133.

Sample Jury Instructions—18 U.S.C. § § 241

GOVERNMENT'S PROPOSED INSTRUCTION NO. 1 THE CHARGE This is a criminal case brought by the United States government. The grand jury has charged the all defendants with conspiracy to violate constitutional rights, and has charged four of the defendants with specific instances of violating civil rights. The indictment is simply the description of the charge made by the grand jury against the defendant; it is not evidence of anything. In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime which the Government must prove to make its case: To prove conspiracy, the Government prove that a defendant agreed with another defendant or other conspirator to interfere with the exercise or enjoyment of a specified constitutional rights of at least one inhabitant of California. The Government must prove that this conspiracy, or agreement, was to interfere with an inhabitant's right to be free from excessive force from a police officer, or the right to be free from having a police officer present false evidence, or the right to be free from having a police officer take property without due process of law. To prove the specific violations of civil rights, the Government must prove that for a given count the charged defendant was acting under color of law at the time of the incident—that is, he was acting as a police officer, that the named victim was an inhabitant of California, that the defendant deprived the victim of a protected constitutional right, and that the defendant intended the result which constituted the violation of that right. The rights which the indictment charges were violated in Counts Two through Nineteen include the three rights I mentioned above concerning excessive force, giving false evidence, and theft of money. Some of these counts also charge deprivations of the rights to be free from arrests without probable cause— that is, false arrests, and the right to have a police officer keep a person who is arrested or detained free from harm. _________________ Authority: Section 1.02, Ninth Circuit Pattern Instructions, 1989 (modified) GOVERNMENT'S PROPOSED INSTRUCTION NO. 2 DEFINITION OF REASONABLE DOUBT As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime or crimes charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. _________________ Authority: Pattern Criminal Jury Instructions, Federal Judicial Center, No. 21, p. 27. GOVERNMENT'S PROPOSED INSTRUCTION NO. 3 INDICTMENT: "AND" MEANS "OR" Although the indictment alleges that the statutes in question were violated by various acts which are in the indictment joined by the conjunctive "and," it is sufficient for guilt if the evidence establishes beyond a reasonable doubt the violation of the statute by any one of the acts charged. For example, Count one charges that the defendants "combined, conspired, and agreed to injure, oppress, threaten and intimidate inhabitants of California...." The proof need only establish that the defendants combined, conspired or agreed to injure, oppress, threaten or intimidate inhabitants of California. ___________________ Authorities: United States v. Dinneen, 463 F.2d 1036, 1039 (10th Cir. 1972), and cases cited therein. United States v. Troutman, 100 F.2d 628, 631 (10th Cir. 1938). GOVERNMENT'S PROPOSED INSTRUCTION NO. 3A SECTION 241 Count One charges the defendants with violating Section 241 of Title 18, United States Code. The relevant part of Section 241 reads as follows: If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same . . . [they shall be guilty of an offense against the United States]. __________________________ Authority: 18 U.S.C. 𨵉 GOVERNMENT'S PROPOSED INSTRUCTION NO. 4 SECTION 241—ELEMENTS Section 241 as charged by this indictment has three elements to be considered as to each defendant: First: That the defendant conspired with one or more persons to injure, oppress, threaten or intimidate one or more victims; Second: That the defendant intended by the conspiracy to hinder, prevent, or interfere with persons' enjoyment of a right secured by the Constitution or laws of the United States; and Third: That one or more of the intended victims was an inhabitant of California. I will now explain further each of these three elements. ____________________ Authorities: ڈ.18, p 83, Fifth Circuit Pattern Instructions—Criminal Cases (1990) GOVERNMENT'S PROPOSED INSTRUCTION NO. 5 CONSPIRACY—EXISTENCE OF AN AGREEMENT A criminal conspiracy is an agreement or a mutual understanding knowingly made or knowingly entered into by at least two people to violate the law by some joint or common plan or course of action. A conspiracy is, in a very true sense, a partnership in crime. A conspiracy or agreement to violate the law, like any other kind of agreement or understanding, need not be formal, written, or even expressed directly in every detail. To prove the existence of a