Jury Instructions - Elements of the Offense or Defense

Hedgpeth v. Pulido, 129 S. Ct. 530 (2008)

If the jury is instructed on alternative methods by which the offense can be convicted, and one of the alternative methods is legally incorrect, the verdict is subject to challenge, if it cannot be determined whether the jury relied on the improper method. In this case, the Supreme Court held that this type of error is not “structural error” that necessarily requires setting aside the verdict.

Washington v. Recuenco, 548 U.S. 212 (2006)

The failure to submit a sentencing factor to the jury for their determination is a Blakely error, but is not a structural error. Therefore, as in Neder, such error may be deemed harmless.

Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999)

In this pre-United States v. Gaudin trial, the judge failed to submit the issue of materiality to the jury. The trial attorney objected. Thus, rather than analyzing whether it was plain error to fail to submit this issue to the jury (Johnson v. United States), the Court had to decide whether it was harmless error. The Court held that in this case it was harmless error. Justice Scalia dissented, concluding that it was reversible error per se to omit to instruct the jury on an element of the offense if there is a proper objection.

Johnson v. United States, 520 U.S. 461 (1997)

The district court erred in its jury instruction by removing the issue of materiality from the jury’s consideration. The Court reviewed this error under the plain error standard and concluded that the error, though plain, did not affect the fairness, integrity or public reputation of the judicial proceedings.

United States v. Gaudin, 515 U.S. 506 (1995)

The question of the materiality of a false statement is a jury question. The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. This includes the “materiality” element of a §1001 offense.

United States v. Borrero, 771 F.3d 973 (7th Cir. 2014)

The defendants were prosecuted for various offenses, including mail fraud. The mail fraud count alleged that the defendants defrauded the State of Indiana by submitting applications for car titles with false information. This theor of fraud does not pass muster under Cleveland, because a car title is not “property” in the hands of the State. The fact that there was another legal theory that may have supported the conviction does not rescue the conviction, because if the jury is given two options for conviction, one of which is legally correct, and the other legally incorrect, the verdict cannot be upheld. Griffin v. United States, 502 U.S. 46 (1991).

United States v. Catone, 769 F.3d 866 (4th Cir. 2014)

If a defendant receives federal benefits in an amount in excess of $1,000, it is a felony (18 U.S.C. § 1920). If the defendant receives less than $1,000, it is a misdemeanor. The jury must find the amount of the benefits beyond a reasonable doubt, pursuant to Apprendi, in order to sustain a felony conviction.

Dixon v. Williams, 750 F.3d 1027 (9th Cir. 2014)

In the state murder trial, the judge erroneously instructed the jury that an honest, but reasonable belief that self defense was necessary is not a defense to malice murder. The proper instruction is that an honest, but unreasonable belief that self defense is necessary is not a defense. This erroneous instruction violated the defendant’s right to due process and necessitated granting the writ of habeas corpus.

United States v. McKye, 734 F.3d 1104 (10th Cir. 2013)

Whether a particular transaction involves a “security” is a mixed question of fact and law that, pursuant to Gaudin, must be submitted to the jury to be decided under the reasonable doubt standard. In this case the judge instructed the jury that a “note” constitutes a security. This was reversible error. Not all notes are securities, so the instruction erroneously explained the law and removed from the jury’s consideration whether the notes in this case were securities.

United States v. Zhen Zhou Wu, 711 F.3d 1 (1st Cir. 2013)

The defendant was charged with violating the Arms Export Control Act by selling a specific product (phase shifters) to China. The law provides that the President will designate certain items that may not be sold to certain countries. The President delegated the designation determination to the State Department. The State Department did not identify particular products that qualify, except by generic categories (thus, as one Court analogized, the Department identified “bicycles” without specifying every conceivable manufacturer, make and model of every bicycle). The question in this case is whether the jury was required to decide whether the phase shifters were covered by the law. The First Circuit held that this is a fact question that the jury must decide, despite the fact that the law specifically states that a defendant may not challenge the President’s determination that a particular product may not be sold to China. Moreover, the fact that the State Department later specified that the defendant’s phase shifters were covered could not be applied to the defendant, whose sales occurred prior to the State Department determination. Finally, the First Circuit held that the fact that the defendant was obviously aware of that the product was covered by the prohibition (based on their conduct) did not eliminate the fact that they were outlawed from what the government was required to prove to the jury beyond a reasonable doubt. Even if the defendant’s conduct exhibited a guilty mens rea, this does not alleviate the government’s burden of proving the actus reus to the jury.

