Free Proposed Jury Instructions - District Court of California - California

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES TARA MCGRATH Assistant U.S. Attorneys California State Bar No. 231929, 254209 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. LEONARDO SAN JUAN, JR., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3239-JM

UNITED STATES' PROPOSED JURY INSTRUCTIONS Date: Time: June 2, 2008 9:00 a.m.

16 17 18 19

COMES NOW the plaintiff, United States of America, by and 20 through its counsel, Karen P. Hewitt, United States Attorney, 21 and Nicole Acton Jones and Tara McGrath, Assistant United States 22 Attorneys, 23 Instructions. 24 25 26 27 28 respectfully submits the following Proposed Jury

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Members of

COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 1

the

jury,

now

that

you

have

heard

all

the

evidence, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in

the jury room for you to consult. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to

you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any

personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to

do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into

anything the court may have said or done any suggestion as to 18 19 20 21 22 23 24 25 26 27 28 [Duties of Jury to Find Facts and Follow Law] Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.1 [2003 Edition - West Publishing Co.] what verdict you should return--that is a matter entirely up to you.

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 2

The indictment is not evidence. not guilty to the charge.

The defendant has pleaded

The defendant is presumed to be

innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.2 [2003 Edition - West Publishing Co.]

[Charge Against Defendant Not Evidence-Presumption of InnocenceBurden of Proof]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 3

A defendant in a criminal case has a constitutional right not to testify. No presumption of guilt may be raised, and no

inference of any kind may be drawn, from the fact that the defendant did not testify.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.3 [2003 Edition - West Publishing Co.] [Defendant's Decision Not to Testify]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. defendant has testified. You should 4 treat this

testimony just as you would the testimony of any other witness.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.4 [2003 Edition - West Publishing Co.] [Defendant's Decision to Testify]

28

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 5

Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not

required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from

a careful and impartial consideration of all the evidence, or from lack of evidence. If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial

consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

17 18 19 20 21 22 23 24 25 26 27 28 [Reasonable Doubt-Defined] Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.5 [2003 Edition - West Publishing Co.]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 6

The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which all the lawyers have stipulated.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [What is Evidence] Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.6 [2003 Edition - West Publishing Co.]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 7

In reaching your verdict you may consider only the testimony and exhibits received into evidence. Certain things are not

evidence and you may not consider them in deciding what the facts are. 1. I will list them for you:

Arguments and statements by lawyers are not evidence. What they have said in their

The lawyers are not witnesses.

opening statements, [will say in their] closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them

controls. 2. Questions and objections by lawyers are not evidence.

Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You

should not be influenced by the question, the objection, or the court's ruling on it. 18 19 20 21 22 23 24 25 26 27 28 [What is Not Evidence]
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3.

Testimony that has been excluded or stricken, or that

you have been instructed to disregard, is not evidence and must not be considered. In addition some testimony and exhibits have

been received only for a limited purpose; where I have given a limiting instruction, you must follow it. 4. Anything you may have seen or heard when the court was You are to decide the case

not in session is not evidence.

solely on the evidence received at the trial. Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.7 [2003 Edition - West Publishing Co.]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 8

Evidence may be direct or circumstantial. Direct evidence 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.8 [2003 Edition - West Publishing Co.] [Direct and Circumstantial Evidence]
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is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists, even though it has not been proved directly. consider both kinds of evidence. You are to

The law permits you to give

equal weight to both, but it is for you to decide how much weight to give to any evidence.

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 9

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: 1. the opportunity and ability of the witness to see or hear or know the things testified to; the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness'

testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.9 [2003 Edition - West Publishing Co.] [Credibility of Witnesses]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 10

heard

testimony

that

the

defendant

made

a

statement.

It is for you to decide (1) whether the defendant

made the statement, and (2) if so, how much weight to give to it. In making those decisions, you should consider all of the

evidence about the statement, including the circumstances under which the defendant may have made it.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 4.1 [2003 Edition - West Publishing Co.]

[Statements by Defendant]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 11

You have heard evidence of the defendant's character for law abidingness. In deciding this case, you should consider that

evidence together with and in the same manner as all the other evidence in the case.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 4.4 [2003 Edition - West Publishing Co.] [Character of Defendant]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 12

heard

testimony

from

persons

who,

because

of

education or experience, are permitted to state opinions and the reasons for their opinions. Opinion testimony should be judged just like any other testimony. weight as You may accept it or reject it, and give it as much you think it deserves, considering the witness'

education and experience, the reasons given for the opinion, and all the other evidence in the case.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 4.17 [2003 Edition - West Publishing Co.] [Opinion Evidence, Expert Witness]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 13

The defendant is charged in the indictment with possession of an unregistered firearm in violation of Section 5861(d) of Title 26 of the United States Code. In order for the defendant

to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: First, the defendant knowingly possessed a firearm, namely, a machinegun; Second, the defendant was aware of the features of the machinegun that brought it within the scope of the firearm

definition; and Third, the machinegun was not registered to the defendant

in the National Firearms Registration and Transfer Record.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 9.31 [2003 Edition - West Publishing Co.] [MODIFIED] [Possession of Unregistered Firearm]

23 24 25 26 27 28 See Staples v. United States, 511 U.S. 600, 619 (1994) ("to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act"). See also United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999) (mens rea requirement that the defendant know of the particular characteristics of the firearm which bring it within the scope of the statute is "an essential element of a § 5861(d) violation").

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 14

Firearm and Machinegun - Defined The term "firearm" includes a machinegun. The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

26 U.S.C. § 5845(a)(6) & (b)

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 15

Possession - Defined A person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it. More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 3.18 [2003 Edition - West Publishing Co.] [Possession - Defined] 15
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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 16

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that his acts or omissions were unlawful. You may

consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 5.6 [2003 Edition - West Publishing Co.] [Knowingly - Defined] 16
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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 17

Exhibit _______ is a certificate of the custodian of the 5 National Firearms Register and Transfer Record. 6 certificate is a written statement of facts signed by a public 7 official. 8 The certificate states that the custodian made a diligent 9 search of the record and found no record of any firearm being 10 registered to the defendant. 11 but need not, decide that the firearm described in the 12 indictment was not registered to the defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Firearms - Evidence of No Registration] 17 Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 9.33 [2003 Edition - West Publishing Co.] From this certificate you may, A

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 18

When you begin your deliberations, you should elect one member of the jury as your foreperson. That person will

preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether

guilty or not guilty, must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision

simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an

honest belief about the weight and effect of the evidence simply to reach a verdict.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 7.1 [2003 Edition - West Publishing Co.] [Duty to Deliberate] 18

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 19

Your verdict must be based solely on the evidence and on the law as I have given it to you in these instructions. However, nothing that I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 7.2 [2000 Edition - West Publishing Co.] [Consideration of Evidence] 19

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 20

Some of you have taken notes during the trial.

Whether

or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You

should not be overly influenced by the notes.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 7.3 [2003 Edition - West Publishing Co.]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 21

The punishment provided by law for this crime is for the court to decide. You may not consider punishment in deciding

whether the Government has proved its case against the defendant beyond a reasonable doubt.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 7.4 [2003 Edition - West Publishing Co.] [Jury Consideration of Punishment]

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COURT'S INSTRUCTION NO. ____ GOVERNMENT'S PROPOSED INSTRUCTION NO. 22

A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the Court that you are ready to return to the courtroom.

Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 7.5 [2003 Edition - West Publishing Co.]

[Return of Verdict (Renamed Verdict Form)]

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