Introductory Comment 

            “A defendant is entitled to have the jury instructed on his or her theory of defense, as long as the theory has support in the law and some foundation in the evidence.”  United States v. Perdomo-Espana, 522 F.3d 983, 986-87 (9th Cir. 2008).  But the instruction need not be given in the form requested, nor if it “merely duplicates what the jury has already been told.”  United States v. Lopez-Alvarez,970 F.2d 583, 597 (9th Cir. 1992).

            There appears to be some conflict in Ninth Circuit case law as to when a district court must sua sponteinstruct the jury on a specific defense.  Compare United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006) (“[w]hen a defendant actually presents and relies on a theory of defense at trial,” in this case, a public authority defense, “the judge must instruct the jury on that theory even where such an instruction was not requested.”) with United States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003) (“In the absence of a request from the defendant, the omission of an alibi instruction cannot be plain error.”).

            The unanimity requirement extends to affirmative defenses. See, e.g., United States v. Ramirez, 537 F.3d 1075, 1084 (9th Cir. 2008).  In most cases the general unanimity instruction in Instruction 6.19 (Duty to Deliberate) should suffice.  See United States v. Nobari,574 F.3d 1065, 1081 (9th Cir. 2009); United States v. Kim,196 F.3d 1079, 1082 (9th Cir. 1999).  However, “a specific unanimity instruction is required if it appears that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.”  United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007). See also Instruction 6.27 (Specific Issue Unanimity).

            Evidence has been admitted that the defendant was not present at the time and place of the commission of the crime charged in the indictment.  The government has the burden of proving beyond a reasonable doubt the defendant was present at that time and place.  The defendant does not have the burden of proving an alibi defense, nor does the defendant have to convince you that [he] [she] was not present at the time and place of the commission of the crime.

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

Comment

            See Fed. R. Crim. P. 12.1 (Notice of Alibi) as to a defendant’s notice of defense.

            “[T]here is no burden of proof on the accused regarding an alibi.”  Leavitt v. Arave, 383 F.3d 809, 833 (9th Cir. 2004) (per curiam).  It is error to refuse a request for an alibi instruction when there is evidence to support this theory.  United States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003); United States v. Hairston, 64 F.3d 491, 495 (9th Cir. 1995); United Statesv. Zuniga, 6 F.3d 569, 571 (9th Cir. 1993).  It does not matter which party introduces the alibi evidence; the instruction should be given even if the alibi evidence is “weak, insufficient, inconsistent or of doubtful credibility.”  Hairston, 64 F.3d at 495 (citations omitted).  However, the failure to give an alibi instruction sua sponte is not plain error.  Lillard, 354 F.3d at 855-56. 

Revised Sept. 2018

            The defendant contends that [he] [she] was entrapped by a government agent.  The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. The government must prove either:

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

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

            When a person, independent of and before government contact, is predisposed to commit the crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.  In determining whether the defendant was predisposed to commit the crime before being approached by government agents, you may consider the following:

First, whether the defendant demonstrated reluctance to commit the offense;

Second, the defendant’s character and reputation;

Third, whether government agents initially suggested the criminal activity;

Fourth, whether the defendant engaged in the criminal activity for profit; and 

Fifth, the nature of the government’s inducement or persuasion.

            In determining whether the defendant was induced by government agents to commit the offense, you may consider any government conduct creating a substantial risk that an otherwise innocent person would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship.

Comment

            When there is evidence of entrapment, an additional element should be added to the instruction on the substantive offense: for example, “Fourth, the defendant was not entrapped.”

            A defendant need not concede that he or she committed the crime to be entitled to an entrapment instruction.  United States v. Demma, 523 F.2d 981, 982 (9th Cir. 1975); cf. United States v. Paduano, 549 F.2d 145, 148 (9th Cir. 1977).  Only slight evidence raising the issue of entrapment is necessary for submission of the issue to the jury.  United States v. Gurolla, 333 F.3d 944, 951 (9th Cir. 2003).