United States v. Bader, 678 F.3d 858 (10th Cir. 2012)

The trial court instructed the jury on a theory of guilt that was not alleged in the indictment and which was inconsistent with the government’s theory of prosecution. The conviction on the pertinent counts was reversed.

United States v. Johnson, 652 F.3d 918 (8th Cir. 2011)

The evidence was insufficient to support a conviction for receiving child pornography, though there was sufficient evidence to prove possession. The defendant’s computer had chid pornography images. The indictment alleged that he possessed child pornography that had been shipped and transported in interstate commerce, a violation of § 2252(a)(2). However, when the judge instructed the jury, the jurisdictional element was explained as follows: “The materials containing the illicit visual depictions were produced using materials that had been mailed, shipped, or transported by computer in interstate or foreign commerce.” There was no evidence at trial that the components of the computer were shipped in interstate commerce. The Eighth Circuit held that where the jury instructions limit the manner in which the offense may be committed, this also limits the sufficiency-of-the-evidence review by the appellate court. The evidence was insufficient in this case.

United States v. Ferguson, 676 F.3d 260 (2d Cir. 2011)

In this securities fraud trial, one theory of culpability was aiding and abetting, i.e., “willfully caused an act to be done which, if directly performed by him or another would be an offense against the United States.” The trial court properly defined “willfully” but failed to explain that the defendant’s willful conduct must cause the act to be done by the other person. This was plain error requiring a reversal of the conviction.

United States v. Needham, 604 F.3d 673 (2d Cir. 2010)

A Hobbs Act prosecution requires proof that the offense affected interstate commerce. Even in a robbery involving drugs, the government is required to prove that the offense affected interstate commerce. Because this is an essential element of the offense, the jury must be instructed that they must find that the robbery affected interstate commerce and the failure to do so is reversible error.

United States v. Wisecarver, 598 F.3d 982 (8th Cir. 2010)

Because of the inadvertent use of a double-negative in explaining the defense of justification, the jury instruction in this case was erroneous. Though it was inadvertent (and defense counsel did not object), the error was plain and necessitated setting aside the verdict.

United States v. Gomez, 580 F.3d 1229 (11th Cir. 2009)

The trial court’s failure to instruct the jury in accordance with Flores-Figueroa was not harmless error in this case and required reversal of the conviction. The element of the offense that was omitted in the jury instruction (the fact that the stolen identity applied to a real person), was a contested issue at trial and the error, therefore, was not harmless.

United States v. Rush-Richardson, 574 F.3d 906 (8th Cir. 2009)

The defendant was charged with possessing a firearm in furtherance of a drug trafficking offense, but the just instruction defined the crime in the language that applies to possession of a firearm during and in relation to a drug trafficking offense. The “in furtherance” offense requires a greater relationship between the possession of the weapon and the drug crime than the “during and in relation” offense. See also United States v. Brown, 560 F.3d 754 (8th Cir. 2009).

United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009)

The trial court’s erroneous instruction about the elements of aggravated identity theft (this case was tried pre-United States v. Flores-Figueroa, 129 S.Ct. 1886 (2009)), required vacating the conviction for aggravated identity theft.

United States v. Pereyra-Gabino, 563 F.3d 322 (8th Cir. 2009)

The defendant was charged with harboring illegal aliens. The instruction explained that the jury must find (1) that a person was in the country illegally; (2) that the defendant knew that a person was in the country illegally; and (3) that the defendant harbored or attempted to harbor one of the people identified in #1. The problem with this instruction is that there were several aliens identified in the case and the instruction permitted a jury to find that the defendant harbored one of the illegal aliens, but not that he knew that particular alien was in the country illegally. That is, the court failed to explain that all three elements must apply to at least one of the aliens.

