Free Proposed Jury Instructions - District Court of California - California

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 1 of 7

1 CANDIS MITCHELL California Bar No. 242797 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 (619) 234-8467 (tel); (619) 687-2666 (fax) 4 [email protected] 5 6 Attorneys for Mr. Jose Raymundo Contreras-Hernandez 7 8 9 10 11 12 13 14 v. 15 JOSE RAYMUNDO CONTRERAS16 HERNANDEZ, 17 18 19 TO: 20 21 22 23 24 25 Dated: March 29, 2008 26 27 28 Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 07CR3190-JAH DATE: May 13, 2008 TIME: 9:00 a.m. DEFENDANT'S PROPOSED JURY INSTRUCTIONS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JOHN A. HOUSTON)

KAREN P. HEWITT, UNITED STATES ATTORNEY, PETER MAZZA, ASSISTANT UNITED STATES ATTORNEY: Jose Raymundo Contreras-Hernandez, by and through counsel, Candis Mitchell, and the

Federal Defenders of San Diego, Inc., pursuant to Federal Rule of Criminal Procedure 30, requests the Court instruct the jury on the law as set forth herein. Respectfully submitted, s/ Candis Mitchell CANDIS MITCHELL Federal Defenders of San Diego, Inc. Attorneys for Mr. Contreras-Hernandez [email protected]

1

07CR3190-JAH

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 2 of 7

1 2

DEFENDANT'S PROPOSED INSTRUCTIONS FROM THE 9TH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS CRIMINAL (2003)

3 9th Cir. Crim. Jury Instr. 1.1 (2003) ("Duty of Jury") 4 9th Cir. Crim. Jury Instr. 1.3 (2003) ("What Is Evidence") 5 9th Cir. Crim. Jury Instr. 1.4 (2003) ("What Is Not Evidence") 6 9th Cir. Crim. Jury Instr. 1.5 (2003) ("Evidence For a Limited Purpose") 7 9th Cir. Crim. Jury Instr. 1.7 (2003) ("Ruling On Objections") 8 9th Cir. Crim. Jury Instr. 1.8 (2003) ("Credibility of Witnesses") 9 9th Cir. Crim. Jury Instr. 1.9 (2003) ("Conduct of the Jury") 10 9th Cir. Crim. Jury Instr. 1.10 (2003) ("No Transcript Available to the Jury") 11 9th Cir. Crim. Jury Instr. 1.11 (2003) ("Taking Notes") 12 9th Cir. Crim. Jury Instr. 1.12 (2003) ("Outline of Trial") 13 9th Cir. Crim. Jury Instr. 1.13 (2003) ("Jury to Be Guided By Official English Interpretation") 14 9th Cir. Crim. Jury Inst. 2.4 (2003) ("Stipulations of Fact") (if appropriate). 15 9th Cir. Crim. Jury Inst. 2.9 (2003) ("Foreign Language Testimony") (if appropriate). 16 9th Cir. Crim. Jury Inst. 2.10 (2003) ("Other Crimes, Wrongs or Acts of Defendant") (if appropriate). 17 9th Cir. Crim. Jury Instr. 3.2 (2003) ("Charge Against Defendant Not Evidence - Presumption of 18 Innocence - Burden of Proof"). 19 9th Cir. Crim. Jury Instr. 3.3 (2003) ("Defendant's Decision Not to Testify") (if appropriate). 20 9th Cir. Crim. Jury Instr. 3.4 (2003) ("Defendant's Decision to Testify") (if appropriate). 21 9th Cir. Crim. Jury Instr. 3.5 (2003) ("Reasonable Doubt - Defined") 22 9th Cir. Crim, Jury Instr. 3.6 (2003) ("What is Evidence") 23 9th Cir. Crim, Jury Instr. 3.7 (2003) ("What is Not Evidence") 24 9th Cir. Crim. Jury Instr. 3.9 (2003) ("Credibility of Witnesses"). 25 9th Cir. Crim. Jury Instr. 3.11 (2003) ("Activities not Charged"). 26 9th Cir. Crim. Jury Instr. 3.20 (2003) ("Jury to be Guided by Official English Translation/Interpretation) 27 (if appropriate). 28 9th Cir. Crim. Jury Instr. 4.1 (2003) ("Statements by Defendant") (if appropriate). 2 07CR3190-JAH

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 3 of 7

1 9th Cir. Crim. Jury Instr. 7.1 (2003) ("Duty to Deliberate") 2 9th Cir. Crim. Jury Instr. 7.2 (2003) ("Consideration of Evidence") 3 9th Cir. Crim. Jury Instr. 7.3 (2003) ("Use of Notes") 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3

07CR3190-JAH

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 4 of 7

1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4 Mr. Contreras-Hernandez is charged in the indictment with being an alien who, after 1

