Sample Instruction: Forfeiture -- Relevant Factors (Ohio)

If you find that the State has failed to prove by a preponderance of the evidence that the $ 5,746.00 in United States currency was used or intended to be used in any manner to commit or to facilitate the commission of the Possession of Marijuana, you must find that the $ 5,746.00 in United States currency is not subject to forfeiture. When determining whether [an alleged instrumentality] [this currency] was used in or was intended to be used in the commission or facilitation of an offense consider:

(1) Whether the offense could not have been committed or attempted but for the presence of the [instrumentality] [this currency];

(2) Whether the primary purpose in using the [instrumentality] [currency] was to commit or attempt to commit the offense;

(3) The extent to which the [instrumentality] [currency] furthered the commission of, or an attempt to commit, the offense.

Source: Adapted from State v. Johnson, 2010 Ohio 1970, P47-52 (Ohio Ct. App., Trumbull County, No. 2009‑T‑0042, Apr. 30, 2010) [“The trial court should have instructed the jury[on] these [] factors with respect to the issue of forfeiture”].

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

3.1 - Duty To Instruct On Elements Of The Charged Offense

257.2.6 - Forfeiture: Double Jeopardy, Former Jeopardy Defense

Forecite CaliforniaÔ

PG VI(C)(8) - Duties of Counsel in Civil Forfeiture Proceedings

F 3500.1 Note 10 - Juror Unanimity: Civil Forfeiture Proceeding

F 3308 13 Note - Forfeiture: Double Jeopardy Defense

Sample Instruction: Admonition That Improper Argument “Never Happened” (Ohio)

When you are instructed to ignore something, you will treat it as though it never happened. What the attorneys say in this case is not evidence. I will instruct you later on this, but I want to instruct you now, that you will decide this case on the evidence of the case and not statements of counsel.

Source: Given in State v. Kleekamp, 2010 Ohio 1906 (Ohio Ct. App., Montgomery County, No. 23533, Apr. 30, 2010).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

4.3.2.4 - Strategic Concerns Regarding Whether Or Not To Request Cautionary Or Limiting Instructions

16.1.4 - Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/ Limiting Instruction

272.5.2 - Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction

272.5.4 - Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument

272.5 - Summation/Closing Argument: Prosecutor Misconduct ‑‑ Curative Instructions

297.3.1 - Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice

The Shellow Instructions

Prosecution Misconduct

Forecite CaliforniaÔ

PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error

F 2.019 n6 - Prosecutorial Misconduct: Arguing Factually Unsupported Inferences

F 2.019a - Admonition To Counteract Prosecutor Misconduct

F 100.4 Inst 2 - Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction

F 100.4 Note 4 - Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct

Judge Should Not Give Superfluous Instructions (Ohio)

"A criminal defendant has the right to expect that the trial court will give complete jury instructions on all issues raised by the evidence." State v. Williford (1990), 49 Ohio St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App. No. 22301, 2008 Ohio 2892, P9. As a corollary, a court should not give an instruction unless it is specifically applicable to the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 2005 Ohio 4736, P19, 837 N.E.2d 823; see also State v. Kleekamp, 2010 Ohio 1906 (Ohio Ct. App., Montgomery County, No. 23533, Apr. 30, 2010).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

3.2.14 - Duty To Screen Out Factually Unsupported Theories

3.3.3.1 - Duty To Correct When Requested Instruction Is Incomplete Or Incorrect

295.3.1.3 - Correct Instruction Required Sua Sponte

295.3.1.4 - Duty To Correct Requested Defense Theory Instruction Which Is Incorrect Or Incomplete

297.2.9 - Prejudice On Appeal: Erroneous Or Incomplete Instructions In Response To Jury Inquiry

297.2.10 - Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error

297.2.11 - Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction

297.2.12 - Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions

297.2.13 - Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One

Forecite CaliforniaÔ

PG V(C) - Correction Of Defects

PG X(E)(8) - Correct Preinstruction Does Not Cure Error

PG X(E)(9) - Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction

PG X(E)(10) - Correct Supplemental Instruction Does Not Cure Error

PG X(E)(14) - Cross‑Examination Cannot Cure Instructional Error

PG X(E)(16) - Errors In Superfluous or Irrelevant Instructions

Improper To Convict On Time-Barred Lesser Included Offense (New Jersey)

