Free Proposed Jury Instructions - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona EMORY T. HURLEY Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 014812 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-802-PHX-DGC Plaintiff, JOINT JURY INSTRUCTIONS v. Antonio Hernandez-Rivera, and Jorge Avena-Pardo, Defendants. The United States of America and the defendant, through counsel undersigned, respectfully submits the attached proposed instructions to the Court and requests that the same be given by the Court to the jury in the trial of the above-captioned matter. Respectfully submitted this 22nd day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s/ /s/ EMORY T. HURLEY Assistant U.S. Attorney

22 JASON LEONARD Counsel for Defendant 23 Jorge Avena-Pardo 24 /s/ 25 DAVID OCHOA Counsel for Defendant 26 Antonio Hernandez-Rivera 27 28

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1 I. 2 Instructions for the Ninth Circuit (2003 ed.): 3 ST 4 ST 5 ST 6 ST 7 ST 8 ST 9 ST 10 ST 11 ST 12 ST 13 ST 14 ST 15 ST 16 ST 17 ST 18 ST 19 ST 20 ST 21 ST 22 ST 23 Presumption of Innocence-Burden of Proof 24 ST 25 ST 26 ST 27 28 2 §3.5 Reasonable Doubt-Defined §3.4 Defendant's Decision to Testify §3.3 Defendant's Decision Not to Testify or §3.2 Charge Against Defendant Not Evidence§3.1 Duties of Jury to Find Facts and Follow Law §2.13 Disposition of Charge Against Codefendant §2.11 Defendant's Photographs, "Mug Shots" §2.10 Other Crimes, Wrongs or Acts of Defendant §2.8 Transcript of Recording in Foreign Language §2.5 Judicial Notice §2.2 Bench Conferences and Recesses §2.1 Cautionary Instruction-First Recess §1.14 Separate Consideration for Each Defendant §1.12 Outline of Trial §1.11 Taking Notes §1.10 No Transcript Available to the Jury §1.9 Conduct of the Jury §1.8 Credibility of Witnesses §1.7 Ruling on Objections §1.6 Direct and Circumstantial Evidence §1.4 What is Not Evidence §1.3 What is Evidence §1.1 Duty of Jury Request for Model Jury Instructions from the Manual of Model Criminal Jury

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ST ST ST ST ST

§3.6 §3.7 §3.8 §3.9 §3.10

What is Evidence What is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses Evidence of Other Acts of the Defendant or Acts and Statements of Others

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§3.11 §3.12

Activities Not Charged Separate Consideration of Multiple Counts ­ Single Defendant

ST

§3.14

Separate Consideration of Multiple Counts ­ Multiple Defendants

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§4.1 §4.6

Statements by Defendant Impeachment, Prior Conviction of Defendant (if Defendant testifies)

ST ST ST ST ST ST ST ST ST ST

§14 §4.17 §5.6 §7.1 §7.2 §7.3 §7.4 §7.5 §7.6 §8.18

Eyewitness Identification Opinion Evidence, Expert Witness Knowingly ­ Defined Duty to Deliberate Consideration of Evidence Use of Notes Jury Consideration of Punishment Verdict Form Communication with Court Conspiracy ­ Knowing Association with Other Conspirators.

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Stipulated, Non-Model Instructions. None Plaintiff's Requested Modified Model Instructions or Non-Model Instructions. SPANISH MAY BE USED DURING THIS TRIAL. The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know the Spanish language, it is important that all jurors consider the same evidence. Therefore, you must base you decision on the evidence presented in the English interpretation. You must disregard any different meaning of the non-English words. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 1.13 Defendant 1&2, No objection. THE CHARGE ­ PRESUMPTION OF INNOCENCE. This is a criminal case brought by the United States government. The government charges the defendant with Conspiracy to Commit Hostage Taking; Hostage Taking; Possessing, Using, and Carrying a Firearm During and in Relation to a Crime of Violence; and Harboring Illegal Aliens for Financial Gain. The charge against the defendant is contained in the superceding indictment. The superceding indictment is simply the description of the charge made by the government against the defendant; it is not evidence of anything. In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime which the government must prove to make its case. As to Count 1, Conspiracy to Commit Hostage Taking, the government must prove: First, beginning on or about July 20, 2004, and ending on or about July 23, 2004, there was an agreement between two or more persons to commit the crime of Hostage Taking as charged in the superceding indictment; Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out 4

