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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
v.
SEAN CHRISTIAN TARRANT, Criminal No. 3-89-293-H
JON LANCE JORDAN,
CHRISTOPHER BARRY GREER,
MICHAEL LEWIS LAWRENCE,
DANIEL ALVIS WOOD
_________________________
GOVERNMENT'S PROPOSED JURY INSTRUCTIONS
Pursuant to Fed.R.Crim.P. 30, the United States respectfully requests
that
this Honorable Court include in its charge to the jury the Court's standard
instructions concerning:
--the role of the Court and the role of the jury;
--the jurors' duty to follow instructions;
--the Indictment;
--reasonable doubt, presumption of innocence, and burden of proof;
--evidence: direct and circumstantial, argument of counsel and comment of
Court;
--inferences;
--on or about;
--motive;
--credibility;
--expert witnesses;
--impeachment: inconsistent statement, prior convictions;
--multiple defendants, multiple counts;
--punishment;
--duty to deliberate;
--unanimity;
--verdict.
The United States would request that the Court not give its standard
instructions on the term "specific intent." Because specific intent
requires
additional explanation with respect to civil rights charges, the United
States
respectfully submits its proposed Instruction 11 as an alternative.
Respectfully submitted this _____ day of _________, 1990.
Respectfully submitted,
James P. Turner, Acting
Assistant Attorney General
Civil Rights Division
___________________________
Barry Kowalski
Suzanne Drouet
Attorney, Criminal Section
Civil Rights Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633-4152
GOVERNMENT'S PROPOSED INSTRUCTION NO. 1
The Indictment reads as follows:
THE GRAND JURY CHARGES:
COUNT ONE
Beginning in or about June, 1988, and continuing until in or about
October,
1988, in and near Robert E. Lee Park, a public park in Dallas in the
Northern
District of Texas, defendants SEAN CHRISTIAN TARRANT, JON LANCE JORDAN,
MICHAEL
LEWIS LAWRENCE, CHRISTOPHER BARRY GREER, and DANIEL ALVIS WOOD did
willfully
conspire and agree with each other and other persons, known and unknown to
the
grand jury, to injure, oppress, threaten and intimidate Black and Hispanic
citizens of the United States in the free exercise and enjoyment of the
right
secured to them by the Constitution and laws of the United States to the
full and
equal enjoyment of the services, facilities, privileges, advantages and
accommodations of any place of public accommodation without discrimination
on the
ground of race, color or national origin.
It was part of the plan and purpose of this conspiracy that the
defendants
would join with others in Robert E. Lee Park to chase, assault and beat
Black and
Hispanic persons in order to prevent them from enjoying the use of Robert E.
Lee
Park, which was a symbol to the defendants of white supremacy.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 2
All of the defendants are 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 citizen 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. 𨵉
GOVERNMENT'S PROPOSED INSTRUCTION NO. 3
The offense charged in Count One described by Section 241 has four
elements:
First: Two or more persons must conspire, that is, there must be a
conspiracy.
Second: The purpose of their conspiracy must be to injure, oppress,
threaten or
intimidate one or more persons.
Third: One of the victims must be a citizen of the United States.
Fourth: The conspiracy must be directed at the free exercise or enjoyment
by
such a United States citizen of a right or privilege secured by the
Constitution
or laws of the United States.
If you find from the evidence that these four elements have been
established beyond a reasonable doubt, then proof of the offense is
complete.
____________________________
Authorities:
United States v. Guest, 383 U.S. 745 (1966).
United States v. Price, 383 U.S. 787, 800 (1966).
Wilkins v. United States, 376 F.2d 552, 562 (5th Cir. 1967).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 4
The first element of this offense, conspiracy, requires proof that:
- the alleged conspiracy existed, and
- the defendant knowingly and intentionally became a member of the
conspiracy.
A conspiracy is a combination or agreement of two or more persons to
accomplish some unlawful purpose. Thus, a conspiracy might be called a kind
of
partnership for criminal purposes 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, positively or tacitly came to a mutual
understanding to try to accomplish a common and unlawful plan.
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.
