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Sample Joint Proposed Jury Instructions

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. CRIMINAL NO. PJM-95-0148 BRANDON SHELDON, Defendant _________________________ JOINT PROPOSED JURY INSTRUCTIONS The United States of America, by its attorneys, Lynne A. Battaglia, United States Attorney for the District of Maryland, and Douglas B. Farquhar, Assistant United States Attorney for said District, and the Defendant, Brandon Sheldon, by and through his attorney, Richard Bittner, jointly request this Honorable Court to instruct the jury in the above-captioned case in accordance with the proposed instructions attached hereto, in addition to, but not in limitation of, its usual instructions in a criminal case. The government further requests this honorable Court, in accordance with Rule 30 of the Federal Rules of Criminal Procedure, to inform counsel of its proposed actions upon the requested instructions prior to counsels' argument to the jury. Respectfully Submitted, Lynne A. Battaglia Deval L. Patrick United States Attorney Assistant Attorney General Civil Rights Division ________________________________ ___________________________ Douglas B. Farquhar Gerard V. Hogan Assistant United States Attorney Mary E. Healy United States Courthouse Attorneys, Criminal Section Suite 400 Civil Rights Division 6500 Cherrywood Lane U.S. Department of Justice Greenbelt, Maryland 20770 Washington, D.C. 20530 (301) 344-4034 (202) 616-3941 ____________________________ Richard C. Bittner Bittner and Demyan 7485 Baltimore-Annapolis Blvd. Glen Burnie, Maryland 21061 (410) 787-8700 Dated: June 5, 1997 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. CRIMINAL NO. PJM-95-0148 BRANDON SHELDON, Defendant _________________________ JOINT REQUESTED INSTRUCTIONS NO. 1-14 The government and the Defendant request the following standard instructions from Sand, Siffert, Laughlin & Reiss, Modern Federal Jury Instructions (hereinafter referred to as "Sand"): No. 1. 2-12 (Sympathy) No. 2. 3-1 (Indictment is not evidence) No. 3. 3A-1 (Knowingly) No. 4. 3A-3 (Willfully) No. 5. 4-1 (Presumption of Innocence and Burden of Proof) No. 6. 4-3 (Number of Witnesses and Uncontradcited Testimony) No. 7. 5-2 (Direct and Circumstantial Evidence) No. 8. 5-4 (Testimony, Exhibits, etc.) No. 9. 2-18 (Jury to Consider Only This Defendant) No. 10. 6-1 (Inference Defined) No. 11. 6-16 (Consciousness of Guilt from Intimidation of Witness) No. 12. 7-1 (Witness Credibility) No. 13. 7-5 (Accomplices Called by Government) No. 14. 7-11 (Codefendant's Plea Agreement) No. 15. 8-3 (Voluntary Intoxication) No. 16. 5-21 (Defendant's Right Not To Testify) No. 17. 5-22 (Defendant's Silence as Admission) JOINT PROPOSED INSTRUCTION NO.____18_____ Count One of the Indictment reads as follows: [Read Count One of Indictment][INDENT] The defendant is charged in Count One of the Indictment with having violated Section 241 of Title 18, United States Code. The words of this statute that are pertinent to Count One read as follows: If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State of the United States 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 a crime against the United States]. ____________________________ Authority: 18 U.S.C. § 241. JOINT PROPOSED INSTRUCTION NO.____19____ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] JOINT PROPOSED INSTRUCTION NO.____20____ First, I will explain the term "conspiracy." A conspiracy is an agreement understanding, or combination of two or more persons to accomplish some unlawful purpose. Thus, a conspiracy is, in a very true sense, a partnership in crime in which each member becomes the agent of every other member. The essence of the offense is the agreement to violate or disregard the law. What the evidence must show to establish that a conspiracy existed is that the members in some way or manner, outwardly or silently, came to a mutual understanding to try to accomplish a common and unlawful plan, and that they took some step or steps toward accomplishing its objectives. However, the evidence need not show that the members of an alleged conspiracy entered into any express or formal agreement, or that they directly, by words spoken or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be achieved. Ordinarily only the results of a conspiracy, rather than the agreement, are observable. To prove that a conspiracy existed, moreover, the government is not required to show that all of the members of the alleged conspiracy were named or charged. Proof of a conspiracy may be by direct evidence or by inference. Direct evidence of the agreement and purpose may come from such evidence, for example, as conversations between the conspirators themselves. When proven by inference or circumstantial evidence, the conspiracy may be deduced from acts that are done in pursuit of an apparent criminal purpose. The evidence need not establish that all the means