Free Proposed Jury Instructions - District Court of California - California

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1 SARA M. PELOQUIN

California State Bar No. 254945
2 SHEREEN J. CHARLICK

California State Bar No. 147533
3 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
4 San Diego, California 92101-5008

Telephone: (619) 234-8467
5 6 Attorneys for Ms. Pozo-Campillo 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) ) ) Plaintiff, ) ) v. ) ) YLIANA POZO-CAMPILLO, ) ) Defendant. ) ) _____________________________________ ) CASE NO. 08CR0805-TJW DATE: July 3, 2008 TIME: 9:00 a.m. MS. POZO'S PROPOSED JURY INSTRUCTIONS

11 UNITED STATES OF AMERICA, 12 13 14 15 16

17 TO: 18 19

KAREN P. HEWITT, INTERIM UNITED STATES ATTORNEY; PAUL STARITA, ASSISTANT UNITED STATES ATTORNEY; AND W. MARK CONOVER, ASSISTANT UNITED STATES ATTORNEY. Yliana Pozo-Campillo, by and through counsel, Sara M. Peloquin, Shereen J. Charlick, and Federal

20 Defenders of San Diego, Inc., and pursuant to Federal Rule of Criminal Procedure 30, requests that the Court 21 instruct the jury on the law as set forth herein. 22 23 24 DATED: July 3, 2008 25 26 27 28

Respectfully submitted,

/s/ Sara M. Peloquin SARA M. PELOQUIN Federal Defenders of San Diego Attorneys for Ms. Pozo-Campillo

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1 Defendant's Proposed Standard Instructions 2 3 4 5 6 7 8 9 10 11 12 13 14

(Ninth Circuit Model Criminal Jury Instructions, Sept. 2003): Instruction Number Title 1.1 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.11 1.12 1.13 2.1 2.2 2.3 (As appropriate) Duty of Jury What Is Evidence What Is Not Evidence Evidence for Limited Purpose Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury Taking Notes Outline of Trial Jury to Be Guided by Official English Translation/Interpretation Cautionary Instruction--First Recess Bench Conferences and Recesses Stipulated Testimony Stipulations of Fact Judicial Notice Duties of Jury to Find Facts and Follow Law Defendant's Decision Not to Testify Defendant's Decision to Testify What Is Evidence What Is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses Possession--Defined Statements by Defendant Character of Defendant Character of Witness for Truthfulness Impeachment Evidence--Witness Mere Presence

15 16 17 18 19 20 21 22 23 24 25 26 27 28

2.4 (As appropriate) 2.5 (As appropriate) 3.1 3.3 (As appropriate) 3.4 (As appropriate) 3.6 3.7 3.8 3.9 3.18 4.1 4.4 4.7 4.8 6.9

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7.1 7.2 7.3 7.5 7.6

Duty to Deliberate Consideration of Evidence Use of Notes Return of Verdict (renamed Verdict Form) Communication With Court

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 1 3 4

This is a criminal case brought by the United States government. The government charges Ms.

5 Pozo-Campillo with possession of marijuana with intent to distribute. The charge against Ms. Pozo-Campillo 6 is contained in the indictment.

The indictment is simply the description of the charge made by the

7 government against Ms. Pozo-Campillo; it is not evidence of anything. 8

Ms. Pozo-Campillo has pleaded not guilty to the charge and is presumed innocent unless and until

9 a jury has unanimously found the defendant to have been proven guilty beyond a reasonable doubt. A 10 defendant has the right to remain silent and never has to prove innocence or present any evidence. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

9th Cir. Jury Instr. 1.2 (modified). See United States v. Cummings, 468 F.2d 274, 280 (9th Cir. 1972)(the presumption of innocence remains "throughout the trial" and goes "with the jury when it deliberates"; "the presumption does not disappear when evidence to the contrary is received.")

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 2 3 4

You have heard testimony regarding prior trips made by Ms. Yliana Pozo into the United States in

5 the White Van with license plate number BEG6880. There is no evidence whatsoever that there was any 6 marijuana in the White Van on any of those prior trips and Ms. Pozo is not on trial for any acts other than the 7 charged offenses occurring on March 6, 2008. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

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1 COURT'S INSTRUCTION NO. ______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 3 4

When considering circumstantial evidence, each fact which is essential to complete a set of

5 circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other 6 words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable 7 doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a 8 reasonable doubt. 9

Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which

10 points to the defendant's guilt and the other to his or her innocence, you must adopt that interpretation which 11 points to the defendant's innocence and reject that interpretation which points to his or her guilt. 12