The evidence need not establish that all the means or methods set forth
in
the indictment were agreed upon; 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, and that one or more of the means or methods described in the
Indictment
were agreed upon to be used, in an effort to accomplish some plan or purpose
of
the conspiracy, as charged in the Indictment; and that two or more persons,
including one or more of the accused, were knowingly members of the
conspiracy,
as charged in the Indictment.
__________________________
Authorities:
Devitt and Blackmar, Federal Jury Practice and Instructions (3rd. Ed.,
1977),
§ 27.04.
Pereira v. United States, 347 U.S. 1 (1954).
United States v. Morado, 454 F.2d 167 (5th Cir.), cert. denied, 406 U.S.
917
(1972).
United States v. Warner, 441 F.2d 821, 830 (5th Cir.) cert. denied, 404 U.S.
829
(1971).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 5
In addition to finding that a conspiracy existed, you must also find
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. It need not be shown that a person knew all of
the
co-conspirators in order to prove that he or she became a member of the
conspiracy. Nor need it be shown that each conspirator joined the
conspiracy at
the time of its formation. One who knowingly and willfully joins an
existing
conspiracy is charged with the same responsibility as if he or she had been
one
of the instigators of the conspiracy.
Before the jury may find that a 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 willfully participated in the unlawful plan with the intent
to
advance or further some object or purpose of the conspiracy.
To participate knowingly and willfully means to participate voluntarily
and
intentionally and with specific intent to do some act the law forbids. So
if a
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 or she thereby becomes a
knowing
and willful participant and a co-conspirator.
The extent of any 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.
____________________________
Authorities:
Devitt and Blackmar, Federal Jury Practice and Instructions (3rd ed. 1977)
§
27.05.
United States v. Falcone, 311 U.S. 205, 210 (1940).
Direct Sales Co. v. United States, 319 U.S. 703, 714 (1943).
Blumenthal v. United States, 332 U.S. 539 (1947).
United States v. Morado, 454 F.2d 167, 175 (5th Cir. 1971), cert. denied,
406
U.S. 917 (1972).
United States v. Warner, 441 F.2d 821, 830 (5th Cir.), cert. denied, 401
U.S. 829
(1971).
United States v. McGann, 431 F.2d 1104, 1107 (5th Cir. 1970), cert. denied,
401
U.S. 919 (1971).
Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 6
The second element of the offense charged in Count One is that the plan
of
the conspirators was to injure, oppress, threaten, or intimidate one or
more
citizens of the United States. 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
other
persons. The words embrace whatever overcomes the will of the persons
against
whom the alleged intimidation or oppression is directed and induces that
person
to do what he does not wish to do or would not otherwise do.
Suffice it to say that the type of conduct described in the indictment
here, chasing and assaulting Black and Hispanic persons, would constitute
behavior which was injurious, oppressive, threatening or intimidating.
Thus, if it was a part of the plan of the conspiracy that the means
described in the indictment would be used in accomplishing its purpose, then
you
may find that the conspiracy was one to injure, oppress, threaten or
intimidate
within the meaning of the statute.
_______________________
Authorities:
United States v. Price, 383 U.S. 787 (1966).
United States v. Guest, 383 U.S. 745 (1966).
United States v. Harris, 701 F.2d 1095 (4th Cir.), cert. denied, 103 S.Ct.
3554
(1983).
Posey v. United States, 416 F.2d 545 (5th Cir. 1969), cert. denied, 397 U.S.
946
(1970).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 7
The third element of the offense is present if an individual against
whom
the conspiracy was directed was a United States citizen. Citizens of the
United
States include all persons born or naturalized in the United States, and
subject
to the jurisdiction thereof.
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 a
citizen. 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 United
States
citizen.
___________________
Authorities:
18 U.S.C. 𨵉
United States v. Gaggi, 811 F.2d 47 (2d Cir. 1987) (government required to
prove
that either one of two victims was citizen).
