Sample Instruction: Reasonable Investor (9th Circuit)

A reasonable investor is one who practices due diligence before making an investment.

[Source: United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010).]

Definition Of “Materiality” (9th Circuit) (USSC)

In Matrixx Initiatives, Inc. v. Siracusano, ____ U.S. ____, (3/22/2011, No. 09‑1156), the Supreme Court addressed the question of whether the materiality of scientific data hinges on its statistical significance. The Court employed the "total mix" standard for materiality regarding an omitted fact which requires a determination of whether there is a “substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having altered the ‘total mix’ of information available.” 

Nevertheless, in United States v. Sayre, 2011 U.S. App. LEXIS 7027, 1‑5 (4/4/2011, 9th Cir. No. 08‑50519) [NOTICE: This opinion is UNPUBLISHED.] the Ninth Circuit held that the district court “did not abuse its discretion in declining to give Sayre's proposed ‘total mix’ materiality instruction [citing United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)].”  In Sayre the district court instructed the jury that "an act, statement or omission is material if there is a substantial likelihood a reasonable investor would have considered it important in deciding whether to buy, sell or hold the security." The Ninth Circuit held that this definition “is an accurate statement of the law and is supported by both Supreme Court and Ninth Circuit case law. [Citing Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988); TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 96 S. Ct. 2126, 48 L. Ed. 2d 757 (1976); Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir. 1979)].” In so holding the Court concluded that the "total mix" definition is an alternative means of expressing the materiality concept.

[*Note: The current Ninth Circuit model jury instructions resemble the Zweig definition. Ninth Circuit Manual of Model Criminal Instructions (2010) at § 9.9 ("iTo be material, the fact [omitted] must have a natural tendency to influence, or be capable of influencing, the decision of purchasing or selling securities.").]

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95.2.1 Perjury: Definition Of "Material Matter"

95.3 Perjury: Defenses And Defense Theories

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PG II(B) ‑ Terms With a Specialized or Technical Legal Meaning

CHK III Terms With A Specialized Or Technical Legal Meaning

Prior Unrelated Drug Convictions Improperly Admitted (7th Circuit)

When a prior conviction is admitted to prove something other than propensity the jurors should be given a limiting instruction that specifies the precise purpose for which the evidence was admitted.  See [1/12/10 post].  In examining prior convictions and related instructions United States v. Hicks, 635 F.3d 1063, 1069‑1074 (4/4/2011, 7th Cir. No. 09‑3608) may be helpful in identifying and instructing on the purposes for which the jurors may consider the prior conviction.

For example, the government contended that Hicks's prior convictions tended to show that Hicks knew about the "illicit nature" of the drug distributing business. However, the reviewing court rejected this argument because Hicks never claimed that he did not know that selling crack cocaine was illegal or that he did not know how to sell drugs.

The government also relied on United States v. Hatchett, 245 F.3d 625, 643 (7th Cir. 2001) to argue that Hicks was a "knowing participant" instead of an "unwitting bystander" to the drug deal. The Court of Appeal rejected this argument because there was no allegation that Hicks's prior drug deals involved the same alleged buyer and the government did not explain why prior convictions for cocaine possession and distribution made it more likely that he was a "knowing participant" in this drug deal other than by drawing the prohibited inference of "once a drug dealer, always a drug dealer."  (Hicks, at 1070.)

The government also failed to explain why the convictions were relevant to show that Hicks's actions were the result of a mistake. Hicks never contended that he did not know that the substance for sale was crack cocaine or any other controlled substance. See United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005) (Cudahy, J., concurring) [describing Rule 404(b)'s exception for absence of mistake as "I thought [the drugs] were cough drops"]; United States v. Webb, 548 F.3d 547, 548 (7th Cir. 2008) ["As for 'absence of mistake': how does a conviction show this except via the prohibited inference that someone who distributes drugs once is likely to do it again?"].