            The government is not required to prove both lack of inducement and predisposition.  United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995) (“If the defendant is found to be predisposed to commit a crime, an entrapment defense is unavailable regardless of the inducement.”); United States v. Simas, 937 F.2d 459, 462 (9th Cir. 1991) (in absence of inducement, evidence of lack of predisposition is irrelevant and the failure to give a requested entrapment instruction is not error).

            There are a number of Ninth Circuit cases describing the five factors that should be considered when determining “predisposition.”  See, e.g., United States v. Mohamud, 843 F.3d 420, 432-35 (9th Cir. 2016); United States v. Gurolla, 333 F.3d at 956, United States v. Jones,231 F.3d 508, 518 (9th Cir. 2000).

            The government must prove that the defendant was predisposed to commit the crime prior to being approached by a government agent.  Jacobson v. United States, 503 U.S. 540, 553 (1992).  However, evidence gained after government contact with the defendant can be used to prove that the defendant was predisposed before the contact.  Id. at 550-53; see also United States v. Burt,143 F.3d 1215, 1218 (9th Cir. 1998) (previous Ninth Circuit Entrapment Instruction 6.02 erroneous “because it failed to state clearly the government’s burden of establishing ‘beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by [g]overnment agents.’”) (citing Jacobson, 503 U.S. at 549).  The Ninth Circuit has stated that an entrapment instruction should avoid instructing the jury that a person is not entrapped if the person was “already” willing to commit the crime because of the ambiguity resulting therefrom.  United States v. Kim, 176 F.3d 1126, 1128 (9th Cir. 1999).

            The final paragraph of the instruction, explaining inducement, appears repeatedly in the case law.  See, e.g., United States v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008) (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994)).  See United States v. Spentz, 653 F.3d 815, 819-20 (9th Cir. 2011) (no abuse of discretion in denying defendant’s request for entrapment jury instruction when only inducement for committing crime, other than being afforded opportunity to do so, is typical benefit from engaging in criminal act such as proceeds from robbery).  When a case presents a Spentz issue, the Ninth Circuit has suggested adding the following language:

It is not entrapment if a person is tempted into committing a crime solely on the hope of obtaining ill-gotten gain; that is often the motive to commit a crime.  However, in deciding whether a law enforcement officer induced the defendant to commit the crime, the jury may consider all of the factors that shed light on how the officers supposedly persuaded or pressure the defendant to commit the crime.

United States v. Cortes, 732 F.3d 1078, 1087 (9th Cir. 2013) (emphasis omitted).

            When the propriety of a government agent’s conduct is an issue, see Instruction 3.10 (Government’s Use of Undercover Agents and Informants).

Revised Sept. 2018

Comment 

            Sentencing entrapment is a separate defense from entrapment and, in appropriate cases, an issue for the jury.  “A defendant ‘bears the burden of proving sentencing entrapment by a preponderance of the evidence.’”  United States v. Biao Huang, 687 F.3d 1197, 1203 (9th Cir. 2012) (quoting United States v. Parilla, 114 F.3d 124, 127 (9th Cir. 1997)).  “The district court must make express factual findings regarding whether the defendant has met his burden.”  Id. (citing United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (per curiam)).  When a defendant contends that he or she was entrapped as to the quantity of drugs involved in the crime, see United States v. Cortes, 757 F.3d 850, 864 (9th Cir. 2014), and United States v.Yuman-Hernandez, 712 F.3d 471, 474-75 (9th Cir. 2013).

            Sentencing entrapment should not be confused with sentencing manipulation.  A defendant may be eligible for a downward departure or variance for sentencing entrapment where he “can show he was predisposed to commit a minor or lesser offense, but was entrapped to commit a greater offense, subject to greater punishment . . . .”  United States v. Boykin, 785 F.3d 1352, 1360 (9th Cir. 2015) (citing United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009)).  “In contrast, ‘sentencing manipulation’ occurs when the government increases a defendant’s guideline sentence by conducting a lengthy investigation which increases the number of drug transactions and quantities for which the defendant is responsible.”  Id. (citing United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009)).  Sentencing entrapment focuses on the defendant’s predisposition; sentencing manipulation focuses on the government’s conduct and motives.  Id. at 1360-61. 