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. 8
If you find (1) the existence of a conspiracy, (2) whose plan was to
injure, oppress, threaten or intimidate, (3) a citizen of the United States,
then
you must consider the fourth element of the offense, the element involving
protected rights. This element requires proof that the conspiracy was
directed
toward the exercise or enjoyment of rights secured and protected by the
Constitution or laws of the United States. In other words, you must find
that
the conspirators intended to engage in conduct which would have the effect
of
violating a right that was protected by the Constitutuion or laws of the
United
States.
Count One of the indictment charges that the named defendants, Sean
Tarrant, Jon Lance Jordan, Michael Lawrence, Christopher Greer, and Daniel
Wood,
conspired to injure, oppress, threaten, or intimidate Black and Hispanic
citizens, in the free exercise and enjoyment of their right secured by the
Constitution and laws of the United States "to the full and equal enjoyment
of
the services, facilities, privileges, advantages and accommodations of any
place
of public accommodation without discrimination on the ground of race, color,
or
national origin."
Every citizen of the United States has the right to use a place of
public
accommodation regardless of his or her race, color, or national origin. The
laws
of the United States, in particular Title 42, United States Code, Section
2000a,
protect the right of citizens to use the facilities of a place of public
accommodation without interference because of their race, color, or
national
origin.
In this case, if you find that the conspiracy was directed against
some
citizen's right to use a place of public accomodation, a citizen whom the
conspirators thought to be Black or Hispanic, then you may find the
conspirators
agreed to interfere with that citizen's federally protected right because of
his
or her race, color or national origin.
__________________________
Authorities:
United States v. Price, 383 U.S. 787, 800 (1966)(statute precludes
interference
with all rights protected by Consitutution or federal statutes).
Title 42, United States Code, Section 2000a
GOVERNMENT'S PROPOSED INSTRUCTION NO. ___9__
A place of public accommodation is any establishment that is used by
members of the general public for entertainment, that is, recreation, fun,
or
pleasure, and in which the sources of entertainment move in interstate
commerce.
It is the duty of the Court and not the jury to determine whether the
Government's evidence, if you believe it beyond a reasonable doubt,
established
that Robert E. Lee Park was a place of public accommodation. In other
words,
with respect to the public accommodation aspect of the Indictment, you need
only
to decide whether the witnesses who testified regarding this issue were
credible
to the extent that you believe their testimony beyond a reasonable doubt.
You have heard various witnesses testify about Robert E. Lee Park, the
buildings and equipment located in the park, the special events and other
activities that have been held in the park, and the people who use the park
for
such events and activities. If you believe such witnesses beyond a
reasonable
doubt, then I instruct you that the evidence in this case meets the
requirements
of the law and you may find that Robert E. Lee Park is a place of public
accommodation.
_____________________________
Daniel v. Paul, 395 U.S. 298 (1969).
Miller v. Amusement Enterprises, 394 F.2d 342 (5th Cir. 1968).
United States v. Hooper, 575 F.2d 496, 497 (5th Cir. 1978) (approving
instruction
concerning mixed question of fact and law).
United States v. Summers, 589 F.2d 450, 455-56 (5th Cir. 1979).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 10
Next, you must determine whether the defendants intended to violate
the
right of a citizen as I have just explained that right.
In order for this element of the offense to be complete, you must find
that
a defendant, if and when he formed or joined the conspiracy, did so with
the
intent that the victims be deprived of their right to enjoy the facilities
of
Robert E. Lee Park. It is not necessary, however, for you to find that the
alleged conspirators were thinking in Constitutional or legal terms in order
to
find that they had the purpose to interfere with a right secured by the
Constitution or laws of the United States. It is not necessary that the
alleged
conspirators knew that the right they intended to interfere with was a
federally
protected right, nor does the government have to prove that the sole purpose
of
the conspiracy was to interfere with that right. It is only necessary that
the
alleged conspirators intended to do an act which in fact would have
interfered
with a right protected or secured by the Constitution or laws of the United
States. In other words, you do not have to find that a def
endant knew that Robert E. Lee Park was a place of public accommodation or
that
a defendant knew that the victims had a right to be in the park. Instead,
this
element is satisfied if you find a defendant agreed and conspired to engage
in
conduct which would have the effect of violating this right.
