Introductory Comment 

           In 2019, the Ninth Circuit reversed a criminal conviction based on “structural error” because the district court did not orally instruct the jury but instead directed the jurors to read the instructions themselves and then confirmed with each juror that the juror had done so.  United States v. Becerra, 939 F.3d 995 (9th Cir. 2019).  As the reader encounters the model jury instructions that follow and begins to craft the instructions to be given at trial, the words from this decision provide valuable guidance and context:

[M]any jurors may not adequately comprehend written instructions.  It is no secret that jury instructions are often written in language more suitable for lawyers than laypersons.  See, e.g., Jonathan Barnes, Tailored Jury Instructions: Writing Instructions that Match a Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195 (2018); Prentice H. Marshall et al., Pattern Criminal Jury Instructions: Report of the Federal Judicial Center Committee to Study Jury Instructions, at vii, 79–83 (1982); Phil H. Cook, Instructionese: Legalistic Lingo of Contrived Confusion, 7 J. Mo. B. 113 (1951).  Written instructions can be especially impenetrable for those jurors with limited reading comprehension skills.  See Laurence J. Severance et. al., Toward Criminal Jury Instructions that Jurors Can Understand, 75 J. Crim. L. & Criminology 198, 224 (1984); Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1320–21 (1979).  And even if a jury is comprised of an unusually educated cross-section of the community, many of us at times succumb to the temptation to glaze over a long paragraph of text or flip over a few pages of a lengthy stack of papers.  When the instructions are read orally, tonal inflection can make the content of the instructions more accessible, as well as discourage the “tuning out” common when reading dense material.  Oral instruction in the formal courtroom setting thus assures that jurors are exposed to the substance of the essential instructions by at least one sensual route.

The oral charge also performs a second, signaling function that cannot be replaced by a printout or a pamphlet.  Jury instructions are not the judicial equivalent of a car manual or a cookbook.  When an enrobed judge orally charges the jury, the jurors are impressed with the fact that they have been entrusted with the power to decide the defendant’s fate.  This oral, public ritual helps ensure that “jurors . . . recognize the enormity of their task and ... take [that task] seriously.”  Nancy S. Marder, Bringing Jury Instructions into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 465 (2006).  By analogy, reading a sermon is not the same as hearing it read in church or synagogue by a pastor or priest or rabbi.  If it were, religious leaders would just hand out the sermons and end the services early.

For these reasons, the historic practice of oral jury instruction remains central to the fairness of jury trials.

Becerra, 939 F.3d at 1001.  Further, the Federal Rules of Criminal Procedure permit the court to instruct the jury before or after arguments, or at both times.  Fed. R. Crim. P. 30(c).

IN THE UNITED STATES DISTRICT COURT

_______ DISTRICT OF _______

United States of America,                   )                                                  

         Plaintiff,                                     )

                                                            )

   v.                                                      )

                                                            )

                                                            )                       No. ___________

                                                            )

____________________,                   )

                                                            )

         Defendant.                                  )

                                                            )

______________________________) 

            JURY INSTRUCTIONS 

            DATED:  ______________

                                                                                    ________________________________

                                                                                    UNITED STATES DISTRICT JUDGE

            Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case.  A copy of these instructions will be available in the jury room for you to consult.

            It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts.  It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not.  You must decide the case solely on the evidence and the law.  You will recall that you took an oath promising to do so at the beginning of the case.  You should also not be influenced by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances.  Also, do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases[.] [, including unconscious biases.  Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention.] 

            You must follow all these instructions and not single out some and ignore others; they are all important.  Please do not read into these instructions or into anything I may have said or done as any suggestion as to what verdict you should return—that is a matter entirely up to you.

Comment

           See JURY INSTRUCTIONS COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES § 4.5 (2013).

The Supreme Court emphasized the importance of jury instructions as a bulwark against bias in Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017).  Accordingly, the Committee has incorporated stronger language, regarding the jury’s duty to act fairly and impartially, into this instruction, Instruction 1.1 (Duty of Jury), and Instruction 6.19 (Duty to Deliberate).

Revised March 2024

            A defendant in a criminal case has a constitutional right not to testify.  In arriving at your verdict, the law prohibits you from considering in any manner that the defendant did not testify.

Comment

            If this instruction is requested by the defendant, it must be given.  Carter v. Kentucky, 450 U.S. 288, 305 (1981); see also United States v. Soto, 519 F.3d 927, 930 (9th Cir. 2008) (per curiam).  However, “[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection.”  Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978). 

            In United States v. Padilla, 639 F.3d 892 (9th Cir. 2011), the Ninth Circuit held the following language sufficient:

[T]he law prohibits you in arriving at your verdict from considering that the defendant may not have testified.

Id. at 897.  The Ninth Circuit also held in Padilla that in that particular case, the district court did not plainly err in failing to repeat this instruction at the end of the case when it had been given four days earlier after the jury was sworn.  Id. at 898.  The Ninth Circuit suggested, however, that a lengthy period between the delivery of the instruction and commencement of deliberations might alter the analysis.  Id.

Revised Dec. 2017

             The defendant has testified.  You should treat this testimony just as you would the testimony of any other witness.

Comment

            See Instruction 6.3 (Defendant’s Decision Not to Testify) if the defendant does not testify.

            Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty.  It is not required that the government prove guilt beyond all possible doubt.

            A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation.  It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.

            If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.  On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

Comment

            The Ninth Circuit has repeatedly upheld this instruction.  See, e.g., United States v. Velazquez, 1 F.4th 1132, 1136-41 (9th Cir. 2021) (upholding model instruction but remanding due to prosecutor’s misleading comments which compared the reasonable doubt standard to making casual, everyday decisions);United States v. Mikhel, 889 F.3d 1003, 1033 (9th Cir. 2018) (rejecting defendant’s argument that jury can use speculation to find reasonable doubt in favor of accused); see also Victor v. Nebraska, 511 U.S. 1, 17 (1994) (“A fanciful doubt is not a reasonable doubt”).  In addition, the Ninth Circuit has expressly approved a reasonable doubt instruction that informs the jury that the jury must be “firmly convinced” of the defendant’s guilt.  United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992).  Accord United States v. Soto-Zuniga, 837 F.3d 992, 1004 (9th Cir. 2016) (rejecting challenge to this instruction and noting that Ninth Circuit has repeatedly upheld use of this instruction).  In United States v. Gomez, 725 F.3d 1121, 1131 (9th Cir. 2013), the Ninth Circuit approved the conditional language in this model instruction regarding a jury’s duty in a criminal case.  Nonetheless, “[t]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.”  Victor, 511 U.S. at 5. 