United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009)

The trial court failed to instruct the jury in this identity theft case that the defendant must have known that the identity he stole was of a “real person.” See Flores-Figueroa v. UnitedStates, 129 S.Ct. 1886 (2009). Even though there was considerable evidence that the defendant was aware that it was a real person whose identity he stole, the failure to instruct the jury on this essential element of the offense was reversible error.

United States v. Hassan, 578 F.3d 108 (2d Cir. 2008)

The defendant was prosecuted for conspiring to import “khat” a plant grown in the Africa that sometimes contains a controlled substance known as cathinone. The plant itself is not illegal, but cathinone is. The evidence was sufficient to prove that he conspired to import khat containing cathinone. However, the jury instruction explaining the offense to the jury was erroneous. The jury instruction suggested that if the defendant conspired to import any controlled substance, the jury could convict the defendant. In this case, however, because of the confusion about whether khat was a controlled substance (it is not, but many government witnesses erroneously testified that it is), the judge should have specifically instructed the jury that the government had to prove that the defendant conspired to import khat containing cathinone in order to convict him of the conspiracy offense.

Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007)

The trial court erred in instructing the jury that a flare gun qualified as a firearm. The defendant was convicted in state court of using a firearm in the commission of a felony. Whether a flare gun qualified as a firearm involved the resolution of certain factual questions which must be decided by a jury, not the judge.

Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007)

The trial court’s instruction to the jury failed to accurately define the elements of the offense of murder, specifically it omitted the element of “deliberation.” The conviction was tainted by this error and the writ was granted. A similarly defective instruction also led to habeas relief in Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008).

United States v. Holly, 488 F.3d 1298 (10th Cir. 2007)

The judge instructed the jury on the offense of aggravated sexual assault explaining that this offense may be committed in one of two ways. One of the ways suggested by the judge was legally incorrect, the other theory was correct. With regard to certain counts of conviction, it could not be determined if the jury relied on the incorrect, or correct theory. In this situation, the conviction must be reversed. See Stromberg v. California, 283 U.S. 359 (1931); Zant v.Stephens, 462 U.S. 862 (1983); Griffin v. United States, 502 U.S. 46 (1991).

United States v. Korey, 472 F.3d 89 (3rd Cir. 2007)

The defendant was charged with using a firearm during and in relation to a conspiracy to distribute cocaine. A correct instruction on the law of conspiracy to distribute cocaine was required. The evidence established that the defendant was asked by a cocaine dealer to kill someone, in exchange for which the dealer would pay the defendant with cocaine. The district court judge instructed the jury that if they found that the defendant agreed to accept cocaine in payment for killing the victim, that is a conspiracy to distribute cocaine. This was erroneous. This instruction failed to explain correctly that a conspiracy to distribute cocaine requires proof of a “unity of purpose” between the conspirators to distribute cocaine and this instruction did not include that concept. Merely accepting payment in the form of cocaine is not the same as sharing a purpose with the dealer to distribute cocaine. Reversible error.

United States v. Hoover, 467 F.3d 496 (5th Cir. 2006)

The trial court’s jury charge improperly expanded the indictment by offering a theory by which the jury could find that the statement made by the defendant was false, in a manner different than the manner set forth in the indictment.

United States v. Alferahin, 433 F.3d 1148 (9th Cir. 2006)

The defendant was charged with a violation of 8 U.S.C. § 1425(a), knowingly procuring naturalization contrary to law. The trial court did not instruct the jury on the concept of materiality in connection with the false statement that the defendant allegedly made on his naturalization application. The trial defense attorney acquiesced to the failure to instruct the jury on the concept of materiality. The Ninth Circuit held that materiality is an element of the offense, the failure to instruct the jury on this essential element was plain error and the attorney was ineffective in failing to object.

United States v. Southwell, 432 F.3d 1050 (9th Cir. 2005)

When the defendant raises the defense of insanity, in order for the jury to return a guilty verdict, not only must the jury unanimously find the defendant guilty; the jury must also unanimously reject the insanity defense. This applies to all affirmative defenses.

