Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Memorandum Brief Regarding Proposed Jury Instructions for the Guilt/Innocence Phase ________________________________________________________________________ William Sablan, through undersigned court-appointed counsel, submits this memorandum brief in hopes that it will assist the Court and the parties at the upcoming instruction conference set for Thursday February 22, 2007. The Tenth Circuit Proposed Pattern Instructions The pattern instructions are not binding on this Court. A resolution accompanying them states that the inclusion of each instruction "shall not be construed as adjudicative approval of the content of such instruction, which must await case-by-case review by the Court." Tenth Circuit Proposed Pattern Criminal Jury Instructions, Resolution of the Judicial Council of the Tenth Circuit. See United States v. Ledford, 154 Fed. Appx. 692, 706 (10th Cir. 2005) (citing resolution as well as United States v. Burke, 781 F.2d 1234, 1239 n.2 (7th Cir. 1985) for proposition that pattern instructions are suggestive rather than
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absolutely binding). Not only are they not binding, but over-reliance upon them can lead to error. In United States v. Lofton, 776 F.2d 918, 922 (10th Cir. 1985) the Circuit reversed a second degree murder conviction, making the following observation: Jury instructions must be tailored to the peculiar facts of each case. While pattern instructions provide valuable guidance to the trial courts, over-reliance may produce instructions unsuited to the particular case. Moreover, this Court retains discretion in tailoring jury instructions, provided that they correctly state the law and fairly and adequately cover the issues presented. United States v. Merchant, 992 F.2d 1091, 1096 (10th Cir. 1993); United States v. Bryant, 892 F.2d 1466, 1468 (19th Cir. 1989), cert. denied, 496 U.S. 9393 (1990). For this reason, William Sablan respectfully requests the Court to give careful consideration to his proposed instructions, accompanied with authority, despite the fact that for the most part they do not rely on the relatively recent and largely untested Tenth Circuit Proposed Pattern Instructions. Although the government has made it perfectly clear to Mr. Sablan's counsel that it wants to use the pattern instructions, to date it has offered no comment specific to Mr. Sablan's proposed instructions except in response to

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a request made by defense counsel that the government alter one of its instructions.1 Presumption of Innocence ­ Burden of Proof ­ Reasonable Doubt Due Process protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). "The standard of proof beyond a reasonable doubt, . . . `plays a vital role in the American scheme of criminal procedure,' because it operates to give `concrete substance' to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding." Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting Winship, 397 U.S. at 363). "At the same time by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty [and life] itself. Id. (quoting Winship, 397 U.S. at 372) (Harlan, J., concurring). For purposes of defining "reasonable doubt", the Supreme Court historically has favored the use of "hesitate to act" language because it provides a "commonsense
Mr. Sablan's instruction on the presumption of innocence includes the following statement: "If you view the evidence in the case as reasonably permitting of two conclusions ­ one of innocence, the other of guilt ­ you must, of course, adopt the conclusion of innocence" (p.5). In response to his criticism that this concept was not included in the government's instructions, the government pointed out that such language was disapproved in United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005). This has been deleted from Mr. Sablan revised instruction. The Dowlin court observed that although such language is correct if the evidence is evenly balanced, it does not inform the jury how to decide if the inference of guilt is stronger than that of innocence, but not strong enough to be proof beyond a reasonable doubt. Thus the jury may be misled into thinking that the government's burden is less than proof beyond a reasonable doubt. 3
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benchmark" for the quantum and quality of the doubt. Victor v. Nebraska, 511 U.S. 1, 20-21 (1994) (defining reasonable doubt as "a doubt that would cause a reasonable person to hesitate to act[] is a formulation we have repeatedly approved") (citing Holland v. United States, 438 U.S. 121, 140 (1954)). The same is true for the Tenth Circuit. See United States v. Barrera-Gonzales, 952 F.2d 1269, 1273 (10th Cir. 1992) (although not plain error, "[t]he challenge [to the "firmly convinced"formulation] does, however, cause this court to caution the trial courts, just as we did in Leaphart supra, that a preferred reasonable doubt instruction is one couched in the Supreme Court's `hesitate to act' language."2 Both Courts, however, have found what is essentially the flip-side of "hesitate to act" language, i.e., "rely and act upon" language confusing, especially when used alone, because people usually hesitate to act, rather than affirmatively act, when in doubt. See Holland, 348 U.S. at 140 (rather than defining reasonable doubt as "the kind of doubt . . . which you folks in the most serious and important affairs of your own lives might be willing to act upon . . . should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 107 F.2d 297, 303 [D.C. Cir.1939] rather than the kind on which he would be willing to act"); United States v. Clifton, 406 F.3d 1173 (10th Cir. 2005) (not error to reject the language "[p]roof beyond a reasonable doubt, therefore is proof of such convincing character that you would be willing to rely

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United States v. Leaphart, 513 F.2d 747, 750 (10th Cir. 1975). 4

