General Civil Procedures; General Criminal Procedures; Civil Jury Instructions; Criminal Jury Instructions

Hon. Jill A. Otake · U.S. District Court for the District of Hawaii

Role: District Judge

Bluebook Citation: Hon. Jill A. Otake, General Civil Procedures; General Criminal Procedures; Civil Jury Instructions; Criminal Jury Instructions, U.S. District Court for the District of Hawaii

Judge Profile: Hon. Jill A. Otake profile and standing orders

=== General Civil Procedures ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BOULEVARD, C-435 HONOLULU, HAWAII 96850 JILL A. OTAKE TELEPHONE: (808) 541-1410 UNITED STATES DISTRICT JUDGE FAX: (808) 541-1413 GENERAL CIVIL CASE PROCEDURES BEFORE JUDGE OTAKE (Last Revised: 10/13/2021) I. Courtroom Activity Requests for Telephonic Appearances: Counsel and pro se parties who are not located on the island of O‘ahu who wish to appear for hearings via telephone must submit a letter request to [email protected] at least one week prior to the hearing. Judge Otake disfavors telephonic appearances for hearings on dispositive motions. Pro Hac Vice counsel are advised that any requests to appear by telephone based on convenience will be denied. Continuances: Any party seeking a continuance of a motion hearing must file a motion to continue the hearing, unless it is a joint request, in which case a letter should be sent to the court via [email protected], signed by counsel for all parties. Each continuance request should indicate which number continuance is being requested (e.g., “First Motion to Continue Summary Judgment Motion Hearing” or “Re: Third Joint Request to Continue Summary Judgment Motion Hearing”). Parties should seek continuances well in advance of the hearing date. Motions, not letters, are required to seek a trial continuance, no matter how far in advance of trial the continuance is sought. Parties are advised that Judge Otake disfavors trial continuances in excess of six months. The motion should indicate how many prior continuances of the trial have been granted and should be accompanied by a proposed order. Use of Electronic Devices: Pursuant to the Order Adopting Electronic Device Policy, effective March 18, 2014, any person may bring into the courthouse an electronic device, such as a cellular phone, smartphone, laptop, tablet, or similar device having wireless communications capability. Any such device is subject to security inspection. Inside Judge Otake’s courtroom, no person may use an electronic device for any purpose, except attorneys of record and members of their litigating team, who are authorized to use electronic devices only in connection with a then ongoing, case-related proceeding. Examples of such appropriate usage include: paralegals texting other staff regarding immediate witness logistics; lawyers using a legal research database to search for caselaw mentioned by opposing counsel; lawyers referring to notes on a tablet regarding arguments for the hearing. Examples of inappropriate usage include: lawyers texting other litigation team members about courtroom events that do not require immediate attention; lawyers emailing or communicating with family members about personal matters; paralegals searching the internet to investigate witnesses who are on the stand. If counsel are in doubt as to whether the use of an electronic device is permissible, they should ask Judge Otake for permission. Under no circumstances shall an electronic device disrupt any court proceedings. Under no circumstances shall any camera or audio/video recording equipment be used in Judge Otake’s courtroom or chambers. Judge Otake may modify these general provisions at her discretion in specific cases or for specific proceedings. Anyone found to be in violation of these provisions will be subject to sanctions. 2 II. Motions Pre-Filing Conferences (Local Rule 7.8) Local Rule 7.8 requires counsel to engage in a pre-filing conference “to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential partial or complete resolution.” Counsel should discuss the issues with sufficient detail so that if a motion is still necessary, the briefing may be directed to those substantive issues requiring resolution by the Court. Many motions to dismiss or to strike could be avoided if the parties confer in good faith especially for perceived defects in a Complaint, Answer, or Counterclaim that could be corrected by amendment. See, e.g., Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (where a motion to dismiss is granted, a district court should provide leave to amend unless it is clear that the Complaint could not be saved by any amendment). The Ninth Circuit requires that this policy favoring amendment be applied with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). These principles require counsel for the plaintiff to carefully evaluate the defendant’s contentions as to the deficiencies in the Complaint, and in most instances, the moving party should agree to any amendment that would cure a curable defect. Counsel should, at the very least, resolve minor procedural or other nonsubstantive matters during the conference. All Local Rule 7.8 conferences shall be conducted by lead counsel and shall take place via a communication method that, at a minimum, allows all parties to be in realtime communication. Judge Otake will not consider letters or e-mail to constitute a proper Local Rule 7.8 conference. If the parties are unable to reach a resolution that eliminates the necessity for a dispositive motion, counsel for the movant shall include with the motion a statement indicating the date, duration, and communication method of the conference and the participants in the conference. In addition, the statement shall detail the issues discussed and resolved during the conference and the issues remaining. With regard to non-dispositive motions, the statement required under Local Rule 7.8 will suffice. Failure to strictly comply with the Court’s requirements or Local Rule 7.8 will result in the striking and/or the denial of the motion. 