Revised Sept. 2018

            The defendant contends that [[if] [although]] [[he] [she]] committed the acts charged in the indictment, [he] [she] did so reasonably relying upon the affirmative advice of an authorized [federal government official] [agent of the federal government].

            To establish this defense, the defendant has the burden to show by a preponderance of the evidence that:

            First, an authorized [federal government official] [agent of the federal government] was empowered to render the claimed erroneous advice;

            Second, the [federal government official] [agent of the federal government] had been made aware of all the relevant historical facts;

            Third, the [federal government official] [agent of the federal government] affirmatively

told the defendant the proscribed conduct was permissible;

            Fourth, the defendant relied on the false information; and

            Fifth, this reliance was reasonable.

            In deciding this, you should consider all of the relevant circumstances, including the identity of the federal government [official] [agent], what the [official] [agent] said to the defendant, and how closely the defendant followed any instructions the [official] [agent] gave.

            A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged].

            If you find that the defendant has proved that [he] [she] reasonably relied upon the affirmative advice of the federal government [official] [agent], you must find the defendant not guilty of [specify crime charged].

Comment

            For applications of this defense, see, e.g., United States v. Lynch, 903 F.3d 1061, 1075-78 (9th Cir. 2018) (marijuana dispensary); United States v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010) (marijuana manufacturing); United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004) (firearms offense); United States v. Ramirz-Vaencia, 202 F.3d 1106, 1109-10 (9th Cir. 2000) (immigration offense).

            This defense applies only to advice from federal officials or authorized agents of the federal government, and not state or local officials.  See, e.g., United States v. Mack, 164 F.3d 467, 474 (9th Cir. 1999) (rejecting entrapment by estoppel defense “because Mack did not rely on the advice or authority of federal officials or agents”) (emphasis omitted)); United States v. Collins, 61 F.3d 1379, 1385 (9th Cir. 1995) (noting entrapment by estoppel defense applies only when defendant relies either on “a federal government official empowered to render the claimed erroneous advice, or on an authorized agent of the federal government, who has been granted the authority from the federal government to render such advice.”) (citation omitted).

            Regarding “authorized agents,” the Ninth Circuit has held that “[c]learly, the United States Government has made licensed firearms dealers federal agents in connection with the gathering and dispensing of information on the purchase of firearms.  Under these circumstances, we believe that a buyer has the right to rely on the representations of a licensed firearms dealer, who has been made aware of all the relevant historical facts . . . .”  United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987).  See also United States v. Brebner, 951 F.2d 1017, 1027 (9th Cir. 1991) (noting defendant may rely on advice of either federal government official, or “an authorized agent of the federal government who, like licensed firearms dealers, has been granted the authority from the federal government to render such advice”).

            “To establish affirmative authorization, a defendant must do more than show that the government made vague or even contradictory statements. Instead, the defendant must show that the government affirmatively told him the proscribed conduct was permissible.”  Lynch 903 F.3d at 1076 (citations and internal quotations marks omitted) (rejecting entrapment by estoppel defense when government official advised that legality of marijuana business “was up to the cities and counties to decide how they wanted to handle the matter,” because statement was too vague and ambiguous to qualify as affirmative authorization).

            Reasonable reliance occurs if “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.”  Id. at 1077 (citation omitted).  See also Batterjee, 361 F.3d at 1217 (holding that defendant dealing with complicated intersection of immigration and criminal law, who was told by federal licensee that he was “legally purchasing and possessing a firearm,” could reasonably rely on those assurances because he had no reason to believe he needed to inquire any further).

            No Ninth Circuit authority clearly sets out the burden that a defendant must satisfy to make out an entrapment by estoppel defense.  However, the Ninth Circuit has held that the entrapment by estoppel defense is very similar to the public authority defense, and the preponderance standard applies to the public authority defense.  See, e.g., United States v. Doe, 705 F.3d 1134, 1146 (9th Cir. 2013) (holding that defendant had burden of proving public authority defense by preponderance of the evidence because defense did not serve to negate any elements of charged offenses); United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994) (“The difference between the entrapment by estoppel defense and the public authority defense is not great.”).  See also United States v. Beaty, 245 F.3d 617, 623 (6th Cir. 2001) (applying preponderance standard); United States v. Stewart, 185 F.3d 112, 124 (3rd Cir. 2000) (applying preponderance standard). 