“The majority rule is that a person cannot be convicted of a lesser offense on a prosecution for a greater crime which includes the lesser offense, commenced after the statute of limitations has run on the lesser offense. The rationale underlying the rule is that "a statute of limitations in a criminal case, unlike such a statute in civil matters, is not merely a statute of repose but creates a bar to prosecution. It is well settled in this State that there is an absolute bar to prosecution after the statute has run, and, therefore the statute can be asserted at any time, before or after judgment. [Internal citations and punctuation omitted.]”  State v. E.W., 413 N.J. Super. 70, 73‑78 (App.Div., No. A‑0146‑08T4, 4/27/2010).

However, “[w]hether a defendant is entitled to a lesser included offense instruction and whether the statute of limitations has run on a crime are two separate questions. In New Jersey, as in Wisconsin, the "jury operates independently of sentencing and punishment concerns." And in New Jersey, as in Wisconsin, "the running of the statute of limitations does not preclude the jury from reaching a verdict convicting the defendant of a crime; it rather precludes the trial court from entering a judgment of conviction on the finding of guilt. [Internal citations and punctuation omitted.]” Ibid.

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ
257.9.6 - Ex Post Facto Violation To Revive Time‑Barred Prosecutions By Extension Of Statute Of Limitations

257.9.7 - Lack Of Notice As Defense Theory To Amended Charges Which Relate Back To Time‑Barred Offense

265.3.1.1 - Time‑Barred Lesser: Request For Instruction Waives Statute Of Limitation

265.5.3 - Waiver Of Statute Of Limitations To Allow Instruction On Time‑Barred Lesser Offenses

Forecite CaliforniaÔ

PG V(B)(5) - Requested Instruction On Time‑ Or Jeopardy‑Barred Lesser

PG VI(A)(8) - Duty To Object To Time‑Barred Lesser Offenses

LIO II(E)(1) - Time‑Barred Lesser Offenses

Montana Decision Requires Specific Juror Unanimity As To Predicate Intent For Burglary Charge

In State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900, the reviewing court determined that the district court's improper jury instructions on a burglary charge denied Hardaway his right to a unanimous verdict. Hardaway, P 71. The State alleged in its amended information that Hardaway entered a building and "intended to commit either a theft or a sexual crime against the victim." Hardaway, P 68. The trial judge failed to instruct Hardaway's jury that it had to reach a unanimous decision on whether Hardaway intended to commit a theft or whether he intended to commit a sexual crime. Hardaway, P 71. The court reversed Hardaway's conviction because the jury "must be in agreement as to the principal factual elements underlying a specified offense." Hardaway, P 70.

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

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

273.9 - Jury Unanimity As To Predicate Acts Of Compound Offenses

Forecite CaliforniaÔ

F 17.01 - Juror Unanimity

SERIES 3500 POST‑TRIAL: CONCLUDING (A. Unanimity)

Cognizability Of Unpreserved Instructional Error (Minnesota)

Minnesota courts review unobjected‑to error to determine whether it constitutes plain error affecting appellant's substantial rights. Minn. R. Crim. P. 31.02; see State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (requiring appellant to establish plain error by showing (1) error, (2) that was plain, and (3) which affected appellant's substantial rights). Substantial rights are affected when "there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict." State v. Vance, 734 N.W.2d 650, 659 (Minn. 2007).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

295.3 - Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below

Forecite CaliforniaÔ

PG VI(A) - Cognizability On Appeal Of Instructional Error: Failure To Object

Presumption That Jurors Follow Instructions (5th Circuit)

There exists a well‑established presumption that jurors understand and follow the Court's instructions. See United States v. Patino‑Prado, 533 F.3d 304, 313 (5th Cir.), cert. denied, 129 S. Ct. 328, 172 L. Ed. 2d 236 (2008). This presumption can be overcome only when there "is an overwhelming probability that the jury will be unable to follow the instruction and there is a strong probability that the effect is devastating." Id. (quoting United States v. Barksdale‑Contreras, 972 F.2d 111, 116 (5th Cir. 1992)).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

297.1 - General Rules In Evaluating Prejudicial Effect Of Instructions

297.1.3 - Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel

Forecite CaliforniaÔ

PG X(G) - Effect of Argument on Instructional Error

PG X(G)(2) - Jurors Presumed To Follow The Law Instead Of Argument

Sample Instruction: Elements Of Entrapment By Estoppel

1) an authorized federal government official who was empowered to render the claimed erroneous advice,

2) was made aware of all the relevant historical facts, and

3) affirmatively told the Defendant that the proscribed conduct was permissible,

4) the defendant relied on that incorrect information, and

5) defendant's reliance was reasonable.