3 Excess Word Requests (Local Rule 7.4) Any requests to exceed the page/word count limit established by Local Rule 7.4 must specify the need for the additional pages/words. Leave should be requested sparingly, as relief will be granted only in limited circumstances. Any briefing that violates Local Rule 7.4 may be stricken. Motions to Seal (Local Rule 5.2) The Court will not consider any motions to seal until the requesting party fully complies with Local Rule 5.2(c). Courtesy copies, as well as the documents and/or exhibits that are the subject of the motion to seal, must be submitted immediately after the filing of the motion. Mandatory Chambers Copies (Local Rule 10.3) The Court imposes the following additional requirements for mandatory chambers copies: (1) Documents that are 50 pages or less may be stapled. (2) Documents exceeding 50 pages should be placed in binders. Documents requiring multiple binders should be labeled in such a manner to indicate that the documents are separated into multiple binders, i.e., binder 1 of 3, 2 of 3, 3 of 3. Otake Orders Submissions The Otake orders email should not be used for general informal correspondence with chambers. Letter requests and other formal correspondence may be electronically submitted with an explanatory email. Stipulations and orders requiring the Court’s approval should be submitted in Microsoft Word format, and, where applicable, include dates and the parties’ and/or counsel’s electronic signatures. Motions for Summary Judgment (Local Rule 56.1(b Among other things, Local Rule 56.1(b) states that each factual assertion in a concise statement of facts “shall be a single sentence, followed by a citation to a particular affidavit, deposition, or other document that supports the assertion.” In 4 addition to this requirement, any party submitting a concise statement or a separate concise statement must list each fact in a separately numbered paragraph. Parties are prohibited from filing multiple motions for summary judgment that address fewer than all claims for which summary judgment is sought. For example, if a party moves for summary judgment on five claims, a single motion should be filed, not five motions each addressing a single claim, or even multiple motions addressing less than five claims. Daubert Motions The Court treats Daubert motions as non-dispositive motions and they must be filed in accordance with the deadlines set forth in the applicable Rule 16 Scheduling Order. Daubert issues may not be presented in motions in limine. Motions in Limine Memoranda in support of motions in limine and any opposition shall not exceed five (5) pages. III. Trials Trial Procedures 1. Trial Schedule Trials start on Mondays, unless Monday is a holiday. Judge Otake will not hold trials on Fridays, unless she directs otherwise. Jury trials will start at 8:45 a.m. and end at 2:30 p.m. except on days of jury selection, in which case the day will end at 4:30 p.m. There will be at least two breaks in the trial day, at the following approximate times: 10:30 a.m.- 15 minutes 12:00 p.m.- 20 minutes Matters that need to be addressed outside the presence of the jury will take place at 8:30 a.m. and at 2:30 p.m. The judge expects that attorneys will raise issues at 2:30 p.m. that must be addressed prior to the jury returning to court the 5 next day and will determine a briefing deadline (with appropriate page limits) if needed. Bench trials will start at 8:30 a.m. and end at 4:30 p.m. There will be a lunch break from 12:00 p.m. to 1:30 p.m. along with short breaks in the morning and afternoon. The Court will likely take “stretch breaks” in the middle of the trial, during which everyone can stand up, but no one may leave the courtroom. 2. Length of Trial Judge Otake will limit the number of hours each party has to present its case. 3. Jury Selection Judge Otake will use the computerized system of randomly determining the order of jurors for jury selection. The Court will provide attorneys with an alphabetized list of prospective jurors. Judge Otake will first address general requests to be excused. She will then conduct voir dire and will allow counsel to conduct voir dire. Each party will typically be allowed 10 minutes for voir dire, but that timeframe may be expanded upon request. During voir dire, Judge Otake will ask jurors to stand up and answer questions given to them on a sheet of paper. Those questions are available. If counsel wish to review them prior to trial, they are directed to contact the courtroom manager. 4. Jury Instructions During trial, the Court will schedule a hearing to resolve jury instruction disputes. After ruling on the disputed issues, the Court will prepare a draft set of jury instructions for the parties’ review. A further hearing will be held, if necessary, to address any concerns with the draft set of instructions. The Court will not entertain substantive arguments at the further hearing. Before the jury instructions are presented to the jury, the Court will provide hard copies to the parties. Jurors will also receive hard copies of the instructions. 6 Exhibits and Depositions All trial exhibits shall be marked with the exhibit number and placed in a 3- ring binder(s) with tabs. The spine of the 3-ring binder(s) shall be clearly marked and labeled with the case name, binder volume and range of exhibits contained in the binder. The parties must provide original depositions to the Court in manila folders. The folders should be clearly labeled with the deponent's name and should be placed in alphabetical order. Physical exhibits do not need to be present in the courtroom until they will be shown to a witness. 7

