Free Trial Memorandum - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

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IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendant. _____________________________________________________________________ DEFENDANT NORMAN SCHMIDT'S MEMORANDUM REGARDING BURDEN OF PROOF AND REASONABLE DOUBT JURY INSTRUCTION ____________________________________________________________________ COMES NOW, Defendant Norman Schmidt, by and through his attorneys, Peter R. Bornstein and Thomas J. Hammond, and submits the following memorandum regarding instructing the jury as to the presumption of innocence, burden of proof and reasonable doubt: 1. The Tenth Circuit pattern jury instruction pertaining to the presumption of

innocence and burden of proof contains a number of fatal defects. Although the instruction is entitled Presumption of Innocence, there is no language anywhere in the body of the instruction to the effect that the defendants are indeed presumed to be innocent. The instruction also lacks necessary language defining reasonable doubt as the kind of doubt that would cause an person of ordinary prudence to hesitate to act in matters of importance to himself or herself. 2. The reasonable doubt portion of the Tenth Circuit instruction also omits the

"two- inference" language contained in the version as authored originally by Devitt, 1

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Blackmar and Green and continued by O'Malley, Grenig and Lee in Federal Jury Practice and Instructions. This is due to the Tenth Circuit opinion in United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005), which adopts to some degree the position taken by the Second Circuit and Third Circuit on this issue. 3. The "two-inference" language constitutes language that explains both the

presumption of innocence and the burden of proof to the jury beyond a simple statement that a defendant is to be presumed innocent. Mr. Schmidt takes the position that the "twoinference" language is actually strong language in support of the presumption of innocence. However, in keeping with the legal analysis provided in other cases, Mr. Schmidt asserts that the language must be made stronger because it does not go far enough to define in further detail the difference between innocence and proof beyond a reasonable doubt. Mr. Schmidt understands that the Tenth Circuit has disapproved of the language in Dowlin, supra, citing United States v. Khan, 821 F.2d 90 (2d Cir. 1995). 4. The Second Circuit has criticized the "two-inference" language, apparently

beginning in 1968 with United States v. Hughes, 389 F.2d 535 (2d Cir. 1968). In that case Judge Feinberg wrote, regarding different language than the "two-inference" language here, that "the instruction erroneously allowed the jury to use the preponderance standard in a criminal case. The jury is still required to acquit even though it is less likely that the defendant is innocent than guilty, so long as the jury is not convinced of that guilt beyond a reasonable doubt. But the language failed to include this crucial possibility." Hughes, supra at p.537 (emphasis added). 5. In Khan, supra, the Second Circuit went further, disapproving of the "two-

inference" language, stating: 2

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The "two-inference" language, that if the jury believes the evidence permits either the inference of innocence or of guilt, the jury should adopt the former, is obviously correct as far as it goes. But such an instruction by implication suggests that a preponderance of the evidence standard is relevant, when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but not strong enough to be beyond a reasonable doubt. Kahn at p. 93. (Emphasis added). 6. Omission of the "two-inference" language does not cure the defect

described in United States v. Khan, 821 F.2d 90 (2d Cir. 1987). The point in Khan, was that the "two-inference" language standing alone does not go far enough. Simple excision of the language further weakens the instruction. The Second Circuit stated that the instruction needed to be stronger, but no one has undertaken that responsibility until recently. 7. Removal of the allegedly weak (not incorrect) language, without more, denies

the accused person the right to have the presumption of innocence and burden of proof beyond a reasonable doubt explained to the jury, and therefore denies Mr. Schmidt due process, substantive due process. 8. The language proposed by Mr. Schmidt was originally crafted by Judge

Babcock in United States v. Jordan, currently on appeal to the Tenth Circuit, and further modified by Judge Nottingham in United States v. Hunt, as an effort to address to issue appropriately. Chief Judge Babcock's version addresses the need for language that explains what the jury should do when the government's evidence may be stronger than that which is subject to two equal interpretations, yet not strong enough to overcome proof beyond a reasonable doubt. Judge Nottingham's version takes into account both 3

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variations, and is the solution preferred by undersigned counsel. 9. The Third Circuit has found that "to the extent that the challenged language

carries the implication ascribed to it by the defendant, we do not think that the implication is a strong one..." Unites States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995). 10. It is noteworthy that there does not appear to be any movement on the part

of the other Circuits to join in on this issue. 11. Mr. Schmidt maintains that the Tenth Circuit pattern instruction pertaining to

the presumption of innocence instruction is deficient and moves for the adoption of a stronger instruction as submitted earlier. To the extent that use of the "two-inference" language by itself would invite error, Mr. Schmidt hereby waives any right to claim it as error at a later time. Respectfully submitted,

s/ Peter R. Bornstein Peter R.Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2300 Denver, Colorado 80202 (303)861-2500 Fax: (303)861-0420 E-mail: [email protected] Attorney for Norman Schmidt

s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, P.C. 1544 Race Street Denver, Colorado 80206 (303)321-7902 fax: (303)329-5871 e-mail: [email protected] Attorney for Norman Schmidt 4

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 9, 2007, I electronically filed the foregoing DEFENDANT NORMAN SCHMIDT'S MEMORANDUM REGARDING BURDEN OF PROOF AND REASONABLE DOUBT JURY INSTRUCTION with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following e-mail addresses:

Wyatt Angelo, Esq. [email protected] Matthew Kirsch, Esq. [email protected] Peter R. Bornstein, Esq. [email protected] Ronald Gainor, Esq. [email protected] Thomas E. Goodreid, Esq. [email protected] Richard Stuckey, Esq. [email protected] Declan O'Donnell, Esq. [email protected]

s/ Thomas J. Hammond

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