The Seventh Circuit also disagreed with the government's argument that the prior convictions were admissible to show intent. Because unlawful distribution of cocaine is a general intent crime, the defendant must first put his intent at issue before the government may introduce prior bad acts to show intent. (Id. at 1070-71; see also United States v. Moore, 425 F.3d 1061, 1069 n.3 (7th Cir. 2005) ["[U]nlawfully distributing cocaine in violation of 21 USC 841(a)(1) is a general intent crime."]; United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988) [evidence of prior bad acts is ordinarily not admissible to prove general intent crimes such as distribution of cocaine]; United States v. Gruttadauro, 818 F.2d 1323, 1328‑29 (7th Cir. 1987) [prior bad acts evidence was inadmissible to prove intent because defendant was charged with a general intent crime and defendant did not directly put his mental state at issue]; United States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984), modified on other grounds by Huddleston v. United States, 485 U.S. 681, 685, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988) ["[W]hen intent is only a formal issue, so that proof of the proscribed act gives rise to an inference of intent, then . . . evidence of other acts directed toward this issue should not be used in the government's case‑in‑chief and should not be admitted until the defendant raises the issue."].

Additionally, the Seventh Circuit rejected the government's contention that the convictions were admissible to rebut Hicks's entrapment defense. Prior convictions are admissible to prove predisposition in an entrapment case, but the government may not introduce propensity evidence unless the defendant places the issue of entrapment into controversy. Compare United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir. 1992) ["When the entrapment defense is clearly raised in the defense's opening statement and the entrapment defense obviously materializes through a defendant's presentation of its own witnesses or through cross‑examination of the government's witnesses, it is not error for the government to present evidence of predisposition in its case‑in‑chief"] with United States v. McGuire, 808 F.2d 694, 696 (8th Cir. 1987) [finding that it was error for the district court to allow the government to introduce rebuttal evidence in its case‑in‑chief in anticipation of an entrapment defense that was proposed in defense counsel's opening statement but that never actually materialized].

Hicks's counsel talked about raising an entrapment defense prior to trial (after the court ruled that Hicks's prior convictions were admissible) but the entrapment defense did not materialize until the defense presented its case. Hicks did not refer to his entrapment defense during an opening statement, which he waived, nor during the government's case‑in‑chief.

Finally, the government's contention that the convictions were admissible to show accomplice liability suffered from the same defect as its theory that the convictions were admissible to rebut Hicks's entrapment defense. The government did not request an accomplice liability instruction until after Hicks testified that he had arranged for the drug sale did the government assert an accomplice theory of the case. As with the entrapment defense, Hicks's intent was only placed at issue after the convictions had already been admitted into evidence.

In sum, “ the only apparent relevance of the prior convictions was the very inference that Rule 404(b) prohibits— that is, that Hicks had sold drugs in the past and probably did so this time as well. “ (635 F.3d at 1073.)

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26.5 Uncharged Acts To Prove Issues Other Than Propensity

27.3 Witness Credibility: Applicability To Defendant

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F 316 Additional Instructions On Witness Credibility

F 375 Note 6 Error To Instruct That Other Crimes May Be Used To Show Criminal Propensity

Standard Of Review: Alternate Theory Error

Hedgpeth v. Pulido, 555 U.S. 57, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (per curiam), held that an alternative‑theory error—i.e., where a jury rendering a general verdict was instructed on  alternative theories of guilt and may have relied on an invalid theory—is subject to harmless‑error analysis "so long as the error at issue does not categorically 'vitiat[e] all the jury's findings.' Id. at 532 (alteration in original) (citation omitted); see Skilling, 130 S. Ct. at 2934 n.46 [extending the holding of Pulido, which was a case on collateral review, to direct appeal]. The Pulido court did not specifically identify the harmless‑error standard that is applicable to alternative‑theory errors, but it cited to a string of cases that apply a common harmless‑error standard to other types of instructional errors.  (See Pulido, 129 S. Ct. at 532.) The Court declared that "[a]lthough these cases did not arise in the context of a jury instructed on multiple theories of guilt, one of which is improper, nothing in them suggests that a different harmless‑error analysis should govern in that particular context." Pulido, 129 S. Ct. at 532.