If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the

13 other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the 14 unreasonable. 15 16 17 Authority 18 19 20 21 22 23 24 25 26 GIVEN ________ 27 GIVEN AS MODIFIED ________ 28 REFUSED ________

1 Cal. Jury Instr.--Crim. 2.01 (7th ed. 2003) (modified).

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1 COURT'S INSTRUCTION NO. ___________ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

4

The defense has presented evidence that a third party was responsible for loading the vehicle with

5 marijuana, and that this was done without Ms. Pozo's knowledge. Evidence of a third party's guilt may create 6 reasonable doubt. If after considering the facts and circumstances and other evidence presented in this case, 7 you are left with a reasonable doubt whether Ms. Pozo knew there was marijuana hidden in the vehicle, you 8 must render a not guilty verdict to both counts. 9 Authority 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 GIVEN __________ 25 GIVEN AS MODIFIED __________ 26 REFUSED __________ 27 28

United States v. Kayser, 2007 WL 1557467, at *5 (9th Cir. May 31, 2007) ("A defendant is entitled to an instruction concerning his theory of the case if the theory is legally sound and evidence in the case makes it applicable, even if the evidence is weak, insufficient, inconsistent, or of doubtful credibility.") (citing United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987); United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001) (discussing relevancy of third party culpability as a defense).

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1 COURT'S INSTRUCTION NO. _______

DEFENDANT'S PROPOSED INSTRUCTION NO. 5
2

I instruct you that you must presume Ms. Pozo-Campillo to be innocent of the crime charged.
3

Thus, although accused of a crime, the trial began with a "clean slate" -- with no evidence against her. The
4

indictment, as you already know, is not evidence of any kind. The law permits nothing but legal evidence
5

presented before the jury in court to be considered in support of any charge against the defendant. The
6

presumption of innocence alone, therefore, is sufficient to find Ms. Pozo-Campillo not guilty.
7

The burden is always upon the government to prove guilt beyond a reasonable doubt. This burden
8

never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty
9

of calling any witnesses or producing any evidence. Ms. Pozo-Campillo is not even obligated to produce any
10

evidence by cross-examining the witnesses for the government.
11

It is not required that the government prove guilt beyond all possible doubt. The test is one of
12

reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense -- the kind of doubt
13

that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be
14

proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the
15

most important of his or her own affairs.
16

Unless the government proves, beyond a reasonable doubt, that Ms. Pozo-Campillo committed
17

each and every element of the offense charged in the indictment, you must find Ms. Pozo-Campillo not guilty
18

of the offense.
19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

See O'Malley, Grenig, and Lee. Federal Jury Practice and Instructions, 5th Ed. § 12.10 (modified); 2003 Ninth Cir. Model Jury Instr. 3.2 (presumption of innocence) & 3.5 (proof beyond a reasonable doubt).

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1 COURT'S INSTRUCTION NO. 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 6 3 4

The fact that one party called more witnesses and introduced more evidence than the other does

5 not mean that you should necessarily find the facts in favor of the side offering the most witnesses. By the 6 same token, you do not have to accept the testimony of any witness who has not been contradicted or 7 impeached, if you find the witness not to be credible. You will also have to decide which witnesses to believe 8 and which facts are true. After examining all of the evidence, you may decide that the party calling the most 9 witnesses has not persuaded you because you do not believe its witnesses. 10

In a moment I will discuss some criteria for evaluating credibility; for the moment, however, you

11 should keep in mind that the burden of proof is always on the government and that Ms. Pozo-Campillo is not 12 required to call any witnesses or offer any evidence, since he is presumed to be innocent. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN 27 GIVEN AS MODIFIED 28 REFUSED

Sand, et al., Modern Federal Jury Instructions: Criminal Pattern Instructions § 4-3 (Matthew Bender 2001) (modified); see also United States v. Vargas, 583 F.2d 380, 387 (7th Cir. 1978) (noting that jurors do not have to believe the government's witnesses and can acquit defendant upon this basis, even if defendant testifies and jurors do not believe him either).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 7 3 4

Because a particular witness may be a law enforcement officer, such as a Border Patrol Agent,

5 Drug Enforcement Agent, or an employee of a governmental agency, that does not mean that his or her 6 testimony is truthful. 7

It is quite legitimate for counsel to attack or question the truthfulness of an agent or other

8 government employee on the ground that his or her testimony may be tainted by personal or professional 9 interest in the outcome of this case. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ______ 27 GIVEN AS MODIFIED_______ 28 REFUSED_______