Source: Given in United States v. Lynch, (C.D. Cal., No. CR 07‑0689‑GW, Apr. 29, 2010).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

257.4.3 - Entrapment By Estoppel Or Equitable Estoppel: Burden Of Proof

257.4.4 - Entrapment By Estoppel: Applicable To Strict Liability Crimes

The Shellow Instructions

Entrapment

Forecite CaliforniaÔ

F 3305 Inst 2 - Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization

Sample Instruction: Mistake As Explanation For Flight (10th Circuit)

Evidence that the defendant immediately fled after having been accused of committing a crime is a circumstance that, if proven, can be considered by the jury as showing a consciousness of guilt on the part of the defendant.

In your evaluation of this evidence of flight you may consider that there may be reasons‑‑fully consistent with innocence–that could cause a person to flee. Fear of law enforcement or a reluctance to become involved in an investigation or simple mistake may cause a person who has committed no crime to immediately flee.

Whether or not evidence of immediate flight on the part of the defendant causes you as members of the jury to find a consciousness of guilt on his part and the significance, if any, of that consciousness of guilt is entirely up to you as the sole judges of the facts of this case.

Source: Given in United States v. Chancellor, 376 Fed. Appx. 826, 829‑830 (10th Cir. Okla., No. 08‑5171, 4/26/2010) [NOTICE: This opinion is UNPUBLISHED.]

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

34.1 - Opposing Or Limiting Consciousness Of Guilt Instructions

34.2 - Consciousness Of Guilt: General Instructional Principles

34.3 - Flight

The Shellow Instructions

No Inference Of Guilt From Flight

Forecite CaliforniaÔ

F 2.52 - Flight

F 372 - Defendant's Flight

F 372 Note 13 - Merely Leaving A Location Does Not Justify A Flight Instruction

Felony Murder: Aider And Abettor Must Join Crime Before Victim Was Killed (9th Circuit)

In United States v. Scaggs, 377 Fed. Appx. 653 (9th Cir. Cal., No. 08‑50492, No. 08‑50493, 4/26/2010) the defendant argued by analogy to California's felony murder rule that an accomplice must aid and abet the underlying felony at or before the time of the killing. See People v. Pulido, 15 Cal.4th 713, 723, 63 Cal. Rptr. 2d 625, 936 P.2d 1235 (1997). The 9th Circuit assumed, without deciding, that the federal rule is the same. 

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

64.1 - Accomplice Liability: Intent And Knowledge Elements

64.4 - Accomplice Liability: Knowledge, Intent And Act Must Precede The Crime

92.9.4 - Felony Murder: Defenses And Defense Theories

92.9.4.10 - No Felony Murder Liability Based On After‑Acquired Intent To Commit Predicate Felony

92.9.4.11 - Accomplice Liability For Felony Murder: Intent To Aid And Abet Must Be Formed Before Or During The Killing

The Shellow Instructions

Accomplice Liability: Acts Must Be Committed Before Or During The Offense

Aiding And Abetting First‑Degree Murder: Factors To Consider

Defendant Must Have Knowledge And Intend To Aid And Abet Person Who Actually Commits The Crime; Mere Association Or Presence Insufficient

Forecite CaliforniaÔ

F 401.5 Inst 1 (a‑c) - Aiding And Abetting Requires Knowledge Of Perpetrator's Intent Prior To Commission Of The Crime

F 540A.5 Inst 1 - Felony Murder: Timing Of Intent To Commit Felony

F 540B.6 Inst 3 - Felony Murder: After‑Acquired Intent Of Aider And Abettor—Pinpoint Instruction (PC 189 & PC 459)

Sample Instruction: Robbery As Continuing Offense (9th Circuit)

The crime of robbery continues beyond the immediate scene of the robbery and necessarily encompasses the escape. The crime is completed when the robber's concern of being apprehended is no longer imminent or the robbery has arrived at a point of temporary safety. You should consider these responses or definitions along with the entirety of [the aiding and abetting instruction] and all of the other instructions provided to you.

