Free Proposed Jury Instructions - 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 Case No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S STIPULATED JURY INSTRUCTIONS

Plaintiff, the United States of America, respectfully submits those jury instructions to which the parties have stipulated for the trial and sentencing hearing in this matter.

Respectfully submitted this TROY A. EID United States Attorney

th

day of February, 2007.

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th 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 17th 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 19th day of February, 2007, I electronically filed the foregoing GOVERNMENT'S STIPULATED JURY INSTRUCTIONS 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 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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STIPULATED INSTRUCTION NO. 1 EVIDENCE - DEFINED The evidence in this case consists of sworn testimony of the witnesses (regardless of who may have called them), all exhibits received in evidence (regardless of who may have produced them), [delete following if not applicable] stipulations that counsel agreed to (although you are not required to accept the stipulation as evidence and regard that fact as proven, because you are the sole judges of the facts), and facts that I have judicially noticed. Nothing else is evidence. Counsel's statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence. Any proposed testimony or proposed exhibit to which I sustained an objection and any testimony or exhibits I have ordered stricken must be disregarded entirely. You must completely disregard such proposed, but rejected, evidence. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Anything you may have seen or heard outside the courtroom is not evidence in this case and must be disregarded entirely. You are to base your verdict only on the evidence received in the case. There are two types of evidence which are generally presented during a trial: direct evidence and circumstantial evidence. Direct evidence is the testimony of a person who

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asserts or claims to have actual knowledge of a fact, such as an ear- or eyewitness. Circumstantial evidence is proof of a chain of acts and circumstances indicating the existence of a fact. The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence. You should weigh all of the evidence in the case. While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case.

Source: Defendant instruction.

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STIPULATED INSTRUCTION NO. 2 CREDIBILITY OF WITNESSES

You, as jurors, are the sole and exclusive judges of the credibility of each of the witnesses called to testify in this case and only you determine the importance of the weight that their testimony deserves. After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness's testimony, only a portion of it, or none of it. In making your assessment you should carefully scrutinize all of the testimony given by the witness, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness's intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand. Consider the witness's ability to observe the matters as to which he or she has testified and consider whether he or she impresses you has having an accurate memory or recollection of these matters. Consider also any relation a witness may bear to either side of the case, the manner in which each witness might be affected by your verdict, and the extent to which, if at all, each witness is either supported by or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or more persons witnessing an incident or a transaction may simply see or hear it differently. Innocent misrecollection, like failure of recollection, is not an

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uncommon experience. In weighing the effect of a discrepancy, however, always consider whether it pertains to a matter of importance or an insignificant detail and consider whether the discrepancy results from innocent error or from intentional falsehood. After making your own judgment or assessment concerning the believability of a witness, you can then attach such importance or weight to that testimony, if any, that you feels it deserves. You will then be in a position to decide whether the government has proven the charges beyond a reasonable doubt.

Source: Defense instruction.

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STIPULATED INSTRUCTION NO. 3 IMPEACHMENT BY PRIOR CONVICTION (Defendant's Testimony)

You have heard evidence that the defendant has been convicted of a felony, that is, a crime punishable by imprisonment for more than one year. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of his testimony you will believe in this trial. The fact that the defendant has been convicted of another crime does not mean that he committed the crime charged in this case, and you must not use his prior conviction as proof of the crime charged in this case. You may find him guilty of the crime charged here only if the government has proved beyond a reasonable doubt that he committed it.

1.11 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified by substituting words "more than one year").

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STIPULATED INSTRUCTION NO. 4 IMPEACHMENT BY PRIOR CONVICTION (Witness Other Than Defendant)

The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a felony, that is, of a crime punishable by imprisonment for more than one year or of a crime of dishonesty or false statement. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any prior felony conviction or crime of dishonesty or false statement that was used to impeach a witness.

1.12 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified by substituting words "more than one year" and by adding "or false statement" to last sentence).

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STIPULATED INSTRUCTION NO. 5 (IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS) A witness's testimony may be discredited or impeached by evidence that at some other time he or she made statements which are inconsistent with the witness's present testimony in court. As judges of the facts, it is up to you to determine the credibility, if any, to be given the testimony of a witness who has made prior inconsistent or contradictory statements.

Source: Defense instruction.

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STIPULATED INSTRUCTION NO. 6 DEFENDANT'S RIGHT NOT TO TESTIFY The defendant in a criminal case has an absolute right under our Constitution not to testify, but to remain silent. The fact that William Sablan did not testify in this case must not be discussed or considered in any way when deliberating and in arriving at your verdict. You must not presume or infer guilt from the fact that he decided to exercise his privilege under the Constitution and did not testify. To do so would violate your oath as jurors. As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or of producing any evidence.

Source: Defense instruction.