X. Jury Issues
A. Jury
Instructions
B. Juror Bias/Misconduct
C. Voir Dire - Fair and
Impartial Jury
E. Miscellaneous Jury
Issues
Jury Instructions
Supreme Court• Jury Instructions - Harmless Error
Hedgpeth v. Pulido, 07-544 (12/2/08)
> Defendant went to trial in state court for felony murder. While instructing the jury, the trial court provided alternative theories regarding the mens rea element, one of which was an incorrect statement of the law. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition. The district court granted the petition. The Ninth Circuit affirmed, and held that the improper alternative jury instruction was structural error, requiring reversal. The Supreme Court granted certiorari.
* Holding: The Court held that, where a jury receives alternative theory jury instructions, one of which is improper, the error is not structural but is instead subject to harmless error analysis. Accordingly, the case was remanded to the district court for a determination as to whether the jury instruction error was harmless.
Sixth Circuit
• Jury Instructions - Lesser IncludedU.S. v. Jones, 03-6239 (4/15/05)
> Defendant was charged with conspiracy to manufacture meth (21 U.S.C. § 841(a)), and at trial requested a jury instruction for conspiracy to possess equipment and chemicals used to manufacture meth (§ 843(a)(6)), as a lesser included offense. The court denied the instruction.
* Holding: A defendant may receive a lesser-included-offense instruction where (1) a request is made, (2) the elements of the lesser offense are identical to part of the elements of the greater offense, (3) the evidence supports a conviction on the lesser offense, and (4) the proof is sufficiently disputed so that a jury could consistently acquit on the greater, but convict on the lesser. The court held that the fourth element was not satisfied because the defendant was clearly guilty of the greater offense. Defendant was arrested with iodine stain on his hands which was compelling proof that he had actually made the meth, as opposed simply possessing the equipment.
• Jury Instructions - Mail Fraud
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged in an insurance fraud scheme and requested the district court to provide the jury with two instructions regarding misrepresentations. First, defendant requested the court to instruct the jury that he had no “duty of disclosure” to the investors in the insurance scheme. Second, defendant asked the court to instruct the jury that it must find that the misrepresentations were “reasonably calculated to deceive persons of average prudence.” The district court refused to provide the instructions and defendant appealed.
* Holding: Failure of a court to provide a requested jury instruction is reversible error only if the instruction is (1) a correct statement of the law, (2) not substantially covered by the charge, and (3) concerns such an important point that failure to provide the instruction substantially impairs the defense. In regard to both of the proposed instructions, the court held that the topics were substantially covered by the charge actually given in the case. The court acknowledged that the better practice would have been for the district court to provide the second instruction (“reasonably calculated to deceive persons of average prudence”) because it is a well-established requirement in the Sixth Circuit. Nonetheless, the court found that in light of all the instructions provided to the jury, the omission did not warrant reversal.
• Jury Instructions - Allen Charge
U.S. v. Brika, 02-4329 (7/27/05)
> Defendant was charged with kidnaping and using a phone to extort money. During jury deliberations, the district court gave an Allen charge to the jury, and then later gave a modified Allen charge. Defendant did not object to the content of the modified Allen charge, but argued on appeal that it was coercive.
• Holding: The court found no plain error in the modified Allen charge. Although the court expressed a strong preference that a district court “stick closely” to the standard Sixth Circuit Allen charge, it held that a modified Allen charge may nonetheless be proper if it (1) reminds jurors that they should not acquiesce in a majority opinion, (2) does not instruct the jury that it is required to agree, (3) directs both majority and minority jurors to reconsider their positions, (4) does not tell jurors that they are the only ones who may decide the case, (5) does not ask the jurors to consider external effects of their inability to reach a verdict, and (6) is not confusing, misleading, or prejudicial when considered as a whole. The court found that the modified Allen charge did not violate any of these strictures, and thus affirmed the conviction.
• Jury Instructions - FRE 404(b)
U.S. v. Matthews, 04-6398 (3/14/06)
> Defendant went to trial on drug and weapons offenses and the government introduced evidence, under FRE 404(b), that defendant had previously engaged in drug trafficking activities. (See supra, III. Evidence). The district court did not provide an instruction to the jury on the limited use of the evidence at the time it was admitted, but instead gave the standard Sixth Circuit pattern instruction on Rule 404(b) evidence at the end of the case. Defendant did not object in the trial court, but raised the issue of the timeliness and appropriateness of the instruction on appeal.
