Free Proposed Jury Instructions - 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-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Proposed Jury Instructions For the Guilt/Innocence Phase _______________________________________________________________________ William Sablan, through undersigned court-appointed counsel submits the attached proposed jury instructions. We reserve the right to modify and/or add to these proposals in light of further developments. Dated: December 18, 2006 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

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TABLE OF CONTENTS General Instructions Page

Province of the Court and of the Jury.......................................................................1 Presumption of Innocence, Burden of Proof, and Reasonable Doubt.......................4 The Offense Charged The Nature of the Offense Charged and the Statute.................................................6 "Special Maritime and Territorial Jurisdiction of the United States".......................7 The Essential Elements of First Degree Murder.......................................................8 "Malice Aforethought"..................................................................................9 "Premeditation"..............................................................................................9 "Intoxication"...............................................................................................10 Permissive Inference Based Upon Government Loss and/or Failure to Preserve....................................................................10 Justification Self-Defense............................................................................................................12 Lesser Included Offenses Lesser-Included Offenses........................................................................................13 Second Degree Murder............................................................................................16 Voluntary Manslaughter..........................................................................................19 "Sudden Quarrel".........................................................................................19 "Heat of Passion".........................................................................................19
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Involuntary Manslaughter.......................................................................................21 Agency Aiding and Abetting................................................................................................23 Evidence Evidence Generally.................................................................................................25 Direct and Circumstantial Evidence ......................................................................27 Opinion Evidence....................................................................................................28 Defendant's Statement(s)........................................................................................29 Credibility of the Witnesses Generally.................................................................................................................30 Inconsistent Statements...........................................................................................32 Law Enforcement....................................................................................................33 Prior Conviction......................................................................................................34 Defendant's Right Not To Testify .....................................................................................35 Duty of Jurors.....................................................................................................................36 Closing Instruction.............................................................................................................37

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WILLIAM SABLAN'S INSTRUCTION NO. (Province of the Court and of the Jury) Members of the Jury: Now that you have heard all of the evidence that is to be received in this trial and the arguments of counsel, it is the duty of the Court to give you the final instructions as to the law that is applicable to this case. You should use these instructions to guide you in your decisions. Each of you will have a copy of these instructions for your reference during your deliberations. All of the instructions of law given to you by the Court ­ those given to you at the beginning of the trial, those given to you during the trial, and these final instructions ­ must guide and govern your deliberations. It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial. Counsel have quite properly referred to some of the applicable rules of law in their closing arguments to you. If, however, any difference appears to you between the law as stated by counsel and that as stated by the Court in these instructions, you, of course, are to be governed by the instructions given to you by the Court. You are not to single out any one instruction alone as stating the law, but must consider the instructions as a whole in reaching your decision. Neither are you to be concerned with the wisdom of any rule of law stated by the
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Court. Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base any part of your verdict upon any other view or opinion of the law than that given in these instructions of the Court just as it would be a violation of your sworn duty, as the judges of the facts, to base your verdict upon anything but the evidence received in the case. You were chosen as jurors for this trial in order to evaluate all of the evidence received and to decide each of the factual questions presented by the allegations brought by the government in the indictment and the plea of not guilty by the defendant. You are expected to carefully and impartially consider all the evidence, follow the law as stated by the Court, and reach a just verdict. You must not be persuaded by bias, prejudice, or sympathy for or against either party to this case or by any public opinion. In determining the facts, you must rely upon your own recollections of the testimony heard by you. You are the sole and exclusive judges of the facts. What counsel for the parties have said in their opining statements, closing arguments, evidentiary objections, or in their questioning of witnesses does not constitute evidence. Nothing that the Court may have said during the trial or may say in these instructions should be considered as evidence or as any comment on the evidence. The rulings the Court has made, and any comments and questions to counsel or to witnesses must not be taken as expressing any opinions about the facts in this case. You are expressly instructed that the Court has no opinion as to what the verdict should be in this case.
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Justice ­ through trial by jury ­ depends upon the willingness of each individual juror to seek the truth from the same evidence presented to all the jurors here in the courtroom and to arrive at a verdict by applying the same rules of law as now being given to each of you in these instructions of the Court.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 12.01 (5th ed.) (2006); Jury Instructions in United States v. Terry Lynn Nichols.

