Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00-cr-00531-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S BRIEF RE JURY INSTRUCTION ISSUES

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and Brenda K. Taylor and Philip A. Brimmer, Assistant United States Attorneys, respectfully submits its brief pursuant to the Court's order of February 22, 2007 on the following issues: A. The Jurisdictional Element of First Degree Murder. The parties do not dispute that the statute under which the defendant has been charged, 18 U.S.C. § 1111 (first degree murder), requires that the crime have occurred "within the special maritime and territorial jurisdiction of the United States." See 18 U.S.C. § 1111(b). Under the federal enclave laws, the situs of the crime is an element of the offense. See, e.g., United States v. Prentiss, 206 F.3d 960, 967 (10 th Cir. 2000), citing

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18 U.S.C. § 7. Thus, it is the government's burden to prove beyond a reasonable doubt that the crime occurred within the special maritime or territorial jurisdiction of the United States. Id. The defendant seems to suggest that, in order to satisfy this jurisdictional element, the government must prove that USP Florence is within the special maritime or territorial jurisdiction of the United States. The government's position, on the other hand, is that the Tenth Circuit pattern instruction on this issue (10 th Cir. Pattern No. 2.52)1 is correct: although the government must establish beyond a reasonable doubt that the murder occurred within the special maritime or territorial jurisdiction of the United States, that element is satisfied if the jury finds that the murder occurred at USP Florence. Courts have long held that, while the location of a crime is a factual issue for the jury to decide, the issue of whether that location is within federal jurisdiction is a question of law. See United States v. Urrabazo, 234 F.3d 904, 906-07 (5 th Cir. 2000); Prentiss, 206 F.3d at 967; United States v. Roberts, 185 F.3d 1125, 1139 (10 th Cir. 1999); United States v. Stands, 105 F.3d 1565, 1575 (8 th Cir. 1997); United States v. Hernandez1

The Eleventh Circuit's pattern instruction is identical. See 45.2 Pattern Jury Instructions: Eleventh Circuit (West 2003). Other pattern instructions have a streamlined version of the jurisdictional element, i.e. that the murder occurred at ____ , a location within the special maritime or territorial jurisdiction of the United States. See, e.g., O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 45.03; 6.18.1111 Manual of Model Jury Instructions, Eighth Circuit (West 2003); 8.89 Ninth Circuit Manual of Model Jury Instructions - Criminal (West 2003).

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Fundora, 58 F.3d 802, 810 (2d Cir. 1995); United States v. Warren, 984 F.2d 325, 327 (9 th Cir. 1993). But see United States v. Bello, 194 F.3d 18, 22-23 (1 st Cir. 1999) (location of prison is an adjudicative fact). As the Tenth Circuit has explained, "the trial court decides the jurisdictional status of a particular property or area and then leaves to the jury the factual determination of whether the alleged crime occurred at the site." Roberts, 185 F.3d at 1139 (citing other cases). See also Prentiss, 206 F.3d at 967 ("While the court may determine, as a matter of law, the existence of federal jurisdiction over a geographic area, whether the locus of the offense is within that area is an essential element that must be resolved by the trier of fact.") The Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), has not overturned the general rule that a district court may take judicial notice that a federal installation is under federal jurisdiction. Indeed, in United States v. Styles, 75 Fed. Appx. 934, 2003 WL 22139583, *1 (5 th Cir. Sept. 17, 2003), the Fifth Circuit explained that "Apprendi did not otherwise alter the legal landscape regarding whether elements of an offense must be proved beyond a reasonable doubt, and it had no effect on whether the district court could take judicial notice of the status of the [federal installation]." Only the First Circuit has held that the question of whether a prison is located within the territorial jurisdiction of the United States is an adjudicative fact for the jury. See Bello, 194 F.3d at 23. Bello also held, however, that the district court can take judicial notice of such a fact provided that the court also advises the jury that it may, but is not required to, accept as