conspiracy or an illegal agreement, the government is not required to produce a written contract between the parties or even produce evidence of an express oral agreement spelling out all of the details of the understanding. To prove that a conspiracy existed, moreover, the government is not required to show that all of the people named in the indictment as members of the conspiracy were, in fact, parties to the agreement, or that all of the members of the alleged conspiracy were named or charged, or that all of the people whom the evidence shows were actually members of a conspiracy agreed to all of the means or methods set out in the indictment. The government must prove that a defendant and at least one other person knowingly and deliberately arrived at some type of agreement or understanding that they, and perhaps others, would interfere with the protected Constitutional rights of inhabitants of Oakland by means of some common plan or course of action as alleged in Count One of the indictment. It is proof of this conscious understanding and deliberate agreement by the alleged members that should be central to your consideration of the charge of conspiracy. The existence of the agreement may be inferred from the defendants' acts pursuant to the scheme, or from other circumstantial evidence. The government is not required to prove any of the overt acts charged in Count One. Once you have decided that the defendant was a member of a conspiracy, the defendant is responsible for what other conspirators said or did to carry out the conspiracy, whether or not the defendant knew what they said or did. Unless the government proves beyond a reasonable doubt that a conspiracy, as just explained, actually existed as to a given defendant, then you must acquit that defendant. _____________________ Authorities: Devitt, Blackmar & O'Malley, Federal Jury Practice and Instructions, 䅘.04 (Conspiracy—Existence of an Agreement) (modified with addition of fifth, sixth, and seventh paragraphs) (1990) United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1986) (the agreement may be inferred from the defendants' acts pursuant to the scheme, or from other circumstantial evidence.") United States v. Skillman, 922 F.2d 1370, 1375-76 (9th Cir. 1991) (overt act not required under Section 241) Ninth Circuit Model Instruction 8.05A (1989) ("Once you have decided that the defendant was a member of a conspiracy, the defendant is responsible for what other conspirators said or did to carry out the conspiracy, whether or not the defendant knew what they said or did.") GOVERNMENT'S PROPOSED INSTRUCTION NO. 6 CONSPIRACY—KNOWING OF AND ASSOCIATION WITH OTHER CONSPIRATORS A conspiracy may continue for a long period of time and may include the performance of many acts. It is not necessary that all members of the conspiracy join it at the same time, and one may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or identities of all of the other members. A single conspiracy may include subgroups or subagreements. Even though a defendant may not have directly conspired with all the other defendants or conspirators in the overall scheme, the defendant would, in effect, have agreed to participate in the conspiracy if it is proved beyond a reasonable doubt that (1) the defendant directly conspired with one or more conspirators to carry out at least one of the objects of the conspiracy, (2) the defendant knew or had reason to know that other conspirators were involved with those with whom the defendant directly conspired, and (3) the defendant had reason to believe that whatever benefits the defendant might get from the conspiracy were probably dependent upon the success of the entire venture. It is no defense that a person's participation in conspiracy was minor or for a short period of time. ________________ Authorities: Ninth Circuit Pattern Jury Instructions, No. 8.05C United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). ("A single conspiracy" may include subgroups or subagreements".) GOVERNMENT'S PROPOSED INSTRUCTION NO. 7 ACTS AND DECLARATIONS OF CO-CONSPIRATORS In determining whether or not a particular defendant was a member of the conspiracy, you may consider the evidence of his conduct and actions, together with his own statements and declarations. You may also consider and weigh the acts and declarations of other co-conspirators which were made during the course of the conspiracy and in furtherance of it, as bearing on the question of a delfendant's membership in the conspiracy. United States v. Giese, 597 F.2d 1170, 1197 (9th Cir.) cert. denied, 444 U.S. 979 (1979). GIVEN_____________________ NOT GIVEN_________________ GIVEN AS MODIFIED_________ GOVERNMENT'S PROPOSED INSTRUCTION NO. 8 GUILT OF SUBSTANTIVE OFFENSE—PINKERTON A defendant may also be found guilty of an offense as a result of its commission by a coconspirator acting in furtherance