Source: Adapted from instruction approved in United States v. Scaggs, 377 Fed. Appx. 653 (9th Cir. Cal., No. 08‑50492, No. 08‑50493, 4/26/2010) [NOTICE: This opinion is UNPUBLISHED]; see also United States v. Dinkane, 17 F.3d 1192, 1199 (9th Cir. 1994).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

92.9.3.3 - Temporary Safety Rule Applicable To Burglary

92.9.3.5 - Termination Of Felony: Temporary Safety As One Of Several Factors To Consider

92.9.3.6 - Robbery ‑‑ When Still in Progress/Felony Murder

92.9.3.7 - Robbery: When Still In Progress ‑‑ Distinction Between Underlying Offense And Felony Murder

100.1 - Robbery

Forecite CaliforniaÔ

F 1603.2 Inst 2 - Robbery: When Still In Progress— Temporary Safety Defined (PC 189 & PC 211)

F 1603.2 Inst 3 - Robbery: Improper To Allow Aider And Abettor Liability Based On Intent Formed After The Perpetrator Has Carried The Property To A Place Of Temporary Safety (PC 189 & PC 211)

Plain Error Review Of Jury Instructions (8th Circuit)

In United States v. Byers, 603 F.3d 503, 506‑507 (8th Cir. Mo., No. 09‑1917, 4/28/2010) Byers contended that the district court erred when it instructed the jury that the length of time that each firearm was possessed was not relevant. Because Byers did not object to the instruction, the appellate court reviewed for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429, 173 L. Ed. 2d 266 (2009) [explaining that there is a narrow exception to the general rule that a litigant must object in a timely manner to preserve an issue for appeal]. To establish plain error Byers was required to demonstrate that (1) there was an error that he did not affirmatively waive, (2) the error was clear and obvious, (3) the error affected his substantial rights, and (4) the error seriously affected  the fairness, integrity or public reputation of judicial proceedings. Id.; United States v. Martin, 583 F.3d 1068, 1074 (8th Cir. 2009).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

Chapter 296: Standards of Review And Prejudice On Appeal

Forecite CaliforniaÔ

PG X(A) Standards of Review

PG X(B) Standards Of Prejudice
PG X(C) Nature Of The Error Determines Standard Of Prejudice

Failure To Object To Jury Instruction: Plain Error Standard Of Review (8th Circuit)

Where the defendant did not object to the challenged jury instruction at trial, the appellate court reviews the instruction for plain error. United States v. Kent, 531 F.3d 642, 655 (8th Cir. 2008). The defendant must show "(1) an error, (2) that was plain, (3) affects substantial rights, and (4)¼seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Rush‑Richardson, 574 F.3d 906, 910 (8th Cir. 2009).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

Chapter 4: Duty Of Counsel Regarding Instructions

Forecite CaliforniaÔ

PG VI(C)(4.3) - Failure To Object To Instruction As Ineffective Assistance Of Counsel

Rationale For Buyer-Seller Defense Theory (11th Circuit)

There is a "critical distinction between a conspiratorial agreement and a buyer‑seller transaction."  United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999).  In a buyer‑seller relationship, the parties come to an agreement, but the agreement amounts to the mere exchange of drugs for money. This type of transaction "is simply not probative of an agreement to join together to accomplish a criminal objective beyond that already being accomplished by the transaction." Ibid. (quotation omitted). In other words, "[w]here the buyer's purpose is merely to buy and the seller's purpose is merely to sell, and no prior or contemporaneous understanding exists between the two beyond the sales agreement, no conspiracy has been shown." Ibid. (quotation omitted).