            In Victor, 511 U.S. at 5, the Court held that any reasonable doubt instruction must (1) convey to the jury that it must consider only the evidence, and (2) properly state the government’s burden of proof.  See also Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir. 2004), overruled on other grounds by Byrd v. Lewis, 566 F.3d 855 (9th Cir. 2009), and Ramirez v. Hatcher, 136 F.3d 1209, 1213-14 (9th Cir. 1998).

            Care should be taken to ensure that the language used in a verdict form does not require the jury to find the defendant not guilty beyond a reasonable doubt to acquit. See United States v. Espino, 892 F.3d 1048, 1052 (9th Cir. 2018).

Revised Sept. 2021

            The evidence you are to consider in deciding what the facts are consists of:

First, the sworn testimony of any witness; [and]

Second, the exhibits received in evidence[.] [; and]

[Third, any facts to which the parties have agreed.]

Comment

            “When parties have entered into stipulations as to material facts, those facts will be deemed to have been conclusively established.”  United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976); see also United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir. 1999).

Revised Dec. 2017

            In reaching your verdict you may consider only the testimony and exhibits received in evidence.  The following things are not evidence, and you may not consider them in deciding what the facts are:

1.         Questions, statements, objections, and arguments by the lawyers are not evidence.  The lawyers are not witnesses.  Although you must consider a lawyer’s questions to understand the answers of a witness, the lawyer’s questions are not evidence.  Similarly, what the lawyers have said in their opening statements, [will say in their] closing arguments, and [have said] at other times is intended to help you interpret the evidence, but it is not evidence.  If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.

2.         Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence.  [In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.]

3.         Anything you may have seen or heard when the court was not in session is not evidence.  You are to decide the case solely on the evidence received at the trial.

Comment

            See Comment to Instruction 2.12 (Evidence for Limited Purpose) regarding case law on limiting instructions.

            "A jury’s exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment.” Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (citing Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995)). 

            Supplemental instructions to the jury may be proper when counsel’s arguments to the jury are legally erroneous or inflammatory.  See United States v. Blixt, 548 F.3d 882, 890 (9th Cir. 2008).

Revised Mar. 2018 

            Evidence may be direct or circumstantial.  Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did.  Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which you can find another fact. 

            You are to consider both direct and circumstantial evidence.  Either can be used to prove any fact.  The law makes no distinction between the weight to be given to either direct or circumstantial evidence.  It is for you to decide how much weight to give to any evidence. 

Comment

            “[I]t is the exclusive function of the jury to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts.  Circumstantial and testimonial evidence are indistinguishable insofar as the jury fact-finding function is concerned, and circumstantial evidence can be used to prove any fact.”  United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977) (per curiam) (citations omitted); see also Payne v. Borg, 982 F.2d 335, 339 (9th Cir. 1992).

            The Committee believes that an instruction on circumstantial evidence generally eliminates the need to explain the same principle in terms of inferences.  Thus, the Committee recommends against giving instructions on matters such as flight, resistance to arrest, a missing witness, failure to produce evidence, false or inconsistent exculpatory statements, failure to respond to accusatory statements, and attempts to suppress or tamper with evidence.  These matters are generally better left to argument of counsel as examples of circumstantial evidence from which the jury may find another fact.  See United States v. Beltran-Garcia, 179 F.3d 1200, 1207 (9th Cir. 1999) (in discussing jury instruction regarding inferring intent to possess for distribution from quantity of drugs, the Ninth Circuit stated that “[a]lthough the instructions in this case were not delivered in error, we do not hesitate to point out the ‘dangers and inutility of permissive inference instructions.’” (citation omitted)); see also United States v. Rubio–Villareal, 967 F.2d 294, 295, 300 (9th Cir. 1992) (en banc) (disapproving jury instruction that knowledge of presence of drugs in vehicle may be inferred when defendant is driver).

            It may be helpful to include an illustrative example of circumstantial evidence in the instruction.  If so, consider the following:

By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night.  However, other evidence, such as a turned-on garden hose, may provide an explanation for the water on the sidewalk.  Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

Revised Dec. 2017

             In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe.  You may believe everything a witness says, or part of it, or none of it.

            In considering the testimony of any witness, you may take into account the following:

First, the opportunity and ability of the witness to see or hear or know the things testified to;

Second, the witness’s memory;

Third, the witness’s manner while testifying;

Fourth, the witness’s interest in the outcome of the case, if any;

Fifth, the witness’s bias or prejudice, if any;

Sixth, whether other evidence contradicted the witness’s testimony;

Seventh, the reasonableness of the witness’s testimony in light of all the evidence; and

Eighth, any other factors that bear on believability.

            Sometimes a witness may say something that is not consistent with something else he or she said.  Sometimes different witnesses will give different versions of what happened.  People often forget things or make mistakes in what they remember.  Also, two people may see the same event but remember it differently.  You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

            However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.  On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.

          You must avoid bias[, conscious or unconscious,] based on a witness’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances in your determination of credibility.

            The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.  What is important is how believable the witnesses were, and how much weight you think their testimony deserves.

Revised March 2024

            You are here only to determine whether the defendant is guilty or not guilty of the charge[s] in the indictment.  The defendant is not on trial for any conduct or offense not charged in the indictment.

Comment

            When evidence has been introduced during trial pursuant to Fed. R. Evid. 404(b), also use Instructions 2.11 (Similar Acts in Sexual Assault and Child Molestation Cases) and 3.3 (Other Crimes, Wrongs, or Acts of Defendant).

            When conduct necessary to satisfy an element of the offense is charged in the indictment and the government’s proof at trial includes uncharged conduct that would satisfy the same element, the court should instruct the jury that it must find the conduct charged in the indictment before it may convict.  See United States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014) (reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment).