5 deportation, was found in United States in violation of Section 1326(a) of Title 8 of the United States Code. 6 In order for Mr. Contreras-Hernandez to be found guilty of that charge, the government must prove each of 7 the following elements beyond a reasonable doubt: 8 9 10 11 First, Mr. Contreras-Hernandez was deported from the United States; Second, after deportation Mr. Contreras-Hernandez voluntarily entered the United States; Third, when Mr. Contreras-Hernandez entered he knew he was entering the United States; Fourth, Mr. Contreras-Hernandez was found in the United States without having obtained the

12 consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for 13 admission into the United States, and 14 15 16 United States. 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________ 4 07CR3190-JAH Authority See Ninth Cir. Model Jury Instr. 9.5B (Approved 1/2007) Fifth, Mr. Contreras-Hernandez was an alien at the time of his entry into the United States. An alien is a person who is not a natural-born or naturalized citizen [or a national] of the

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 5 of 7

1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 2 3 4 This is a criminal case brought by the United States government. The government charges the

5 defendant with [crimes charged]. The charges against Mr. Contreras-Hernandez are contained in the 6 indictment. The indictment is simply the description of the charges made by the government against the 7 defendant; it is not evidence of anything. 8 In order to help you follow the evidence, I will now give you a brief summary of the elements

9 of the crimes which the government must prove to make its case: [supply brief statement of elements of 10 crime[s]]. These instructions are preliminary and the instructions I will give at the end of the case will control. 11 Mr. Contreras-Hernandez has pleaded not guilty to the charge and is presumed innocent. The

12 presumption of innocence applies throughout trial and into jury deliberations. The presumption of innocence 13 may only be overcome upon your determination after the close of evidence, during deliberations, that the 14 government has proven each element of the charged offenses beyond a reasonable doubt. 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________ 5 07CR3190-JAH Authority 9th Cir. Crim. Jury Instr. 1.2 (2003 ed.) (modified). United States v. Cummings, 468 F.2d 274, 280 (9th Cir. 1972)("Both the presumption [of innocence] and the [proof beyond a reasonable doubt] burden remain throughout the trial and go with the jury when it deliberates."); United States v. Perlaza, 439 F.3d 1149, 1171-72 (9th Cir. 2006)(instruction "flawed" in part because "[i]t did not specify that the presumption of innocence 'go[es] with the jury when it deliberates.'")

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 6 of 7

1 COURT'S INSTRUCTION NO. _____________ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4 Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant 3

5 is guilty. It is not required that the government prove guilt beyond all possible doubt. 6 A reasonable doubt is based on the legal principle that the defendant is presumed innocent.

7 Thus, reasonable doubt may be based solely on the government's failure to present evidence that leaves you 8 firmly convinced that the defendant is guilty. 9 If after a careful and impartial consideration of all the evidence, you are not convinced beyond

10 a reasonable doubt that the defendant is guilty beyond a reasonable doubt, it is your duty to find the defendant 11 not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are 12 convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN __________ 27 GIVEN AS MODIFIED __________ 28 REFUSED __________ 6 07CR3190-JAH Authority 9th Cir. Crim. Jury Instr. 3.2 (2003 ed.) (modified). See In re Winship, 397 U.S. 358, 364 (1970) (the prosecution has to prove every element of the charged crime beyond a reasonable doubt); and Mullaney v. Wilbur, 421 U.S. 684 (1975) (same). See United States v. Andrews, 75 F.3d 552, 556 (9th Cir. 1996) ("mere suspicion or speculation will not provide sufficient evidence" to convict).

Case 3:07-cr-03190-JAH

Document 19

Filed 03/29/2008

Page 7 of 7

1 COURT'S INSTRUCTION NO. _______ 2 DEFENDANT'S PROPOSED INSTRUCTION NO. 3 4 A finding of guilt as to any crime may not be based on circumstantial evidence unless the 4

5 proved circumstances are not only (1) consistent with the theory that Mr. Contreras-Hernandez is guilty of the 6 crime, but (2) cannot be reconciled with any other rational conclusion. 7 Further, each fact which is essential to complete a set of circumstances necessary to establish

8 Mr. Contreras-Hernandez's guilt must be proved beyond a reasonable doubt. In other words, before an 9 inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact 10 or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. 11 Also, if the circumstantial evidence as to any particular count permits two reasonable

12 interpretations, one of which points to Mr. Contreras-Hernandez's guilt and the other to his innocence, you 13 must adopt that interpretation that points to Mr. Contreras-Hernandez's innocence, and reject that interpretation 14 that points to his guilt. 15 If, on the other hand, one interpretation of this evidence appears to you to be reasonable and

16 the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the 17 unreasonable. 18 19 20 21 22 23 24 25 26 GIVEN ________ 27 GIVEN AS MODIFIED ________ 28 REFUSED 7 07CR3190-JAH Authority 1 Cal. Jury Instr.--Crim. 2.01 (7th ed. 2003) (Sufficiency of Circumstantial Evidence--Generally) (modified).