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WILLIAM SABLAN'S INSTRUCTION NO. (Presumption of Innocence ­ Burden of Proof) The charge in this case is contained in an indictment returned by a federal grand jury. An indictment is nothing more than a document that gives notice of the charge that the government hopes to prove. It is not evidence of any kind against the defendant. It is a basic principle of law that the defendant is presumed to be innocent of the charge brought against him in the indictment. His plea of not guilty put in dispute what is alleged in this indictment. The presumption of innocence stays with the defendant throughout the trial and entitles him to a verdict of not guilty, unless and until you, the jury, find that the evidence received during the trial has established each and every essential element of the crime charged beyond a reasonable doubt. So the presumption of innocence means that William Sablan must be given the benefit of any reasonable doubt of his guilt that may remain in the minds of the jurors after they have given careful and impartial consideration to all of the evidence in the case. The burden is always upon the government to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant. The law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendant is not even obligated to produce evidence by cross-examining the witnesses for the government. A "reasonable doubt" means a doubt based upon reason and common sense ­ the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a
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reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. A defendant is not to be convicted on mere suspicion or conjecture. A reasonable doubt may arise not only from the evidence produced, but also from the lack of evidence. Since the burden is always on the prosecution to prove the accused guilty beyond a reasonable doubt of each and every element of the crime charged, a defendant has the right to rely upon failure of the prosecution to establish such proof. A defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution. Unless the government proves beyond a reasonable doubt that William Sablan has committed each and every essential element of the offense charged in the indictment, you must find him not guilty of that offense. If you view the evidence in the case as reasonably permitting either of two conclusions ­ one of innocence, the other of guilt ­ you must, of course, adopt the conclusion of innocence.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 12.10 (5th ed.) (2006); Jury Instructions in United States v. Terry Lynn Nichols.

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WILLIAM SABLAN'S INSTRUCTION NO. (Nature of the Charge & Statutory Authority) The indictment charges that on or about October 10, 1999, in the State and District of Colorado, at the Special Housing Unit, United States Penitentiary, Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States, the defendants William Sablan and Rudy Sablan, with premeditation and malice aforethought, unlawfully, willfully, deliberately and maliciously killed Joey Jesus Estrella, a human being, and did aid, abet, counsel, command, induce, and procure each other's participation in the commission of said offense. The relevant statute is 18 U.S.C. § 1111(a), which provides, in pertinent part, that: "Murder is the unlawful killing of a human being with malice aforethought. Every . . . wilful, deliberate, malicious, and premeditated killing . . . is murder in the first-degree."

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions §§ 45.01 and 45.02 (5th ed.)(2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (Special Maritime and Territorial Jurisdiction) The indictment alleges that the offense took place within the "special maritime and territorial jurisdiction of the United States." Section 7(3) of Title 18 defines the "special maritime and territorial jurisdiction of the United States" to include: "[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building" is within the "special maritime and territorial jurisdiction of the United States".

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.06 (5th ed.)(2006) (federal jurisdiction is an element of § 1111 and should be submitted to the jury).

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WILLIAM SABLAN'S INSTRUCTION NO. (The Elements of First Degree Murder) In order to sustain its burden of proof for the crime of first degree murder charged in the indictment, the government must prove the following eight (8) essential elements beyond a reasonable doubt: 1. The defendant, without lawful justification or excuse, killed or aided and abetted the killing of Joey Estrella, a human being; and 2. The defendant killed or aided and abetted the killing of Joey Estrella with malice aforethought; and 3. The killing or aiding and abetting of the killing of Joey Estrella was premeditated by the defendant; and 4. The defendant's capacity to premeditate, that is, plan and deliberate the killing or the aiding and abetting of the killing was not negated by mental disease and/or defect; and 5. The defendant's capacity to premeditate, that is, plan and deliberate the killing or the aiding and abetting of the killing was not negated by intoxication, due to his consumption of alcohol; and 6. The defendant did not act in self-defense; and 7. The defendant did not act upon sudden quarrel or in the heat of passion caused by adequate provocation; and 8. The killing took place at the Special Housing Unit, United States Penitentiary,
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Florence, Colorado, a place within the special maritime or territorial jurisdiction of the United States.