Revised Dec. 2017

            A separate crime is charged against the defendant in each count.  You must decide each count separately.  Your verdict on one count should not control your verdict on any other count.

Comment

            Use this instruction when there is one defendant charged with multiple counts.  If the case involves multiple defendants and multiple counts, use Instruction 6.13 (Separate Consideration of Multiple Counts—Multiple Defendants) instead.  If more than one defendant is charged with the same crime, use Instruction 6.12 (Separate Consideration of Single Count—Multiple Defendants).

            When the counts are satisfactorily distinguished in the jury charge, the jury will be presumed to have followed instructions and not to have confused the evidence pertinent to the individual counts.  United States v. Parker, 432 F.2d 1251, 1255 (9th Cir. 1970); see also United States v. Robertson, 15 F.3d 862, 869 (9th Cir. 1994), rev’d on other grounds, 514 U.S.669 (1995). 

Revised Dec. 2017

             A separate crime is charged against each defendant.  The charges have been joined for trial.  You must consider and decide the case of each defendant separately.  Your verdict as to one defendant should not control your verdict as to any other defendant.

            All the instructions apply to each defendant [unless a specific instruction states that it applies to only a specific defendant].

Comment

            Use this instruction when there is more than one defendant charged with the same crime.  If the case involves multiple defendants and multiple counts, use Instruction 6.13 (Separate Consideration of Multiple Counts—Multiple Defendants) instead.  If one defendant has been charged with multiple counts, use Instruction 6.11 (Separate Consideration of Multiple Counts—Single Defendant).

             A separate crime is charged against one or more of the defendants in each count.  The charges have been joined for trial.  You must decide the case of each defendant on each crime charged against that defendant separately.  Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.

            All the instructions apply to each defendant and to each count [unless a specific instruction states that it applies only to a specific [defendant] [count]].

Comment

            Use this instruction when there is more than one defendant charged with multiple counts.  If the case involves multiple defendants charged with the same count, use Instruction 6.12 (Separate Consideration of Single Count—Multiple Defendants) instead.  If one defendant has been charged with multiple counts, use Instruction 6.11 (Separate Consideration of Multiple Counts—Single Defendant). 

            The crime of [specify crime charged] includes the lesser crime of [specify lesser included crime].  If (1) [any] [all] of you are not convinced beyond a reasonable doubt that the defendant is guilty of [specify crime charged]; and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of [specify lesser included crime], you may find the defendant guilty of [specify lesser included crime].

            For the defendant to be found guilty of the lesser crime of [specify lesser included crime], the government must prove each of the following elements beyond a reasonable doubt: 

[List elements of lesser included crime.]

Comment

            When a lesser included offense instruction is appropriate, a defendant has the right to elect whether all or only some of the jurors must not be convinced beyond a reasonable doubt of guilt of the greater offense.  United States v. Peneda-Doval, 614 F.3d 1019, 1030 (9th Cir. 2010); United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir. 1984).

            Pursuant to Fed. R. Crim. P. 31(c), “[a] defendant may be found guilty of . . . an offense necessarily included in the offense charged.”  Moreover, a defendant in a capital case has a due process right to a lesser included offense instruction when the facts would allow the jury to impose a life sentence rather than death.  Beck v. Alabama, 447 U.S. 625, 637-38 (1980).  The Ninth Circuit has not yet decided whether a defendant’s right to a lesser included instruction in a noncapital case springs solely from Fed. R. Crim. P. 31(c) or also from the Fifth Amendment Due Process Clause.  United States v. Torres-Flores, 502 F.3d 885, 887 n.3 (9th Cir. 2007).

            Whether an offense is a lesser included offense of a charged crime is a question of law.  United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007).  “A defendant is entitled to an instruction on a lesser-included offense if the law and evidence satisfy a two-part test: 1) ‘the elements of the lesser offense are a subset of the elements of the charged offense,’ Schmuck v. United States, 489 U.S. 705, 716 (1989); and 2) ‘the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [her] of the greater,’ Keeble v. United States, 412 U.S. 205, 208 (1973).”  Arnt, 474 F.3d at 1163 (alterations in original); see also United States v. Rivera-Alonzo, 584 F.3d 829, 835 (9th Cir. 2009) (holding that although simple assault is lesser included offense of both 8- and 20-year felonies described in 18 U.S.C. § 111, defendant was not entitled to lesser included offense instruction when there was “undisputed evidence of physical contact” that precluded conviction on simple assault); Torres-Flores, 502 F.3d at 888 (holding that trial court appropriately refused lesser included offense instruction when jury could not have convicted on the lesser offense without also finding all elements of the greater offense); see United States v. Hernandez, 476 F.3d 791, 801-02 (9th Cir. 2007) (holding it was reversible error in prosecution for intent to distribute methamphetamine not to instruct on lesser offense of possession of controlled substances when evidence would permit rational jury to find defendant guilty of lesser offense and acquit him of greater offense). 

Revised Dec. 2017

            A person has possession of something if the person knows of its presence and has physical control of it or knows of its presence and has the power and intention to control it.

            [More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.]

Comment

            The Committee believes this instruction is all-inclusive, and there is no need to attempt to distinguish further between actual and constructive possession and sole and joint possession.

            The Ninth Circuit has approved language similar to that contained in this instruction. United States v. Cain,130 F.3d 381, 382-84 (9th Cir. 1997).

            In the event the case involves use or possession of a firearm under 18 U.S.C. § 924(c), see Instructions 14.22 (Firearms—Using, Carrying, or Brandishing in Commission of Crime of Violence or Drug Trafficking Crime) and 14.23 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime).  See also United States v. Johnson, 459 F.3d 990, 998 (9th Cir. 2006) (rejecting premise that “passing control” of firearm does not constitute possession).

Revised Dec. 2017

            The fact that a defendant is a corporation should not affect your verdict.  Under the law a corporation is considered a person and all persons are equal before the law.  A corporation is entitled to the same fair and conscientious consideration by you as any other person.

Revised Dec. 2017

             You have heard testimony of a witness who testified in the [specify foreign language] language.  Witnesses who do not speak English or are more proficient in another language testify through an official interpreter.  Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence.  Therefore, you must accept the interpreter’s translation of the witness’s testimony.  You must disregard any different meaning.