* Holding: Applying the plain error rule, the court held that the failure to give a contemporaneous instruction regarding Rule 404(b) evidence did not require reversal where the district court provides a proper instruction before the jury deliberates. The court found that the district court did give a proper instruction to the jury, in accordance with the pattern instruction, with one exception. The district court omitted he words “if you find the defendant did those acts” from the instruction, a requirement that the jury conclude that defendant actually committed the acts alleged. The court nonetheless found this omission harmless because the district court repeatedly emphasized to the jury the limited purposes of the evidence, and the defendant could not show how the omission changed the outcome of the proceedings. Accordingly, the conviction was affirmed.
• Jury Instructions - FRE 404(b)
U.S. v. Newsom, 05-5030 (6/29/06)
> During defendant’s trial on a firearm charge, the government introduced uncharged prior acts of defendant under FRE 404(b). The district court instructed the jury that it could consider the uncharged conduct only for “motive, intent identity, and absence of mistake.” The court gave no further explanation. Defendant did not object to the jury instruction, but challenged it on appeal.
* Holding: The court found that three of the four purposes for the 404(b) evidence listed in the jury instruction were improper because they were not in issue. Of the four listed, only “intent” was a proper purpose for the “other acts” evidence. Nonetheless, applying the plain error standard and relying on precedent, the court held that as long as a district court includes at least one permissible purpose in its instruction, the instruction is not plain error. The court lamented the results of the decision, but indicated that it must follow precedent. Thus, the conviction was affirmed.
• Jury Instructions - Entrapment by Estoppel
U.S. v. Blood, 04-5101 (1/24/06)
> Defendant was charged with possession of counterfeit securities with intent to deceive another and proceeded to trial based upon a defense of entrapment by estoppel. The district court provided an instruction to the jury on entrapment by estoppel and, in giving the instruction, the court added elements of the entrapment defense. Defendant appealed.
* Holding: The elements of entrapment by estoppel are as follows: (1) The government announced through an agent or an informant that the charged criminal conduct was legal; (2) defendant relied upon the government’s announcement; (3) defendant’s reliance was reasonable; and (4) given defendant’s reliance, the prosecution for the charged crime is unfair. The court found that the district court erred in mixing in elements of the entrapment defense, (i.e., that defendant was not predisposed to commit the crime). However, the court held that the error was harmless because there was insufficient evidence in the record to support the entrapment by estoppel defense in the first place. Accordingly, the conviction was affirmed.
• Jury Instructions-Presumption of Innocence
U.S. v. Hynes, 05-2036 (11/7/06)
> Defendant was charged with a drug conspiracy and prior to conducting voir dire the district court told the jury: “Now, a criminal defendant who does not acknowledge his culpability must be tried and found to be guilty or not guilty.” During the course of the trial, however, the district court repeatedly instructed the jury properly regarding the presumption of innocence. Defendant was convicted and argued on appeal that the district court’s comment denied him the presumption of innocence.
* Holding: The court held that the district court’s statement did not improperly affect the presumption of innocence, and even if it did, the comment was isolated in relation to the numerous other proper instructions regarding the presumption. Accordingly, the conviction was affirmed.
• Jury Instructions - Knowledge of Writing
U.S. v. Rayborn, 05-6742 (7/2/07)
> Defendant was charged with various fraud offenses based upon his use of false tax returns to obtain a loan. At trial, the district court instructed the jury that it may infer defendant’s knowledge of the information on the tax returns if it found that defendant signed the returns. Defendant was convicted and he appealed.
* Holding: The Internal Revenue Code at 26 USC § 6064 provides that, where a person’s name is signed to a tax return, this constitutes prima facie evidence that the person actually signed the return. The court held that this statutory section did not support the district court’s instruction to the jury, and that the instruction may thus constitute error. Nonetheless, even if the instruction was error, the court found it to be harmless because the instruction did not require the jury to make the inference, and because the jury was likely, based upon the evidence, to have made such an inference without the instruction. Therefore, defendant’s conviction was affirmed.
• Jury Instructions - Deliberate Ignorance
U.S. v. Rayborn, 05-6742 (7/2/07)
> Defendant was charged with various fraud offenses based upon his submission of false tax returns to obtain a loan. At trial, the district court provided a “deliberate ignorance” instruction to the jury. Defendant argued on appeal that the instruction was improper because the evidence did not support the theory that he deliberately avoided obtaining knowledge of the contents of the tax returns.