As set forth in Neder v. United States (527 U.S. 1 (1999) [which is the most recent of the line of cases cited in Pulido], an error is harmless if a court, after a "thorough examination of the record," is able to "conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." 527 U.S. at 19. If the defendant "raised evidence sufficient to support a contrary finding," then the error was not harmless. Id. Thus, under the so‑called Neder standard, a reviewing court, "in typical appellate‑court fashion, asks whether the record contains evidence that could rationally lead to [an acquittal] with respect to the [valid theory of guilt]." (Before Pulido, courts often applied the stricter "impossible to tell" harmless‑error standard to alternative‑theory errors. See United States v. Howard, 517 F.3d 731, 736 (5th Cir. 2008) [cataloguing cases].) Id.

In United States v. Skilling, (4/6/2011, 5th Cir. No. 06‑20885) held that the alternative theory error was harmless because the only evidence contradicting the prosecution’s evidence was Skilling’s testimony which the jury had necessarily rejected in reaching its verdict. (Id. at 13.)

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273.7.1  Jury Unanimity: Multiple Theories (Alternative Means Of Commission)

287.1.6  Special Verdicts: Role Of Special Verdict In Evaluating Error On Appeal As To One Of Multiple Theories

287.1.10  Special Verdict Forms: Multiple Offenses

287.1.12  Special Jury Forms As To Duplicitous Theories (Alternative Means Of Commission)

296.2.2.2  Standard Of Prejudice On Appeal: When Instructions Include Legally Incorrect Theory

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PG X(B)(3.1)  Standard Of Prejudice When Instructions Include Legally Incorrect Theory

F 3500.4.2 Note 1 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished

Money Laundering: Whether “Proceeds” Means “Profits”(5th Circuit) (USSC)

In United States v. Santos, 553 U.S. 507, 128 S. Ct. 2020, 2025, 170 L. Ed. 2d 912 (2008) a four‑justice plurality of the Supreme Court held that "proceeds" should be defined as "profits" instead of "gross receipts" under 18 USC 1956. The plurality noted that "proceeds" can mean either "receipts" or "profits," but ruled that "profits" was the correct definition under the rule of lenity. Id. Justice Stevens, who cast the decisive fifth vote, noted in his concurrence that "proceeds" could "have one meaning when referring to some specified unlawful activities and a different meaning when referring to others." Id. at 2031 (Stevens, J., concurring); see also, United States v. Brown, 553 F.3d 768, 783 (5th Cir. 2008) (noting that Justice Stevens did not consider "profit" to be the definition of "proceeds" in all criminal contexts). The dissenting opinion noted that five justices agreed that "proceeds" includes "gross profits." Santos, 128 S. Ct. at 2035 & n.1 (Alito, J., dissenting).

In light of this split the Fifth Circuit has held that the "precedential value of Santos is unclear outside the narrow factual setting of that case, and the decision raises as many issues as it resolves for the lower courts." Brown, 553 F.3d at 783.

Accordingly, in cases where there was no request to define “proceeds” as “profits” the Fifth Circuit has affirmed holding that using the term "proceeds" rather than "profits" to define violations of 18 USC  1956 does not constitute plain error. See Fernandez, 559 F.3d at 316; United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States v. Arbuckle, 390 Fed. Appx. 412, 2010 U.S. App. LEXIS 17331, *6 (5th Cir. 2010) [NOTICE: This opinion is UNPUBLISHED.]; United States v. Diaz, 2011 U.S. App. LEXIS 6853, 6‑8 (4/4/2011, 5th Cir. No. 09‑40946) 

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Chapter 94: Money Laundering

