Free Trial Brief - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2294-2

Filed 02/21/2007

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GOVERNMENT'S INSTRUCTION NO. 21 LESSER INCLUDED OFFENSE - SECOND DEGREE MURDER 18 U.S.C. § 1111 If you unanimously find the defendant not guilty of first degree murder, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of second degree murder. The difference between first degree murder and second degree murder is that, to convict the defendant of second degree murder, the government does not have to prove that the killing was premeditated. Premeditation is typically associated with killing in cold blood, and requires a period of time in which the accused deliberates or thinks the matter over before acting. This is an element of the greater offense, but not of the lesser included offense. For you to find the defendant guilty of second degree murder, the government must prove each of the following elements beyond a reasonable doubt: First: the defendant caused the death of Joey Jesus Estrella; Second: the defendant killed Mr. Estrella with malice aforethought; Third: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States; and Fourth, the defendant did not act in self-defense. If you are convinced that the government has proved all of these elements beyond a reasonable doubt, you may find the defendant guilty of the lesser included offense of

Case 1:00-cr-00531-WYD

Document 2294-2

Filed 02/21/2007

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second degree murder. If you have a reasonable doubt about any of these elements, then you must find the defendant not guilty of second degree murder. You are instructed that intoxication and having an abnormal mental condition are not defenses to second degree murder.

1.33 and 2.53 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified); United States v. Hatatley, 130 F.3d 1399, 1405 (10 th Cir. 1997) (intoxication not a defense to second degree murder); United States v. Veach, 455 F.3d 628, 631 (6 th Cir. 2006) (diminished capacity is not a defense to a general intent crime).

Case 1:00-cr-00531-WYD

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Filed 02/21/2007

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GOVERNMENT'S INSTRUCTION NO. 22 LESSER INCLUDED OFFENSE - VOLUNTARY MANSLAUGHTER 18 U.S.C. § 1112 If you unanimously find the defendant not guilty of first degree murder and second degree murder, or if, after all reasonable efforts, you are unable to agree on a verdict as to either of those offenses, then you must determine whether the defendant is guilty or not guilty of voluntary manslaughter. One difference between second degree murder and voluntary manslaughter is that, to convict the defendant of voluntary manslaughter, the government does not have to prove malice aforethought. This is an element of the greater offense, but not of the lesser included offense. For you to find the defendant guilty of voluntary manslaughter, the government must prove each of the following elements beyond a reasonable doubt: First: the defendant killed Joey Jesus Estrella; Second: the defendant acted unlawfully; Third: while in sudden quarrel or heat of passion, and therefore without malice, the defendant: (a) intentionally killed Joey Jesus Estrella; or (b) intended to cause Mr. Estrella serious bodily injury; or (c) acted recklessly with extreme disregard for human life;

Case 1:00-cr-00531-WYD

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Filed 02/21/2007

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Fourth: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States; and Fifth, the defendant did not act in self-defense. The term "intentionally killed" as used in this instruction means either 1. a specific purpose to take the life of another human being, or 2. a willingness to act knowing that the death of another human being is practically certain to follow from that conduct. The term "heat of passion" means a passion, fear or rage in which the defendant loses his normal self-control, as a result of circumstances that provoke such a passion in an ordinary person, but which did not justify the use of deadly force. If you are convinced that the government has proved all of these elements beyond a reasonable doubt, you may find the defendant guilty of the lesser included offense of voluntary manslaughter. If you have a reasonable doubt about any of these elements, then you must find the defendant not guilty of voluntary manslaughter. You are instructed that intoxication and having an abnormal mental condition are not defenses to voluntary manslaughter.

1.33 and 2.54 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified); United States v. Brown, 287 F.3d 965, 977 (10 th Cir. 2002) (voluntary intoxication not a defense to voluntary manslaughter); United States v. Veach, 455 F.3d 628, 631 (6 th Cir. 2006) (diminished capacity is not a defense to a general intent crime).

Case 1:00-cr-00531-WYD

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Filed 02/21/2007

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GOVERNMENT'S INSTRUCTION NO. 23 LESSER INCLUDED OFFENSE-INVOLUNTARY MANSLAUGHTER 18 U.S.C. § 1112 If you unanimously find the defendant not guilty of first degree murder, second degree murder, voluntary manslaughter, or if, after all reasonable efforts, you are unable to agree on a verdict as to any of those offenses, then you must determine whether the defendant is guilty or not guilty of involuntary manslaughter. This law makes it a crime to unlawfully kill a human being 1) while committing an unlawful act not amounting to a felony, or 2) while committing a lawful act in an unlawful manner, or without due caution and circumspection, which act might produce death. To find the defendant guilty of this crime, you must be convinced that the government has proved beyond a reasonable doubt: First: the defendant caused the death of Joey Jesus Estrella; Second: the defendant used force against Joey Jesus Estrella with an honest but unreasonable and recklessly held belief that he must use deadly force to defend himself from an imminent attack, or the amount of force he used was excessive; Third: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States.

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Case 1:00-cr-00531-WYD

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Filed 02/21/2007

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In order to prove this offense, the government need not prove that the defendant specifically intended to cause the death of the victim. But it must prove more than that the defendant was merely negligent or that he failed to use reasonable care. The government must prove gross negligence amounting to wanton and reckless disregard for human life.

2.54.1 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified); United States v. Wood, 207 F.3d 1222, 1228 (10 th Cir. 2000) (definition of gross negligence); United States v. Brown, 287 F.3d 965, 975 (10 th Cir. 2002) (self defense, criminally negligent manner); defense involuntary manslaughter instruction, language defining selfdefense committed in an unlawful manner. 6