Revised Apr. 2019

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

            In determining whether and when someone was acting as a government agent, you must look at all the circumstances existing at the time of that person's activities in connection with the crimes charged in this case, including but not limited to: the nature of that person's relationship with the government, the purposes for which it was understood that person might act on behalf of the government, the instructions given to that person about the nature and extent of permissible activities, and what the government knew about those activities and permitted or used.

Comment

            The Ninth Circuit has explicitly approved the factors articulated in the second paragraph of this instruction.  See United States v. Jones, 231 F.3d 508, 517 (9th Cir. 2000).

            When the propriety of a putative government agent’s conduct is an issue, see Instruction 3.10 (Government’s Use of Undercover Agents and Informants).

            Compare United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (licensed firearms dealer held to be government agent; “we believe that a buyer has the right to rely on the representations of a licensed firearms dealer, who has been made aware of all the relevant historical facts, that a person may receive and possess a weapon if his felony conviction has been reduced to a misdemeanor”), with United States v. Rodman, 776 F.3d 638, 643 (9th Cir. 2015) (licensed firearms dealer could not rely on entrapment by estoppel defense even if told by another licensed firearms dealer that removing serial numbers from machine guns and then placing numbers on other guns for sale was legal because other licensed firearms dealer was in no better position than defendant to determine legality of scheme). 

Revised Mar. 2015

             The defendant contends [he] [she] was insane at the time of the crime.  Insanity is a defense to the charge.  The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

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

First, the defendant had a severe mental disease or defect; and 

Second, as a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of [his] [her] acts.

            The defendant has the burden of proving the defense of insanity by clear and convincing evidence.  Clear and convincing evidence of insanity means that it is highly probable that the defendant was insane at the time of the crime.  Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

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

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

            [Your verdict form will allow you to select from three possible verdicts:

            If you unanimously agree that the government has failed to prove the defendant guilty beyond a reasonable doubt, you must select “not guilty”;

            If you unanimously agree that the government has proven the defendant guilty beyond a reasonable doubt, you must select “guilty”;

            If you unanimously agree that the government has proven the defendant guilty beyond a reasonable doubt, and you also unanimously agree that the defendant has proven by clear and convincing evidence that [he] [she] was insane at the time of the crime charged, you must select “not guilty only by reason of insanity.”]

Comment

            The insanity defense and the burden of proof are set forth in 18 U.S.C. § 17.  Clear and convincing evidence requires that the existence of a disputed fact be highly probable.  Colorado v. New Mexico, 467 U.S. 310, 316 (1984).  When an affirmative defense of insanity is submitted to the jury, unanimity is required on both questions of guilt and sanity.  “[A] jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.”  United States v. Southwell, 432 F.3d 1050, 1055 (9th Cir.2005).

            A special verdict is required to resolve an insanity defense if requested by the government or the defendant, or on the court’s own motion.  See 18 U.S.C. § 4242(b).  The final paragraph in the bracketed section should be included in such instances.

            When asserting an insanity defense to a continuing offense, such as illegal reentry under 8 U.S.C. § 1326(a), a defendant must prove that he or she was legally insane for “virtually the entire duration” of his or her offense.  See United States v. Alvarez-Ulloa, 784 F.3d 558, 568 (9th Cir. 2015) (approving supplemental jury instruction in 8 U.S.C. § 1326(a) prosecution informing jury that insanity defense is negated if defendant ceased being insane for period long enough that he could have reasonably left United States, but knowingly remained). 

Revised Jan. 2019

             The defendant contends [he] [she] acted under [duress] [coercion] [compulsion] at the time of the crime charged.  [Duress] [coercion] [compulsion] legally excuses the crime of [specify crime charged].

            The defendant must prove [duress] [coercion] [compulsion] by a preponderance of the evidence.  A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged].