United States v. Nickl, 427 F.3d 1286 (10th Cir. 2005)

In connection with the allegation that the defendant was an aider and abetter, the judge instructed the jury that they could assume that the principal actually committed the crime, based on his plea agreement. This violated Rule 605’s prohibition on judicial testimony.

United States v. Zhou, 428 F.3d 361 (2d Cir. 2005)

In a §924(c) firearm prosecution, the evidence of the underlying felony must establish its commission beyond a reasonable doubt, because the commission of the underlying felon is an essential element of the firearm offense. Nevertheless, it is not necessary that the defendant actually be convicted of the predicate offense.

United States v. Serawop, 410 F.3d 656 (10th Cir. 2005)

In defining voluntary manslaughter to the jury, the trial court explained the concept of “heat of passion” but failed to explain that the homicide must be intentional. Consequently, the jury may have convicted the defendant of voluntary manslaughter without finding that the killing was intentional – for example, it could have been in the heat of passion, but still negligent (in which case it might have been involuntary manslaughter). The conviction was reversed.

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005)

The defendant was charged with interfering with a sale of federal land by intimidation (18 U.S.C. § 1860). He defended on First Amendment grounds. The Ninth Circuit held that the government must prove that the defendant subjectively intended to intimidate the victim. Absent this requirement, the First Amendment would bar a prosecution. The trial court’s failure to properly instruct the jury on this element – subjective intent to intimidate – was harmful error.

Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005)

The state trial court erred in failing to instruct the jury, in accordance with state law, that if the issue of heat of passion is raised, the state was obligated to prove the absence of heat of passion beyond a reasonable doubt before it could convict the defendant of murder, because the absence of heat of passion was an essential element of the offense of murder. The trial counsel requested the instruction. Appellate counsel provided ineffective assistance of counsel in failing to raise this meritorious issue in the state appeal.

United States v. McLaughlin, 386 F.3d 547 (3rd Cir. 2004)

Materiality is an essential element of an offense under 29 U.S.C. § 439(b) (False reports in Department of Labor filings). The trial court erred in failing to submit the question of materiality to the jury. Harmless error.

United States v. Hugs, 384 F.3d 762 (9th Cir. 2004)

The defendant was charged with involuntary manslaughter by committing an unlawful act not amounting to a felony. The jury was charged on two other methods of committing the offense, however. This was improper, but harmless, given another instruction that specifically told the jury that the defendant was only charged with the crime set forth in the indictment.

Martinez v. Garcia, 379 F.3d 1034 (9th Cir. 2004)

With regard to ambiguous jury instructions, in some instances, when a case is submitted to the jury on alternative theories, the unconstitutionality of any of the theories requires that the conviction be set aside. In those cases, a jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories. Although it is possible that the guilty verdict may have had a proper basis, it is equally likely that the verdict rested on an unconstitutional ground and the court will decline to choose between two such likely possibilities. The jury’s verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court is uncertain which of the two grounds was relied upon by the jury in reaching the verdict. See Boyde v.California, 494 U.S. 370 (1990); Mills v. Maryland, 486 U.S. 367 (1988). See also UnitedStates v. Holly, 488 F.3d 1298 (10th Cir. 2007), discussed above.

Reagan v. Norris, 365 F.3d 616 (8th Cir. 2004)

Defendant was charged with murdering his girlfriend’s young child. The girlfriend was also charged with the homicide and ultimately entered a guilty plea to a lesser charge. The defendant claimed that if he was the cause of death, it was accidental. In the jury instruction, the trial court erroneously failed to tell the jury that in order to be found guilty, the defendant had to knowingly cause the death of the victim. Instead, the instruction simply stated that the defendant had to be shown to have caused the death. Trial counsel’s failure to object to this omission in the instruction was ineffective assistance of counsel necessitating a new trial.