There is evidence that William Sablan acted in self-defense. Self-defense is a complete defense to first degree murder in that it constitutes a lawful justification of the killing. Self-defense is defined more fully below. To kill with "malice aforethought" means either to kill another person deliberately and intentionally or to act recklessly with extreme disregard for human life. A killing is "premeditated" when it was willful and with malice and the defendant formed the intent to kill or to aid and abet the killing after planning and deliberation. "Premeditation" requires that the defendant, having a cool mind, did in fact reflect before the killing. The amount of time needed for premeditation depends on the person and the circumstances, however, there must be some appreciable time for reflection and consideration before acting. This means that the defendant must have considered and reflected upon a preconceived killing at least long enough to give it a second thought. There is evidence that William Sablan was suffering from mental diseases and/or defects at the time of the act charged in the indictment. The fact that a defendant was suffering from mental diseases and/or defects may negate the existence of premeditation. If the evidence in the case leaves you with a reasonable doubt as to whether William Sablan had the capacity to premeditate the killing due to his mental condition, you must find him not guilty of first degree murder.
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There is evidence that William Sablan was consuming "hooch", an alcoholic beverage, on October 10, 1999. The fact that a defendant may have been under the influence of alcohol or intoxicated may make it impossible for him to have premeditated the killing. If the evidence in the case leaves you with a reasonable doubt as to whether William Sablan had the capacity to premeditate the killing due to his "intoxication", you must find him not guilty of first degree murder. In regard to the evidence relating to intoxication there is evidence that correctional officers Forsythe and Fuller had knowledge of the fact that the inmates of cell 124 were consuming hooch. Nonetheless, the government lost or destroyed a mouthwash bottle from which William Sablan was filmed drinking. Further, the government failed to subject William Sablan to an intoxilzer to measure their blood alcohol. Finally, the government destroyed a plastic trash bag ­ of the kind typically used for making hooch ­ that was in cell 124, as well as its liquid contents. Based upon the government's destruction of and/or failure to preserve this evidence, you may infer that such evidence would have established that William Sablan had consumed an alcoholic beverage and was intoxicated at the time of the killing. There is evidence that the defendant acted upon a "sudden quarrel" or "in the heat of passion." Acting upon sudden quarrel or in the heat of passion may negate the element of malice aforethought. "Sudden quarrel" and "heat of passion" are defined below.

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Note: Adapted from O'Malley, §19.05 (intoxication) § 45.03 & Notes (5th ed.) (2006) ("[i]f there is evidence that the defendant acted upon a sudden quarrel or heat of passion, a fifth element, as well as some additional defining language, should be added"); Pattern Jury Instructions of the District Judges Association of the Fifth Circuit, Instruction No. 2.56 & Notes ("[i]f there is evidence that the defendant acted lawfully, e.g., in self defense . . . a fifth element should be added and explained" e.g., the defendant did not act in self-defense.'and [a]n explanation of self-defense should also be included."); Mullaney v. Wilbur, 421 U.S. 684, 697-98, 704 (1975) (prosecution must prove beyond a reasonable doubt the absence of heat of passion on sudden provocation when the issue is properly presented); United States v. Lofton, 776 F.2d 918 (10th Cir. 1985) (once defendant has raised the issue of sudden quarrel/heat of passion, the jury should be instructed that the prosecution must prove beyond a reasonable doubt the absence of the heat of passion); W. Lafave & A. Scott, Criminal Law § 7.7(a) at 692 (2000) ("the best that can be said of `deliberation' is that it requires a cool mind that is capable of reflection and of `premeditation' that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing"); Fischer v. United States, 328 U.S. 463 (1946) (generally approving instruction that included "appreciable time" but also said that the time varies with each case, that it is the fact of deliberation, of second thought that is important); United States v. Shaw, 701 F.2d 367 (5th Cir. 1983)(although no particular period of time is necessary for deliberation and premeditation there must be some appreciable time for reflection and consideration before execution of the act); Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, Inst. No. 8.89 (2000) ("to kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life").

