Free Trial Brief - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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

GOVERNMENT'S BRIEF RE JURY INSTRUCTIONS FOR LIABILITY PHASE

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, submits the following brief on the parties' tendered jury instructions for the liability phase. 1. Tenth Circuit Pattern Instructions ­ The Tenth Circuit pattern instructions provide an appropriate starting point for the Court. They are, of course, not binding. The United States has not suggested that they are. The Tenth Circuit, however, has posted the instructions on the Tenth Circuit's website, so the instructions are more than the product of a committee. The Tenth Circuit has endorsed them. 2. Presumption of Innocence ­ The revised defense instruction uses the "hesitate to act" language which the Tenth Circuit pattern instruction has abandoned. The "hesitate to act" language is discussed extensively in Tillman v. Cook, 215 F.3d 1116,

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1126 (10 th Cir. 2000). The defense has not identified anything that is defective with the Tenth Circuit pattern instruction's use of the "firmly convinced" language, which the Ninth Circuit has endorsed. See United States v. Velasquez, 980 F.2d 1275, 1278 (9 th Cir. 1992). The government objects to the language in the defendant's revised instruction regarding lack of evidence. Not only is such language written in a partisan manner ("Mr. Sablan has the right to rely upon failure of the prosecution to establish such proof") that is inappropriate for the Court to give, but it will suggest to the jury that it can speculate about evidence that was not presented. Devoting an entire paragraph to the concept overemphasizes it. The defendant does not cite any Tenth Circuit case approving such language. 3. Order of Instructions ­ The premise of the defendant's objection to the government's proposed order of instructions is that it is better to have the substantive instructions at the beginning when the jurors are "likely to be more attentive and less fatigued." Defendant's Brief re Guilt/Innocence Jury Instructions at 8. This concern is illusory. Not only will the jury have a copy of the instructions in the jury room, but when the Court reads the words "The elements of First Degree Murder are..." there is little danger that the jurors will be falling asleep. 4. First Degree Murder Elements ­ The government has incorporated the defenses of self-defense and heat of passion into its revised First Degree Murder

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instruction, as the notes to the Tenth Circuit pattern instruction suggest. The government, however, does not believe that intoxication and mental defect should be added as elements. Unlike self-defense and heat of passion, intoxication and mental defect do not necessarily negate an element of the charged offense. Even if the jury determines that the defendant was intoxicated or was suffering from a mental defect, it could still find that the defendant acted with malice and premeditation. See Thornburg v. Mullin, 422 F. 3d 1113, 1126 (10 th Cir. 2005). The government objects to the defendant's proposed first degree murder instruction for a variety of reasons. For one thing, it incorporates two paragraphs talking about "hooch," a factual discussion that is inappropriate for jury instructions. More specifically, the instruction states as fact several things which the evidence does not support ­ that the "government lost or destroyed a mouthwash bottle" and "the government destroyed a plastic trash bag ­ of the kind typically used for making hooch." Finally, the instruction tells the jury that it can infer that such destroyed evidence would have established that William Sablan was intoxicated, an inference without legal and factual support and one that flies in the face of the testimony establishing that William Sablan was not intoxicated. 5. Lesser Included Offenses ­ The government agrees that self-defense should be added to the lesser included instructions. Revised instructions are attached.

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Moreover, the government has attached a modified Tenth Circuit Pattern involuntary manslaughter instruction, which also incorporates self-defense. The government objects to the introductory instruction to the lesser included offenses that the defendant has proposed. Such an instruction is unnecessary. The instructions that the government has proposed on the lesser included offenses already explain the concepts referred to in this instruction. As a result, the instruction is redundant. Moreover, the defendant's instruction reiterates the burden of proof, which is covered in other instructions. 6. Aid and Abet ­ The government believes that the Tenth Circuit pattern instruction is a correct statement of the law. In the first degree murder context, the issue is whether the aider and abettor needs to have premeditated the crime. The government believes that the aider and abettor need only have known of the principal's premeditation and otherwise acted intentionally, but not have premeditated himself. "To convict an aider or abettor of first degree murder, the prosecution must prove `(1) that the defendant personally intended the death of the victim; and (2) that the defendant aided and abetted with full knowledge of the perpetrator's intent....'" Brewer v. Mullin, No. 05-5074, 169 Fed. Appx. 517, 519-20 (10 th Cir. 2006) (unpublished), quoting Wingfield v. Massie, 122 F.3d 1329, 1332 (10 th Cir. 1997). Brewer was decided under Oklahoma law, which appears to be consistent with federal aiding and abetting liability. The words "full knowledge of the perpetrator's intent" and the supporting factual discussion suggests that

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a defendant must know of the principal's premeditation regarding the murder, but not have to premeditate the murder himself. However, in the context of this case, the government does not oppose adding language requiring that the defendant have the requisite intent of the underlying substantive offense, as the Ninth Circuit's opinion in United States v. Ching Tang Lo, 447 F.3d 1212, 1227 (9 th Cir. 2006), refers. This language could be added as a third element to the Tenth Circuit pattern instruction. The defendant's Aiding and Abetting instruction misstates the law. The second element suggests that the aider and abettor had to know the legal elements of first and second degree murder and manslaughter. "The defendant knew that the other person was committing first degree murder, or alternatively second degree murder...." Of course, that is not true. Moreover, use of the phrase "deliberately associated himself" is likely to confuse the jury given its similarity to the deliberation aspect of "malice aforethought," which would not apply if the jury considered aiding and abetting in the context of second degree murder or other lesser included offenses. 7. Credibility of Law Enforcement Witnesses ­ The Court has already expressed to the jurors that the credibility of law enforcement officials is to be judged like any other witnesses. The defendant's proposed instruction, by singling out law enforcement officials, suggests the opposite. It is therefore inconsistent with the standard credibility of witnesses instruction. Moreover, it tells the jury that "it is quite legitimate" for the defense to attack their credibility showing that they have a "personal or

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professional interest in the outcome of the case." Not only is this language partisan by suggesting that it is "quite legitimate" to attack their credibility in such manner, but also inaccurate given that no law enforcement official to date has been attacked on the grounds that he or she would benefit or suffer depending on the outcome of this case.

Respectfully submitted this 21 st day of February, 2007.

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) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of February, 2007, I electronically filed the foregoing GOVERNMENT'S BRIEF RE JURY INSTRUCTIONS FOR LIABILITY PHASE 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/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0327 Fax (303) 454-0403 E-mail address: [email protected]

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