United States v. Masino, 275 F.2d 129 (2d Cir. 1960).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

8

You have heard testimony from persons who, because of education or experience, are permitted to

5 state opinions and the reasons for their opinions. 6

Opinion testimony should be judged just like any other testimony. You may accept or reject it, and

7 give it as much weight as you think it deserves, considering the witness's education and experience, the 8 reasons given for the opinion, potential bias, and all the other evidence in the case. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ______ 27 GIVEN AS MODIFIED_______ 28 REFUSED_______

See Ninth Cir. Model Jury Inst. 4.17 (2003 ed.) (modified, adding relevance and bias portions).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 9 3 4

Any verdict must represent the considered judgment of each juror. In order to return a guilty verdict,

5 it is necessary that each juror individually agrees that the government has proved every element beyond a 6 reasonable doubt. Thus, your verdict must be unanimous, and you must unanimously agree to the elements 7 upon which you base your verdict. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ______ 27 GIVEN AS MODIFIED_______ 28 REFUSED_______

See Devitt and Blackmar, 3d ed., § 5 18.01 (modified); Richardson v. United States, 526 U.S. 813 (1999) (jury must unanimously agree as to every element); United States v. Echeverv, 698 F.2d 375 (9th Cir. 1983).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

10

Ms. Pozo-Campillo is charged in the indictment with possession of marijuana with intent to

5 distribute in violation of Section 841(a)(1) of Title 21 of the United States Code. In order for Ms. Pozo6 Campillo to be found guilty of this charge, the government must prove the following elements beyond a 7 reasonable doubt: 8 9 10 11

First, that Ms. Pozo-Campillo knowingly possessed marijuana; Second, that Ms. Pozo-Campillo possessed it with the intent to deliver it to another person; and Third, that Ms. Pozo-Campillo knew that it was marijuana, and knew the quantity of the marijuana. To "possess with intent to distribute" means to possess with intent to deliver or transfer possession

12 of a controlled substance to another person, with or without financial interest in the transaction. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

9th Cir. Crim. Jury Instr. 9.13 (2003), Apprendi v. New Jersey, 530 U.S. 466 (2000).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

11

The term "knowingly," as used in these instructions to describe the alleged state of mind of Ms.

5 Pozo-Campillo that the government must prove, means that he must have been conscious and aware of her 6 actions, realized what he was doing or what was happening around him, and did not act because of ignorance, 7 mistake, or accident. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

2003 Ninth Cir. Model Jury Instr. §5.6; Devitt and Blackmar, 4th Ed., § 17.04

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

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Possession of a substantial quantity of a controlled substance alone is insufficient to support a

5 finding of knowing possession. An individual may unknowingly possess a substantial quantity of narcotics, 6 just as he may unknowingly transport contraband in a vehicle. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ________ 27 GIVEN AS MODIFIED ________ 28 REFUSED ________

United States v. Chu, 988 F.2d 981 (9th Cir. 1993); United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992) (en banc).

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1 COURT'S INSTRUCTION NO. _____________ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

13

Ms. Pozo-Campillo has presented evidence that she did not know that there was marijuana concealed

5 in mini-van she was driving. If you conclude that the government has failed to prove beyond a reasonable 6 doubt that Ms. Pozo-Campillo knew of the presence of marijuana in the mini-van, then you must find that he 7 is not guilty of the offense charged in the indictment. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ________ 27 GIVEN AS MODIFIED ________ 28 REFUSED ________

United States v. Dees, 34 F.3d 838, 842 (9th Cir. 1994) (quoting United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990)); United States v. Zuniga, 6 F.3d 569, 570 (9th Cir. 1993); United States v. McGeshick, 41 F.3d 419 (9th Cir. 1994).

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1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4

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A person may not be convicted of illegal possession of drugs unless he knows a prohibited drug is

5 present and he is capable of exerting dominion and control over it. Mere proximity to the prohibited drug is 6 insufficient to establish possession. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________

2003 Ninth Cir. Model Jury Instr. §6.9 (modified); United States v. Penagos, 823 F.2d 346, 350 (9th Cir. 1987); United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir. 1987) (quoting United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985)).

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CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing is true and accurate to the best information and

4 belief, and that a copy of the foregoing document has been caused to be delivered this day upon: 5 6 7 8 Dated: July 3, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Courtesy Copy to Chambers Copy to Assistant U.S. Attorney via ECF NEF

s/ Sara Peloquin SARA M. PELOQUIN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

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