Therefore, if you find beyond a reasonable doubt that the defendants
agreed
or conspired with one another or with any other person with the specific
intent
to engage in conduct which would have the effect of depriving Black and
Hispanic
citizens of their right to enjoy the use of a place of public accommodation,
that
is, Robert E. Lee Park, then the conspiracy was directed at the exercise or
enjoyment of a right secured by the Constitution and laws of the United
States,
and the offense would be complete.
_________________________
Authorities:
United States v. Anderson, 417 U.S. 211 (1974).
United States v. Price, 383 U.S. 787 (1966).
United States v. Ellis, 595 F.2d 154 (3rd Cir.), cert. denied, 444 U.S. 838
(1979).
GOVERNMENT'S PROPOSED INSTRUCTION NO. ___11___
The Indictment charges that the defendants willfully conspired. 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
bad
purpose to disobey or disregard the law. In the case of the statute
involved
here, it means, for Count One, the defendants acted with a specific intent
to
engage in conduct which would have the effect of depriving the named class
of
victims of their right to use Robert E. Lee Park without interference
because of
their race, color, or national origin.
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.
I charge you that you may infer that a person ordinarily intends all
the
natural and probable consequences of an act knowingly done. In other words,
you
may in this case infer and find that a defendant intended all the
consequences
that a person, standing in like circumstances and possessing like
knowledge,
should have expected to result from his or her act or acts knowingly done.
It is not necessary to show or prove that a 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 a specific intent to deprive
that
person of those rights. You may find that a 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 right involved, provided
that
you find that the defendant willfully and consciously agreed to engage in
conduct
which would have the effect of depriving the victim of his constitutional
rights.
Nor does it matter that the defendant may have also been motivated by
anger,
frustration or some other emotion, provided the intent which I have
described to
you is also present.
In order to establish that a defendant willfully conspired, the
Government
need not show that the acts of the defendant were premeditated or of long
duration. 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 he agreed to engage
in
conduct which would effect a deprivation of a Constitutional right, as
described
above, then you may conclude that the defendant acted with the specific
intent
to deprive the victim of that constitutional right.
_____________________
Authorities:
Fifth Circuit Pattern Jury Instructions, Basic Instructions, No. 9A, p. 21.
Devitt and Blackmar, Federal Jury Practice and Instructions, (3rd ed.
l977),
§§l4.06 and l4.07.
Screws v. United States, 325 U.S. 9l, 106 (l945).
United States v. Anderson, 417 U.S. 211 (1974).
United States v. Dean, 722 F.2d 92, 94 (5th Cir. 1983).
United States v. Ragsdale, 438 F.2d 2l, 26 (5th Cir.), cert. denied, 403
U.S. 9l9
(l97l).
Crews v. United States, l60 F.2d 746, 750 (5th Cir. l947).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 12
The Indictment reads as follows:
COUNT TWO
Beginning in or about August, 1988, and continuing until on or about
November 9, 1989, in Garland, Texas, within the Northern District of Texas,
defendants SEAN CHRISTIAN TARRANT, JON LANCE JORDAN, MICHAEL LEWIS
LAWRENCE,
CHRISTOPHER BARRY GREER, and DANIEL ALVIS WOOD did willfully conspire and
agree
with each other and others to injure, oppress, threaten and intimidate
Jewish
citizens of the United States in the free exercise and enjoyment of the
right
secured to them by the Constitution and laws of the United States to hold
real
and personal property in the same manner as that right is enjoyed by all
citizens.
It was part of the purpose and plan of the conspiracy to vandalize
Jewish
properties in the Dallas area and through such intimidation and threats of
force
to prevent Jewish persons from enjoying the holding of such property.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 13
Count Two of the Indictment charges all of the defendants with having
violated Section 241 of Title 18 of the United States Code. The language of
the
statute and its elements are the same as for Count One. That is, the
government
must prove:
First: Two or more persons conspired, that is, there must be a conspiracy.
Second: The purpose of their conspiracy must be to injure, oppress,
threaten or
intimidate one or more persons. As I previously instructed you with respect
to
Count One, the conduct that is alleged in the Indictment, vandalizing
property,
would constitute behavior which was injurious, oppressive, threatening or
intimidating.