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the conspiracy, with all of you agreeing on a particular overt act that you find was committed. As to Count 2, Hostage Taking, the government must prove: First, that the defendant intentionally, wilfully, and knowingly seized or detained a person; Second, the defendant intentionally, wilfully, and knowingly threatened to kill, injure, or continued to detain that person; and Third, the defendant did so with the purpose of compelling or attempting to compel a third person to act in some way, or to refrain from acting in some way, as an explicit or implicit condition for the release of the person detained. As to Count 3, Possessing, Carrying, and Using a Firearm During and in Relation to a Crime of Violence, the government must prove: First, the defendant committed the crime of Hostage Taking as charged in Count 2 of the superceding indictment; Second, that the defendant knowingly used, carried, or brandished a Rossi .38 caliber revolver; and Third, the defendant used, carried or brandished the Rossi .38 caliber revolver during and in relation to the crime. As to Count 4, Harboring Illegal Aliens for Financial Gain, the government must prove: First, Marcos A., Pedro U., Mario M., Elias R., and Mario R., were illegal aliens; Second, Marcos A., Pedro U., Mario M., Elias R., and Mario R. were not lawfully in the United States; Third, the defendant knew and recklessly disregarded the fact that Marcos A., Pedro U., Mario M., Elias R., and Mario R. were not lawfully in the United States; Fourth, the defendant concealed Marcos A., Pedro U., Mario M., Elias R., and Mario R. for the purpose of avoiding their detection by immigration authorities; and Fifth, the defendant acted for the purpose of commercial advantage or financial gain.

Authority:

Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instructions 1.2, 8.16, and 8.100A

Defendant 1&2, No objection.

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CONSPIRACY TO COMMIT HOSTAGE TAKING The defendant is charged in Count 1 of the superceding indictment with Conspiracy to Commit Hostage Taking in violation of Section 1203 of Title 18 of the United States Code. In order for the defendant to be found guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt: First, beginning on or about July 20, 2004, and ending on or about July 23, 2004, there was an agreement between two or more persons to commit the crime of Hostage Taking as charged in the superceding indictment; Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 8.16; 18 U.S.C. § 1203.

Defendant 1&2, No objection.

HOSTAGE TAKING The defendant is charged in Count 2 of the superceding indictment with taking a person hostage in violation of Section 1203 of Title 18 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 intentionally seized or detained a person; Second, the defendant threatened to kill, injure, or continue to detain that person; and

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Third, the defendant did so with the purpose and intention of compelling a third person to act, or to refrain from acting, in some way, as an explicit or implicit condition for the release of the seized or detained person. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 8.100; 18 U.S.C. § 1203.

Defendant 1&2, No objection.

FIREARMS ­ USING OR CARRYING IN COMMISSION OF A CRIME OF VIOLENCE The defendant is charged in Count 3 of the indictment with using, carrying, or brandishing a firearm during and in relation to a crime of violence in violation of Section 924(c) of Title 18 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 committed the crime of hostage taking as charged in Count 2 of the indictment; Second, the defendant knowingly used, carried, or brandished a Rossi .38 caliber revolver; and Third, the defendant used, carried, or brandished the Rossi .38 caliber revolver during and in relation to the crime. A defendant has "used" a firearm if he or she has actively employed the firearm in relation to hostage taking. Use includes any of the following: (1) brandishing, displaying, or striking with a firearm; (2) referring to a firearm in the offender's possession; (3) the silent but obvious and forceful presence of a firearm in plain view.

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A defendant carries a firearm if the defendant knowingly possesses or carries the firearm. Carrying is not limited to carrying weapons directly on the person, but can include circumstances such as carrying in a vehicle or a locked compartment of a vehicle. The term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. A defendant takes such action "in relation to the crime" if the firearm facilitated or played a role in the crime. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instructions 8.65; 18 U.S.C. § 924(c).

Defendant 1&2, No objection.

