137.

Sample Jury Instructions—18 US.C. § 242

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION UNITED STATES OF AMERICA v. CRIMINAL CASE NO. G-94-6 BELARMINO SANCHEZ THE UNITED STATES' PROPOSED JURY INSTRUCTIONS Pursuant to Federal Rule of Criminal Procedure 30, the United States respectfully requests that this Honorable Court include in its charge to the jury the following proposed jury instructions: UNITED STATES' PROPOSED INSTRUCTION NO. Counts One, Two, Three, Four, Five and Six of the Indictment read as follows: COUNT ONE On or about September 16, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Cindy Hegmann, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from willful sexual assault, that is, by willfully coercing Cindy Hegmann to engage in sexual acts with defendant Sanchez. In violation of Title 18, United States Code, Section 242. COUNT TWO On or about September 29, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Angela Townsend, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from willful sexual assault, that is, by willfully coercing Angela Townsend to engage in sexual acts with defendant Sanchez. In violation of Title 18, United States Code, Section 242. COUNT THREE In or about the months of September or October, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Canisius Bickham, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from willful sexual assault, that is, by willfully coercing Canisius Bickham to engage in sexual acts with defendant Sanchez. In violation of Title 18, United States Code, Section 242. COUNT FOUR In or about the month of October, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Paula Ruiz, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from willful sexual assault, that is, by willfully coercing Paula Ruiz to engage in sexual acts with defendant Sanchez. In violation of Title 18, United States Code, Section 242. COUNT FIVE In or about the months of October or November, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Paula Ruiz, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from the use of excessive force by one acting under color of the law, that is, by striking Paula Ruiz in the head with a pistol, resulting in bodily injury to Paula Ruiz. In violation of Title 18, United States Code, Section 242. COUNT SIX On or about November 10, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, then an officer with the Galveston Police Department, while acting under color of the laws of the State of Texas, did willfully deprive Irene James, an inhabitant of the State of Texas, of the rights and privileges which are secured and protected by the constitution and the laws of the United States, namely, the right not to be deprived of liberty without due process of law, which includes the right to be free from willful sexual assault, that is, by willfully coercing Irene James to engage in sexual acts with defendant Sanchez. In violation of Title 18, United States Code, Section 242. UNITED STATES' PROPOSED INSTRUCTION NO. 18 U.S.C. 𨵊 The defendant is charged in these counts with having violated Section 242 of Title 18, United States Code. The words of this statute that are pertinent to these counts read as follows: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States ... [shall be guilty of an offense against the united states]. Title 18, United States Code, Section 242, makes it a Federal crime or offense for anyone, while acting under color of state law, to willfully deprive someone else of his or her rights secured by the Constitution or laws of the United States. ____________ Authority: 18 U.S.C. § 242 UNITED STATES' PROPOSED INSTRUCTION NO. Elements Four essential elements are required to be proved in order to establish the offense charged in these counts of the Indictment: First: The person upon whom the alleged acts were committed must have been an inhabitant of a state, here, the State of Texas. Second: The defendant must have been acting under color of law, that is, while using or misusing power possessed by reason of his official position. Third: The conduct of the defendant must have deprived the victim of some right secured or protected by the Constitution of the United States. Fourth: The defendant must have intended to willfully deprive the named victim of the specified Constitutional right. _______________________ Authorities: United States v. Senak, 477 F.2d 304, 306 (7th Cir. 1973), cert. denied, 414 U.S. 856 (1973) (lists elements). UNITED STATES' PROPOSED INSTRUCTION NO. Element One: Inhabitancy With regard to the first element of the offense, I instruct you that if you find that the named victims were living in the State of Texas at the time of the incident charged in the Indictment, then they were inhabitants of a state within the meaning of the statute. ________________________ Authorities: United States v. Otherson, 637 F.2d 1276, 1283 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981)(noting that review of thelegislative history reveals Congress intended to include all persons present in the United States within the protection of § 242). United States v. Maravilla, 907 F.2d 216, 228 (1st Cir. 1990)(inhabitancy requires more than intent to remain in country for only a few hours). UNITED STATES' PROPOSED INSTRUCTION NO. Element Two: Color of Law The term "color of law" means a power possessed by an officer by virtue of law, which gives him the authority to act. However, "color of law" means under pretense of law as well as under actual legal authority. In other words, the term "color of law" also includes actions which are not authorized by law so long as they are performed by utilizing the defendant's legal authority. So, if a law enforcement officer misuses the power invested in him by the law to deprive someone of his rights, his misconduct is