of the conspiracy. If you find that the Government has proven a defendant guilty of the conspiracy charged in Count One, beyond a reasonable doubt, you should also find that defendant guilty of the crime alleged in any other count of the indictment in which he is charged, provided you find that the essential elements of that count as defined in these instructions have been established beyond a reasonable doubt and, provided further, that you also find beyond a reasonable doubt, that First, the offense committed was committed by a member of the conspiracy charged in Count One of the indictment; Second, the substantive crime was committed during the existence or life of and in furtherance of the goals or objectives of the conspiracy; and Third, at the time that this offense was committed, the defendant was a member of the conspiracy. Under these conditions a defendant may be guilty of a substantive count even if he did not participate in the acts constituting the offense as defined in the substantive count. The reason for this is that a co-conspirator is held to be the agent of the other conspirators. _________________ Authorities: Section 28.10, Devitt and Blackmar, Federal Jury Practice and Instructions, Fourth Edition, 1990 (modified) United States v. Kato, 878 F.2d 267, 270-71 (9th Cir. 1989) GOVERNMENT'S PROPOSED INSTRUCTION NO. 9 INJURE, OPPRESS, THREATEN, OR INTIMIDATE The words "injure," "oppress," "threaten" or "intimidate" are not used in any technical sense, but may cover a variety of conduct intended to harm, frighten, punish, or inhibit the free action of another person. The type of conduct embraced by these words includes actions which constitute the abuse of power or authority, or actions which frighten or cause physical harm to another person. _______________ Authorities: United States v. Price, 383 U.S. 787 (1966). United States v. Guest, 383 U.S. 745 (1966). Miriam Webster Pocket Dictionary (1974)(oppress defined as "to crush by abuse of power or authority."). GOVERNMENT'S PROPOSED INSTRUCTION NO. 10 ELEMENT TWO—PROTECTED RIGHT The second element of the conspiracy offense is that the defendants intended by the conspiracy to interfere with individuals' rights which are secured and protected by the Constitution and laws of the United States. Count One charges that each of the defendants conspired to interfere with other individuals' free exercise and enjoyment of three specific rights protected by the United States Constitution. The rights named in Count One include the right (1) to be free from the deprivation of liberty without due process of law, which includes the right to be secure in their persons, that is, the right to be free from the intentional use of unreasonable force by one acting under color of law; (2) to be free from the deprivation of liberty without due process of law, which includes the right not to have false evidence knowingly presented against them by one acting under color of law, and (3) to be free from the deprivation of property without due process of law by one acting under color of law. All persons in this country have the legal right, as set forth in the Fourth Amendment to the United States Constitution, to be protected from unreasonable seizures, that is, to be free from any official use of force which is unreasonable or unnecessary. It has always been the policy of the law to protect the physical integrity of every person from the use of excessive force. No one, not even a person being placed under arrest, may be physically assaulted, intimidated or otherwise abused intentionally and unreasonably by someone acting under color of laws or in an official capacity. Accordingly, every person has a constitutional right to be secure in his person and to be free from unwarranted physical mistreatment by police officers. Unwarranted physical mistreatment is physical force used without a legitimate law enforcement purpose. Every person also has a constitutional right, as established by the Fourth and Fourteenth Amendments, to be free from a deprivation of liberty resulting from the intentional presentation of false evidence by someone acting under color of law. One does not receive due process of law when a police officer knowingly provides false testimony in a court proceeding. Every person further has a constitutional right under the Fourteenth Amendment not to be deprived of property without due process of law by someone acting under color of law. This includes the right not to have money permanently taken from him by a police officer or officers without adherence to the processes due under the law. Thus, in this case, if you find that the conspiracy was directed against either (1) an inhabitant's right to be free from the use of excessive force by someone acting under color of law; (2) an inhabitant's right not to have false evidence knowingly presented against him by someone acting under color of law, or (3) an inhabitant's right to be free from the deprivation of property without due process of law by someone acting under color of law, then you may find that the conspirators agreed to interfere with a right secured by the Constitution of the United States. __________________ Authorities: 18 U.S.C. 