            You must not make any assumptions about a witness or a party based solely on the fact that an interpreter was used. 

Comment

            When there is no dispute as to the accuracy of the translation of evidence in a foreign language, the jury may be instructed that it “is not free to disagree with a translated transcript of tape recordings.”  United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (concluding that to hold otherwise would be “nonsensical”); see also United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).  When the accuracy of a foreign language translation is disputed, see United States v. Rrapi, 175 F.3d 742, 748 (9th Cir. 1999). 

Revised Mar. 2018

            The indictment charges that the offense alleged [in Count_______] was committed “on or about” a certain date.

            Although it is necessary for the government to prove beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in [Count _______of] the indictment, it is not necessary for the government to prove that the offense was committed precisely on the date charged.

Comment

            See United States v. Loya, 807 F.2d 1483, 1493-94 (9th Cir. 1987) (approving similarly worded “on or about” jury instruction).

            If the defendant asserts an alibi defense, this instruction should be coordinated with Instruction 5.1 (Alibi).  See id.  If the case involves a continuing offense or theory of defense, this instruction will need to be modified.  See, e.g., Comment to Instruction 5.6 (Insanity).

Revised June 2015

            When you begin your deliberations, elect one member of the jury as your [presiding juror] [foreperson] who will preside over the deliberations and speak for you here in court.

            You will then discuss the case with your fellow jurors to reach agreement if you can do so.  Your verdict, whether guilty or not guilty, must be unanimous.

            Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

            Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.

            It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision.  Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

            Perform these duties fairly and impartially.  You should also not be influenced by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances.  Also, do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases[.] [, including unconscious biases.  Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention.]

            It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so.  During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. 

Comment

            “In the typical case, a . . . general unanimity instruction to the jury adequately protects a defendant’s right to a unanimous jury verdict.”  United States v. Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015) (citing United States v. Chen Chiang Liu, 631 F.3d 993, 1000 (9th Cir. 2011)).  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.”  Id. (internal quotation marks and citation omitted).  A specific unanimity instruction may also be necessary in certain circumstances to avoid constitutional error.  See United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir. 2008) (trial court appropriately instructed jury it must unanimously reject self-defense theory to find defendant guilty).  For further discussion of when a specific unanimity instruction is needed, see Comment at Instruction 6.27 (Specific Issue Unanimity).

            The Supreme Court emphasized the importance of jury instructions as a bulwark against bias in Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017).  Accordingly, the Committee has incorporated stronger language, regarding the jury’s duty to act fairly and impartially, into this instruction, Instruction 1.1 (Duty of Jury), and Instruction 6.1 (Duties of Jury to Find Facts and Follow Law).

Revised March 2024

            Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves.  Except for discussing the case with your fellow jurors during your deliberations:

Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it.  This restriction includes discussing the case in person, in writing, by phone, tablet, computer, or any other means, via email, text messaging, or any Internet chat room, blog, website or any other forms of social media.  This restriction applies to communicating with your family members, your employer, the media or press, and the people involved in the trial.  If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. 

Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.

            The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address.  A juror who violates these restrictions jeopardizes the fairness of these proceedings [, and a mistrial could result that would require the entire trial process to start over].  If any juror is exposed to any outside information, please notify the court immediately.

Revised Dec. 2020

            Some of you have taken notes during the trial.  Whether or not you took notes, you should rely on your own memory of what was said.  Notes are only to assist your memory.  You should not be overly influenced by your notes or those of your fellow jurors.

            The punishment provided by law for this crime is for the court to decide.  You may not consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.

Comment

            In United States v. Lynch, 903 F.3d 1061, 1081 (9th Cir. 2018), the Ninth Circuit rejected a challenge to this instruction.

Revised Sept. 2019

            A verdict form has been prepared for you.  [Explain verdict form as needed.]  After you have reached unanimous agreement on a verdict, your [presiding juror] [foreperson] should complete the verdict form according to your deliberations, sign and date it, and advise the [clerk] [bailiff] that you are ready to return to the courtroom.

            If it becomes necessary during your deliberations to communicate with me, you may send a note through the [clerk] [bailiff], signed by any one or more of you.  No member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing or here in open court.  If you send out a question, I will consult with the lawyers before answering it, which may take some time.  You may continue your deliberations while waiting for the answer to any question.  Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on any question submitted to you, including the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.

Comment 

In United States v. Southwell,432 F.3d 1050, 1052-53 (9th Cir. 2005), the Ninth Circuit noted:

“The necessity, extent and character of additional [jury] instructions are matters within the sound discretion of the trial court.”  Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970) (per curiam).  That discretion is abused, however,when the d istrict court fails to answer a jury’s question on a matter that is not fairly resolved by the court’s instructions.  Because it is not always possible, when instructing the jury, to anticipate every question that might arise during deliberations, “the district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue.”  United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986); see also Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) (“When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.”).

6.25 Deadlocked Jury

[Option 1]

            Members of the jury, you have reported that you have been unable to reach a unanimous verdict in this case.  I have decided to suggest a few additional thoughts to you.

             As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience.  Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors.  During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong.  You should not, however, change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

             I also remind you that in your deliberations you are to consider the instructions that I have given you as a whole.  You should not single out any part of any instruction, including this one, and ignore others.  They are all equally important.

             What I have just said is not meant to rush you or pressure you into agreeing on a verdict.  Take as much time as you need to discuss things.  There is no hurry.

             I ask that you now return to the jury room and continue your deliberations with these additional comments in mind.

[Option 2]

Members of the jury, you have reported that you are unable to reach a unanimous verdict in this case. I realize and appreciate that you are having some difficulty in reaching unanimity, but that is not unusual.

To attempt to assist you in reaching a unanimous verdict, I want to suggest some additional thoughts for your consideration. Sometimes after hearing this additional instruction and engaging in further discussions, jurors can work out their differences and agree unanimously on a verdict.

Although there is no requirement that you reach a verdict in this case, your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based on the evidence presented and the principles of law on which I have instructed you.