* Holding: The court found that there was sufficient evidence to support the theory that defendant may have been “deliberately ignorant” of the contents of the tax returns. Further, the court held that any error in providing the instruction was harmless. Thus, the conviction was affirmed.
• Deliberate Ignorance
U.S. v. Ross, 05-4469 (9/21/07)
> Defendant was charged with two counts of bank fraud. During trial, the district court provided a deliberate ignorance instruction to the jury in reference to the second bank fraud count. The evidence adduced at trial relating to the count showed that a $700,000 counterfeit check was deposited into defendant’s bank account after defendant had received several other counterfeit checks from the same source. Defendant was convicted and he appealed.
* Holding: A jury instruction must correctly state the law and be supported by the evidence. Even if the instruction is not supported by the evidence, the court will not reverse the conviction if there was evidence introduced that supported a conviction on another theory. In the case, the court first held that instruction given by the district court correctly stated the law because it directly tracked the pattern Sixth Circuit deliberate ignorance instruction. Further, the court held that the evidence did support the instruction. The evidence at trial established that defendant should have known from his prior dealings with the check suppliers that the check was likely counterfeit. Accordingly, the instruction was proper and the conviction was affirmed.
• Instructions Outside Presence of Counsel
U.S. v. Brika, 02-4329 (7/27/05)
> During defendant’s jury trial for kidnaping and using a phone to extort money, the district court answered jury questions and repeated jury instructions outside the presence of counsel and the defendant. Each time, however, the court discussed the questions and proposed answers with counsel extensively, and counsel agreed to the court instructing the jury in counsel’s absence. On one occasion, the court reminded the jury, outside the presence of counsel and without consultation with counsel, to remember the Allen charge that it had previously given. Defendant appealed arguing that the procedures violated his right to counsel and right to be present at critical stages.
* Holding: The court found no plain error in the district court’s procedure. Because counsel had been afforded adequate opportunity to discuss and object to any proposed answer or instructions given to the jury, the court found neither a violation of defendant’s right to counsel or right to be present. Regarding the occasion where the district court reminded the jury of an instruction without prior consultation with counsel, the court found that the practice was ill-advised, but nonetheless found no prejudice to defendant because the judge did nothing more than refer to a prior instruction. The court emphasized that it strongly cautioned against instructing a jury in the jury room, outside the presence of counsel, but that it found no error in this case.
• Special Verdict Forms
U.S. v. Stonefish, 03-2538 (3/30/05)
> Defendant was convicted at trial of transporting illegal aliens in violation of 8 U.S.C. § 1324(a). The district court utilized a special verdict form which allowed the jury to find defendant guilty only if it unanimously agreed on one of two theories. The theories were either that defendant knew that the aliens were illegal, or defendant was in reckless disregard of whether the aliens were illegal. Defendant did not object to the special verdict form at trial, but challenged it on appeal.
* Holding: The court found no plain error in the use of the special verdict form. The court noted that special verdict forms are strongly disfavored in the Sixth Circuit. Nonetheless, the court found that the special verdict form used in defendant’s case had no likelihood of confusing jurors, but simply required the jurors to commit to a single theory if they were going to convict defendant. The court also held that, even though the special verdict form itself did not contain all of the elements of the offense, because the jury instructions as a whole fully apprised the jury of the necessary elements, the special verdict form was proper.
• Jury Instructions-Firearm-Interstate Nexus
U.S. v. Nance, 05-6036 (4/6/07)
> Defendant was charged with being a felon in possession of a firearm and at trial he requested that the district court provide an instruction to the jury that it must find that the firearm affected interstate commerce. Instead, the court provided an instruction that the jury must find that the gun traveled across state lines at sometime prior to defendant’s possession of it. Defendant appealed.
* Holding: The court held that a jury is not required to find that a gun had a substantial effect on interstate commerce. Accordingly, the court ruled that the instruction was sufficient and confirmed defendant’s conviction.
• Jury Instructions - Unregistered Silencer
U.S. v. Rose, 06-1642 (4/8/08)
> Defendant was charged with possession of an unregistered firearm silencer. During trial, the district court instructed the jury that it could convict defendant if “he intended it to function as a firearm silencer . . . even if it did not actually work to silence a firearm.” Defendant objected to the instruction and subsequently argued on appeal that the instruction was a misstatement of the law.