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and act upon it . . .); Tillman v. Cook, 215 F.3d 1116, 1125 (10th Cir. 2000) ("willing to act" language is "consistently criticized by the Courts"; "hesitate to act language" should be used instead).3 Mr. Sablan's proposed jury instruction defining reasonable doubt included both "hesitate to act" and "rely and act upon" language. Because of the disapproval of the latter language, Mr. Sablan has attached a revised instruction on reasonable doubt, relying solely on the "hesitate to act" formulation. The defense, however, continues to object to the formulation of reasonable doubt included in the pattern instruction and submitted by the government that includes the following language:

! "proof beyond a reasonable doubt is proof that leaves you firmly convinced of
the defendant's guilt"

! "there are few things in this world that we know with absolute certainty. . ." ! "if . . . you think there is a real possibility that he is not guilty, you must give
him the benefit of the doubt . . ."

The reasonable doubt instruction given in Bishop , which was cited with approval in Holland, read: "Reasonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration of all the evidence. It is not a vague, speculative, imaginary, something, but just such a doubt as would cause reasonable men to hesitate to act upon it in matters of importance to themselves." Bishop, 107 F.2d at 303. This is virtually identical to the reasonable doubt instruction that has been used in Colorado for years: "Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves." Colo. Jury Inst., Criminal 3:04 5

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The Supreme Court has not addressed such a formulation, and although the Tenth Circuit upheld its use in United States v. Conway, 73 F.3d 975 (1995), a different formulation was upheld more recently in Clifton, 406 F.3d at 1178-79. Moreover, as recognized in both Conway and Clifton, this Court has "considerable latitude in instructing juries on reasonable doubt . . . and fulfills its constitutional duty if the charge as a whole correctly conveys the concept of reasonable doubt." Clifton, 406 F.3d at 1177 (citing Victor, 511 U.S. at 5). William Sablan's counsel have worked with the "hesitate to act" formulation of reasonable doubt in both state and federal courts for years. We believe it is a good one, particularly because, as noted by the Supreme Court, it provides a commonsense benchmark to which jurors can relate. Additionally, Mr. Sablan urges that any instruction given on reasonable doubt must state that "[a] reasonable doubt may arise not only from the evidence produced, but also from the lack of evidence." 4 See Jackson, 443 U.S. at 318 n.9 ("`[a] reasonable doubt' has often been described as one `based on reason which arises from the evidence or the lack of evidence;" (quoting Johnson v. Louisiana, 406 U.S. 356, 360 (1972)). This concept is missing from the government's proposed instruction, which is based upon the pattern instruction. The defense believes that given the facts in this particular case, this concept must be conveyed to the jury in the Court's instructions.

This is included in Mr. Sablan's proposed guilt/innocence phase instructions at page 5 and is reiterated in his amended instruction. 6

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Other Areas of Dispute Introductory Instruction The pattern instruction that is included in the government's proposed instructions begins with an instruction entitled "Introduction To Final Instructions" (p. 3). This instruction assumes a certain order for all of the instructions, a order that the defense believes is ill-advised. That order is:

! "general instructions which apply in every criminal case ­ for example,
instructions about burden of proof and insights that may help you to judge the believability of witnesses"

! "some specific rules of law that apply to this particular case" ! "the procedures you should follow in your deliberations, and the possible verdict
you may return" This order puts the elemental instructions of the charged crime and its lesser included offenses very close to the end. In contrast, Mr. Sablan's proposed instructions place the instructions specific to the case, i.e., the elements of first degree murder and its lesserincluded offenses immediately after the instructions on the province of the court and jury and on the presumption of innocence, burden of proof and reasonable doubt. (Attached is a copy of the table of contents from Mr. Sablan's instructions and a list of the government's instructions in order.) The instructions in this case will be lengthy, and it will take a long time for the Court to read them to the jury. It therefore would be preferable for the specific substantive instructions to be stated earlier rather than later
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when the jurors are likely to be more attentive and less fatigued. Moreover, even when subsequently working with their own copies, it would be best to put the substantive instructions first. First Degree Murder It is undisputed that one of the elements of first degree murder is that the accused premeditated the killing. It is also undisputed that evidence of intoxication and/or mental disease and/or defect may negate the element of premeditation. To ensure that the jury clearly understands that, these concepts should be included within the instruction on first degree murder, rather than being set out as separate instructions as they are in the government's proposed instructions (pp. 22-23; 24; 25).5 Including them in the first degree murder instruction will assist the jury in focusing on the factual issues it must decide, and will serve the same purpose as does including as elements that the defendant did not act in self-defense and/or did not act in the heat of passion, an approach most pattern instructions, including those for the Tenth Circuit, recommend when the issues are