HARBORING ILLEGAL ALIENS. The defendant is charged in Count 4 of the superceding indictment with concealment of an alien in violation of 1324(a)(1)(A)(iii) of Title 8 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, Marcos A., Pedro U., Mario M., Elias R., and Mario R., were aliens; Second, Marcos A., Pedro U., Mario M., Elias R., and Mario R. were not lawfully in the United States; Third, the defendant knew or was in reckless disregard of the fact that Marcos A., Pedro U., Mario M., Elias R., and Mario R. were not lawfully in the United States; and Fourth, the defendant concealed Marcos A., Pedro U., Mario M., Elias R., and Mario R. for the purpose of avoiding Marcos A., Pedro U., Mario M., Elias R., and Mario R.'s detection by immigration authorities. 8

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An alien is a person who is not a natural-born or naturalized citizen or national of the United States. An alien is not lawfully in this country if the person was not duly admitted by an Immigration Officer. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 9.3; 8 U.S.C. § 1324(a)(1)(A)(iii). Defendant 1&2, No objection.

CONSPIRACY ­ ELEMENTS The defendant is charged in Count 1 of the superceding indictment with conspiring to commit hostage taking in violation of Section 1203 of Title 18 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, beginning on or about July 20, 2004, and ending on or about July 23, 2004, there was an agreement between two or more persons to commit the crime of Hostage Taking as charged in the superceding indictment; Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed. I shall discuss with you briefly the law relating to each of these elements. A conspiracy is a kind of criminal partnership--an agreement of two of more persons to commit one or more crimes. The crime of conspiracy is the

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agreement to do something unlawful; it does not matter whether the crime agreed upon was committed. For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit. One becomes a member of a conspiracy by wilfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who wilfully joins an existing conspiracy is as responsible for it as the originators. One the other hand, who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists. An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 8.16. Defendant 1&2, No objection.

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CONSPIRACY­PINKERTON CHARGE FOR HOSTAGE TAKING A conspiracy is a kind of criminal partnership­an agreement between two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful. Each member of the conspiracy is responsible for the actions of the other conspirators performed during the course and in furtherance of the conspiracy. If one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed the crime. Before you may consider the statements or acts of a co-conspirator, you must first determine whether the acts or statements were made during the existence of and in furtherance of an unlawful scheme, and whether any offense was one which could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement. Therefore, you may find a defendant guilty of using, carrying or brandishing a firearm during and in relation to a crime of violence as charged in count 3 of the superseding indictment, if the government has proved each of the following elements beyond a reasonable doubt: First, a person named in Count 3 of the superseding indictment committed the crime of using, carrying or brandishing a firearm during and in relation to a crime of violence as alleged in that count; Second, the person was a member of the conspiracy charged in Count 1 of the superseding indictment; Third, the person committed the crime of using, carrying or brandishing a firearm during and in relation to a crime of violence in furtherance of the conspiracy; Fourth, the defendant was a member of the same conspiracy at the time the offense in Count 3 was committed; and

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Fifth, the using, carrying or brandishing a firearm during and in relation to a crime of violence offense fell within the scope of the unlawful agreement, and could reasonably have been foreseen to be a necessary or natural consequence of that unlawful agreement. Authority: Manual of Model Criminal Jury Instructions for the Ninth Circuit (2003 ed.), Instruction 9.3; 8 U.S.C. § 1324(a)(1)(A)(iii). Defendant 1&2, No objection.

"ON OR ABOUT" EXPLAINED You will note that the Indictment charges that the offense was committed "on or about" a certain date. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. Authority: O'Malley, Grenig, Lee, Federal Jury Practice and Instructions § 13.05 (5th ed. 2000) Defendant 1&2, No objection.

22 10. RECKLESS DISREGARD ­ EXPLAINED 23 24 25 26 27 28 12 A person acts with "reckless disregard" when he or she is aware of, but consciously disregards, facts and circumstances indicating a high probability that the person transported an alien who had entered or remained in the United States in violation of law.

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Authority:

H.R. Rep. No. 99-682(I), 99th Cong., 2d Sess. 65-66, reprinted in 1986 U.S.C.C.A.N. 5649, 5669-70 (as to the definition of recklessness) (noting that an alien smuggler will be subject to criminal prosecution if the person "knew the alien was undocumented or acted with willful blindness concerning the alien's immigration status"). See also United States v. Guerra-Garcia, 336 F.3d 19, 25 (1st Cir. 2003) ("A defendant may be found to have recklessly disregarded a fact if the defendant had actual knowledge of a fact or if you find that the defendant deliberately closed his eyes to a fact that otherwise would have been obvious to him."); O'Malley, Grenig & Lee, Federal Jury Practice and Instructions § 61.11 (5th Ed. 2000) (definition of recklessness).

Defendant 1&2, No objection.

Defendant's Requested Modified Model Instructions or Non-Model Instructions. None

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