Unanimity of Voluntariness of Statement by Confession-Statement Voluntariness by Self-Defense or Defense of Identification Similar Actual or Constructive Lesser Included Defendant s Non-Involvement (Alibi).. Coercion or Knowingly Deliberate Willfully To Interstate and Foreign Commerce Defined 18 10 .. Interstate and Foreign Commerce Effect on 18 10 .. Cautionary Instruction During Summaries and Partial Verdict Communication with the 70 SUBSTANTIVE Food Stamps Unauthorized Use 7 2024(b).

9 Bringing in an Alien 8 1324(a)(1)(A)(i).. Bringing in An Alien 8 1324(a)(2).. Alien Illegal Transportation 8 1324(a)(1)(A)(ii) Alien Concealment 8 1324(a)(1)(A)(iii).. Reentry of Deported Alien 8 1326(a).. Aid and Abet 18 2(a).. Accessory After the Fact 18 Misprision of a Felony 18 Assaulting a Federal Officer 18 Bankruptcy Fraud (Property Concealment) 18 152(1).. Bankruptcy Fraud (Scheme or Artifice to Defraud) 157(1).. Bribery of a Public Official 18 201(b)(1).. Receiving a Bribe by a Public Official 18 201(b)(2).. Illegal Gratuity to a Public Official 18 201(c)(1)(A).. Receiving an Illegal Gratuity by a Public Official 201(c)(1)(B).

10 Bribery or Reward of a Bank Officer 18 215(a)(1).. Conspiracy to Deprive Person of Civil Rights 18 105 PATTERN CRIMINAL jury Deprivation of Civil Rights 18 False Claims Against the Government 18 Conspiracy 18 Conspiracy: Evidence of Multiple Conspirator s Liability for Substantive Withdrawal Counterfeiting 18 Passing Counterfeit Obligations or Securities 18 Importation, Possession or Concealment of CounterfeitObligations or Securities 18 Forgery 18 Passing a Forged Writing 18 Forgery of Endorsement on United States TreasuryCheck, Bond, or Security 18 510(a)(1).. Passing a Forged United States Treasury Check, Bond,or Security 18 510(a)(2).