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WILLIAM SABLAN'S INSTRUCTION NO. (Self-Defense) Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself against the immediate use of unlawful force. A person acting in self-defense, however, must use no more force than appears reasonably necessary under all of the circumstances. Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary in order to prevent death or great bodily harm to himself. The government must prove beyond a reasonable doubt that defendant William Sablan did not act in self-defense as described in this instruction. In considering the reasonableness of William Sablan's belief that he was in imminent danger of death or great bodily harm, you should consider all the surrounding circumstances. If William Sablan acted in lawful self-defense, the killing of Joey Estrella was legally justified and you must find William Sablan not guilty of first degree murder and not guilty of any of the necessarily included lesser offenses.

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.19 (5th ed.)(2006); W. Lafave & A. Scott, Criminal Law § 5.7 at 493 (2000) (reasonableness of belief); United States v. Corrigan, 548 F.2d 879, 883 (10th Cir. 1977) (once the issue of self-defense is sufficiently raised, the jury should be instructed that the prosecution retains the burden of disproving it beyond a reasonable doubt).
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WILLIAM SABLAN'S INSTRUCTION NO. (Lesser-Included Offenses) If you unanimously find that the government has proven each and every essential element of first degree murder beyond a reasonable doubt, your foreperson should check "guilty" in the space provided on the verdict form and your consideration of the indictment is concluded. However, the law also permits you to determine whether the government has proven the guilt of the defendant for any less serious offense which is, by its very nature, necessarily included in the crime of first degree murder. If you unanimously find that the government has not proven each and every element of first degree murder beyond a reasonable doubt, then your foreperson should check "not guilty" in the space provided on the verdict form and you should then consider whether the defendant is guilty or not guilty of the less serious offenses necessarily included in the offense of first degree murder. Furthermore, if after reasonable efforts, you are unable to reach a verdict as to whether the government has proven each and every element of first degree murder beyond a reasonable doubt, you should then consider whether the defendant is guilty or not guilty of the less serious offenses which are necessarily included in first degree murder. The crime of first degree murder necessarily includes three less serious offenses: second degree murder, voluntary manslaughter and involuntary manslaughter. The crimes differ in the following respects: First degree murder requires proof of
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premeditation whereas second degree murder, voluntary manslaughter, and involuntary manslaughter do not. Second degree murder requires proof of malice aforethought, that is, proof that the defendant killed either deliberately and intentionally or recklessly with extreme disregard for human life. It requires proof that the defendant did not act upon sudden quarrel or in the heat of passion; if he did act upon sudden quarrel or in the heat of passion, the crime is no greater than voluntary manslaughter. The difference between second degree murder and involuntary manslaughter is the severity of the reckless disregard for human life. Second degree murder involves reckless disregard for human life that is extreme in nature, whereas involuntary manslaughter involves reckless disregard that is not extreme in nature. Of course, if the defendant acted in self-defense, as that term is defined within these instructions, the killing is justified and he is not guilty of any offense. You should bear in mind that the burden is always on the government to prove, beyond a reasonable doubt, each and every essential element of any lesser offense which is necessarily included in the crime of first degree murder. The law never imposes a burden of proof upon the defendant.

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.18 (5th ed.)(2006); Jury Instructions in United States v. Terry Lynn Nichols; Keeble v. United States, 412 U.S. 205, 208 (1973) (defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater);United States v. Abeyta,
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27 F.3d 470, 475 (10th Cir. 1094) (defendant entitled to instructions on any defense including inconsistent ones that find support in the evidence and the law and failure to instruct is reversible error); United States v. Humphrey, 208 F.3d 1190, 1206 (10th Cir. 2000) (instruction to be given if there is any evidence fairly tending to bear on the lesser included offense); United States v. Brown, 287 F.3d 965, 974 (10th Cir. 2002) (even if the evidence is weak); United States v. Begay, 833 F.2d 900, 902 (10th Cir. 1987) (court must take into account the possibility that the jury might make findings different from the version set forth in anyone's testimony); United States v. Benally, 146 F.3d 1232, 1235 (10th Cir. 1998) (second degree murder, voluntary manslaughter, and involuntary manslaughter are lesser included offense of first degree murder); United States v. Wood, 207 F.3d 1222, 1229 (10th Cir. 2000) (second degree murder involves reckless and wanton disregard for human life that is extreme in nature, while involuntary manslaughter involves reckless and wanton disregard that is not extreme in nature).