Thus, the buyer‑seller jury instruction is based on the principle that, where the extent of the relationship between two individuals is an agreement to buy and sell narcotics, this evidence does not demonstrate that the two individuals were in a conspiracy together. See United States v. Beasley, 2 F.3d 1551, 1560‑61 (11th Cir. 1993).  However, this instruction is not appropriate where two individuals frequently deal in large quantities of narcotics. United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

83.3.2 - Buyer‑Seller Relationship Is Not A Conspiracy

88.1.3 - Defense Theory That Buyer‑Seller Relationship Is Not A Drug Conspiracy

The Shellow Instructions

Mere Buyer‑Seller Relationship Is Not Conspiracy

Mere Cooperation Of Seller And Buyer Is Not Sufficient

Buyer Seller: Mere Act Of Sale Not Proof Of Conspiracy

Conspiracy: Mere Knowledge Of Buyer’s Intent To Resell Not Sufficient

Forecite CaliforniaÔ

F 3.00d - Buyer‑Seller Relationship: Factors To Consider

F 6.10i - Conspiracy: Buyer‑Seller Instruction

F 2300 Note 7 - Drug Sales: Buyer‑Seller

Presumption That Jurors Follow The Instructions (10th Circuit)

Reviewing courts presume the jury will follow the instructions. See United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998) ["A central assumption of our jurisprudence is that juries follow the instructions they receive."]; see also Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985) ["Absent . . . extraordinary situations, . . . we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions."]; United States v. Hamilton, 587 F.3d 1199, 1219 (10th Cir. 2009) ["Jurors are presumed to follow the judge's instructions." (quotations and citation omitted)].

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

297.1.3 - Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel

Forecite CaliforniaÔ

PG X(G)(2) - Jurors Presumed To Follow The Law Instead Of Argument

Juror Unanimity: Continuous Conduct Exception (Washington)

In Washington if there is evidence of several distinct criminal acts that could form the basis of one charged count, the prosecution must either elect the act on which it will rely for conviction or the judge must instruct the jury to unanimously agree on a specific criminal act beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). The failure to elect or give a specific unanimity instruction is a constitutional error that may be raised for the first time on appeal. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).

However, these requirements do not arise when the evidence demonstrates a continuous course of conduct. Petrich, 101 Wn.2d at 571. “Under the ‘continuous conduct’ exception, the jury must be unanimous only that the continuous conduct occurred.” State v. York, 152 Wn. App. 92, 96, 216 P.3d 436 (2009). To assess whether there is a continuing course of conduct, the facts are evaluated in a commonsense manner considering (1) the time separating the criminal acts and (2) whether the criminal acts involved the same parties, the same location, and the same ultimate purpose. State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). For example, in State v. Crane, 116 Wn.2d, 315, 326, 804 P.2d 10 (1991), the Washington Supreme Court concluded that a unanimity instruction was unnecessary because several assaults over a two‑hour period constituted “continuous conduct.”

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

273.7.2 - Continuing Course Of Conduct Exception To Jury Unanimity Requirement

Forecite CaliforniaÔ

F 17.01 n12 - Juror Unanimity: Continuous Course‑of‑Conduct Crimes

F 17.01 n37 - Continuing Course Of Conduct: Whether Jury Should Be Informed That Unanimity Is Not Required

F 17.01e - Special Unanimity Instruction For Continuous Course Of Conduct Offenses 

Standard Of Review: Affirming Judge’s Ruling On Unstated Grounds (6th Circuit)

A judge’s ruling as to whether or not to give a cautionary or limiting instruction is generally reviewed under an abuse of discretion standard.  See Williams v. Eau Claire Public Schools, 397 F.3d 441, 445 (6th Cir. 2005).  Under this standard a ruling may be affirmed under a plausible rationale even if that rationale was not stated by the judge.  See e.g., United States v. Reesor,  [Note: not recommended for full‑text publication.] 2001 U.S. App. LEXIS 8921, 10 F. App'x 297, 305‑06 (6th Cir. 2001) [finding no abuse of discretion in an evidentiary ruling where there was a plausible explanation for the court's decision, even though the district court did not offer the explanation itself]; see also United States v. Blakely, 375 Fed. Appx. 565, 569‑571 (6th Cir. Tenn., No. 08‑5921 4/29/2010) [Note: not recommended for full‑text publication.]

CAVEAT: In some situations a limiting/cautionary instruction may be required upon. See this post discussing FRE 105.

