The following excerpt is from United States v. Gear, 985 F.3d 759 (9th Cir. 2021):
jury instructions. See United States v. Jordan , 291 F.3d 1091, 1096 (9th Cir. 2002) (explaining that in such cases courts "do not have the ability ... simply to determine whether a proper jury instruction would have made any difference" because the element hasn't been litigated).
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