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WILLIAM SABLAN'S INSTRUCTION NO. (Second Degree Murder) 18 U.S.C. §1111(a) sets forth the elements of second degree murder as well as first degree murder. After stating that premeditation is an essential element of first degree murder, § 1111(a) provides that: "Any other murder is murder in the second degree." In order to sustain its burden of proof for the crime of second degree murder, the government must prove the following five (5) essential elements beyond a reasonable doubt: 1. The defendant, without lawful justification or excuse, killed or aided and abetted the killing of Joey Estrella, a human being; and 2. The defendant killed or aided and abetted the killing of Joey Estrella with malice aforethought; and 3. The defendant did not act in self-defense; and 4. The defendant did not act upon a sudden quarrel or in the heat of passion caused be adequate provocation; and 5. The killing took place at the Special Housing Unit, United States Penitentiary, Florence, Colorado, a place within the special maritime or territorial jurisdiction of the United States. Once again, to kill with "malice aforethought" means to either to kill another person deliberately and intentionally or to act recklessly with extreme disregard for human
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life. The terms "aided and abetted", "self-defense", "heat of passion" and "special maritime or territorial jurisdiction" have the same meaning for purposes of second degree murder as they do for first degree murder. If you unanimously find that the government has proven each and every essential element of second degree murder beyond a reasonable doubt, your foreperson should check "guilty" in the space provided on the verdict form and your consideration of the indictment is concluded. If you determine unanimously that the government has not proven each and every element of the lesser offense of second degree murder beyond a reasonable doubt, then the foreperson should check "not guilty" in the space provided on the verdict form and you should consider whether the defendant is guilty or not guilty of the less serious offense of voluntary manslaughter. Furthermore, if after reasonable efforts, you are unable to reach a verdict as to whether the government has proven each and every element of second degree murder beyond a reasonable doubt, you should then consider whether the defendant is guilty or not guilty of the less serious offense of voluntary manslaughter.

Note: Adapted from United States v. Abeyta, 27 F.3d 470, 475 (10th Cir. 1094) (defendant entitled to instructions on any defense including inconsistent ones that find support in the evidence and the law and failure to instruct is reversible error); Jury Instructions in United States v. Terry Lynn Nichols; United States v. Keiser, 726 F.2d 1466, 1469 (9th Cir. 1984) (if defendant so requests, rather than allowing the jury to consider a lesser included offense only if it unanimously acquits on the greater offense, the instructions can instruct the jury that it can consider the lesser offense if it has acquitted on
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the greater, or if after reasonable efforts, it is unable to reach a verdict on the greater offense); United States v. Tsana, 572 F.2d 340, 346 (2d Cir. 1978) (same).

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WILLIAM SABLAN'S INSTRUCTION NO. (Voluntary Manslaughter) 18 U.S.C. § 1112 provides that: "Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary ­ Upon a sudden quarrel or heat of passion. Involuntary ­ In the commission . . . in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." In order to sustain its burden of poof for the crime of voluntary manslaughter, the government must prove each of the following four (4) essential elements beyond a reasonable doubt: 1. The defendant, without legal justification or excuse, killed or aided and abetted the killing of Joey Estrella, a human being; and 2. The defendant did not act in self-defense; and 3. The defendant acted upon a sudden quarrel or in the heat of passion caused by adequate provocation; and 4. The defendant killed or aided and abetted the killing of Joey Estrella at the Special Housing Unit, United States Penitentiary, Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States. "Sudden quarrel" should be given its ordinary, everyday meaning of a conflict or dispute that developed within a short period of time. "Heat of passion" may be provoked by fear, rage, anger or terror.
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"Provocation" in order to be adequate, must be such as would cause the ordinary reasonable person to act rashly without deliberation and reflection, and from passion rather than from judgement, but which did not justify the use of deadly force. If you unanimously find that the government has proven each and every element of voluntary manslaughter, your foreperson should check "guilty" in the space provided on the verdict form and your consideration of the indictment is concluded. If you determine unanimously that the government has not proven each and every element of the lesser offense of voluntary manslaughter beyond a reasonable doubt, then your foreperson should check "not guilty" in the space provided on the verdict form and you should consider whether the defendant is guilty or not guilty of the less serious offense of involuntary manslaughter. Furthermore, if after reasonable efforts, you are unable to reach a verdict as to whether the government has proven each element of voluntary manslaughter, beyond a reasonable doubt, you should then consider whether the defendant is guilty or not guilty of the less serious offense of involuntary manslaughter.