or methods set forth in the Indictment were agreed upon by all members; nor that those means or methods which were agreed upon were actually used or put into operation; nor that all of the persons alleged to have been members of the conspiracy were such. What the evidence must establish beyond a reasonable doubt is that the alleged conspiracy was knowingly formed in an effort to accomplish some plan or purpose of the conspiracy, as charged in the Indictment; that two or more persons, including the accused, were knowingly members of the conspiracy, as charged in the Indictment; and that the defendant knowingly contributed in some way to the accomplishment of the plan or purpose of the conspiracy. ___________________________ Authorities: Pereira v. United States, 347 U.S. 1 (1954). Direct Sales Co. v. United States, 319 U.S. 703, 714 (1943). United States v. Falcone, 311 U.S. 205, 210 (1940).United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981). United States v. Askew, 958 F.2d 806, 810 (8th Cir. 1992). Devitt and Blackmar, Federal Jury Practice and Instructions (4th ed., 1990), § 28.04. JOINT PROPOSED INSTRUCTION NO.____21____ For the United States to have proved the crime charged against the defendant in Count One you must be convinced beyond a reasonable doubt that the defendant knowingly and intentionally became a member of the conspiracy. A person may become a member of a conspiracy without full knowledge of all the details of the conspiracy. Before the jury may find that the defendant, or any other person, became a member of a conspiracy, the evidence must show that the conspiracy was formed, and that the defendant, or other person who is claimed to have been a member, knowingly and intentionally participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy. To participate knowingly and intentionally means to participate voluntarily and intentionally. So if the defendant, or any other person, with understanding of the unlawful character of a plan, intentionally encourages, advises or assists, for the purpose of furthering the undertaking or scheme, then he thereby becomes a knowing and intentional participant and a co-conspirator. 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 goals of the conspiracy, whether or not the defendant knew what they said or did. The extent of the defendant's participation in the conspiracy is not determinative of his guilt or innocence. A defendant may be convicted as a conspirator even though he may have played a minor part in the conspiracy. When proof of a conspiracy is shown, only slight additional evidence is necessary to connect a particular defendant with it. Furthermore, the United States is not required to prove that the parties to, or members of the agreement or conspiracy charged in Count One were successful in achieving any or all of the objects or goals of the agreement or conspiracy. __________________________ Authorities: Blumenthal v. United States, 332 U.S. 539 (1947). United States v. Monteiro, 871 F.2d 204, 208 (1st Cir.), cert. denied, 493 U.S. 833 (1989). Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956), cert. denied, 352 U.S. 1025 (1957). JOINT PROPOSED INSTRUCTION NO.____22____ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] JOINT PROPOSED INSTRUCTION NO. ___23___ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] JOINT PROPOSED INSTRUCTION NO. ____24____ Finally, with regard to the second element of Count One, the United States has alleged that the "protected right" at which the conspiracy was aimed was the right to hold and to occupy property without injury, intimidation, or interference because of race or to associate with persons of another race in their dwelling. The laws of the United States, including Section 1982 and the "Fair Housing Act" provisions of Title 42, United States Code, guarantee to all citizens the right to hold and to occupy their dwellings without injury, intimidation, or interference because of their race, and to associate with persons of another race within their dwelling. Intent to interfere with either of these rights is sufficient—the government does not need to establish beyond a reasonable doubt that the goal of the conspiracy was to interfere with both of these rights. _______________________________ 42 U.S.C. § 1982. 