* Holding: A jury instruction is improper if it fails to accurately reflect the law, however the court should only reverse a conviction if the instructions, viewed as a whole, were “confusing, misleading or prejudicial.” In the case, the court held that the district court’s instructions, taken as a whole, accurately stated the law regarding possession of an unregistered silencer. The court noted that a defendant may be convicted of possessing a non-functional silencer as long as the defendant intended it to operate as a silencer. Accordingly, the conviction was affirmed.
•Jury Instructions-State Law-Judicial Notice
U.S. v. Dedman, 06-6124 (5/29/08)
> Defendant was charged with conspiracy to defraud the government for arranging a sham marriage between her adoptive father and her adopted daughter in order to obtain her adoptive father’s military pension benefits. The sham marriage occurred in Arkansas. At trial, the district court took judicial notice that Arkansas law prohibited marriage between a grandfather and granddaughter, even if the familial relationship was by adoption. Thus, the court instructed the jury as to Arkansas law, but told the jury that it could accept that “fact” as true, but it was not required to do so. The jury convicted defendant and she appealed.
* Holding: The court held that judicial notice was not actually the proper mechanism for instructing the jury regarding the Arkansas law. Judicial notice in the modern era is to be used for factual issues; as such, juries may choose to disregard a fact judicially noticed. Issues regarding the applicable law, however, are for the court to determine. Thus, the district court should have instructed the jury, in its jury instructions, as to the applicable law in Arkansas regarding marriage. Nonetheless, the court found that the court’s instruction that the jury could choose to ignore the Arkansas law only stood to inure to defendant’s benefit, and, since she was convicted, the error was harmless.
• Jury Instructions - Omission of Element
U.S. v. Kuehne, 06-3668 (10/28/08)
> Defendant was charged with numerous firearm offenses, including a charge under 18 USC § 924(c) for trading a gun for drugs. Defendant was not charged with a drug offense. At trial, the district court instructed the jury that it could find defendant guilty of the § 924(c) charge if it believed that defendant used the firearm in relation to a drug trafficking crime. The court did not further define a drug trafficking crime, but instead instructed the jury that if it believed that defendant traded the gun for drugs, it could find defendant guilty. Defendant was convicted and he appealed.
* Holding: A defendant need not be charged with the underlying drug trafficking charge in order to be convicted of a § 924(c) violation, but the district court is nonetheless obligated to instruct the jury as to the elements of a drug trafficking offense as part of its instruction regarding the § 924(c) charge. The court found that the district court invaded the province of the jury with the instruction given, and accordingly, the instruction was error. The court ruled, however, that the error was harmless because uncontroverted evidence supported the predicate drug offense. Thus, defendant’s conviction was affirmed.
• Jury Instructions - Drug Conspiracy
U.S. v. Gunter, 07-5277 (1/8/09)
> Defendant was charged with participating in a drug conspiracy involving more than 500 grams of cocaine. During the trial, the district court instructed the jury that it must find that “the overall scope of the conspiracy involved at least 500 grams” of cocaine, but did not require the jury to find that defendant agreed or intended to be involved with any specific amount of cocaine. Defendant was convicted and he appealed.
* Holding: The court held that, in a conspiracy prosecution under 21 USC § 846, the government is not required to prove mens rea as to the type and quantity of drugs involved in the conspiracy. All that is required by Apprendi is that the jury find that the overall conspiracy involved the requisite type and quantity of drugs. Accordingly, defendant’s conviction was affirmed.
• Jury Instructions - Exact Wording
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant was a police officer charged with deprivation of rights under color of law. During trial, he proposed a jury instruction regarding the use of force that was drawn directly from a Supreme Court decision. The district court declined to provide the exact instruction, instead using the standard circuit instruction. Defendant was convicted and he appealed.
* Holding: A district court’s refusal to provide a jury instruction is subject to reversal only if the proposed instruction is (1) a correct statement of the law, (2) is not substantially covered by the charge actually provided by the district court, and (3) relates to a point so important that the failure to give it substantially impairs the defense. In the case, the court held that defendant’s proposed instruction was substantially covered by the charge actually provided by the district court. Accordingly, the conviction was affirmed.
• Jury Instruction - 18 USC § 922(g)(3)
U.S. v. Burchard, 07-6312 (9/2/09)
> Defendant was charged with being an unlawful user of a controlled substance in possession of a firearm, pursuant to § 922(g)(3). At trial, the district court instructed the jury that an “unlawful user” was a person “engaged in the regular use of a controlled substance either close in time to or contemporaneous with the period that he possessed the firearm.” Defendant objected to the instruction, he was convicted, and he appealed.