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.09 (5th ed.)(2006);W. Lafave & A. Scott, Criminal Law § 7.9 at 705 (2000).

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WILLIAM SABLAN'S INSTRUCTION NO. (Involuntary Manslaughter) As stated above, a second kind of manslaughter is involuntary manslaughter. In order for the government to sustain its burden of proof for the crime of involuntary manslaughter, the government must prove the following three (3) essential elements beyond a reasonable doubt: 1. The defendant, without lawful justification or excuse, killed or aided and abetted the killing of Joey Estrella, a human being; and 2. The defendant was acting in self-defense, a lawful act, but did so in an unlawful manner or without due caution and circumspection; and 3. The killing took place at the Special Housing Unit of the U.S. Florence Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States.

Self-defense is committed in an "unlawful manner" when the defendant uses force against another with an honest but unreasonable and recklessly held belief that he must use deadly force to defend himself from an imminent attack or if the amount of force he uses is excessive under the circumstances. If you determine unanimously that the government has proven each and every element of the lesser offense of involuntary manslaughter, your foreperson should check "guilty" in the space provided on the verdict form.
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If you determine unanimously that the government has not proven each and every element of the lesser offense of involuntary manslaughter, your foreperson should check "not guilty" in the space provided on the verdict form and your consideration of the indictment is concluded.

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.12 (5th ed.)(2006); Model Penal Code § 3.04 (2004); United States .v Brown, 287 F.3d 965 (10th Cir. 2002) (error not to give involuntary manslaughter instruction where defendant was defending himself, a lawful act, but did so in an unlawful manner by using excessive force); United States v. Yazzie, 188 F.3d 1178 (10th Cir. 1999) (error not to give involuntary manslaughter instruction where jury could have found that defendants were defending themselves, a lawful act, but did so in an unlawful manner by using excessive force).

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WILLIAM SABLAN'S INSTRUCTION NO. (Aiding and Abetting) A person may violate the law even though he does not personally do each and every act constituting the offense charged, if he "aided and abetted" the commission of the offense. William Sablan has been charged as a principal and alternatively as an aider and abettor. 18 U.S.C. § 2(a) provides that: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." In order to sustain its burden of proof for aiding and abetting, the government must prove the following five (5) essential elements beyond a reasonable doubt: 1. The offense of first degree murder, or alternatively second degree murder, or voluntary manslaughter, or involuntary manslaughter was committed by some other person; and 2. The defendant knew that the other person was committing first degree murder, or alternatively second degree murder, or voluntary manslaughter, or involuntary manslaughter; and 3. The defendant did some act, for the purpose of aiding the other person in the commission of first degree murder or alternatively second degree murder, or voluntary manslaughter, or involuntary manslaughter; and 4. The defendant shared the criminal intent of the principal that is required for first
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degree murder (premeditation and malice aforethought) or alternatively second degree murder (malice aforethought) or voluntary manslaughter (acting upon a sudden quarrel or in the heat of passion) or involuntary manslaughter (acting in self-defense, but in an unlawful manner or without due caution and circumspection); and 5. The defendant did not act in lawful self-defense. Merely being present at the scene of the crime or merely knowing that a crime is being committed or is about to be committed is not sufficient conduct for you to find that the defendant aided and abetted in the commission of that crime. The government must prove that the defendant knowingly and deliberately associated himself with the crime in some way as a participant with the requisite mental state for the offense, not as a mere spectator.