18 USC 1956(a)(1)(B): Money Laundering To Conceal Origin Of Property Or To Avoid Reporting Requirements

18 USC 1956(a)(2)(A): Money Laundering ‑‑ Movement Of Monetary Instruments And Funds To Promote Specified Unlawful

The Shellow Instructions

18 USC 1956  Money Laundering

Mistake Of Fact Not Applicable To Attempts

In United States v. Pires, 2011 U.S. App. LEXIS 7019, 9‑16 (4/6/2011, 1st Cir. Mass. No. 10‑1062) the defendant was charged with attempting to download child pornography from the Internet.  The defendant contended that  that the government failed to introduce evidence sufficient to establish that he knew, when he received the relevant video file, that it depicted real minors engaged in sexually explicit conduct.  However, to prove attempt the government does not have to prove each element  of the underlying offense.  The government must show that the accused intended to commit the underlying substantive offense and that he took a substantial step toward committing that crime. United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006). While the underlying offense in Pires required the receipt of images of real‑life minors engaged in sexually explicit conduct--see United States v. McNealy, 625 F.3d 858, 870 & nn.47‑48 (5th Cir. 2010) (citing United States v. X‑Citement Video, Inc., 513 U.S. 64, 78 (1994))--the government in an "attempt" case has no burden to prove that the defendant knew that the downloaded file actually contained such images. Rather, the government is only required to prove that the appellant believed that the received file contained such images. See United States v. Bauer, 626 F.3d 1004, 1008 (8th Cir. 2010). “No other view of the relevant threshold of proof comports with the Supreme Court's reasoning in United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008), in which the Court explained that ‘[t]here is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.’   [Citation.]” Pires, at p. 11; see also United States v. Johnson, 2011 U.S. App. LEXIS 6818, 12 (4/5/2011, 8th Cir. No. 10‑2350); United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010) ["[A] defendant's success in attaining his criminal objective is not necessary for an attempt conviction."].

Thus, in Pires the judge overstated the prosecutorial burden by telling the jury that the government has to prove, inter alia, that "he knew at the time of receipt that the production of that video involved the use of a real minor and that the video showed a real minor." (Ibid.)

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Chapter 66: Attempt

252.8 Mistake Of Fact

The Shellow Instructions

Attempts

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F 4.35 Mistake of Fact

F 3406 Mistake Of Fact

F 460 Attempt

Federal Death Penalty

In United States v. Montgomery, 635 F.3d 1074, 1098-99 (4/5/2011, 8th Cir. No. 08‑1780) the district court instructed the jury, inter alia, as follows: 

"If you unanimously find that the aggravating factor or factors, which you all found to exist, sufficiently outweigh any mitigating factor or factors, which any one of you found to exist to justify imposition of a sentence of death, . . . and that death is therefore the appropriate sentence in this case, the law provides that the defendant must be sentenced to death." 

Relying on United States v. Allen, 247 F.3d 741, 780‑82 (8th Cir. 2001) vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002) the reviewing court held that this instruction was correct.  United States v. Montgomery, 635 F.3d 1074, 1098‑1099 (4/5/2011, 8th Cir. No. 08‑1780.).

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Chapter 304: Federal Death Penalty Statute

Federal Death Penalty: Sample Instructions

Reviewing Court Cannot Presume Which Of Two Conflicting Instructions The Jury Followed (9th Circuit)

See Francis v. Franklin, 471 U.S. 307, 322; see also United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994) ["Where two instructions conflict, a reviewing court cannot presume that the jury followed the correct one."]; United States v. Greer, (4/7/2011, 9th Cir. No. 09‑10095), dissent; People v. Noble, 100 Cal. App. 4th 184, (CA 2002).

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3.3 Conflicting Instructions On Elements

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PG X(B)(14)  Standard Of Prejudice: Misinstruction Or Conflicting Instructions On An Element Of The Offense

CG 7.2.1 Conflicting Or Contradictory Instructions

Unborn Fetus Is Not A Person under 18 USC 1201(a) (USSC)

In Roe v. Wade, the Supreme Court held that the word "person" as used in the Fourteenth Amendment did not include fetuses. 410 U.S. 113, 158, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The Court reviewed the use of the word throughout the Constitution and concluded that "in nearly all [such] instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre‑natal application." Id. at 157.  In United States v. Montgomery, 635 F.3d 1074 (4/5/2011, 8th Cir. No. 08‑1780) the government argued that Roe is limited to its context and that Congress has enacted legislation defining person to include the unborn.