Evanchyk v. Stewart, 340 F.3d 933 (9th Cir. 2003)

It is a violation of due process for a jury instruction to omit an element of the crime. UnitedStates v. Gaudin, 515 U.S. 506 (1995); Osborne v. Ohio, 495 U.S. 103 (1990); Sandstrom v.Montana, 442 U.S. 510 (1979); In re Winship, 397 U.S. 358 (1970). In this case, the jury instruction on the law of conspiracy to commit murder omitted the element of the offense of intent to murder (the trial court offered the jury the option of finding the defendant guilty of conspiracy to commit felony murder which is not an offense under the applicable state law). Only if the omission of the element is harmless will such an error not lead to reversal. Nederv. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). The error was not harmless in this case.

Powell v. Galaza, 328 F.3d 558 (9th Cir. 2003)

Instructing the jury that the defendant’s testimony amounted to an acknowledgement of one of the elements of the offense was reversible error. The defendant tried to explain why he failed to appear in court for sentencing (he was charged with failure to appear). The judge told the jury that his explanation was not a valid defense and that his testimony was sufficient to satisfy the intent element of the offense.

United States v. Syme, 276 F.3d 131 (3rd Cir. 2002)

The Third Circuit explains that where a conspiracy alleges that the defendants conspired to commit an offense in several ways, if the evidence is sufficient with regard to certain ways, but not others, a general verdict of guilty will be sustained on the theory that the jury properly evaluated the evidence and convicted on the sufficient basis. However, where the judge instructs the jury incorrectly about one of the ways, the verdict will not be upheld, because the jury may not have realized the legal elements of one of the alternative methods of committing the offense. In this case, the conviction was upheld. See generally Griffin v. United States, 502 U.S. 46 (1991); Yates v. United States, 354 U.S. 298 (1957); Stromberg v. California, 283 U.S. 359 (1931).

Smith v. Horn, 120 F.3d 400 (3rd Cir. 1997)

The defendant was charged with capital murder in Pennsylvania. The trial court charged the jury (and the prosecutor argued), that as long as the defendant and his colleague were "accomplices" in the robbery, it did not matter who actually shot the victim. This was erroneous under state law. The defendant must have had the specific intent to kill in order to be guilty of first degree murder under state law and the failure to properly instruct the jury amounted to a violation of due process.

United States v. Baird, 134 F.3d 1276 (6th Cir. 1998)

The defendant was charged with making a false statement to the government in an effort to obtain a progress payment on a government construction project. The defendant submitted a claim for payment based on "incurred costs," though the defendant had not yet paid for the product for which he was requesting a progress payment. Because of the confusion over the definition of the term "incurred costs," the trial court should have instructed the jury on this aspect of the charge.

United States v. Allen, 129 F.3d 1159 (10th Cir. 1997)

18 U.S.C. § 1957 requires that the monetary transaction be "in, or affecting interstate or foreign commerce." This requirement is both jurisdictional and an element of the offense that should be submitted to the jury for decision.

United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997)

Omitting to include the element of force in the court's instruction to the jury in a case alleging abusive sexual contact by force (18 U.S.C. § 2244(a)(1)) was plain error. A new trial was required even though the defendant did not object at trial.

United States v. Gallerani, 68 F.3d 611 (2d Cir. 1995)

In order to be guilty of a conspiracy offense, there must be an unlawful object of the conspiracy. Thus, proving that there was an unlawful object is an essential element of the offense. In this case, the trial court failed to instruct the jury about the need to prove an unlawful object of the conspiracy. Even absent an objection, this was reversible error. The fact that the court made reference to the indictment, and sent the indictment to the jury did not ameliorate the error. With respect to counts of the indictment which relied on a Pinkerton theory of liability, the error in the conspiracy charge tainted the convictions on those counts, as well.

United States v. Smith, 939 F.2d 9 (2d Cir. 1991)

The trial judge, over the objection of both the government and the defense, refused to instruct the jury on all the elements of the offense, instructing them, instead, only on the disputed elements. This was reversible error, not subject to harmless error analysis.

United States v. Stansfield, 101 F.3d 909 (3rd Cir. 1996)

The defendant was charged with a violation of 18 U.S.C. §1512(a)(1)(C), attempting to kill a witness to prevent him from communicating with a federal law enforcement officer about a federal offense, but the jury was instructed pursuant to §1512(b)(3): intimidating, or using physical force, to prevent a person from communicating with a federal law enforcement officer about a federal offense. This was not what the defendant was charged with, or tried for, and thus, the conviction was reversed. Other aspects of this decision were abrogated by the United States Supreme Court decision in Fowler v. United States, 131 S. Ct. 2045 (2011).