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conclusive any fact judicially noticed. Id. at 23-24. Based on the rulings of the majority of courts, this Court can properly instruct the jury that: (a) the murder must have occurred within the special maritime or territorial jurisdiction of the United States; and (b) if the jury finds that the murder occurred at USP Florence, then the jurisdictional requirement is met. B. The Permissive Inference Instruction. The defendant seeks to include within his first degree murder instruction language allowing the jury to infer that, because the government destroyed evidence in this case (i.e. hooch containers), the jury can assume that such evidence would have proved that the defendant was intoxicated. In short, the defendant requests a sanction for the government's alleged destruction of evidence in the form of an adverse inference instruction. However, an adverse inference instruction is warranted only when there is "a finding of intentional destruction indicating a desire to suppress the truth" and prejudice to the opposing party. Stevenson v. Union Pacific R.R. Co., 354 F.3d 739, 746-48 (8th Cir.2004); Aramburu v. The Boeing Company, 112 F.3d 1398, 1407 (10 th Cir. 1997). Here there has been no testimony of intentional destruction of any material evidence. Instead, the jury heard that certain containers were discarded after they were determined not to contain hooch. As explained by the Tenth Circuit in Aramburu, mere negligence in losing or destroying evidence "is not enough because it does not support an inference of consciousness of a weak case." Aramburu, 112 F.3d at 1407.

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As this Court has previously ruled, the government did not destroy in bad faith the mouthwash bottle and plastic bags that were allegedly used to make intoxicants. See Order of October 14, 2003, at 55-59. Therefore, an adverse inference instruction is not applicable here. The defendant's request for an adverse inference instruction should therefore be denied. C. Relevancy of Intoxication and Abnormal Mental State To Lesser Crimes Defendant objects to the statement in Court's Instruction Nos. 21 and 22 that "intoxication and abnormal mental condition are not relevant to your decision on second degree murder, since they go to the capacity of the Defendant to premeditate." The Tenth Circuit, however, has upheld similar language in jury instructions in murder trials. In United States v. Soundingsides, 820 F.2d 1232, 1242 (10th Cir. 1987), for example, the defendant argued that it was error for the trial court to instruct the jury that intoxication did not negate the type of intent needed for second degree murder. The Tenth Circuit affirmed his conviction, holding that the following jury instruction was "correct": [A]lthough intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent. However, no intent of the type which might be negated by evidence of intoxication is necessary for a Defendant to be guilty of second degree murder or voluntary manslaughter. 820 F.2d at 1242. Similarly, the Tenth Circuit affirmed the first degree murder convictions of the defendant in United States v. Shuckahosee, 609 F.2d 1351 (10th Cir. 1979), holding that 5

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the following instruction on intoxication was "above reproach":

Although intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent. So, evidence that a Defendant acted or failed to act while in a state of intoxication is to be considered in determining whether or not the Defendant acted, or failed to act, with specific intent, as charged. The element of premeditation necessary for first degree murder implies the formation of a specific intent. No specific intent, of the type which might be negated by evidence of intoxication, is necessary for a Defendant to be guilty of second degree murder or voluntary manslaughter. If the evidence in the case leaves the jury with a reasonable doubt whether, because of the degree of his intoxication, the mind of the accused was capable of forming, or did form, specific intent to commit the crime charged, the jury should acquit the accused of that crime. Id. at 1356, n.11. The rationale for these findings is that intoxication and diminished mental capacity are not defenses to general intent crimes such as second degree murder and voluntary manslaughter. See, e.g., United States v. Hatatley, 130 F.3d 1399, 1405 (10 th Cir. 1997) (intoxication no defense to second degree murder or voluntary manslaughter); United States v. Moore, 425 F.3d 1061, 1069, n.3 (7 th Cir. 2005) (diminished mental capacity no defense to general intent crime); United States v. Jackson, 8 F. Supp. 2d 1239, 1244 (D. Colo. 1998) (same) [Babcock, J.]. Defendant argues that intoxication and diminished capacity are relevant to his perceptions of self-defense and his propensity to quarrel with someone. Such perceptions 6

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and propensities, however, relate to nothing more than the element of intent. As stated above, intoxication and diminished mental capacity do not negate the intent element of a crime of general intent. See, e.g., United States v. Sewell, 252 F.3d 647, 650-51 (7 th Cir. 2001) (defendant's argument that voluntary intoxication is still relevant as a defense because it minimizes intent or knowledge rejected on basis that his offense required only general intent). Consequently, the defendant is not entitled to an instruction explaining the relevance of his intoxication and diminished mental capacity as to second degree murder and voluntary manslaughter.

Respectfully submitted, TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of March, 2007, I electronically filed the foregoing GOVERNMENT'S BRIEF RE JURY INSTRUCTION ISSUES with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0403 E-mail: [email protected]

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