[The Final Jury Instructions that I previously gave you reads: “A separate crime is charged against the Defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.” I now add that a jury may return a verdict on some counts and deadlock on others. In other words, a jury may return a verdict on those counts on which it has agreed and leave blank or write “deadlocked” as to those counts as to which there is not unanimity. I did not tell you that earlier because jurors should be neither encouraged nor discouraged to return a partial verdict. At this stage of your deliberations, however, I want to ensure that you understand your options.]

It is your duty, as jurors, carefully to consider, weigh, and evaluate all the evidence that has been presented during the trial. It is also your duty to discuss your views on the evidence with your fellow jurors. And it is your duty to listen to and consider the views of your fellow jurors.

During your deliberations, you should not hesitate to reexamine your views or request that fellow jurors reexamine their views. Likewise, you should not hesitate to change a viewpoint that you held initially, if you become convinced that that viewpoint is wrong. Nor should you hesitate to suggest that other jurors change their views if you are convinced that they are wrong.

Keep in mind that while each of you must decide the case for yourself, you should do so only after an impartial consideration of all the evidence with fellow jurors and after fairly considering and evaluating the viewpoints of fellow jurors.

No juror, however, should surrender an honest belief as to the weight or effect of the evidence solely because of the opinion of fellow jurors or merely for the purpose of returning a verdict.

I remind you that the Defendant is presumed to be innocent and that the Government, not the Defendant, has the burden of proof. Also, the Government must prove the Defendant guilty beyond a reasonable doubt.

Those of you who believe that the Government has proved the Defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other conscientious members of the jury are not convinced. On the other hand, those who believe that the Government has not proved the Defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other equally conscientious members of the jury do not share that doubt. In short, every individual juror should reconsider and reexamine his or her own views.

Fair and effective jury deliberations require frank and forthright exchange of views. As the jury in this case, you have absolute discretion to conduct your deliberations in any way you deem appropriate. I want to suggest to you, however, that because you have not been able to reach a verdict using the methods you have tried so far, you consider the possibility of trying some new methods.

For example, you may wish to have different jurors lead the discussion for a period. Sometimes reconsidering issues from a new or a fresh perspective is helpful. Or you may wish to engage in what is called “reverse role playing.” That is, you might consider having those of you on one side of an issue present or advocate the other side’s position, and vice versa. Either of these methods might enable you to better understand one another’s positions.

By suggesting these different methods of deliberation, I want to stress that I am not dictating to you how you should conduct your deliberations. Nor am I attempting to pressure you to reach a verdict or demanding that you reach a verdict at all costs. There is no requirement, of course, that you reach a verdict in this case.

Instead, I am merely suggesting that you consider additional or alternative methods of ensuring that each juror has a full and fair opportunity to express his or her point of view and that all jurors strive to consider and understand and engage the views of their fellow jurors.

During your further deliberations, you should also reconsider the instructions that I previously gave you and that you have in the jury room. All the instructions, I remind you, are important. And you should consider this supplemental instruction in conjunction with the other instructions that I have previously given.

Nothing that I have said in this Supplemental Instruction is meant to rush you or pressure you into agreeing on a verdict. I want to emphasize that. Take as much time as you need to discuss things. There is no hurry. I now ask you to take this Supplemental Instruction back into the jury room and continue your deliberations with these additional comments in mind.

 Comment

             Before giving any supplemental jury instruction to a deadlocked jury and before declaring a mistrial or partial mistrial based on jury deadlock or partial deadlock, the Committee recommends the court review Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures §§ 5.4, 5.5, and 5.6 (2013); see also United States v. Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000) (“The most critical factor is the jury’s own statement that it is unable to reach a verdict.”); Rogers v. United States, 609 F.2d 1315, 1317 (9th Cir. 1979) (noting that before declaring mistrial based on jury deadlock, “the judge should question the jury . . . either individually or through its foreman, on the possibility that its current deadlock could be overcome by further deliberations”) (internal quotation marks and citation omitted).

             The Committee recommends caution when considering whether to give a supplemental instruction (sometimes known as an “Allen charge”) to encourage a deadlocked jury to reach a verdict.  See United States v. Evanston, 651 F.3d 1080, 1085 (9th Cir. 2011) (noting extraordinary caution to be exercised when giving “Allen charge”).

             As the Ninth Circuit explained in United States v. Berger, 473 F.3d 1080, 1089 (9th Cir. 2007):

             The term “Allen charge” is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked; the name derives from the first Supreme Court approval of such an instruction in Allen v. United States, 164 U.S. 492, 501-02 (1896).  In their mildest form, these instructions carry reminders of the importance of securing a verdict and ask jurors to reconsider potentially unreasonable positions.  In their stronger forms, these charges have been referred to as “dynamite charges,” because of their ability to “blast” a verdict out of a deadlocked jury.

             Allen “charges are proper ‘in all cases except those where it’s clear from the record that the charge had an impermissibly coercive effect on the jury.’”  United States v. Banks, 514 F.3d 959, 974 (9th Cir. 2008) (quoting United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992)).  In assessing the coerciveness of an Allen charge, the Ninth Circuit considers “(1) the form of the instruction, (2) the time the jury deliberated after receiving the charge as compared to the total time of deliberation, and (3) any other indicia of coerciveness.”  United States v. Freeman, 498 F.3d 893, 908 (9th Cir. 2007) (citing United States v. Daas, 198 F.3d 1167, 1179-80 (9th Cir. 1999)); see also Warfield v. Alaniz, 569 F.3d 1015, 1029 (9th Cir. 2009) (holding that weekend interval between “standard” Allen charge and resumption of deliberations “probably would have diluted any coercive effect”).