Note: Adapted from O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 18.01 (5th ed.) (2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (The Evidence) 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 ­ and all facts which may have been agreed to or stipulated. When counsel for the parties stipulate or agree to the existence of a fact, you may accept the stipulation as evidence and regard that fact as proven. You are not required to do so, however, because you are the sole judges of the facts. Any proposed testimony or proposed exhibit to which an objection was sustained by the Court, and any testimony or exhibits order stricken by the Court must be disregarded entirely. Anything you may have seen or heard outside the courtroom is not evidence in this case and must be disregarded entirely. Questions, objections, statements, and arguments of counsel are not evidence in the case. Legal rulings by the Court are not evidence, nor are the Court's comments and questions. You are to base your verdict only on the evidence received in the case. In your consideration of the evidence received, however, you are not limited to the bald statements of the witnesses or to the bald assertions in the exhibits. In other words, you are not limited solely to what you see and hear as the witnesses testify or as the exhibits are admitted. You are permitted to draw from the facts which you find have been proven such
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reasonable inferences as you feel are justified in the light of your experience and common sense. An "inference" is when we look at one fact that we believe to be true and conclude from it that another fact exists because it follows from the first fact. You may make reasonable inferences based on the evidence in the case.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 12.03(5th ed.) (2006); Federal Criminal Jury Instruction of the Seventh Circuit, Inst. No. 1.04 (1999).

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WILLIAM SABLAN'S INSTRUCTION NO. (Direct and Circumstantial Evidence) 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 asserts or claims to have actual knowledge of a fact, such as an ear or eyewitness. Circumstantial evidence is proof of a chain of facts 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.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 12.04(5th ed.) (2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (Opinion Evidence - Expert Witnesses) The rules of evidence ordinarily do not permit witnesses to testify as to their own opinions or their conclusions about issues in a case. An exception to this rule exists as to "expert witnesses." An "expert witness" is someone who by education or experience, may have become knowledgeable in some technical, scientific, or very specialized area. If such knowledge or experience may be of assistance to you in understanding some of the evidence or in determining a fact, an "expert witness" in that area may state an opinion as to relevant and material matter in which he or she claims to be an expert. Thus, an expert witness is more accurately an "opinion witness." You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. You should consider the testimony of expert witnesses just as you consider other evidence in this case. If you should decide that the opinion of an expert witness is not based upon sufficient education or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you should conclude that the opinion is outweighed by other evidence, including that of other expert witnesses, you may disregard the opinion in part or in its entirety. As stated before, you, the jury, are the sole judges of the facts in this case.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 14.01 (5th ed.) (2006).
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WILLIAM SABLAN'S INSTRUCTION NO. (Defendant's Statements) Evidence relating to alleged statements by a defendant outside of court and after a crime has been committed should always be considered by the jury with great caution and weighed with great care. All such alleged statements should be disregarded entirely unless the other evidence in the case convinces you beyond a reasonable doubt that the statement was made knowingly and voluntarily. In determining whether any statement alleged to have been made by William Sablan was knowingly and voluntarily made, you should consider the defendant's age, training, education, occupation, and physical and mental condition while in custody or under interrogation as shown by the evidence in the case. You should also consider all other circumstances in evidence surrounding the making of the alleged statement or statements. If after considering the evidence you determine that a statement was made

knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 14.03 (5th ed.) (2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (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 you 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. You are not required to accept testimony, even though it is uncontradicted and the witness is not impeached. You may decide because of the witness's bearing or demeanor, or because of the inherent improbability of his or her testimony, or for others reasons sufficient to you, that such testimony is not worthy of belief. 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.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 15.01 (5th ed.) (2006); Jury Instructions in United States v. Terry Lynn Nichols.

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WILLIAM SABLAN'S INSTRUCTION NO. (Credibility of Witnesses - Inconsistent Statements) A witness's testimony may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has made statements which are inconsistent with the witness's present testimony. The testimony of a witness may be discredited, or impeached, by showing that he or she previously made statements which are different from or inconsistent with his or her testimony here in court. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has made prior inconsistent or contradictory statements. If you believe that any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If any witness is shown to have testified falsely concerning any material matter, you have the right to distrust such witness's testimony in other particulars and you may reject all of the testimony of that witness or give it such credibility as you think it deserves.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 15.06 (5th ed.) (2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (Credibility - Law Enforcement) You have heard testimony from several law enforcement officials. The fact that a witness may be employed by the federal government or a state, local or commonwealth government as a law enforcement or correctional officer does not mean that his or her testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of an ordinary witness. At the same time, it is quite legitimate for defense counsel to try to attack the credibility of such a witness on the grounds that his or her testimony may be colored by a personal or professional interest in the outcome of the case. It is your decision, after reviewing all the evidence, whether to accept the testimony of a law enforcement witness and to give to that testimony whatever weight, if any, you find it deserves.