United States v. Edmonds, 80 F.3d 810 (3rd Cir. 1996)

The “series” element of a CCE prosecution requires proof that the defendant committed at least three related predicate offenses. In this case, the government alleged that there were eight predicate offenses. The trial court erred in failing to instruct the jury that there must be unanimity among the jurors as to which three (at least) predicates formed the series. Harmless error.

United States v. Johnson, 71 F.3d 139 (4th Cir. 1995)

The defendant was charged with robbing a credit union. At trial, the government offered undisputed conclusive proof that the victim was, in fact, a credit union as defined in federal law. The judge instructed the jury that the victim met the statutory definition of a credit union. This instruction violated the defendant’s right to have the jury make findings on every element of the offense. This type of error is not subject to harmless error analysis.

United States v. Tomblin, 46 F.3d 1369 (5th Cir. 1995)

The defendant, who was not a public official, was charged with a Hobbs Act violation. The theory was that he threatened his victims into paying him money to ensure that he would get favorable treatment from a public official with whom he was affiliated. The government could proceed on a theory of extortion by use of fear of economic harm, but could not proceed on a “color of official right” theory. The trial court, however, provided both options to the jury. This was erroneous and required reversal of the conviction on this count: “When disjunctive theories are submitted to the jury and the jury renders a general verdict of guilty, appeals based on evidentiary deficiencies must be treated differently than those based on legal deficiencies. If the challenge, as here, is legal and any of the theories was legally insufficient, then the verdict must be reversed.”

United States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995)

The defendant was charged with a conspiracy which had three illegal objects, one of which was structuring financial transactions. The trial court instructed the jury erroneously about the mens rea element of the structuring offense (see Ratzlaf v. United States, 114 S.Ct. 655 (1994)). The conspiracy conviction had to be set aside. Because the jury may have relied on the invalid object – that is, the object that was improperly defined – the general verdict could not be upheld.

United States v. Nelson, 27 F.3d 199 (6th Cir. 1994)

The defendant was charged with possessing a weapon in connection with a drug offense in violation of 18 U.S.C. §924(c). It is not necessary in such a case for the government to also charge the defendant with the underlying drug offense. However, the government must prove that the defendant engaged in the underlying drug offense. In the judge’s instructions to the jury, he mentioned the need to prove that a drug offense be found to be the predicate, but there was no definition of the elements of the underlying drug offense. Failing to instruct the jury about the elements of the underlying drug offense amounts to omitting an element of the §924(c) offense. Even absent an objection, this is plain error requiring reversal of the conviction.

United States v. Mentz, 840 F.2d 315 (6th Cir. 1988)

In this bank robbery trial, the trial judge instructed the jury that the victim-bank was insured by the FDIC. This improperly removed from the jury’s consideration one of the elements of the offense and violated the defendant’s right to have a jury determine his guilt or innocence and to make such a finding with regard to each element of the offense. The error was not harmless.

United States v. Locklear, 97 F.3d 196 (7th Cir. 1996)

Defendant was prosecuted for uttering counterfeit cashier’s checks in violation of 18 U.S.C. §493. That statute requires proof that the instrument was purported to have been issued by a bank authorized or acting under the laws of the United States. The indictment did not charge this element of the offense, the government offered no evidence on this element of the offense and the jury was not instructed on this element of the offense. The conviction was reversed.

United States v. Ripinsky, 109 F.3d 1436 (9th Cir. 1997)

An essential element of §1957 money laundering is a financial transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce. The foreign commerce component of this element is an essential element of the offense which must be proven beyond a reasonable doubt and submitted to the jury.

United States v. Tagalicud, 84 F.3d 1180 (9th Cir. 1996)

Several defendants were charged with conspiracy and several substantive counts involving marriage fraud, immigration fraud, and submitting false immigration documents. The trial judge singled out one defendant and explained the offenses to the jury using that defendant as an example. The Ninth Circuit concluded that omitting to define the offenses for the other defendants, or even referring to the instructions as applying to the other defendants, required reversing their convictions. Moreover, because the judge singled out the one defendant, this amounted to an improper judicial implication that the case against her was more important and her conviction was reversed, as well.