taken under "color of law," even if the law forbids what has been done. Consequently, I charge you that if you find that, at the time of the alleged incident, the defendant was a police officer with the Galveston, Texas Police Department and that he claimed to act or gave the appearance of acting as a police officer, even if he may have misused his lawful authority, then he was acting "under color of law" as described in the Indictment. _____________________________ 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, 135 (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."). UNITED STATES' PROPOSED INSTRUCTION NO. Element Three: Protected Right The third element to be proved is that the conduct of the defendant must have deprived the victims of a right secured or protected by the Constitution or laws of the United States. Counts One through Six charge the defendant with having deprived the named victim of her right not to be deprived of liberty without due process of law. One of the "liberties" given by the constitution to every person, including the victims in this case, is the liberty to be free from unlawful abuse of their persons. The constitution has always protected the physical integrity of every person from unauthorized abuse. "Liberty" thus includes the principle that no person may ever be physically assaulted, intimidated or otherwise abused intentionally and without justification by a person acting or purporting to act under the color of laws of any state of the United States. Counts One, Two, Three, Four, and Six charge that the defendant sexually assaulted the named victims by coercing them into engaging in sexual activities. One type of assault prohibited by the "liberty" interest of the constitution is sexual abuse. Sexual abuse includes coercing, threatening, or intimidating another individual into engaging in sexual activities. In determining whether the conduct of the defendant as alleged in the indictment constitutes sexual abuse, it is not necessary to find that the defendant used physical force against a victim. Instead, you should consider the totality of the circumstances, such as the context in which the alleged incidents occurred, the relationships between the parties, the relative positions of power and authority between the defendant and the victims, and the effect such actions would have upon a reasonable person in the same situation as the victims in this case and of the same general background. ________________________ Authorities: United States v. Davila, 704 F.2d 749 (5th Cir. 1983) (conviction under 18 U.S.C. 𨵊 upheld where INS agents coerced victims into performing sexual acts). Doe v. Taylor Independent School District, 15 F.3d 443, 450-52 (5th Cir. 1994)(sexual abuse of student by teacher constitutes violation of Fourteenth Amendment). Wedgeworth v. Harris, 592 F.Supp. 155 (W.D. Wisc. 1984)(police officer who uses his position to exert pressure on an unwilling victim to compel her to submit to sexual contact violates victim's constitutional rights). Stoneking v. Bradford Area School District, 667 F. Supp. 1088, 1095 (W.D. Pa. 1987), aff'd, 856 F.2d 594 (3rd Cir. 1988)(acts of sexual abuse, harassment and intimidation by school employee constitute violations of the due process right to be free from such assaultive conduct). Stacey v. Ford, 554 F.Supp. 8 (N.D. Ga. 1982)(allegation that prison official grabbed genitals of inmate states a valid claim under the Constitution). LaMarca v. Turner, 662 F.Supp. 647, 662 (S.D. Fla. 1987)(a prisoner has the right to be protected from sexual assault). UNITED STATES' PROPOSED JURY INSTRUCTION NO. Another type of assault prohibited by the "liberty" interest of the constitution is the use of excessive force by one acting under color of law. Count Five charges that the defendant violated the right of Paula Ruiz to be free from the intentional use of unreasonable force by one acting under color of law. All persons present 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 excessive or unjustified. It has always been the policy of the law to protect the physical integrity of every person from excessive use of 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 law or in an official capacity. Accordingly, every person has a constitutional right to be free from both unreasonable physical force and the threat of unreasonable physical force by police officers. Unreasonable physical force is physical force used without a legitimate law enforcement purpose or force that is excessive in light of the need for the force. Although law enforcement officers may use some force to effect an arrest or to prevent an escape from custody, law enforcement officers may not use any amount of force to retaliate against an individual. Force used to retaliate and for no legitimate law enforcement purpose would constitute excessive and unreasonable physical force. ______________________________ Authorities: Graham v. Connor, 490 U.S. 386, 394-95 (1989)(claims that law enforcement officials 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"). Tennessee v. Garner, 471 U.S. 1 (1985)(amount of force must be reasonable even in situations where some force justified). 