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

Chapter 296: Standards of Review And Prejudice On Appeal

Forecite CaliforniaÔ

PG X(A) - Standards of Review

PG X(B) - Standards Of Prejudice

PG X(C) - Nature Of The Error Determines Standard Of Prejudice

Presumption That Jurors Follow Limiting Instructions (11th Circuit)

When a court gives the jury a limiting instruction, the jury is presumed to follow it. United States v. Chirinos, 112 F.3d 1089, 1100 (11th Cir. 1997) (quotations omitted).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

4.3.2 - Cautionary And Limiting Instructions: Requests And Objections

297.1.3 - Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel

Forecite CaliforniaÔ

PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction

PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error

PG X(E)(19)(1.1) - Inability Of Limiting Instructions To Cure Evidentiary Error

PG X(E)(19)(2) - Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter

PG X(E)(19)(3) - Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given

PG X(G)(2) - Jurors Presumed To Follow The Law Instead Of Argument

Conspiracy: Buyer-Seller Defense Theory Adequately Covered By Other Instructions (11th Circuit)

In United States v. Russell, 378 Fed. Appx. 884, 888 (11th Cir. Ala., No. 09‑13073, 4/30/2010) [UNPUBLISHED] the defendant argued that the district court abused its discretion in denying his request for a buyer‑seller jury instruction. The reviewing court disagreed holding that Russell's case was controlled by United States v. Lively, 803 F.2d 1124, 1128 (11th Cir. 1986) ["If the charge to the jury adequately and correctly covers the substance of the requested instruction, there is no reversible error."].  That case held that a conspiracy instruction, tracking almost verbatim the instruction given in Russell's case, sufficiently addressed the substance of the requested buyer‑seller instruction and the district court did not abuse its discretion in denying the defendant's proffered instruction. Id. at 1129. Both the instruction in Lively and the instruction given in Russell stated that for a defendant to be guilty of conspiracy two or more persons must come "to a mutual understanding to try to accomplish a common and unlawful plan"; that the defendant must "knowingly" and "willfully" enter the conspiracy; and that "a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a conspirator." Id. Therefore, Russell's conviction was affirmed on this ground.  ]

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

83.3.2 - Buyer‑Seller Relationship Is Not A Conspiracy

The Shellow Instructions

Mere Buyer‑Seller Relationship Is Not Conspiracy

Mere Cooperation Of Seller And Buyer Is Not Sufficient

Buyer Seller: Mere Act Of Sale Not Proof Of Conspiracy

Conspiracy: Mere Knowledge Of Buyer’s Intent To Resell Not Sufficient

Forecite CaliforniaÔ

F 3.00d - Buyer‑Seller Relationship: Factors To Consider

F 6.10i - Conspiracy: Buyer‑Seller Instruction

Constructive Variance (4th Circuit)

A criminal defendant may only be tried on charges alleged in an indictment, and "only the grand jury may broaden or alter the charges in the indictment." United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). "A constructive amendment to an indictment occurs when . . . the court (usually through its instructions to the jury) . . . broadens the possible bases for conviction beyond those presented by the grand jury," which results in a "fatal variance[] because 'the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.'" United States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting Randall, 171 F.3d at 203 (internal quotation marks omitted)). Constructive amendments are "error per se and, given the Fifth Amendment right to be indicted by a grand jury, 'must be corrected on appeal even when not preserved by objection.'" United States v. Foster, 507 F.3d at 242 (quoting United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994)).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

Chapter 40: Variance Between Pleading And Proof

300.2.1 - Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel

300.2.4 - Due Process/Notice: Variance Between Information And Proof At Trial

300.2.5 - Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

The Shellow Instructions

Defendant Not On Trial For Any Act Or Conduct Not Alleged In Charging Document

Variance Between Pleading And Proof

Forecite CaliforniaÔ

PG VII(C)(11) - Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process

PG VII(C)(11.1) - Due Process Notice: Variance Between Information And Proof At Trial

F 207 Note 1 - Time of Crime: Effect Of Accusatory Pleading And Proof

F 207 Note 2 - Time of Crime: Request For Continuance Necessary To Preserve Variance Issue

CG 6.1 - Due Process And Notice—Generally

Federal Rules Of Evidence Require Limiting Instruction On Request

In the trial context courts regularly allow the admission of evidence for one purpose but not another, and they use a limiting instruction to channel the jury to consider that evidence properly. See FRE 105 ["When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."]; see also United States v. Lujan, 603 F.3d 850, 860‑861 (10th Cir. N.M., No. 09‑2046, 2010).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

4.3.2 - Cautionary And Limiting Instructions: Requests And Objections

Chapter 26: Limited Purpose Evidence

272.5.5 - Circumstances Where Cautionary And Limiting Instructions May Be Effective