=== General Criminal Procedures ===

=== Civil Jury Instructions ===

June 15, 2020 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Jill A. Otake United States District Judge GENERAL JURY INSTRUCTIONS IN CIVIL CASES GENERAL JURY INSTRUCTIONS IN CIVIL CASES TABLE OF CONTENTS 1. DUTY OF JURY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS AT END OF CASE) .............................................................................................................................. 3 2. TAKING NOTES DURING TRIAL ......................................................................................... 4 3. WHAT IS EVIDENCE .............................................................................................................. 5 4. WHAT IS NOT EVIDENCE ..................................................................................................... 6 5. RULING ON OBJECTIONS ..................................................................................................... 7 6. DIRECT AND CIRCUMSTANTIAL EVIDENCE .................................................................. 8 7. CREDIBILITY OF WITNESSES ............................................................................................. 9 8. BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE ................................... 11 9. TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS ............................................. 12 10. DAMAGES—PROOF ........................................................................................................... 13 11. CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY ................................... 14 12. COMMUNICATION WITH COURT ................................................................................... 16 13. DUTY TO DELIBERATE .................................................................................................... 17 14. RETURN OF VERDICT ....................................................................................................... 18 2 1. DUTY OF JURY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS AT END OF CASE) Members of the Jury: Now that you have heard all of the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law that applies to this case. Each of you has received a copy of these instructions that you may take with you to the jury room to consult during your deliberations. 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. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person’s race, color, religion, national ancestry, or gender[, sexual orientation, profession, occupation, celebrity, economic circumstances, or position in life or in the community]. You will recall that you took an oath promising to do so at the beginning of the case. Please do not read into these instructions or anything that I may say or do or have said or done that I have an opinion regarding the evidence or what your verdict should be. Based on 9th Cir. Model Civil Jury Instruction 1.4 & Model Criminal Jury Instruction 3.1 3 2. TAKING NOTES DURING TRIAL Some of you took 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 other jurors. Based on 9th Cir. Model Civil Jury Instruction 1.18 4 3. WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: 1. 2. 3. the sworn testimony of any witness; the exhibits that are admitted into evidence; any facts to which the lawyers have agreed; and any facts that I [may instruct] [have instructed] you to accept as 4. proved. 9th Cir. Model Civil Jury Instruction 1.9 5 4. WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they [may say] [have said] in their opening statements, closing arguments and 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 have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. (3) Testimony that is excluded or stricken, or that you [are] [have been] instructed to disregard, is not evidence and must not be considered. In addition some evidence [may be] [was] received only for a limited purpose; when I [instruct] [have instructed] you to consider certain evidence only for a limited purpose, you must do so and you may not consider that evidence for any other purpose. (4) Anything you may [see or hear] [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. 9th Cir. Model Civil Jury Instruction 1.10 6 5. RULING ON OBJECTIONS Rules of evidence control what can be received into evidence. During the course of trial, when a lawyer asked a question or offered an exhibit into evidence and a lawyer on the other side thought that it was not permitted by the rules of evidence, that lawyer may have objected. If I overruled the objection, the question was answered or the exhibit received. If I sustained the objection, the question was not answered and the exhibit was not received. Whenever I sustained an objection to a question, you must not speculate as to what the answer might have been or as to the reason for the objection. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken from the record; such matter is to be treated as though you had never known of it. Based on 9th Cir. Model Civil Jury Instruction 1.13 7 6. DIRECT AND CIRCUMSTANTIAL EVIDENCE 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 proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. 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. 9th Cir. Model Civil Jury Instruction 1.12 8 7. CREDIBILITY OF WITNESSES 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 opportunity and ability of the witness to see or hear or know (1) the things testified to; (2) the witness’s memory; (3) the witness’s manner while testifying; (4) the witness’s interest in the outcome of the case, if any; (5) the witness’s bias or prejudice, if any; (6) whether other evidence contradicted the witness’s testimony; the reasonableness of the witness’s testimony in light of all the (7) evidence; and (8) 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 9 ignore the rest. 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. 9th Cir. Model Civil Jury Instruction 1.14 10 8. BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE When a party has the burden of proving any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. 9th Cir. Model Civil Jury Instruction 1.6 11 9. TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS You should decide the case as to each [plaintiff] [defendant] [party] separately. Unless otherwise stated, the instructions apply to all parties. 9th Cir. Model Civil Jury Instruction 1.8 12 10. DAMAGES—PROOF It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff [on the plaintiff’s [specify type of claim] claim], you must determine the plaintiff’s damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: [Insert types of damages. See Instruction 5.2 (Measures of Types of Damages)] It is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. 9th Cir. Model Civil Jury Instruction 5.1 13 11. CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY 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 includes discussing the case in person, in writing, by phone or electronic means, via email, via text messaging, or any internet chat room, blog, website or application, including but not to Facebook, YouTube, Twitter, Instagram, LinkedIn, limited Snapchat, or any other forms of social media. This 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[, although I have no information that there will be news reports about this case]; 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. Do not visit or view any place discussed in this case, and do not use Internet programs or other devices to search for or view any place discussed during the trial. Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible. These rules protect each party’s right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any 14 information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules. 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. 9th Cir. Model Civil Jury Instruction 3.2 15 12. COMMUNICATION WITH COURT 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. I will not communicate with any member of the jury on anything concerning the case except 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 the court— how the jury stands, whether in terms of vote count or otherwise, until after you have reached a unanimous verdict or have been discharged. Based on 9th Cir. Model Civil Jury Instruction 3.3 16 13. DUTY TO DELIBERATE Before you begin your deliberations, elect one member of the jury as your presiding juror. The presiding juror will preside over the deliberations and serve as the spokesperson for the jury in court. You shall diligently strive to reach agreement with all of the other jurors if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to their views. 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 be unwilling 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, or change an honest belief about the weight and effect of the evidence simply to reach a verdict. 9th Cir. Model Civil Jury Instruction 3.1 17 14. RETURN OF VERDICT 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. 9th Cir. Model Civil Jury Instruction 3.5 18