Congress has defined the word "person" to include any infant who is born alive. In 2002, Congress enacted 1 USC 8, which states that "[i]n determining the meaning of any Act of Congress, . . . the word[] 'person' . . . shall include every infant member of the species homo sapiens who is born alive at any stage of development." § 8(a). The statute states that an infant is "born alive" after "complete expulsion or extraction from his or her mother . . . [and] who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles." § 8(b). Under a literal reading of the statute, the term "person" does not include fetuses.

Congress did not, as the government suggested, expand the term "person" to include the unborn in its enactment of the Unborn Victims of Violence Act of 2004. 18 USC 1841. The statute recognizes unborn children as a class of victims not previously protected under federal law and criminalizes the killing or injuring of unborn children during the commission of certain federal offenses. See H.R. 108‑420, 108th Cong. (2004). The statute defines unborn child as "a child in utero" and defines that term as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." § 1841(d). The statute thus defines the term "unborn child" and limits its definition to § 1841. (Ibid.)

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18 USC 1201(a)(1): Kidnapping

Chapter 93: Kidnapping, False Imprisonment, Abduction, Etc.

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F 9.50 Kidnapping

CC 1200 Kidnapping

Conflict Between General “Knowingly” Instruction And Subjective Knowledge Of Unlawfulness (9th Circuit)

In United States v. Greer, (4/7/2011, 9th Cir. No. 09‑10095) the trial court instructed the jury that for Greer to be guilty of extortion it must find he "acted with the intent to obtain money from [the victim casinos] that [he] knew he was not entitled to receive." The court also instructed the jury that "[t]he government is not required to prove that the defendant knew that his actions were unlawful."  The defendant argued that a specific instruction on subjective knowledge of unlawfulness erroneously conflicts with a subsequent general "knowingly" instruction. United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997); United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). Furthermore, the general instruction did not make "sufficiently clear" to which charges it applied. See United States v. Knapp, 120 F.3d 928, 931‑32 (9th Cir. 1997).

The majority limited application of Stein and Turman to convictions under 18 USC 1957 or convictions under statutes that similarly require a subjective knowledge of unlawfulness.  On the other hand the dissent concluded that instructions requiring a finding of subjective knowledge of unlawfulness plainly conflicted with the general knowingly instruction.

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Chapter 47: Knowledge

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Knowledge

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F 1.20a  Willfully Defined: Knowledge Element

F 1.20b Willfully:  Negation Of Knowledge Element

F 250 Inst 2 General Intent: Knowledge Element

Failure To Instruct On Objective Of Conspiracy Is “Serious Error” (5th Circuit)

In United States v. Valadez, 2011 U.S. App. LEXIS 7128 (4/5/2011, 5th Cir. No. 10‑50070) Valadez argued that the trial court erred in failing to provide the jury with instructions pertaining to the elements of possession of marijuana with the intent to distribute which was the alleged object offense of the charged conspiracy.  While recognizing that such an omission may be a serious error, the Fifth Circuit held it to be harmless because the defense raised no question as to the elements of the substantive crimes.  See United States v. Vaglica, 720 F.2d 388, 391 (5th Cir. 1983). Valadez's defense was that he was not a part of the conspiracy and that any connection to the smugglers and their activities was coincidental. Accordingly, the district court's failure to instruct the jury on the object offense was not plain error.

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Chapter 83: Conspiracy

83.3.7 Object Of Conspiracy: Defense Theories

273.10.5 Jury Unanimity: Conspiracy

The Shellow Instructions

Conspiracy

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F 17.01d Unanimity As To Objective Of Conspiracy

F 3500.4.1 Inst 1 (a & b) Unanimity As To Objective Of Conspiracy

Limiting Instruction: Statements Admitted For Non-Hearsay Purpose (6th Circuit)

In United States v. Boyd, (4/7/2011, 6th Cir. No. 08-6402) out of court statements by the co-defendant (Davidson) to Boyd were properly admitted as non hearsay offered to prove Boyd's knowledge of the carjacking and murders. Both charges required the Government to prove that Boyd had knowledge of a crime. Because "the proffered testimony was probative" of Boyd's knowledge, the evidence was properly admitted as non-hearsay. Accordingly, the district court properly instructed the jury to use the statements only for the purpose of determining Boyd's notice and knowledge of Davidson's involvement in the carjacking, and not in determining whether the Government proved that Davidson in fact committed the carjacking.