297.3.2 - Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter

The Shellow Instructions

Evidence: Limiting Instructions

Forecite CaliforniaÔ

PG X(E)(19)(2) - Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter

PG X(E)(19)(3) - Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given

Mere Departure From The Scene Is Not Flight

“Flight from justice means some escape or affirmative attempt to avoid apprehension. However, a mere departure from the scene of the crime is not to be confused with a deliberate flight from the area in which the suspect is normally to be found." State v. McClurkin, 2010 Ohio 1938, P34‑P35 (Ohio Ct. App., Butler County,  No. CA2007‑03‑071, May 3, 2010). [Internal citations and quotation marks omitted].

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

34.1 - Opposing Or Limiting Consciousness Of Guilt Instructions

34.2 - Consciousness Of Guilt: General Instructional Principles

34.3 - Flight

34.3.8 - Departure Is Not Flight

The Shellow Instructions

No Inference Of Guilt From Flight

Forecite CaliforniaÔ

F 372 - Defendant's Flight

F 372 Note 13 - Merely Leaving A Location Does Not Justify A Flight Instruction

Sample Instruction: No Consideration Of Flight If Jurors Unable To Determine Defendant’s Motivation

In regard to this evidence you are instructed that flight from justice, concealment and related conduct, in and of itself does not raise a presumption of guilt, but it may tend to show a consciousness of guilt on the part of the Defendant or a guilty connection with the crime.

If you find that the Defendant's conduct was not motivated by consciousness of guilt, or if you are unable to determine what the Defendant's motivation was, you should not consider this evidence for any purpose. However, if you find that the testimony is true and you find that the defendant's conduct was motivated by consciousness of guilt, you may consider that evidence in determining whether or not the Defendant is guilty of one or more of the offenses charged. You alone will determine the weight, if any, to be given to this evidence.

Source:  State v. McClurkin, 2010 Ohio 1938, P34‑P35 (Ohio Ct. App., Butler County,  No. CA2007‑03‑071, May 3, 2010).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

34.1 - Opposing Or Limiting Consciousness Of Guilt Instructions

34.2 - Consciousness Of Guilt: General Instructional Principles

34.3 - Flight

The Shellow Instructions

No Inference Of Guilt From Flight

Forecite CaliforniaÔ

F 2.52 - Flight

F 372 - Defendant's Flight

Judge’s Obligation To Give Requested Instruction (North Carolina)

"'[W]here a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.'" State v. Jones, 337 N.C. 198, 206, 446 S.E.2d 32, 36 (1994) (quoting State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985)).

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

3.3 - Duty Of Court: Requested Instructions

296.1 - Standards Of Review On Appeal

296.2 - Standards Of Prejudice On Appeal

Forecite CaliforniaÔ

PG V(B) - Duties of the Court: Requested Instructions

PG X(A) - Standards of Review

PG X(B) - Standards of Prejudice

Juror Determination Of Whether A BB Gun Is A “Dangerous Weapon” (North Carolina)

In North Carolina armed robbery requires use or threatened use of an object capable of endangering or threatening life.  This requires the jury to determine if the victim’s life was in fact endangered or threatened. State v. Allen, 317 N.C. 119, 125, 343 S.E.2d 893, 897 (1986). Thus, when evidence is admitted that the weapon used in the robbery was a BB gun the issue must be submitted to the jurors.  State v. Manning, (N.C. Ct. App. May 4, 2010) NO. COA09‑1008  [NOTICE: This opinion is UNPUBLISHED.]

For subscription based briefing and sample instructions on this and related issues see:

Forecite NationalÔ

77.3.3.2 - Aggravated Assault: Defense Theory That The Object Used Was Not A Deadly Weapon

106.4.4 - Dangerous Or Deadly Weapons: Defense Theory That Weapon Was Not Deadly Or Dangerous

The Shellow Instructions

Weapons Crimes: Commission Of Crime While In Possession Of Dangerous Weapon: Defendant

Must Use Weapon To Facilitate Crime

Forecite CaliforniaÔ

F 9.02a - Determination Of Deadly Weapon: Two‑Pronged Jury Finding Required

F 12.42a - Intended Use Must Be For Deadly Purpose