=== Criminal Jury Instructions ===

February 19, 2021 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Jill A. Otake United States District Judge GENERAL JURY INSTRUCTIONS IN CRIMINAL CASES TABLE OF CONTENTS INTRODUCTORY INSTRUCTIONS DUTY OF JURY ............................................................................................................................ 4 CONDUCT OF THE JURY ........................................................................................................... 5 WHAT IS EVIDENCE ................................................................................................................... 8 WHAT IS NOT EVIDENCE .......................................................................................................... 9 DIRECT AND CIRCUMSTANTIAL EVIDENCE ..................................................................... 10 RULING ON OBJECTIONS ........................................................................................................ 11 CREDIBILITY OF WITNESSES ................................................................................................ 12 NO TRANSCRIPT AVAILABLE TO JURY .............................................................................. 13 TAKING NOTES ......................................................................................................................... 14 QUESTIONS TO WITNESSES BY JURORS DURING TRIAL ............................................... 15 BENCH CONFERENCES AND RECESSES.............................................................................. 16 OUTLINE OF TRIAL .................................................................................................................. 17 INSTRUCTIONS AT THE END OF THE CASE DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW .................................................... 19 CHARGE AGAINST DEFENDANT NOT EVIDENCE— PRESUMPTION OF INNOCENCE—BURDEN OF PROOF ............................................ 20 REASONABLE DOUBT—DEFINED ........................................................................................ 21 WHAT IS EVIDENCE ................................................................................................................. 22 WHAT IS NOT EVIDENCE ........................................................................................................ 23 DIRECT AND CIRCUMSTANTIAL EVIDENCE ..................................................................... 24 CREDIBILITY OF WITNESSES ................................................................................................ 25 DEFENDANT’S DECISION NOT TO TESTIFY ....................................................................... 27 DEFENDANT’S DECISION TO TESTIFY ................................................................................ 28 ACTIVITIES NOT CHARGED ................................................................................................... 29 USE OF NOTES ........................................................................................................................... 30 JURY CONSIDERATION OF PUNISHMENT .......................................................................... 31 CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY .......................................... 32 DUTY TO DELIBERATE ........................................................................................................... 33 VERDICT FORM ......................................................................................................................... 34 COMMUNICATION WITH COURT .......................................................................................... 35 2 INTRODUCTORY INSTRUCTIONS (The Court will read these prior to opening statements.) 3 INSTRUCTION No. ___ DUTY OF JURY Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed written instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you. Perform these duties fairly and impartially. You should not be influenced by any person’s race, color, religious beliefs, birthplace, home state, 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. Like conscious bias, unconscious bias can affect how we evaluate information and make decisions. Ninth Circuit Model Criminal Jury Instruction 1.1 (modified) 4 INSTRUCTION No. ___ CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case. Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise: 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, or computer, or any other means, via email, via text messaging, or any Internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat, TikTok, or any other forms of social media. This restriction also applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, the media or press, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case, and how long you expect the trial to last. But, 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. In addition, you must report the contact to the court. Because you will receive all the evidence and legal instruction you properly may consider to return a verdict: do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it[, although I have no information that there will be news reports about this case]; do not do any research, such as consulting dictionaries, searching the Internet or using other reference 5 materials; and do not make any investigation or in any other way try to learn about the case on your own. Do not visit or view any place discussed in this case, and do not use the Internet or any other resource to search for or view any place discussed during the trial. Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible. These rules protect each party’s right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules. 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. Ninth Circuit Model Criminal Jury Instruction 1.8 6 INSTRUCTION No. ___ THE CHARGE—PRESUMPTION OF INNOCENCE This is a criminal case brought by the United States government. The government charges the defendant with [specify crime[s] charged]. The charge[s] against the defendant [is] [are] contained in the indictment. The indictment simply describes the charge[s] the government brings against the defendant. The indictment is not evidence and does not prove anything. The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant has the right to remain silent and never has to prove innocence or present any evidence. Ninth Circuit Model Criminal Jury Instruction 1.2 7 INSTRUCTION No. ___ WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits that are received in evidence; and (3) any facts to which the parties agree. Ninth Circuit Model Criminal Jury Instruction 1.3 8 INSTRUCTION No. ___ WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; and (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses. Ninth Circuit Model Criminal Jury Instruction 1.4 9 INSTRUCTION No. ___ DIRECT AND CIRCUMSTANTIAL EVIDENCE 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 one 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. For 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 leaky garden hose, may provide an explanation for the water on the sidewalk. Therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense. Ninth Circuit Model Criminal Jury Instruction 1.5 (modified) 10 INSTRUCTION No. ___ RULING ON OBJECTIONS There are rules of evidence that control what can be received in evidence. When a lawyer asks a question or offers an exhibit in evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, or the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard. Ninth Circuit Model Criminal Jury Instruction 1.6 11 INSTRUCTION No. ___ CREDIBILITY OF WITNESSES 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: (1) the witness’s opportunity and ability to see or hear or know the things testified to; (2) the witness’s memory; (3) the witness’s manner while testifying; (4) the witness’s interest in the outcome of the case, if any; (5) the witness’s bias or prejudice, if any; (6) whether other evidence contradicted the witness’s testimony; (7) the reasonableness of the witness’s testimony in light of all the evidence; and (8) any other factors that bear on believability. You must avoid bias, conscious or unconscious, based on a witness’s race, color, religious beliefs, birthplace, home state, 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 about it. What is important is how believable the witnesses are, and how much weight you think their testimony deserves. Ninth Circuit Model Criminal Jury Instruction 1.7 (modified) 12 INSTRUCTION No. ___ NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given. Ninth Circuit Model Criminal Jury Instruction 1.9 13 INSTRUCTION No. ___ TAKING NOTES If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you from being attentive. When you leave court for recesses, your notes should be left in the courtroom. No one will read your notes. Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors. Ninth Circuit Model Criminal Jury Instruction 1.10 14 INSTRUCTION No. ___ QUESTIONS TO WITNESSES BY JURORS DURING TRIAL Only the lawyers and I are allowed to ask questions of witnesses. A juror is not permitted to ask questions of witnesses. If, however, you are unable to hear a witness or a lawyer, please raise your hand and I will correct the situation. Ninth Circuit Model Criminal Jury Instruction 1.14 15 INSTRUCTION No. ___ BENCH CONFERENCES AND RECESSES During the trial, I may need to take up legal matters with the attorneys privately, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. Of course, we will do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney’s request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or what your verdict should be. Ninth Circuit Model Criminal Jury Instruction 1.16 16 INSTRUCTION No. ___ OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The government will then present evidence and counsel for the defendant may cross-examine. Then, if the defendant chooses to offer evidence, counsel for the government may cross-examine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict. Ninth Circuit Model Criminal Jury Instruction 1.11 17 INSTRUCTIONS AT THE END OF THE CASE (The Court will read these prior to closing arguments.) 