Third: One of the victims must be a citizen of the United States.
Fourth: The conspiracy must be directed at the free exercise or enjoyment
by
such a United States citizen of a right or privilege secured by the
Constitution
or laws of the United States.
Since I have previously instructed you regarding the requirements of a
conspiracy, the purpose of the conspiracy, and the definition of
citizenship, I
will not repeat those instructions here. You should refer to Instructions
3-7
to review them.
The primary difference between Count One and Count Two lies in the
protected right, that is, element 4. As I previously explained to you,
Count One
concerns the right of Black and Hispanic citizens to use a public park.
Count
Two, on the other hand, involves a different protected right.
As I previously instructed you on Count One, to find that the
government
has met its burden with respect to element four of Count Two, you must find
that
the conspirators intended to engage in conduct which would have the effect
of
violating a right that was protected by the Constitution or laws of the
United
States.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 14
With respect to the existence of a protected right, Count Two of the
Indictment charges that the named defendants, Sean Tarrant, Jon Lance
Jordan,
Michael Lawrence, Christopher Greer, and Daniel Wood, conspired to injure,
oppress, threaten and intimidate Jewish citizens in the free exercise and
enjoyment of their right secured by the Constitution and laws of the United
States "to hold real and personal property in the same manner as that right
is
enjoyed by all citizens."
Every citizen has the right to own, rent, or otherwise "hold" any type
of
property without interference because of his or her race. The laws of the
United
States, specifically Title 42, United States Code, Section 1982, protect
and
guarantee that right.
In this case, if you find that the conspiracy was directed against
some
citizen's right to hold property, a citizen whom the conspirators thought to
be
Jewish, then you may find the conspirators agreed to interfere with that
citizen's federally protected right because of his or her race.
_________________________
Title 42, United States Code, Section 1982
Shaare Tefila Congregation v. Cobb, 107 S.Ct. 2019 (1987)
GOVERNMENT'S PROPOSED INSTRUCTION NO. 15
The term "property" includes any type of interest someone might hold
in
property. An individual holds an interest in property when he owns, rents,
or
has a right to use certain property.
You have heard witnesses testify that members of the Jewish Community
Center and Temple Shalom had the right to use the facilities of those
establishments. To the extent that you believe those witnesses beyond a
reasonable doubt, I instruct you that you may find that the members of the
Jewish
Community Center and Temple Shalom held a property interest in the
buildings,
grounds, and equipment located in the buildings of the Center and the
Temple.
You have also heard evidence concerning a plan to vandalize the
property
of other unidentified Jewish individuals. If you find that a defendant
conspired
to vandalize property and that the defendant believed the property that he
intended to vandalize was owned or leased by Jewish persons, then you may
find
that the defendant conspired to interfere with those unidentified Jewish
persons'
property interests.
________________________
Authorities:
Olzman v. Lake Hills Swim Club, 495 F.2d 1333 (2d Cir.1974) (protecting
interest
of black guests to accompany white member to swim club).
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (protecting black
homeowner's interest in owning membership share in private park).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 16
Next, you must determine whether the defendants intended to violate
that
right.
Again, it is not necessary for the government to prove that the
defendants
knew the victims had the right to hold property or that the only purpose of
the
conspiracy was to interfere with Jewish citizens' property. It is only
necessary
that you find that the defendants, or any one of them in combination with
others,
agreed to do an act which would have the effect of violating the rights of
Jewish
citizens as I have explained those rights to you.
Again, as I explained to you more fully in Instruction 10, it is not
necessary for you to find that a defendant was thinking in Constitutional
or
legal terms. If you find beyond a reasonable doubt that the defendants
agreed
or conspired with one another or with any other person with the specific
intent
to deprive Jewish citizens of their right to hold property because they
were
Jewish, then the conspiracy was directed at the exercise or enjoyment of a
right
secured by the Constitution and laws of the United States, and the offense
would
be complete.
_________________________
Authorities:
United States v. Anderson, 417 U.S. 211 (1974).