Note: Adapted from Jury Instructions in United States v. Terry Lynn Nichols.

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WILLIAM SABLAN'S INSTRUCTION NO. (Credibility of Witnesses - Prior Conviction) The testimony of a witness may be discredited or impeached by evidence showing that the witness has been convicted of a felony, a crime for which a person may receive a prison sentence of more than one year, or of a crime involving dishonesty or false statement regardless of the punishment. Prior convictions of such crimes is one of the circumstances which you may consider in determining the credibility of that witness. It is the sole and exclusive right of the jury to determine the weight to be given any such conviction as impeachment and the weight to be given to the testimony of anyone who was convicted.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 15.07 (5th ed.) (2006); Fed. R. Evid. 609

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WILLIAM SABLAN'S INSTRUCTION NO. (Defendant's Right Not to Testify) The defendant in a criminal case has an absolute right under our Constitution not to testify. The fact that William Sablan did not testify must not be discussed or considered in any way when deliberating and in arriving at your verdict. No inference of any kind may be drawn from the fact that a defendant 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.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and Instructions § 15.14 (5th ed.) (2006).

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WILLIAM SABLAN'S INSTRUCTION NO. (Duty As Jurors) It is for you alone to decide whether the government has proven that the defendant is guilty of the crime charged solely on the basis of the evidence and subject to the law the Court has given you in these instructions. It must be clear to you that once you let fear, prejudice, bias, or sympathy interfere with your thinking there is a risk that you will not arrive at a true and just verdict according to the law and the evidence. If you have a reasonable doubt as to William Sablan's guilt, you should not hesitate for any reason to return a verdict of not guilty. On the other hand, if you find that the government has met its burden to proving Mr. Sablan's guilt beyond a reasonable doubt, you should not hesitate to return a verdict of guilty. Remember that the question before you can never be: Will the government win or lose the case? The government always wins when justice is done, regardless of whether the verdict is guilty of not guilty.

Note: Adapted from Jury Instructions in United States v. Terry Lynn Nichols; United States v. Berger, (the government's interest in a criminal prosecution is not that it shall win a case, but that justice shall be done).

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WILLIAM SABLAN'S INSTRUCTION NO. (Closing Instruction) Upon retiring to the jury room to begin your deliberations, you must elect one of your members to act as your foreperson. The foreperson will preside over your deliberations, and will speak for you in court. Your verdict must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other words, must be unanimous. It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself or herself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinion if convinced it is erroneous. But do not surrender your honest conviction solely because of the opinion of your fellow jurors or for the mere purpose of being able to return a unanimous verdict. Remember at all times that your are not partisans. You are judges ­ judges of the facts of this case. Your sole interest is to seek the truth from the evidence received during the trial. Your verdict must be based solely upon the evidence received in the case. Nothing you have seen or read outside of court may be considered. Nothing that the Court has said
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or done during the course of this trial is intended in any way, to somehow suggest to you what the verdict should be. Nothing said in these instructions and nothing in the form of verdict, which has been prepared for your convenience, is to suggest or convey to you in any way or manner any intimation as to what the verdict should be. What the verdict will be is the exclusive duty and responsibility of you, the jury. You will take these instructions and verdict form to the jury room, and when you have reached unanimous agreement as to your verdict, you will have your foreperson indicate your verdict on the form, date and sign it, and advise the Court you have completed your deliberations. The court will then have you return to the courtroom to announce the verdict. If it becomes necessary during your deliberations to communicate with the Court, you may send a note, signed by your foreperson or by one or more members of the jury, through the bailiff. No member of the jury should ever attempt to communicate with the Court by any means other than a signed writing and the Court will never communicate with any member of the jury concerning the evidence, your opinions, or the deliberation other than in writing or orally here in open court. Bear in mind that you are not to reveal to any person or to the Court how the jury stands, numerically or otherwise, on the questions before you until after you have reached a unanimous verdict.

Note: Adapted from O'Malley, Grenig, & Lee, 1A Federal Jury Practice and
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Instructions § 20.01(5th ed.) (2006).

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CERTIFICATE OF SERVICE I hereby certify that on December 18, 2006 I electronically filed the foregoing William Sablan's 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] [email protected] [email protected] By: /s/Susan L. Foreman

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