* Holding: The court held that the district court’s jury instruction regarding an “unlawful user” was appropriate in light of the totality of the instructions provided to the jury. In affirming defendant’s conviction, the court offered a jury instruction for future use by courts: “The term ‘unlawful user of a controlled substance’ contemplates the regular and repeated use of a controlled substance in a manner other than as prescribed by a licensed physician. The one time or infrequent use of a controlled substance is not sufficient to establish the defendant as an ‘unlawful user.’ Rather, the defendant must have been engaged in use that was sufficiently consistent and prolonged as to constitute a pattern of regular and repeated use of a controlled substance. The government need not show that defendant used a controlled substance at the precise time he possessed a firearm. It must, however, establish that he was engaged in a pattern of regular and repeated use of a controlled substance during a period that reasonably covers the time a firearm was possessed.”
Jury Instructions-Confession - Corroboration
U.S. v. Adams, 08-5372 (10/14/09)
> Defendant was in a hotel room at a party and officers entered and found a gun in a jacket lying near him. After three hours of questioning, defendant admitted the gun was his. Defendant was charged with being a felon in possession of a firearm. During trial, defendant requested the following jury instruction: “Evidence has been presented that [defendant] admitted that he possessed the firearm as described in the indictment. You may not convict [defendant] based solely upon his own uncorroborated statement or admission.” The district court refused to provide the instruction, defendant was convicted, and he appealed.
* Holding: Refusal of a district court to provide an instruction is only reversible error where (1) the instruction is a correct statement of the law, (2) it is not substantially covered by other instructions, and (3) the failure to give the instruction substantially impairs the defense. In the case, the court held that the instruction was a correct statement of the law, that it was not covered by other instructions, and that defendant’s possession of the gun was the central issue in the case. Thus, the court found that the district court erred in failing to provide the requested instruction, and vacated defendant’s conviction.
• Jury Instructions - Felon in Possession
U.S. v. Morrison, 08-6203 (2/12/10)
> Defendant was charged with being a felon in possession of a firearm. During trial, the district court instructed the jury that possession “does not necessarily mean that the defendant must hold the weapon physically, that is, have actual possession of it.” The court then told the jury that it must find that defendant had “actual possession of the firearm.” Defendant did not object to the jury instructions and he was convicted. Defendant appealed.
* Holding: Applying the plain error standard, the court found that reversal was not warranted. Taking the jury instructions given by the district court as a whole, the court found that they conveyed to the jury the necessary elements of the charge, namely that possession requires control of the firearm, that the possession was knowing, and that the firearm was possessed purposefully and voluntarily and not by accident or mistake. Although the instructions given by the district court conflicted to a degree, the instructions as a whole did not constitute plain error.
• Supplemental Instructions
U.S. v. Graham, 05-2332 (4/20/07)
> Defendant went to trial on conspiracy and various fraud offenses and after the jury reached a verdict, but before the verdict was received by the district court, the court provided a supplemental instruction to the jury. The instruction, given at the government’s request, clarified that the jury must find that an overt act occurred with the statute of limitations period in order to convict defendant. Defendant objected to the instruction and, upon his conviction, he appealed.
* Holding: Generally, a district court has the authority to re-charge a jury to correct possible misunderstandings pertaining to the original jury instruction given. In the case, the court held that the fact that the jury informed the district court that it reached a verdict did not render the supplemental instruction improper. Accordingly, defendant’s conviction was affirmed.
• Jury Instructions-Codefendant Guilty Pleas
U.S. v. Benson, 08-1131 (1/12/10)
> Defendant was charged with participating in a drug conspiracy and evidence was introduced at trial regarding the guilty pleas of testifying codefendants. At the close of the case, the district court provided a jury instruction indicating that the jury could not consider the codefendants’ guilty pleas as any evidence of defendant’s guilt. Defendant did not object to the testimony or the court’s instruction. Defendant was convicted and argued on appeal that the curative instruction at the end of trial was insufficient and untimely.
* Holding: The court found no error in the district court’s instruction. Although a codefendant’s guilty plea is not admissible at trial as substantive evidence of the defendant’s guilt, the district court properly limited the use of the guilty pleas to issues of credibility. Additionally, the court found no error in the timing of the instruction. Accordingly, defendant’s conviction was affirmed.