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 victim of a right under the Constitution"). UNITED STATES' PROPOSED INSTRUCTION NO. Element Four: Willfulness With regard to the fourth element, willfulness, I instruct you that an act is done willfully if it is done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is, with a bad purpose to disobey or disregard the law. With respect to Counts One, Two, Three, Four, and Six, it means with a specific intent to coerce or intimidate the victims into engaging in sexual activities. With respect to Count Five, it means with a specific intent to use excessive force. With regard to specific intent, you are instructed that intent is a state of mind and can be proven by circumstantial evidence. Indeed, it can rarely be established by any other means. In determining whether this element of specific intent was present, you may consider all the attendant circumstances of the case. It is not necessary to show or prove that the defendant was thinking in constitutional terms at the time of the incident. You may find that the defendant acted with the requisite specific intent even if you find that he had no real familiarity with the constitution or with the particular constitutional rights involved, provided that you find that he willfully and consciously did the act which deprived the victim of her constitutional rights. Nor does it matter that the defendant may also have been motivated by lust or anger or some other emotion, provided the intent which I have described to you is present. If you find that the defendant knew what he was doing and that he intended to do what he was doing, and if you find that what he did constituted a deprivation of a constitutional right, then you may conclude that the defendant acted with specific intent to deprive the victim of that constitutional right. ____________________________ Authorities: Fifth Circuit Pattern Jury Instructions, p. 50, ڇ.36 (1990) (definition of "willfully" depends on particular offense). Screws v. United States, 325 U.S. 91, 106 (1945)("[t]he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees"). United States v. O'Dell, 462 F.2d 224, 232 n. 10 (6th Cir. 1972)(defendants need not have known specifically that they were violating constitutional rights). United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (approving instruction that jury might conclude that defendant acted with specific intent if defendant knew and intended what he was doing and conduct deprived person of rights). United States v. Stokes, 506 F.2d 771, 776-77 (5th Cir. 1975)(to act willfully is to act with the intent to deprive another of his constitutional rights). United States v. Gwaltner, 790 F.2d 1378, 1386 (9th Cir. 1986)("it is not necessary for the Government to prove that the defendant was thinking in constitutional terms at the time of the incident, for a reckless disregard for a person's constitutional rights is evidence of specific intent to deprive that person of those rights"). UNITED STATES' PROPOSED INSTRUCTION NO. Bodily Injury With respect to Count Five, the United States has charged that the defendant's actions caused bodily injury to Paula Ruiz. Therefore, if you find that the government has proven beyond a reasonable doubt all of the elements of the crime as I have explained them to you, then you must determine whether the defendant's actions caused bodily injury to Paula Ruiz. The term "bodily injury" means any injury, no matter how temporary. Bodily injury also includes physical pain. It is also not necessary that the defendant intended to cause physical injury to the victim. The United States need only prove that acts of the defendant resulted in bodily injury to the victim. ________________________ Authorities: 18 U.S.C. § 1365(g)(3) 18 U.S.C. § 1515(a)(5) United States v. Myers, 972 F.2d 1566 (11th Cir. 1992)(approving bodily injury instruction). UNITED STATES' PROPOSED JURY INSTRUCTION NO. Count Seven of the Indictment reads as follows: In or about the months of October or November, 1992, within the Southern District of Texas, BELARMINO SANCHEZ, defendant herein, knowingly used and carried a firearm during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, that is, the willful deprivation of Paula Ruiz' right not to be deprived of liberty without due process of law, which resulted in her bodily injury, in violation of Title 18, United States Code, Section 242, as alleged in Count Five of this indictment. In violation of Title 18, United States Code, Section 924(c). UNITED STATES' PROPOSED JURY INSTRUCTION NO. Count Seven Count Seven charges the defendant with having violated Section 924(c) of Title 18, United States Code. Section 924(c)(1) makes it a crime for anyone to use or carry a firearm during and in relation to a violent crime. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: That the defendant committed the crime alleged in Count Five. I instruct you that the crime alleged in Count Five is a violent crime; and Second: That the defendant knowingly used or carried a firearm during and in relation to the defendant's commission of the crime alleged in Count Five. The government is not required to prove that the defendant actually fired the weapon or brandished it at someone in order to prove "use," as that term is used in this instruction. However, you must be convinced beyond a reasonable doubt that the firearm played a role in or facilitated the commission of the offense, such as emboldening the defendant who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others. In other words, you must find that the firearm was an integral part of the offense charged. The term "firearm" means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. The fact that a firearm is unloaded or inoperative is no defense. _______________________ Authorities: Fifth Circuit Pattern Jury Instructions, p. 126, § 2.45 (1990). United States v. Contreras, 950 F.2d 232, 241 (5th Cir. 1992)(discussing definition of "use" of firearm) Respectfully submitted, GAYNELLE GRIFFIN JONES DEVAL L. PATRICK United States Attorney Assistant Attorney General Southern District of Texas Civil Rights Division _________________________ __________________________ GERALD DOYLE SUZANNE DROUET Assistant United States Attorney Attorney, Criminal Section 440 Louisiana, Ste. 900 U.S. Department of Justice Houston, TX 77002 Washington, D.C. 20035-6018 713/238-9447 202/514-4154 [cited in Civil Rights Resource Manual 60]