raised by the evidence.6

Moreover, if they are included in the first degree murder instruction it will be unnecessary to state that they are not defenses in the instructions on the lesser-included offenses as the government's proposed instructions do (pp. 26-27; 28-29). The government is revising its proposed first degree murder instruction to include as elements (a) "the defendant killed Mr. Estrella with malice aforethought and not in sudden quarrel or under heat of passion"; and (b) "the defendant did not kill Mr. Estrella in selfdefense". 8
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Intoxication and Mental Disease and/or Defect There is no pattern instruction for the Tenth Circuit on either intoxication or mental disease and/or defect. Moreover, the Tenth Circuit caselaw discussing these concepts is of limited usefulness in that it has historically tied them to the concept of "specific intent". See e.g. United States v. Sands, 968 F.2d 1058, 1064-65 (10th Cir. 1992). Presently, instructions regarding "specific intent" are largely discouraged. See O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 17.03. (5th ed.) (2006). The government's proposed instruction on intoxication states that it is based upon an Eighth Circuit pattern instruction as modified by the Seventh Circuit case United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998). The Nacotee-based language reads too severely, stating that intoxication is a legal excuse only " if the effect of the alcohol was so extreme that it entirely suspended the defendant's power of reason, or rendered the defendant wholly incapable of forming the requisite premeditation to commit first degree murder." In contrast, the Eighth Circuit instruction, without modification, reads more consistently with other pattern instructions by stating: ". . . if the effect of the alcohol makes it impossible for the defendant to have premeditated the killing. Evidence that the defendant acted while under the influence may be considered by you, together with all the other evidence, in determining whether or not he did in fact premeditate the killing." Three sample pattern instructions on intoxication are attached. They support Mr. Sablan's proposed treatment of intoxication.
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The government's instruction entitled "abnormal mental condition" is based upon a 1973 case from the D.C. Circuit. It includes the following statement: "The existence of a mental disease or defect will not alone suffice to diminish the defendant's criminal responsibility." This sentence is dangerously confusing and misleading in terms of the issue the jury will be called upon to decide. Although there must be a nexus between the mental disease and/or defect and any finding of incapacity/failure to premeditate a killing, if that nexus is established, the defendant cannot be found guilty of an offense greater than second degree murder. Two sample pattern instructions on mental condition are attached. They support Mr. Sablan's proposed treatment of mental disease and/or defect. Lesser-Included Offenses Although the government revised its instruction on self-defense to reflect that once raised, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense, not only for purposes of "the crime charged in the indictment" but also for "any of its lesser-included offenses", ( revised p.19) it has not altered its instructions on second degree murder or voluntary manslaughter accordingly (revised pp. 24; 26).7 Like the first degree murder instruction they should include as an element that the defendant did not act in self-defense. Aiding and Abetting

Its instruction on voluntary manslaughter does state as an element that "the defendant acted unlawfully" (p. 26 revised instructions) but a more direct and thus preferable statement would be that the defendant did not at in self-defense. 10

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Most pattern instructions on aiding and abetting, as well as the bulk of the caselaw, are based upon the 1938 case in which Judge Learned Hand wrote that in order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." United States v. Peoni, 100 F.2d 401, 402 (1938). Unfortunately, this description does little to inform the jury what it means to "associate" with a criminal "venture" and to "wish" or "seek" to bring it about or make it succeed. There is existing caselaw, however, that describes the concept of aiding and abetting in a more readily understandable manner. For example, the Ninth Circuit stated in United States v. Ching Tang Lo, 447 F.3d 1212, 1227 (9th Cir. 2006) that "[a]iding and abetting contains four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense." The second requirement, that the accused had the requisite intent of the underlying substantive offense, has been similarly articulated by other circuits as well. See United States v. Penaloza-Durate, 473 F.3d 575, 579 (5th Cir. 2006) ( "`association' means that the defendant shared in the principal's criminal intent"); United States v. Searan, 259 F.3d 434, 444 (6th Cir. 2001) ("[t]he government must prove that the aider/abettor had the same mental state as that necessary to convict a principal of
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the offense"). Given this authority, it would be preferable to directly state that "[t]he defendant shared the criminal intent of the principal that is required for first degree murder (premeditation and malice aforethought) . . ." as has been done in Mr. Sablan's proposed instructions (p 24), rather than describe the offense in terms of "intentionally associated himself in some way" and "consciously shared the other person's knowledge of the underlying criminal act and intended to help him" as is done in the government's proposed instructions (p. 30). Other Areas To Be Discussed

! defense instruction on permissive inference of intoxication based upon the
government's destruction/loss of evidence

! defense instruction describing the three lesser-included offenses of first degree
murder

! credibility instruction dealing with law enforcement and correctional officers

Conclusion Although the government has improved upon its proposed instructions by making certain changes suggested by the defense, Mr. Sablan's counsel still believes that his proposed instructions, particularly for the reasons stated above, are preferable because they present the issues in a more understandable manner and, of course, accurately state the applicable law.
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Dated: February 20, 2007 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222 Counsel of William Sablan

CERTIFICATE OF SERVICE I hereby certify that on February 20, 2007 I electronically filed the foregoing William Sablan's Memorandum Brief Regarding Proposed Jury Instructions for the Guilt/Innocence Phase with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]
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By: /s/ Susan L. Foreman

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