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

First, there was a present, immediate, or impending threat of death or serious bodily injury to [the defendant] [a family member of the defendant] if the defendant did not [commit] [participate in the commission of] the crime; 

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

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

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

            If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

Comment

            The bracketed fourth element should be used only in cases of prison escape.  See United States v. Solano, 10 F.3d 682, 683 (9th Cir. 1993).  “[I]n order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure[.]” United States v. Bailey, 444 U.S. 394, 408 (1980).  Although not an element in non-escape cases, whether the defendant surrendered to authorities upon reaching a point of safety is nevertheless relevant to whether the third element is satisfied.  United States v. Zaragoza-Moreira, 780 F.3d 971, 978 (9th Cir. 2015) (citations omitted).

            In Dixon v. United States,548 U.S. 1, 7-8 (2006), the Supreme Court held that when a statute is silent on the question of an affirmative defense and when the affirmative defense does not negate an essential element of the offense, the burden is on the defendant to prove the elements of the defense by a preponderance of the evidence.  “Like the defense of necessity, the defense of duress does not negate a defendant’s criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to ‘avoid liability . . . because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.’”  Id. (quoting Bailey, 444 U.S. at 402).

            Use this instruction when the defendant alleges that he or she committed the alleged criminal act under duress, coercion, or compulsion.  See United States v. Meraz-Solomon, 3 F.3d 298, 299 (9th Cir. 1993) (in prosecution for importation of cocaine, burden is on defendant to prove duress, coercion, or compulsion by a preponderance of the evidence).  A defendant is not obligated to admit guilt to a crime as a precondition for raising the affirmative defense of duress.  See United States v. Haischer, 780 F.3d 1277, 1284 n.1 (9th Cir. 2015) (clarifying that defendant does not have to admit knowing or intentional commission of crime to assert duress defense).

            “[A] defendant is not entitled to present a duress defense to the jury unless the defendant has made a prima facie showing of duress in a pre-trial offer of proof.”  United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008).  The phrase “present, immediate, or impending threat” in the first element of the instruction was used in Vasquez-Landaver, 527 F.3d at 802.

            Expert testimony about Battered Women’s Syndrome may be relevant to both the second and third elements of the duress defense, as well as in rehabilitating a defendant’s credibility.  See United States v. Lopez, 913 F.3d 807, 822-23 (9th Cir. 2019).

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

Revised Apr. 2019

             The defendant contends that [he] [she] acted out of necessity.  Necessity legally excuses the crime charged.

            The defendant must prove necessity by a preponderance of the evidence.  A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged].

            A defendant acts out of necessity only if at the time of the crime charged:

First, the defendant was faced with a choice of evils and chose the lesser evil;

Second, the defendant acted to prevent imminent harm;

Third, the defendant reasonably anticipated [his] [her] conduct would prevent such harm; [and]

Fourth, there were no other legal alternatives to violating the law[.] [; and]

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

            If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

Comment

            To be entitled to an instruction on necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody.  See United States v. Bailey, 444 U.S. 394, 412-13 (1980).  The bracketed fifth element should be used in cases of escape only.

            This defense traditionally covers situations “where physical forces beyond [an] actor’s control rendered illegal conduct as the less of two evils.”  United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008) (quoting Bailey, 444 U.S. at 409-10).  The defense of necessity is usually invoked when the defendant acted in the interest of the general welfare.  United States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir. 1984).  The defendant is not entitled to submit the defense of necessity to the jury unless the proffered evidence, construed most favorably to the defendant, establishes all the elements of the defense.  United States v. Cervantes-Flores, 421 F.3d 825, 829 (9th Cir. 2005); see also United States v. Chao Fan Xu, 706 F.3d 965, 988 (9th Cir. 2013) (“Fear of prosecution for crimes committed is not an appropriate reason to claim necessity.”).  The defendant’s proffered necessity defense is analyzed through an objective framework.  Perdomo-Espana, 522 F.3d at 987.

            Although felon-in-possession cases in the Ninth Circuit are typically analyzed under the justification defense (Instruction 5.9), see  United States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996), the necessity defense may also be applicable to such cases.  See United States v. Barnes, 895 F.3d 1194, 1204-05 nn.4 & 6 (9th Cir. 2018). 

