11th Circuit Pattern Jury Instruction Builder (8/16/19; 8/18/19)

While reviewing some docket entries in an FBAR case in Florida, I found a docket entry referring to the Eleventh Circuit Pattern Jury Instruction Builder, here.  I had not seen such a tool for pattern jury instructions that are so important for fashioning jury instructions for the more commonly encountered jury instructions needed in criminal cases.  (There is also a tool for pattern jury instructions in civil cases.)  In the past, practitioners would have to work from a pdf file with pattern jury instructions and then assemble and revise as appropriate.  Practitioners will still have modify the pattern jury instructions as appropriate to their particular cases.

I used the tool to generate some of the pattern jury instructions and link, here, the Word document the tool generated.  Remember that this is not a complete set that a practitioner would generate in a real case but only some of the instructions of interest to me to get an idea of how the tool worked.  Here is the table of contents generated by the tool.

TABLE OF CONTENTS
PRELIMINARY INSTRUCTIONS
P1 Criminal Cases
BASIC INSTRUCTIONS
B9.1A On or About; Knowingly; Willfully - Generally
B9.1B On or About; Knowingly; Willfully - Intentional Violation of a Known Legal Duty
SPECIAL INSTRUCTIONS
S8 Deliberate Ignorance as Proof of Knowledge
S9 Good-Faith Defense to Willfulness (as under the Internal Revenue Code)
OFFENSE INSTRUCTIONS
O13.6 Conspiracy to Defraud the United States 18 U.S.C. § 371 (Second Clause)
O108 Failure to File a Tax Return 26 U.S.C. § 7203
O109.1 Filing a False Tax-Related Document 26 U.S.C. § 7206(1)
O109.2 Aiding or Assisting in Preparation of False Documents Under Internal Revenue Laws 26 U.S.C. § 7206(2)
O110 False Tax Return, List, Account, or Statement 26 U.S.C. § 7207
O111 Impeding Internal Revenue Service 26 U.S.C. § 7212(a)
O112 Evading Currency-Transaction Reporting Requirement (While Violating Another Law) by Structuring Transaction 31 U.S.C. §§ 5322(b) & 5324(a)(3) 

I have not checked to see whether other Circuits have such a tool for their pattern jury instructions.  If anyone knows, please post a comment with a link or send me an email with the link at jack@tjtaxlaw.com.

Addendum 8/18/19 9:00pm:

I thought I would add this discussion of pattern jury instructions from my Federal Tax Crimes Book (now discontinued).  I think the general discussion was probably last revised in around 2015 and, as revised, is still good.

C. Jury Instructions.

In this book, I often use jury instructions to summarize the elements of the crime and discuss other concepts that are presented to a jury to consider in its decisions.  Good jury instructions present the legal concepts in laymen’s terms and thus are good tools to capture the gravamen of the legal concepts, particularly the elements of any crime for which the lay jury must either convict or acquit.

Often, I use so-called “pattern jury instruction” approved by panels for one or more of the United States Circuit Courts of Appeals.  Within the circuits, these pattern jury instructions are usually the starting point for fashioning the actual instructions that will be used in any case.  The district judge trying the case is required to give instructions appropriate to the specific case being tried, and hence may modify the pattern instructions as appropriate to the case.  Moreover, merely because the Circuit Courts in some manner sponsor the pattern jury instructions does not mean that they are necessarily correct instructions on the law or cannot be improved.  Even, on their face, they can be deficient, thus requiring judges and trial lawyers to exercise some diligence in their use.  n5 Nevertheless, unless I specifically caution otherwise, the Circuit pattern jury instructions I use in this text do adequately state the law (in my judgment).
   n5 See e.g., United States v. Svete, 521 F.3d 1302, 1310(11th Cir. 2008) (holding that the 11th Circuit pattern jury instruction on mail fraud is “deficient” as to the scope of the burden on the Government.)  The holding that the pattern instruction was deficient was subsequently reversed in United States v. Svete, 556 F.3d 1157 (11th Cir. 2009), but the key point is that pattern jury instructions do not necessarily state the law.  When they do, the use of the instruction will be sustained, but when they do not, the use will not be sustained provided that the resulting error rises to the level of a reversible error.
I also give another example below for the crime of tax evasion, the first crime discussed in this text.  I use an actual charge from a recent case rather than a pattern jury instruction.  I previously used the Fifth Circuit pattern jury instruction.  In my opinion, the Fifth Circuit pattern jury instruction is misleading or incorrect.  See also United States v. Maggert, 2011 U.S. App. LEXIS 10976 (11th Cir. 2011) (involving a similarly deficient Eleventh Circuit pattern jury instruction which, in the case, was sustained under the plain error standard).
See also United States v. Basile, 2014 U.S. App. 12388 (3d Cir. 2014), holding that, in the context of the case, the pattern jury instructions was “confusing.”

When I find a pattern jury instruction is unavailable or is, in my judgment, not up to the task for which I need it, I try to find instructions from other sources.  The principal alternative source that I use is the jury instructions in the DOJ Criminal Tax Manual (“CTM”).  CTM is prepared  and used by DOJ’s Tax Division Criminal Enforcement Section (often referred to herein as “DOJ Tax CES”).  The most recent version is the 2012 edition of the CTM which is on the web.  References herein to the CTM are generally to this 2012 edition unless otherwise noted.  The CTM is an important introduction to tax crimes from perspective of DOJ Tax CES, the principal player in the criminal tax enforcement system. Prominent in the tools offered in the CTM are proposed jury instructions in criminal tax cases and these instructions are the most complete single source for at least starting point jury instructions.  Like the pattern jury instructions, however, I caution practitioners and students to review the CTM jury instructions independently and even skeptically to insure that they are consistent with the law and with the facts of the case.  The principal reservation that I have about the CTM jury instructions is that they are drafted by one of the parties (or the lawyers for the party) to criminal cases and thus may state that party’s interpretation rather than either an objective interpretation of the law or, heaven forbid, a defendant friendly interpretation.  Still, the CTM jury instructions are an important source for practitioners to anticipate the instructions the Government will request.