United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995)

8 U.S.C. §1324(a) makes it an offense to bring any alien into the United States other than through a port of entry. The statute contains no explicit mens rea requirement. Nevertheless, the court concluded that Congress intended such a requirement. See Staples v. UnitedStates, 114 S.Ct. 1793 (1994); United States v. United States Gypsum Co., 438 U.S. 422 (1978); Morisette v. United States, 342 U.S. 246 (1952). The government must prove that the defendant knew that the individuals he was transporting were aliens and that he off-loaded them at other than a port of entry, intending to violate the law.

Harmon v. Marshall, 69 F.3d 963 (9th Cir. 1995)

Failing to instruct the jury on all elements of an offense is constitutional error, because it precludes the jury from finding each fact necessary to convict a defendant. Such error is plain and cannot be harmless. In this case, with regard to two counts, the trial court did not give the jury any instructions regarding the elements of the offense. This required setting aside the verdicts on those counts.

United States v. Smith, 82 F.3d 1564 (10th Cir. 1996)

Where two methods of committing a crime are charged disjunctively in the indictment and the appellate court concludes that there was insufficient evidence to support one of the methods, a conviction will still be upheld. However, where the trial court gives an erroneous instruction about one of the methods, even if the other method is explained properly, the conviction cannot be sustained, because there is no assurance that the jury did not convict the defendant on the basis of the method that was misdefined. Here, for example, the defendant was charged with “using” and “carrying” a firearm in connection with a drug offense. 18 U.S.C. §924(c). The court instructed the jury in the pre-Bailey language, which provided an overly broad definition of “using” a firearm. Because the jury may have convicted the defendant based on the defendant’s “use” of the firearm – in the overly broad sense of “use” – the conviction was reversed.

United States v. Rogers, 94 F.3d 1519 (11th Cir. 1996)

The trial court erred by failing to instruct the jury, in accordance with Staples, that the government must prove that the defendant knew the characteristics of the weapon which brought it within the definition of the Firearms Act (i.e., that it was a machine gun, or a silencer). The error, however, even though it amounted to omitting an element of the offense, was harmless error.

United States v. DeFries, 129 F.3d 1293 (D.C.Cir. 1997)

In the midst of instructing the jury on the elements of a RICO offense, the judge instructed the jury that they should presume that the union was an enterprise. Because the existence of an enterprise is an essential element of the offense, this instruction was erroneous.

United States v. Rawlings, 73 F.3d 1145 (D.C.Cir. 1996)

The defendant was charged with knowingly possessing an unregistered firearm. He contended that he did not knowingly possess the weapon. During the jury instructions, the judge explained to the jury that the most important element of the offense was the “possession” element. The trial court also erred in instructing the jury that the critical issue in this case was one of credibility – that this was a classic swearing contest. Actually, the defendant admitted holding a box that contained the gun, but did not know the gun was in the box; and the police simply testified that the defendant was in possession of the box. Thus, this was not simply a swearing contest between the police and the defendant and the sole issue was not “possession.” Even if the court were to put one element above another (and it should not), the most important issue in the case was whether the defendant had knowledge of what he was possessing. Also important was whether the police were accurate in their identification of the defendant as someone they saw in possession of the gun; this was not a matter of credibility, but of perception.

United States v. Jones, 909 F.2d 533 (D.C.Cir. 1990)

Four women were prosecuted under the Travel Act for their participation in a “prostitution ring.” In order to prosecute someone for using a facility in interstate commerce for the purpose of violating a state law, the prosecution must show the activity was, in fact, unlawful under a specific state law. Furthermore, the government must prove that the defendant had the intent, with respect to each element of the relevant state offense. In instructing the jury in this case, the district court read the prostitution-related statutes of the relevant states, but did not adequately charge the jury, as a state court would, on the elements of those offenses. Because of this failure, all travel act convictions in this case were reversed.