Revised Sept. 2018

            The defendant contends that [his] [her] conduct was justified.  Justification legally excuses the crime charged.

            The defendant must prove justification by a preponderance of the evidence.  A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged].

            A defendant’s conduct was justified only if at the time of the crime charged:

First, the defendant was under an unlawful and present threat of death or serious bodily injury;

Second, the defendant did not recklessly place [himself] [herself] in a situation where [he] [she] would be forced to engage in criminal conduct;

Third, the defendant had no reasonable legal alternative; and 

Fourth, there was a direct causal relationship between the conduct and avoiding the threatened harm.

            If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

Comment

            In United States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996), the Ninth Circuit set forth the four elements needed to make out a justification defense.  See also United States v. Wofford, 122 F.3d 787, 790 (9th Cir. 1997); United States v. Beasley, 346 F.3d 930, 933 n.2 (9th Cir. 2003).

            In Gomez, 92 F.3d at 778, the Ninth Circuit held that the defendant presented evidence that, if believed, would have supported a justification defense (specifically, evidence that defendant, convicted felon, had armed himself with shotgun after receiving several death threats resulting from the government’s identification of him as informant).  

Revised Sept. 2018

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

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

            The government must prove beyond a reasonable doubt, with all of you agreeing, that the defendant did not act in reasonable self-defense.

Comment

            The Ninth Circuit has found that the first two paragraphs of this instruction adequately inform the jury of defendant’s defense where “[t]he court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the defendant had not acted in reasonable self-defense.”  United States v. Keiser, 57 F.3d 847, 850-52 (9th Cir. 1995).  See also United States v. Morsette, 622 F.3d 1200, 1202 (9th Cir. 2010) (“[t]he model jury instruction remains correct”).

            Failure of the trial court to instruct the jury that the government has the burden of disproving self-defense is reversible error.  United States v. Pierre, 254 F.3d 872, 876 (9th Cir. 2001).  When there is evidence of self-defense, an additional element should be added to the instruction on the substantive offense:  for example, “Fourth, the defendant did not act in reasonable self-defense.”

            A defendant is entitled to a self-defense instruction when “there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility.” United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998) (quotation marks and citation omitted); United States v. Ehmer, 87 F.4th 1073, 1131 (9th Cir. 2023) (holding that defendant is not entitled to a self-defense instruction unless confronted with an immediate use of force, even if it was “reasonable” to believe that defendant faced an in-the-future “immediate use of unlawful force”).

            The jury must unanimously reject the defendant’s self-defense theory to find the defendant guilty.  United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir. 2008).

            This instruction is not appropriate when the defendant is charged with violating the Endangered Species Act.  See United States v. Wallen, 874 F.3d 620, 628-29 (9th Cir. 2017) (holding that it was error to apply standard self-defense instruction to defense based on defendant’s ‘good faith belief’”); see also United States v. Charette, 893 F.3d 1169, 1175-76 (9th Cir. 2018) (same). 

            See also Comment to Instruction 3.5 (Character of Victim) for a discussion of the admissibility of the victim’s character where self-defense is claimed.

            For self-defense claims involving excessive force, see United States v. Ornelas, 906 F.3d 1138, 1147-48 (9th Cir. 2018). 

Revised March 2024

            Evidence has been admitted that the defendant may have [been intoxicated] [suffered from diminished capacity] at the time that the crime charged was committed.  [Intoxication can result from being under the influence of alcohol or drugs or both.]

            You may consider evidence of the defendant’s [intoxication] [diminished capacity] in deciding whether the government has proved beyond a reasonable doubt that the defendant acted with the intent required to commit [specify crime charged].