42 U.S.C. § 3601 et seq. Screws v. United States, 325 U.S. 91 (1945). United States v. Price, 383 U.S. 787, 800 (1966)(statute precludes interference with all rights protected by Constitution or federal statutes). United States v. Guest, 383 U.S. 745, 757 (1966). United States v. McDermott, 29 F.3d 404 (8th Cir. 1994). United States v. Wood, 780 F.2d 955 (11th Cir.), cert. denied, 476 U.S. 1184 (1986). JOINT PROPOSED JURY INSTRUCTION NO. ___25___ The third element of the offense is present if an individual against whom the conspiracy was directed was an inhabitant of the United States. The term "inhabitant" includes any individual who was a resident of any state of the United States at the time of the acts committed as described in the Indictment. The statute and the indictment do not mean, however, that the defendants must have had in mind a particular named individual whom they knew to be an inhabitant. It is sufficient if the conspiracy charged in Count One was aimed at the identified class of victims and the class included at least one inhabitant of any state of the United States. _________________________ Authorities: 18 U.S.C. § 241. United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990), cert. denied, ___ U.S. ___, 112 S.Ct. 1960 (1992). United States v. Gaggi, 811 F.2d 47, 54 (2d Cir.), cert. denied, 482 U.S. 929 (1987). Wilkins v. United States, 376 F.2d 552, 561 (5th Cir.), cert. denied, 389 U.S. 964 (1967). JOINT PROPOSED INSTRUCTION NO.____26____ 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 of the Indictment alleges that the defendant conspired to "injure, intimidate, oppress, and threaten Joan Bennett, her sons, and Douglas Monahan." The proof need only establish that the defendant conspired to injure, intimidate, oppress, or threaten Joan Bennett, or one of her sons, or Douglas Monahan. Similarly, the right "to hold and to occupy" a dwelling is the right either to hold or to occupy a dwelling. ______________________ Authorities: Turner v. United States, 396 U.S. 398, 420 (1970). United States v. Richman, 600 F.2d 286, 298 (1st Cir. 1979). United States v. Parnell, 581 F.2d 1374 (10th Cir. 1978), cert. denied, 439 U.S. 1076 (1979). United States v. Anderson, 527 F.2d 442 (5th Cir. 1976). United States v. Gimelstob, 475 F.2d 157 (3d Cir.), cert. denied, 414 U.S. 828 (1973). JOINT PROPOSED INSTRUCTION NO.___27___ You will notice that the Indictment sets forth a number of "overt acts" for Count One. An "overt act" is any transaction or event, even one which may be entirely innocent when considered alone, but which is knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy. The United States is not required to prove beyond a reasonable doubt that the defendants committed any overt act set forth in the Indictment, but you may consider any overt act which you believe occurred to help determine whether the conspiracy was formed and who joined it. _______________________ Authorities: United States v. Shabani, ___ U.S. ___, 115 S.Ct. 382 (1994)(proof of overt act not required in 21 U.S.C. § 846 where statute is silent, like § 241, about such requirement). United States v. Skillman, 922 F.2d 1370, 1375 (9th Cir. 1990), cert. denied, ____ U.S. ___, 112 S.Ct 353 (1991). United States v. Umentum, 547 F.2d 987, 990 (7th Cir. 1976), cert. denied, 430 U.S. 983 (1977)(citing § 241 as an example of a statute which, like 21 U.S.C. § 846, has no "overt act" requirement). United States v. Morado, 454 F.2d 167, 169 (5th Cir.), cert. denied, 406 U.S. 917 (1972). JOINT PROPOSED INSTRUCTION NO. ___28____ You may not draw any inference, favorable or unfavorable, toward the United States or toward the defendant on trial, from the fact that certain persons were not named as defendants in the same Indictment. This must play no part in your deliberations. Whether a person can or should be indicted as a defendant, and whether a person can or should be included in the same Indictment as another defendant are matters within the sole discretion of the United States Attorney or the Assistant Attorney General and the grand jury after a consideration of the available evidence and the applicable laws. Therefore, you must not consider it in any way in reaching your verdict as to the defendant on trial for the offenses in the Indictment. _________________________ Authority: 1 Sand, Siffert, Loughlin and Reiss, Modern Federal Jury Instructions (1991), § 3.01, Instruction No. 3-4 at 3-7 (modified). JOINT PROPOSED INSTRUCTION NO.___29____ Count Two of the Indictment of the Indictment reads as follows: [Read Count Two of Indictment] JOINT PROPOSED INSTRUCTION NO. ___30___ Section 3631 of Title 42, United States Code provides in pertinent part: Whoever... by force or threat of force willfully injures, intimidates, or interferes with, or attempts to injure, intimidate, or interfere with --(b) any person because he is or has been, or in order to intimidate such person or any other person . . . from . . . participating, without discrimination on account of race . . . in . . . [occupying any dwelling without regard to his or her race] shall be [guilty of an offense against the United States] _________________________ Authorities: 42 U.S.C. § 3631. JOINT PROPOSED INSTRUCTION NO. ___31__ The violation of Section 3631 charged in Count Two has four elements to be considered: First: The defendant used force or threat of force; Second: The defendant intimidated or interfered with, or attempted to intimidate or interfere with, the victims' right to hold and to occupy a dwelling; Third: The defendant engaged in the conduct described because of the victims' race