18 INSTRUCTION No. ___ DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW 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. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person’s race, color, religious beliefs, birthplace, home state, 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 will recall that you took an oath promising to do so at the beginning of the case. 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 any suggestion as to what verdict you should return—that is a matter entirely up to you. Ninth Circuit Model Criminal Jury Instruction 3.1 (modified) 19 INSTRUCTION No. ___ CHARGE AGAINST DEFENDANT NOT EVIDENCE—PRESUMPTION OF INNOCENCE—BURDEN OF PROOF The indictment is not evidence. The defendant has pleaded not guilty to the charge[s]. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present any evidence. The defendant does not have to prove innocence; the government has the burden of proving every element of the charge[s] beyond a reasonable doubt. Ninth Circuit Model Criminal Jury Instruction 3.2 20 INSTRUCTION No. ___ REASONABLE DOUBT—DEFINED 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. Ninth Circuit Model Criminal Jury Instruction 3.5 21 INSTRUCTION No. ___ WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits received in evidence; and (3) any facts to which the parties have agreed. Ninth Circuit Model Criminal Jury Instruction 3.6 22 INSTRUCTION No. ___ WHAT IS NOT EVIDENCE 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 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. Ninth Circuit Model Criminal Jury Instruction 3.7 23 INSTRUCTION No. ___ DIRECT AND CIRCUMSTANTIAL EVIDENCE 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. For 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 leaky garden hose, may provide an explanation for the water on the sidewalk. Therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense. Ninth Circuit Model Criminal Jury Instruction (modified) 24 INSTRUCTION No. ___ CREDIBILITY OF WITNESSES 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: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness’s memory; (3) the witness’s manner while testifying; (4) the witness’s interest in the outcome of the case, if any; (5) the witness’s bias or prejudice, if any; (6) whether other evidence contradicted the witness’s testimony; (7) the reasonableness of the witness’s testimony in light of all the evidence; and (8) 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. 25 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. Ninth Circuit Model Criminal Jury Instruction 3.9 26 INSTRUCTION No. ___ DEFENDANT’S DECISION NOT TO TESTIFY 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. Ninth Circuit Model Criminal Jury Instruction 3.3 27 INSTRUCTION No. ___ DEFENDANT’S DECISION TO TESTIFY The defendant has testified. You should treat this testimony just as you would the testimony of any other witness. Ninth Circuit Model Criminal Jury Instruction 3.4 28 INSTRUCTION No. ___ ACTIVITIES NOT CHARGED 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. Ninth Circuit Model Criminal Jury Instruction 3.10 29 INSTRUCTION No. ___ USE OF NOTES 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. Ninth Circuit Model Criminal Jury Instruction 7.3 30 INSTRUCTION No. ___ JURY CONSIDERATION OF PUNISHMENT 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. Ninth Circuit Model Criminal Jury Instruction 7.4 31 INSTRUCTION No. ___ CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY 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. Ninth Circuit Model Criminal Jury Instruction 7.2 32 INSTRUCTION No. ___ DUTY TO DELIBERATE When you begin your deliberations, elect one member of the jury as your 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. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person’s race, color, religious beliefs, birthplace, home state, 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. Ninth Circuit Model Criminal Jury Instruction 7.1 (modified) 33 INSTRUCTION No. ___ VERDICT FORM A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your foreperson should complete the verdict form according to your deliberations, sign and date it, and advise the courtroom manager that you are ready to return to the courtroom. Ninth Circuit Model Criminal Jury Instruction 7.5 (modified) 34 INSTRUCTION No. ___ COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the courtroom manager, 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. Ninth Circuit Model Criminal Jury Instruction 7.6 (modified) 35

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