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Chapter 26: Limited Purpose Evidence
Chapter 28: Out Of Court Statements By Defendant

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Defendant's Statements
Limiting Instructions

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F 2.70/2.71 Admissions/Confession
F 2.70 n3/2.71 n3 Applicability To Admissions Not Offered For The Truth Of The Matter Asserted
F 2.71.5 Adoptive Admission
F 357 Adoptive Admissions
F 358 Evidence of Defendant's Statements

Pinkerton Instruction Properly Given If (1) There Is Substantial Evidence Of A Conspiracy And (2) Fair Notice Has Been Given (1st Circuit)

With respect to a charge of use or carrying a firearm to show aider and abettor liability, the government must prove that the defendant knew to a "practical certainty" that the principal would use a weapon during the commission of the crime. United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995). "[P]ractical certainty is a rubric that calls for proof verging on actual knowledge." Id. By contrast, under the Pinkerton theory of liability, the jury must find that the defendant was a member of a conspiracy and the use or carrying of a firearm was "reasonably foreseeable" in furtherance of the conspiracy. United States v. Shea, 150 F.3d 44, 50 (1st Cir. 1998).


Notwithstanding this difference, "a jury may be instructed to consider the liability theory established in Pinkerton as an alternative ground for conviction under [18 USC] 924(c)(1) in addition to an aiding and abetting theory." United States v. Medina Roman, 376 F.3d 1, 3 n.4 (1st Cir. 2004) (internal citation omitted). The alternative instruction is justified because, "[a]s with the aiding and abetting theory, vicarious co conspirator liability under Pinkerton is not in the nature of a separate offense." United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990) (internal quotations omitted); accord United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006) ["The law is crystalline that, when the government has advanced several alternate theories of guilt and the trial court has submitted the case to the jury on that basis, an ensuing conviction may stand as long as the evidence suffices to support any one of the submitted theories."].


In the same manner, the trial court may instruct the jury on a Pinkerton theory even though the indictment does not plead vicarious liability. Sanchez, 917 F.2d at 612. "Indeed, every court to consider the matter has held that the individual substantive counts need not make reference to co conspirator liability in order for the jury to be so instructed." Id. (internal quotations omitted).


When an indictment does not reference Pinkerton liability, however, the defendant remains entitled to fair notice of the government's charge against him. Id. at 611.


United States v. Vazquez Castro, (4/7/2011, 1st Cir. No. 09 2109) relied on the above rules to hold that “the district court here did not plainly err by instructing the jury on the Pinkerton theory of liability as an alternative to the aiding and abetting theory. Even though only the aiding and abetting theory was specifically referenced in the indictment, each theory was implicit in the firearm charge against him.” Ibid. Since there was substantial evidence that the defendants were members of a conspiracy the Pinkerton instruction was proper on the weapons charge. Moreover, there “was also no unfair surprise. As the district court pointed out, the parties argued the Pinkerton element of foreseeability during trial. [Citations.]” Ibid.

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Chapter 63: Liability For Acts Of Coconspirators (Pinkerton)

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Conspiracy

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F 6.10 et seq. Conspiracy
F 415 Conspiracy

Sample Instruction: Definition Of “True Threat” (4th Circuit)

A communication constitutes a true threat if an ordinary reasonable recipient who is familiar with the context would interpret it as a threat of injury.

Source: United States v. Roberts, 915 F.2d 889, 891 (4th Cir. 1990); see also United States v. Rendelman, 2011 U.S. App. LEXIS 7200, 7‑9 (4/8/2011, 4th Cir. No. 08‑4486).

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77.14 Terrorist Threats

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F 9.94 Criminal Threats

Series 1300 Criminal Threats