or color and because of their occupancy of a dwelling and their association therein; Fourth: The defendant acted willfully. I will now explain each of these four elements in more detail. ______________________ Authorities: 42 U.S.C. § 3631. US v. McDermott 29 F3d 404, 409 (8th Cir. 1994). United States v. Wood, 780 F.2d 955, 961 (11th Cir.), cert. denied, 476 U.S. 1184 (1986). United States v. Redwine, 715 F.2d 315 (7th Cir. l983), cert. denied, 467 U.S. 1216 (1984). United States v. Hayward, 6 F.3d 1241, 1252 (7th Cir. 1993), cert. denied, 114 S.Ct. 1369 (1994) JOINT PROPOSED INSTRUCTION NO. ___32____ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] JOINT PROPOSED INSTRUCTION NO. ___33___ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] JOINT PROPOSED INSTRUCTION NO. ___34____ [The parties are unable to agree on this Instruction, and will submit separate proposed instructions.] UNITED STATES PROPOSED INSTRUCTION NO. 35 The fourth element to be proved for the offense charged in Count Two is that the defendant acted "willfully." An act is done "willfully" if is done knowingly, deliberately, "on purpose," as contrasted with accidentally, carelessly, or unintentionally. If the evidence convinces you that the defendant willfully engaged in the conduct described because of the victims' race or color and because the victims' occupied their home or associated therein with persons of another race, then you may find that the third and fourth elements are proved even if he had other reasons for doing what he did. ______________________________ Authorities: Devitt and Blackmar, Federal Jury Practice and Instructions (4th ed., 1992), § 17.04. United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir.), cert. denied, 469 U.S. 838 (1984). JOINT PROPOSED INSTRUCTION NO. ___36___ Intent and motive are different concepts and should never be confused. Motive is what prompts a person to act or fail to act. Intent refers only to the state of mind with which the act is done or omitted. Personal advancement and financial gain, for example, are two well-recognized motives for much of human conduct. These praiseworthy motives, however, may prompt one person to voluntary acts of good while prompting another person to voluntary acts of crime. Good motive alone is never a defense where the act done or omitted is a crime. The motive of the defendant is, therefore, immaterial except insofar as evidence of motive may aid in the determination of state of mind or the intent of the defendant. _____________________ Authority: Devitt and Blackmar, Federal Jury Practice and Instructions (4th ed., 1992), § 17.06. JOINT PROPOSED INSTRUCTION NO. ___37_____ The defendant is also charged in Count Two with having violated § 2 of Title 18, United States Code. Title 18, Section 2 of the United States Code provides in pertinent part: Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission in punishable as a principal. A person may violate the law even though he or she does not personally do each and every act constituting the offense if that person "aided and abetted" the commission of the offense. Before a defendant may be held responsible for aiding and abetting others in the commission of a crime, it is necessary that the United States prove beyond a reasonable doubt that the defendant knowingly and deliberately associated himself in some way with the crime charged and participated in it with the intent to commit the crime. In order to be found guilty of aiding and abetting the commission of the crimes charged in Count Two of the Indictment, the United States must prove the following: First: That the crime (in Count Two) was committed; Second: That the defendant knew the crime charged was to be committed or was being committed; Third: That the defendant knowingly did some act for the purpose of helping, aiding, or encouraging the commission of that crime; and Fourth: That the defendant acted with the intention of causing the crime charged to be committed. Proof that the defendant may have known about the crime, even if he was there when it was committed, is not enough for you to find him guilty. What the United States must prove is that the defendant did something to help or to encourage the crime with the intent that the crime be committed. _______________________ Authorities: 18 U.S.C. § 2. Devitt and Blackmar, Federal Jury Practice and Instructions (4th ed., 1992), § 18.01 (modified). Nye & Nissen v. United States, 336 U.S. 613, 618-620 (1949). CERTIFICATE OF SERVICE I hereby certify that on this ___ day of January, 1996, I caused a copy of the foregoing proposed Jury Instructions to be sent by first-class mail, postage prepaid, to the attorney for the Defendant, Richard Bittner, 5 Light Street, Suite 510, Baltimore, Maryland 21202. ______________________________ Douglas B. Farquhar Richard C. Bittner, Esq. 5 Light Street, Suite 510 Baltimore, Maryland 21202 [cited in Civil Rights Resource Manual 60]