United States v. Price, 383 U.S. 787 (1966).
United States v. Ellis, 595 F.2d 154 (3rd Cir.), cert. denied, 444 U.S. 838
(1979).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 17
The terms "willfulness" and "specific intent" are used in conjunction
with
both Counts One and Two. I have previously instructed you regarding the
general
meaning of those terms. You should refer to Instruction 11 to review those
definitions. With respect to Count Two, the specific intent applicable
here
relates to the intent to deprive Jewish citizens of their right to hold
property
without interference because of their race.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 19
The Indictment reads as follows:
COUNT THREE
On or about October 9, 1988, in Dallas, Texas, within the Northern
District
of Texas, the defendants DANIEL ALVIS WOOD, MICHAEL LEWIS LAWRENCE and JON
LANCE
JORDAN, aiding and abetting each other, did willfully use a firearm during
and
in relation to a crime of violence prosecutable in a court of the United
States,
that is, conspiracy against rights of citizens in violation of Title 18,
United
States Code, Section 241 as charged in Count Two of this Indictment.
All in violation of Title 18, United States Code, Section 924(c) and
2.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 20
Three of the defendants, Daniel Wood, Michael Lawrence, and Jon Lance
Jordan, are charged in Count Three of the Indictment with having violated
Section
924(c) of Title 18, United States Code. The words of this statute that are
pertinent to Count Three read as follows:
Whoever, during and in relation to any crime of violence ... for which
he may
be prosecuted in a court of the United States, uses or carries a firearm,
[shall
be guilty of a crime against the United States].
_______________________
18 U.S.C. § 924(c)
GOVERNMENT'S PROPOSED INSTRUCTION NO. 21
Two essential elements are required to be proved beyond a reasonable
doubt
in order to establish the offense charged in Count Three of the Indictment.
These elements are as follows:
First: That the defendant committed a crime of violence for which he may
be
prosecuted in a United States Court;
Second: That during and in relation to the commission of the crime of
violence
the defendant used or
carried a firearm.
_________________________
Authorities:
Title 18, United States Code, Section 924(c) (1984).
Devitt and Blackmar, Federal Jury Practice and Instructions (3rd ed. 1977)
499,
§ 59.31 (modified).
S. Rep. No. 98-225, 98th Con. 1st Sess.313 n.9 reprinted in U.S. Code Cong.
&
Admin. News 3182, 3491 n.9.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 22
As for the first element of Count Three, I instruct you that the crime
charged in Count Two of the Indictment is a crime of violence that may be
prosecuted in a court of the United States.
________________________
Authorities:
Title 18, United States Code, Section 924(c).
United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985)(conspiracy to
commit
crime of violence is crime of violence).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 23
The second element of the offense charged in Count Three requires that
during and in relation to the commission of the crime the defendant used a
firearm.
A defendant may be considered to have used a firearm during and in
relation
to the commission of a crime of violence if the firearm had some connection
to
or role in the crime, such as by facilitating the commission of the crime or
by
emboldening the defendant. It is not necessary that the firearm be fired,
in
order that it may be considered as having been used.
_____________________
Authorities:
Devitt and Blackmar, Federal Jury Practice and Instructions (3rd ed. 1977)
500,
§ 59.34 (modified).
United States v. Brockington, 849 F.2d 872, 875-76 (4th Cir. 1988).
United States v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985).
United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir. 1985).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 24
The term "firearm" includes "any weapon ... which will or is designed
to
or may readily be converted to expel a projectile by the action of an
explosive."
___________________________
Authorities:
Title 18, United States Code, Section 921(a)(3).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 25
The guilt of an accused in a criminal case may be established without
proof
that he personally did every act constituting the offense alleged. The law
recognizes that, ordinarily, anything a person can do for himself may also
be
accomplished by him through direction of another person as his agent, or by
acting in concert with, or under the direction of, another person or persons
in
a joint effort or enterprise.
Title 18, United States Code, Section 2 provides:
"Whoever commits an offense against the United States, or aids,
abets, counsels, commands, induces, or procures its commission, is
punishable as
a principal."