             In United States v. Sproat, 89 F.4th 771 (9th Cir. 2023), the Ninth Circuit held that the trial court did not improperly coerce the jurors into reaching a unanimous guilty verdict by sending them home at 4:30 p.m. on the first day of deliberations, with the instruction to return the next day, in response to the jury saying they were at impasse. Sproat, 89 F.4th at 775-776. When the jury returned the next day, the defendant objected again that bringing the jury back was coercive. The parties discussed, the judge gave a partial Allen charge which “emphasized the possibility that the jurors would not reach a unanimous verdict, the command that the jurors should not change an honest belief, and the assurance that the jurors could be excused at any time if they concluded that they could not overcome their earlier impasse,” Id. at 776, and the jury returned a verdict convicting the defendant on all counts. The Ninth Circuit rejected the defendant’s argument, stating that “even if the jury had been firmly deadlocked, instructing them to return the next day—without more—would not have been the equivalent of an Allen charge,” as “[t]elling the jurors to return the next day neither explicitly nor implicitly encouraged them to reach a unanimous verdict.” Id. at 775 (“[S]imply excusing the jurors for an evening recess did not equal an instruction to them to strive for a unanimous verdict.”). First, the late-afternoon instruction did not convey that the jurors were required to continue deliberating the next day.” Id. at 776. “Second, the court did not ask the jury to identify the nature of its impasse or the vote count before excusing the jurors for the evening . . . Rather, the judge’s inquiries . . . were limited to establishing that the jury was at an impasse and clarifying that there was no unanimity as to any counts. . . . At no point during those exchanges with the jurors did the court ask the jury to reveal vote counts, areas of disagreement, or specific factual matters on which it disagreed. “ Id. (quotation marks and citations omitted) Finally, there was no coercion because the court gave the partial Allen charge the next day, which the defendant had endorsed.

             The Committee presents two options for an Allen charge. Option 1 has been approved by the Ninth Circuit in appropriate circumstances.  See United States v. Beattie, 613 F.2d 762, 765 (9th Cir. 1980)(“Instructions admonishing jurors to reconsider their positions have ‘been consistently approved in the Ninth Circuit when (they are) in a form not more coercive than that in Allen.’”); see also United States v. Steele, 298 F.3d 906, 910-11(9th Cir. 2002) (identifying three factors to be considered when determining whether an Allen charge is coercive and affirming the district court’s decision to give the Allen charge presented in Option 1). Option 2 has not been considered by the Ninth Circuit in a published opinion.

             Further, the Ninth Circuit has explained:

             If the trial judge gives an Allen charge after inquiring into the numerical division of
             the jury, “the charge is per se coercive and requires reversal.” Ajiboye, 961 F.2d at
             893-94. “Even when the judge . . . is inadvertently told of the jury’s division,
             reversal is necessary if the holdout jurors could interpret the charge as directed
             specifically at them—that is, if the judge knew which jurors were the holdouts and
             each holdout juror knew that the judge knew he was a holdout.”  Id. at 894 (citing
             United States v. Sae-Chua, 725 F.2d 530, 532 (1984)).

United States v. Williams, 547 F.3d 1187, 1205 (9th Cir. 2008) (reversing conviction after neutral Allen charge when “hold-out” juror knew her identity was known by the court).  See Evanston, 651 F.3d at 1085-93 (holding that district court committed reversible error by allowing supplemental closing arguments to deadlocked jury after court gave Allen charge and inquired as to reason for deadlock).

             In addition, after being advised that a jury is deadlocked, a trial judge might consider informing jurors that the court has an additional instruction that may help them break the impasse and solicit the jury’s on-the-record willingness to consider it.

 Finally, the bracketed paragraph may be used when a single defendant has been charged with multiple counts.Similar instructions, appropriately modified, also may be used when there are multiple defendants.

Revised June 2024

Comment 

             If the jury indicates that it is deadlocked after an Allen charge is given, the Committee recommends polling the jury to confirm that they “cannot agree on a verdict on one or more counts,” Fed. R. Crim. P. 31(b)(3), and, thus, that there is a basis to declare a mistrial.  As the Ninth Circuit noted in Brazzel v. Washington, 491 F.3d 976, 982 (9th Cir. 2007):

A hung jury occurs when there is an irreconcilable disagreement among the jury members.  A “high degree” of necessity is required to establish a mistrial due to the hopeless deadlock of jury members.  See Arizona v. Washington, 434 U.S. 497, 506 (1978).  The record should reflect that the jury is “genuinely deadlocked.”  Richardson v. United States, 468 U.S. 317, 324-25 (1984) (explaining that when a jury is genuinely deadlocked, the trial judge may declare a mistrial and require the defendant to submit to a second trial); see also Selvester [v. United States], 170 U.S. [262,] 270 [(1898)] (“But if, on the other hand, after the case had been submitted to the jury they reported their inability to agree, and the court made record of it and discharged them, such discharge would not be equivalent to an acquittal, since it would not bar the further prosecution.”).

            In United States v. Hernandez-Guardado, 228 F.3d 1017 (9th Cir. 2000), the court noted that “[i]n determining whether to declare a mistrial because of jury deadlock, relevant factors for the district court to consider include the jury’s collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has objected to a mistrial, and the effects of exhaustion or coercion on the jury.”  Id. at 1029 (citing United States v. Cawley, 630 F.2d 1345, 1348-49 (9th Cir. 1980)).  “The most critical factor is the jury’s own statement that it is unable to reach a verdict.”  Cawley,630 F.2d at 1349.  “Without more, however, such a statement is insufficient to support a declaration of a mistrial.”  Hernandez-Guardado, 228 F.3d at 1029.  “On receiving word from the jury that it cannot reach a verdict, the district court must question the jury to determine independently whether further deliberations might overcome the deadlock.”  Id.

            A suggested script for this purpose follows:

“To the [Presiding Juror] [Foreperson]:  In your opinion, is the jury [[hopelessly deadlocked] [unable to agree on a verdict]] [as to one or more counts]?”

“To all jurors:  If any of you disagree with the [Presiding Juror’s] [Foreperson’s] answer, please tell me now.”

If the response to the first question is “yes,” then ask:

“Is there a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?”

If the response is “no,” then ask the entire panel the following:

“[To all jurors]:  Without stating where any juror stands, do any of you believe there is a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?”

            See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.5 (2013).

            NOTE:  It is per se error to give a second Allen charge where the jury has not requested one, because the second Allen charge “conveys a message” of “impermissible coercion.”  United States v. Evanston, 651 F.3d 1080, 1085 (9th Cir. 2011).

Revised Sept. 2019

Comment 

            “In the typical case, a . . . general unanimity instruction to the jury adequately protects a defendant’s right to a unanimous jury verdict.”  United States v. Gonzalez,786 F.3d 714, 717 (9th Cir. 2015) (citing United States v. Liu, 631 F.3d 993, 1000 (9th Cir. 2011)). 