Comment

            A defense based on voluntary intoxication is available only for specific intent crimes.  United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195 (9th Cir. 2000); United States v. Dare, 425 F.3d 634, 641 n.3 (9th Cir. 2005) (“Voluntary intoxication is not a defense to a general intent offense.”).  However, a voluntary intoxication instruction may be appropriate where the jury also receives an attempt instruction—even if the completed crime is a general intent crime—because “attempt includes an element of specific intent even if the crime attempted does not.”  United States v. Sneezer, 900 F.2d 177, 179-80 (9th Cir 1990); see Gracidas-Ulibarry, 231 F.3d at 1193 (“When the defendant’s conduct does not constitute a completed criminal act, . . . a heightened intent requirement is necessary to ensure that the conduct is truly culpable.” (citing Sneezer, 900 F.2d at 180)).

            Likewise, diminished capacity is a defense only when specific intent is at issue.  United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988).  The diminished capacity defense is “concerned with whether the defendant possessed the ability to attain the culpable state of mind which defines the crime.”  Id. at 678.  Evidence that the defendant suffers from some mental illness is insufficient by itself to require a diminished capacity instruction.  United States v. Christian, 749 F.3d 806, 815 (9th Cir. 2014), overruled on other grounds by United States v. Bacon, 979 F.3d 766 (2020) (en banc).  Rather, there must be some evidence (however weak) of a link between the defendant’s mental illness and his ability to form a specific intent.  Id. (citing United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987)). 

Revised Jan. 2019 

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

Comment

            Such a “mere presence” instruction is unnecessary if the government’s case is not solely based on the defendant’s presence and the jury has been instructed on the elements of the crime. See United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011); see also United States v. Gooch, 506 F.3d 1156, 1160 (9th Cir. 2007). 

Revised Sept. 2018

             The defendant contends that [[if] [although]] [[he] [she]] committed the acts charged in the indictment, [he] [she] did so at the request of a government agent.  Government authorization of the defendant’s acts legally excuses the crime charged.

            The defendant must prove by a preponderance of the evidence that:

            First, the defendant believed [he] [she] was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment; and

            Second, the defendant’s belief was reasonable. 

            In deciding this, you should consider all of the relevant circumstances, including the identity of the government official, what the official said to the defendant, and how closely the defendant followed any instructions the official gave. 

            A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged]. 

            If you find that the defendant has proved that [he] [she] reasonably believed that [he] [she] was acting as an authorized government agent as provided in this instruction, you must find the defendant not guilty of [specify crime charged].   

Comment

            In United States v. Doe, 705 F.3d 1134 (9th Cir. 2013), the Ninth Circuit held that a defendant had the burden of proving the public authority defense by a preponderance of the evidence because the defense did not serve to negate any of the elements of the crimes with which the defendant was charged.  Id. at 1146.  The court quoted the Seventh Circuit in explaining “when a statute is silent on the question of affirmative defenses and when the affirmative defense does not negate an essential element of the offense, we must presume that the common law rule that places the burden of persuasion on the defendant reflects the intent of Congress.”  Id. at 1147 (quoting United States v. Jumah, 493 F.3d 868, 873 (7th Cir. 2007)); see Dixon v. United States, 548 U.S. 1, 13-14 (2006).  However, the Doe court cautioned that “[t]his is not to suggest that there is a per se rule that the public authority defense must always be proven by the defendant by a preponderance of the evidence.  To the contrary, the burden of proof for the public authority defense depends on both the statute at issue and the facts of the specific case.”  705 F.3d at 1147.  “[W]hen confronted with an affirmative defense, the court must always look closely to the statutory language of the specific offense charged and determine (1) whether the public authority defense negates an element of the charged offense that the government must prove beyond a reasonable doubt and (2) whether Congress intended to alter the common law rules governing the public authority defense [in the statute at issue].”  Id. (citation omitted).

            See Fed. R. Crim. P. 12.3 (Notice of a Public-Authority Defense) regarding giving notice of the defense.  The failure to comply with Rule 12.3 allows the court to exclude the testimony of any undisclosed witness except the defendant, regarding the public authority defense.  United States v. Bear, 439 F.3d 565, 571 n.1 (9th Cir. 2006).  The public authority defense is properly used when the defendant reasonably believed that a government agent authorized her to engage in illegal acts.  Id. at 568.  It is plain error for the court not to instruct on the public authority defense sua sponte when the defendant actually presents and relies on that theory of defense.  Id. at 568-70. 

Revised Sept. 2018