Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn

Criminal Action No. 04-cr-00103-REB-6 UNITED STATES OF AMERICA, Plaintiff, v. 6. Michael Smith, Defendant. _____________________________________________________________________ DEFENDANT MICHAEL SMITH'S MEMORANDUM IN SUPPORT OF HIS COMPETING AND NON-STIPULATED PROPOSED JURY INSTRUCTIONS ____________________________________________________________________ Defendant Michael Smith, through his court-appointed attorney Richard N. Stuckey, respectfully submits this Memorandum with the following argument and authority in support of his objections to various government proposed jury instructions, and in support of his proposed Competing Instructions and Non-Stipulated Jury Instructions, all as required by the Court's Practice Standards, Criminal Actions, § IV-C5-f. 1. Defendant Michael Smith has stipulated to 23 of the government's proposed instructions, and to their proposed verdict form. Defendant Smith does, however, object to the use of the work "fraudulent" in Government Proposed Instruction No. 20 and to the use of the same word in Government Proposed Instruction No. 1 (to the extent that the Court would adopt that instruction and read the indictment to the jurors as a

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preliminary matter, as the instruction calls for). The reason for this objection is that describing the Capital Holdings investment program as "fraudulent" in either the indictment (if read to the jury) or in a jury instruction denotes that a conclusion has been somehow officially reached that the investment program has been found, or per se is presumed, fraudulent. As the major allegation in the indictment, this is the first factual issue with which the jury must deal. Constant references to the "fraudulent scheme," as opposed to the "Capital Holdings investment program," are not only highly prejudicial to all defendants, but totally usurp the jury's ultimate factual determination, and will lead to confusion and will totally mislead the jury regarding its role. It is understood that the government knows that they have to prove fraud, but indictment or instructional statements that the investment program is already fraudulent are totally wrong as they assume the guilt of the defendants before either the trial starts, or the jury deliberates. 2. Competing Instructions. Defendant Smith has submitted instructions which compete with the government's proposed instructions Nos. 4, 9, 12, 20, 23, 24, 25, 27 and 28 (nine in all). No. 20 is discussed above in paragraph 1; the rest are discussed in order below: a. Government Instruction No. 4 is titled "Presumption of Innocence­ Burden of Proof­Reasonable Doubt" and is No.1.05 of Criminal Pattern Jury Instructions (Tenth Circuit) (2005) (hereinafter "Tenth Circuit pattern instructions"). Inexplicably, however, the Tenth Circuit pattern instruction leaves off the burden of proof and presumption of innocence paragraphs. Defendant's proposed No. 4 uses the same-titled instruction, § 12.10 of O'Malley, Grenig & Lee, Federal Jury Practice &

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Instructions (5th ed. 2000) (hereinafter "O'Malley"), which correctly contains those paragraphs. b. Government Instruction No. 9, the Tenth Circuit pattern instruction for impeachment of a witness by prior inconsistent statement, does not contain the important paragraph from the O'Malley instruction submitted by Defendant Smith as to "falsus in uno falsus in omnibus," by which the jury may disregard the totality of a witness's testimony if that witness lied about anything. c. Government Instruction No. 12 is tailored to government proposed expert witness Phillip Feigin. The government has also proposed 24 additional Rule 702 experts (Doc. 420) (some of whom the government states may also offer percipient witness testimony). Two defendants, including Smith, have disclosed proposed expert testimony under Federal Rule of Criminal Procedure 16(a)(1)(G). The more generic O'Malley instruction proposed by Defendant Smith as his Competing No.12 is far better suited for this trial. d. Government Instruction No. 22, commonly referred to as the Pinkerton1 principle (more commonly referred to as the "in for a dime, in for a dollar" instruction), is objected to at this time by Defendant Smith as premature even for consideration. The government has indicated the same objection (premature "unless and until evidence [is offered] at trial to support them," Government Memorandum," paragraph 9, p. 4, Doc. No. 1021) to Defendant Smith's five Non-Stipulated instructions. Therefore, until and unless the government actually proves both a conspiracy and Defendant Smith's actual membership in it, No. 22 is inappropriate.