        “Courts must make a ‘threshold inquiry’ whether the ‘listed items’ in an ‘alternatively phrased’ statute are ‘elements or means.’”  United States v. Mickey, 897 F.3d 1173, 1181 (9th Cir. 2018) (quoting Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)); see also United States v. Barai, 55 F.4th 1245, 1249 (9th Cir. 2022) (“Calling a particular part of a statute an ‘element,’ as opposed to a ‘means,’ is legally significant.”).  “[E]lements are those circumstances on which the jury must unanimously agree, while means are those circumstances on which the jury may disagree yet still convict.”  Mickey, 897 F.3d at 1181(internal quotation marks, italics, and brackets omitted).  Alternative elements require a specific unanimity instruction, while alternative means do not.  See id. at 1181-82; see, e.g., Barai, 55 F.4th at 1250 (holding district court did not abuse its discretion in declining to give specific unanimity instruction because “the listed alternatives of 18 U.S.C. § 1589(a) are factual means, rather than distinct legal elements”). 

            Nonetheless, 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.”  Gonzalez, 786 F.3d at 717 (internal quotation marks omitted); compare United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983) (holding that unanimity instruction regarding specific conspiracy should have been given in light of proof of multiple conspiracies) with United States v. Kim,196 F.3d 1079, 1082 (1999) (holding there was no abuse of discretion to decline to give specific unanimity instruction when the defendant was charged with a single crime based on single set of facts and where prohibited acts were merely alternative means by which defendant could be held criminally liable for underlying substantive offense).  Thus, the Committee recommends the court consider the need for a specific unanimity instruction to avoid juror confusion if (1) the evidence is factually complex, (2) the indictment is broad or ambiguous, or (3) the jury’s questions indicate that it may be confused.  See United States v. Anguiano, 873 F.2d 1314, 1319-21 (9th Cir. 1989).  When the evidence establishes multiple conspiracies, failure to give a specific unanimity instruction may be plain error and the court may have a duty to sua sponte give the instruction requiring the jurors to unanimously agree on which conspiracy the defendant participated in.  See United States v. Lapier, 796 F.3d 1090, 1093 (9th Cir. 2015) (holding that failure to give specific unanimity instruction was plain error because some jurors could have found defendant guilty of joining one conspiracy while other jurors could have found defendant guilty of joining second, completely independent conspiracy).

            A specific unanimity instruction may also be necessary to avoid constitutional error.  For example, when self-defense is at issue, a jury must unanimously reject the defense to convict.  See United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir. 2008) (approving instruction that included specific unanimity within self-defense instruction consistent with this instruction and Instruction 5.10 (Self-Defense)); see also Richardson v. United States, 526 U.S. 813, 815 (1999) (continuing-criminal-enterprise prosecution requires unanimity as to specific violations that make up “continuing series of violations”); but see United States v. Nobari, 574 F.3d 1065, 1081 (9th Cir. 2009) (although unanimity is required to reject affirmative defense, specific unanimity instruction is not required for most affirmative defenses).

            A specific unanimity instruction is not required to distinguish an aiding and abetting theory of liability from the underlying substantive crime.  See United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005).  Nor is one required as to a particular false promise in a mail fraud case or as to a particular theory of liability underlying a “scheme to defraud” so long as jurors are unanimous that the defendant committed the underlying substantive offense.  United States v. Lyons, 472 F.3d 1055, 1068-69 (9th Cir. 2007), overruling on other grounds recognized by Tamosaitis v. URS Inc., 781 F.3d 468, 489 n.11 (9th Cir. 2015).  Likewise, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime in a prosecution for an attempt to commit a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).  Further, when a defendant is charged with “a single, continuous act of possession,” jurors need not reach unanimous agreement on the pieces of evidence they find persuasive in establishing that possession.  United States v. Ruiz, 710 F.3d 1077, 1081-82 (9th Cir. 2013); see also United States v. Mancuso, 718 F.3d 780, 792-93 (9th Cir. 2013).

            When a specific unanimity instruction is necessary, the Committee recommends including in the substantive instruction the phrase “ . . . with all of you agreeing [as to the particular matter requiring unanimity].”  See United States v. Garcia-Rivera, 353 F. 3d 788, 792 (9th Cir. 2003) (unanimity instruction “fatally ambiguous” when jury could have understood they were required to decide unanimously only that possession occurred during any of three times enumerated).

Revised Mar. 2023

Comment 

             If during jury deliberations a request is made by the jury or juror for a readback of a portion or all of a witness’s testimony, and the court in exercising its discretion determines after consultation with legal counsel that a readback should be allowed, the Committee recommends the following admonition be given in open court with both sides and the defendant present:

Because a request has been made for a [readback] [playback] of the testimony of [witness’s name] it is being provided to you, but you are cautioned that all [readbacks] [playbacks] run the risk of distorting the trial because of overemphasis of one portion of the testimony.  [Therefore, you will be required to hear all the witness’s testimony on direct and cross-examination, to avoid the risk that you might miss a portion bearing on your judgment of what testimony to accept as credible.]  [Because of the length of the testimony of this witness, excerpts will be [read] [played].]  The [readback] [playback] could contain errors.  The [readback] [playback] cannot reflect matters of demeanor [, tone of voice,] and other aspects of the live testimony.  Your recollection and understanding of the testimony controls.  Finally, in your exercise of judgment, the testimony [read] [played] cannot be considered in isolation but must be considered in the context of all the evidence presented. 

            In United States v. Newhoff, 627 F.3d 1163, 1168 (9th Cir. 2010), the court underscored the need to take certain precautionary steps when an excerpt or entire testimony of a witness is requested by a deliberating jury.  The court endorsed the “general rule” that when such a request is made and the trial court, in exercising its discretion, grants the request after consultation with the parties, it should require the jury to hear the readback in open court, with counsel for the parties and the defendant present after giving the admonition set out above, unless the defendant has waived the right to be present.  Id.

            In United States v. Price, 980 F.3d 1211, 1227 (9th Cir. 2020), the Ninth Circuit noted “‘the district court’s great latitude to address requests for readbacks’” (quoting United States v. Medina Casteneda, 511 F.3d 1246, 1249 (9th Cir. 2008)). 