𨵉 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989) (Claims that law enforcement official have used excessive force in the course of a "seizure" of a person are more properly characterized as invoking Fourth Amendment protection and must be judged by reference to Fourth Amendment "reasonableness standard"). United States v. Price, 383 U.S. 787, 800 (1966)(statute precludes interference with all rights protected by Constitution or federal statutes). Napue v. Illinois, 360 U.S. 264 (1959)(presentation of false evidence). Williams v. United States, 341 U.S. 97, 101 (1951) ("[W]here police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victims of a right under the Constitution."). United States v. Patterson, 809 F.2d 244 (5th Cir. 1987) (Section 241 conviction upheld based on officers' false testimony). United States v. Walker, 785 F.2d 1237 (5th Cir. 1986)(intentional arrest of victim by police officer without probable cause violates 18 U.S.C. 𨵊). United States v. Alonso, 740 F.2d 862 (11th Cir. 1984)(theft of money from victim by police officers violates victim's constitutional right to be free from the deprivation of property without due process of law.). United States v. Harrison, 671 F.2d 1159 (8th Cir. 1982)(excessive force by police officer) United States v. McClean, 528 F.2d 1250 (2d Cir. 1976)(theft of money from victim by police officers violates victim's constitutional right to be free from the deprivation of property without due process of law.). United States v. Wallace, 673 F.Supp. 205 (S.D. Texas 1987)(corrections officers who intentionally present false evidence against inmate in official proceeding violate 18 U.S.C. § 241.). GOVERNMENT'S PROPOSED INSTRUCTION NO. 11 ELEMENT THREE: INHABITANCY The third element of the offense requires that one or more of the intended victims be an inhabitant of California. An inhabitant of the State of California for purposes of the conspiracy statute means a person who would be physically present in the State of California at the time that the deprivation of his or her rights intended by the conspiracy would occur. Consequently, if you find that at least one of the intended victims of the conspiracy charged in Count One was to be physically present in the State of California at the time of the intended deprivation of rights, then the third element of the offense, inhabitancy, is satisfied. ___________________ Authorities: United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981)(inhabitancy includes all persons physically present in the United States (Section 242)). United States v. Konovsky, 202 F.2d 721 (1953)(by implication)(government not required to prove that each member of class set forth in indictment was an inhabitant). Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967)(by implication)(government not required to prove that each member of class set forth in indictment was a citizen). GOVERNMENT'S PROPOSED INSTRUCTION NO. 12 COLOR OF LAW Each of the rights named in Count One, which I have described above, protects individuals against actions of persons acting under color of law. Acting under color of law means that the defendant acted in his official capacity or else claimed to do so, even if he misused or abused his power by violating the law himself. In order to convict a defendant under Count One, you must find that the conspiracy contemplated that the actions which would accomplish the objectives of the conspiracy by interfering with constitutional rights would be done by persons acting under color of law. ________________________ Authorities: United States v. Classic, 313 U.S. 299, 326 (1941)(misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of law). Screws v. United States, 325 U.S. 91, 107-11 (1945)(officers performing official duties, whether they misuse their lawful authority, act under color of law). Williams v. United States, 341 U.S. 97, 99-100 (1951)(misuse of lawful authority can constitute action taken under color of law). Monroe v. Pape, 365 U.S. 167, 183-187 (1961)("under color of state law" includes misuse of power possessed by virtue of state law and made possible because the wrongdoer is clothed with the authority of state law). Griffin v. Maryland, 378 U.S. 130 (1964)("If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law."). Booker v. City of Atlanta, 776 F.2d 272 (11th Cir. 1985) Cir. 1985)(officers's presence aided unlawful repossession by giving repossession appearance of legality and by intimidating plaintiff into not exercising right to resist). [cited in Civil Rights Resource Manual 60]