]"Whoever willfully causes an act to be done, which if directly performed by
him
or another would be an offense against the United States, is punishable as
a
principal."
So, if the acts or conduct of an associate of the defendant are
willfully
directed or authorized by him, or if the defendant aids and abets another
person
by willfully joining together with such person in the commission of a crime,
then
the law holds the defendant responsible for the acts and conduct of such
other
persons just as though he had committed the acts or engaged in such conduct
himself.
Notice, however, that before any defendant may be held criminally
responsible for the acts of others it is necessary that the accused
willfully
associate himself in some way with the criminal venture, and willfully
participate in it as he would in something he wishes to bring about; that is
to
say, that he willfully seek by some act or omission of his to make the
criminal
venture succeed.
Of course, mere presence at the scene of a crime and knowledge that a
crime
is being committed are not sufficient to establish that a defendant either
directed or aided and abetted the crime unless you find beyond a reasonable
doubt
that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find
beyond a reasonable doubt that every element of the offense as defined in
these
instructions was committed by some person or persons, and that the
defendant
willfully participated in its commission.
____________________
Authority:
Fifth Circuit Pattern Jury Instructions, Aiding and Abetting, Special
Instructions No. 1, p. 33.
GOVERNMENT'S PROPOSED INSTRUCTION NO. 18
You will notice that the Indictment sets forth a number of "overt acts"
for
Counts One and Two. 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
government is not required to prove beyond a reasonable doubt that the
defendants
committed the overt acts 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. Morado, 454 F.2d 167, 169 (5th Cir.), cert. denied, 406
U.S.
917 (1972).
United States v. Redwine, 715 F.2d 315, 320 (7th Cir.), cert. denied, 467
U.S.
1216 (1983).
United States v. Bufalino, 518 F. Supp. 1190, 1196 (S.D.N.Y. 1981).
GOVERNMENT'S PROPOSED INSTRUCTION NO. 26
In this case the Government called as several of its witnesses alleged
accomplices with whom the Government has entered into a plea agreements.
Such
plea bargaining, as it is called, has been approved as lawful and proper,
and is
expressly provided for in the rules of this Court.
An alleged accomplice, including one who has entered into a plea
agreement
with the Government, does not thereby become incompetent as a witness. On
the
contrary, the testimony of such a witness may alone be of sufficient weight
to
sustain a verdict of guilty. However, the jury should keep in mind that
such
testimony is always to be received with caution and weighed with great care.
You
should never convict a defendant upon the unsupported testimony of an
alleged
accomplice unless you believe that testimony beyond a reasonable doubt; and
the
fact that an accomplice has entered a plea of guilty to the offense charged
is
not evidence, in and of itself, of the guilt of any other person.
____________________________
Authorities:
Fifth Circuit Pattern Jury Instructions, Special Instructions No 2B, p. 36.
GOVERNMENT'S PROPOSED INSTRUCTION NO. ______
In determining whether a conspiracy between two or more persons existed
and
whether the defendant was one of its members, you may consider the acts and
the
declarations of any other member of the conspiracy as evidence against the
defendant whether done in his presence or out of his presence. When
persons
enter into an agreement for unlawful purposes, they become agents for each
other
so that the act of one conspirator is considered the act of all the other
conspirators and is evidence against all of the conspirators. However,
statements of any conspirator which are made before the conspiracy's
existence
or after its termination may be considered as evidence only against the
person
making such statements. In other words, in determining whether there was a
conspiracy and whether the defendant was a member of that conspiracy, you
may
consider as evidence against the defendant the declarations or actions of
his
fellow conspirators in the conspiracy whether the declarations or acti
ons were done in or out of his presence while a conspiracy existed. This
is
because when conspirators join in a common plan or scheme to accomplish an
illegal purpose, everything which is said or done by one of them in
furtherance
of that purpose is deemed to be the statement of all who have joined in
that
conspiracy.
________________________
Authorities:
United States v. Treadwell, 760 F.2d 327, 337 (D.C. 1985)
[cited in
Civil Rights Resource Manual 60]
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