Revised Dec. 2020

[One] [some] of your fellow jurors [has] [have] been excused from service and will not participate further in your deliberations.  You should not speculate about the reason the [juror is] [jurors are] no longer present.

You should continue your deliberations with the remaining jurors.  Do not consider the opinions of the excused [juror] [jurors] as you continue deliberating.  All the previous instructions given to you, including the unanimity requirement for a verdict, remain in effect.

Comment

The trial court, upon written stipulation by the parties, may permit a jury of fewer than 12 persons to return a verdict, or by order of the court for good cause, a jury of 11 persons may return a verdict.  Fed. R. Crim. P. 23(b); United States v. Brown, 784 F.3d 1301, 1304-07 (9th Cir. 2015).  It may also substitute an alternate juror.  See Brown, 784 F.3d at 1304; see also Instruction 6.30 (Resumption of Deliberations After Alternate Juror is Added).

Revised Sept. 2019

6.30 Resumption of Deliberations After Alternate Juror Is Added 

[An alternate juror has] [Alternate jurors have] been substituted for the excused [juror] [jurors].  You should not speculate about the reason for the substitution.

You must start your deliberations anew.  This means you should disregard entirely any deliberations taking place before the alternate [juror was] [jurors were] substituted and consider freshly the evidence as if the previous deliberations had never occurred.

Although starting over may seem frustrating, please do not let it discourage you.  It is important that each juror have a full and fair opportunity to explore his or her views and respond to the views of others so that you may come to a unanimous verdict.  All the previous instructions given to you, including the unanimity requirement for a verdict, remain in effect.

Comment

The court must ensure that the alternate did not discuss the case with anyone after the original jury retired, and it must instruct the reconstituted jury to begin its deliberations “anew.”  Fed. R. Crim. P. 24(c); United States v. Brown, 784 F.3d 1301, 1302 (9th Cir. 2015). 

The trial court, upon written stipulation by the parties, may permit a jury of fewer than 12 persons to return a verdict, or by order of the court for good cause, a jury of 11 persons may return a verdict.  See Fed. R. Crim. P. 23(b); Brown, 784 F.3d at 1304-07; Instruction 6.29 (Continuing Deliberations After Juror is Discharged and Not Replaced).  The court may also substitute an alternate juror.  See Fed. R. Crim. P. 24(c).

Revised Sept. 2019

             Now that the case has been concluded, some of you may have questions about the confidentiality of the proceedings.  Now that the case is over, you are free to discuss it with any person you choose.  By the same token, however, I would advise you that you are under no obligation whatsoever to discuss this case with any person. 

            [If you do decide to discuss the case with anyone, I would suggest you treat it with a degree of solemnity in that whatever you do decide to say, you would be willing to say in the presence of the other jurors or under oath here in open court in the presence of all the parties.] 

            [Finally, always bear in mind that if you do decide to discuss this case, the other jurors fully and freely stated their opinions with the understanding they were being expressed in confidence.  Please respect the privacy of the views of the other jurors.]

            [Finally, if you would prefer not to discuss the case with anyone, but are feeling undue pressure to do so, please feel free to contact the courtroom deputy, who will notify me, and I will assist.]

Comment

            See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures,§ 6.1 (2013).

Revised Dec. 2019 

6.32 Venue 

            The Indictment alleges that some act [or acts] in furtherance of the crime charged occurred in [Name of venue]. There is no requirement that [all aspects of the crime charged] [the entire conspiracy] take place here in [Name of venue]. Before you may return a verdict of guilty, however, if that is your decision, the government must convince you that [some act in furtherance of the crime charged] [either the agreement or one of the overt acts in furtherance of the agreement] [one of the expressly contemplated effects of the act [or acts]] took place in [Name of venue].

            [Define the specific geographic boundaries of the venue, if needed.]

            Unlike all the specific elements of the crime[s] charged that I have described elsewhere in these instructions, this fact regarding venue need only be proven by a preponderance of the evidence. This means the government need only convince you that it is more likely than not that [some act in furtherance of the crime charged] [part of the conspiracy] took place here.

            The government, however, must prove all the offense-specific elements of any crime charged, as I have described elsewhere in these instructions, beyond a reasonable doubt. The lesser standard of preponderance of the evidence only applies to your decision on the issue of venue.

Comment

            The Ninth Circuit has explained:

Controlling circuit law establishes that, although venue is not an element of the offense, nevertheless it must still be proved by the government at trial. Venue is a question of fact that the government must prove by a preponderance of the evidence. It is a jury question. Normally it is not for the court to determine venue and it is error to not give a requested instruction on venue. Venue is part of the bedrock of our federal system, and proper venue is a constitutional right, not a mere technicality. The district court therefore could not properly decide venue itself and should have submitted the issue to the jury.

United States v. Moran-Garcia, 966 F.3d 966, 969 (9th Cir. 2020) (footnotes, quotation marks, and brackets omitted; emphasis added); see also United States v. Ghanem, 993 F.3d 1113, 1131 (9th Cir. 2021) (“In future cases with similarly muddled postures, a district court might consider using a special-verdict form requiring a venue finding separate from substantive guilt.”).

            This instruction is based on the Third Circuit’s model criminal instruction § 3.09, the Sixth Circuit’s model criminal instruction § 3.07, and the Eighth Circuit’s model criminal instruction § 3.13.

            In Smith v. United States, 599 U.S. 236 (2023), the Supreme Court held that a violation of the Constitution’s Venue Clause does not necessitate dismissal; rather, it warrants a new trial.

            Accord United States v. Fortenberry, 89 F.4th 702, 713 (9th Cir. 2023) (reversing defendant’s conviction obtained in wrong venue “so that he may be retried, if at all, in a proper venue”).

            In United States v. Abouammo, 122 F.4th 1072 (9th Cir. 2024), the Ninth Circuit held that venue was proper for a prosecution under 18 U.S.C. § 1519 in the district where the false document was (or false documents were) prepared, or in the district where the false document was (or false documents were) intended to stymie an investigation that was ongoing or contemplated. Id. at 1092-93, 1096.

Revised March 2025