1. Pinkerton v. United States, 328 U.S. 640, 645-647 (1946).

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e. In each Government Instruction dealing with the nature of the offense charged as to mail fraud, wire fraud, and securities fraud (Government Proposed Instructions 23, 24, and 25), there are several flaws. Some affect all three instructions, and some stem from the wording of the indictment. First, as to the aiding and abetting language [which, as the government correctly states in its Memorandum (Doc. 1021) Defendant Smith takes out of his competing instruction], the problem is that the indictment does not charge in paragraph 7 (mail fraud) or paragraph 13 (the wire fraud paragraph incorporating mail fraud paragraph 7) or in the securities fraud count that any defendant "knowingly" aided and abetted anything. Moreover, the indictment's paragraph 7 does not allege that any defendant "aided and abetted" the commission of any crime ­ it merely charges that "they aided, abetted, counseled, commanded, induced, procured and caused the commission of acts in furtherance of the scheme." (Emphasis added.) The securities fraud count similarly only charges that defendants aided and abetted the sale of securities (paragraph 17 of the indictment), not that they aided and abetted the crime of using interstate facilities to sell securities by fraudulent means. Those are insufficient pleadings as to an aiding and abetting charge, which requires that someone "help" another commit a crime, not merely help someone commit an act [e.g., "overt act"] in furtherance of a crime, or "help" another to sell a security without more. Therefore Defendant Michael Smith has tailored his Competing Instructions 23-25 to take out the incorrect language. Additionally, Defendant Smith has taken out the language towards the end of Government Proposed Instruction No. 23 which deals with "reckless indifference" as it is

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the position of the defense that the facts will show Defendant Smith took substantial steps to inquire into the legitimacy of the Capital Holdings investment program, and did not in any way turn a "blind eye" to the program. Therefore the "reckless indifference" instruction would not be proper in this case as to him. See United States v. Manriquez Arbizo, 883 F.2d 244, 248 (10th Cir. 1987). f. Government Proposed Instruction No. 28 is titled incorrectly. The statute involved, 18 U.S.C. § 1957, is titled "Engaging in monetary transactions in property derived from specified unlawful activity," not "Money Laundering." That title for the instruction is prejudicial to the defendants charged in Counts 33-46. Additionally, where these counts and the instruction do properly charge "knowingly aiding and abetting" (in stark contrast to the mail fraud, wire fraud, and securities fraud counts), they do not charge that the "transactions" were engaged in by a defendant who "had knowledge" that the property was derived from a specific unlawful activity. g. Defendant Smith submits that the O'Malley instruction (Smith Comp. No. 28) of "aiding and abetting", if one is to be given at all, is far more comprehensive and more understandable than the Tenth Circuit pattern instruction proposed by the government. C. Non-stipulated instructions. Defendant Smith has submitted five of these, dealing with "Giving each defendant separate consideration" (31A), defense theory of the case and good faith (31B and 31C), and character and reputation evidence (31D and 31E). Just as with the government's proposed Pinkerton instruction (Government proposed No. 22), the defense submits (as the government seems to agree) that consideration of these should

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wait until the conclusion of the evidence.

Dated: February 28, 2007.

Respectfully submitted,

s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law,PC 2150 West 29th Ave. Suite 500 Denver, CO 80211-3890 303-455-4545 FAX: 303-458-6338 E-mail: [email protected] Attorney for Defendant Michael Smith

CERTIFICATE OF SERVICE I hereby certify that on February 28, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Matthew T. Kirsch, AUSA Wyatt Angelo, AUSA Peter Bornstein, Esq. [email protected]

[email protected] [email protected]

Thomas Hammond, Esq. [email protected] Daniel T. Smith, Esq. [email protected] Thomas Goodreid, Esq. [email protected]

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Ron Gainor, Esq.

gains_2000@hotmailcom

Mitchell Baker, Esq. [email protected] Richard K. Kornfeld, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] __________________________________ s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law, PC 2150 West 29th Ave. Suite 500 Denver, CO 80211-3890 303-455-4545 FAX: 303-458-6338 [email protected] Attorney for Defendant Michael Smith

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