CAN-SPAM E-Mail Act Instruction Held To Be Overbroad

In Goodin v. United States, 2010 U.S. Dist. LEXIS 36807 (C.D. Cal., No. CR 06-0186-CAS,CV 09-5840-CAS, Mar. 17, 2010) the defendant was charged with a violation of 18 USC 1037 and the jurors were instructed as follows:

An e-mail message is ‘commercial’ if the primary purpose of the message was the commercial advertisement or promotion of a product or service or is related to a product or service including content on an Internet website operated for a commercial purpose. Further, an e-mail is commercial if a recipient reasonably interpreting the subject line or body of the e-mail would likely conclude that the message is a commercial advertisement or promotion of a commercial product or service or is related to a product or service. [Emphasis added.]

The reviewing court held that the "related to" language in the jury instruction improperly expanded the scope of the statue.

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Chapter 296: Standards of Review And Prejudice On Appeal
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PG X(E) - Helpful Rules And Standards For Showing Prejudice

Alibi: Whether Time Of The Offense Must Be Proved

Several federal circuits have expressly "rejected the contention that time becomes a material element of a criminal offense merely because the defense of alibi is advanced." United States v. Creamer, 721 F.2d 342, 343 (11th Cir. 1983) (citing United States v. King, 703 F.2d 119, 123-24 (5th Cir. 1983)); see also United States v. Stuckey, 220 F.3d 976, 982 (8th Cir. 2000) ("Time is not a material element of a criminal offense unless made so by the statute creating the offense.") (citations omitted). In these circumstances, Real has failed to demonstrate that the trial court's instruction -- which confirmed the Commonwealth's burden of presenting proof of Real's guilt beyond a reasonable doubt -- "infect[ed] his entire trial with unfairness." Albrecht, 485 F.3d at 129; see also United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995) [no due process violation where instruction, "taken as a whole, adequately conveyed the concept of proof beyond a reasonable doubt"]; see also Real v. Shannon, 600 F.3d 302, 309-310 (3d Cir. Pa., No. 07-4532, March 3, 2010).

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251.2 - Alibi
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Defense Theory: Alibi
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F 4.51 - Alibi
F 3400 - Alibi

Sample Instruction: Willfully Defined – Failure To Provide Child Support

An act is done willfully if it is done voluntarily and intentionally with the purpose of avoiding a known duty under a state court order to pay a child support obligation. In determining whether the defendant acted willfully in failing to pay, you must consider whether the defendant had the ability to pay some portion of the past due child support obligation. Ability to pay means that the defendant had the ability, after meeting his basic subsistence needs, to pay some portion of the past due child support obligation.

Source: Given in United States v. Bell, 598 F.3d 366, 369-371 (7th Cir. Ill., No. 09-2555, March 16, 2010).

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Chapter 46: Willfulness
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Basic Elements Of A Criminal Allegation: Willfulness
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F 1.20 Willfully Defined
F 16.152 n1  Failure To Provide: Prima Facie Evidence Of Willfulness

Federal Definition Of Willfulness (USSC)

In general, willfulness is proved by evidence that a defendant acted voluntarily and with knowledge that his conduct was unlawful, even if he did not know the specific statute violated. See, e.g., Bryan v. United States, 524 U.S. 184, 193-96, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) (holding in context of firearms statute that knowledge of conduct's general unlawfulness, rather than knowledge of particular statute, satisfied willfulness requirement); United States v. Bursey, 416 F.3d 301, 309 (4th Cir. 2005) (same in context of statute prohibiting willful entry or refusal to leave restricted area during presidential visit); United States v. Whab, 355 F.3d 155, 162 (2d Cir. 2004) (affirming on plain error review jury instruction that awareness of generally unlawful nature of conduct satisfied willfulness requirement in statute barring false statements to government agents). Even knowledge of general unlawfulness is unnecessary under statutes criminalizing conduct whose wrongfulness is obvious from the surrounding context. See United States v. George, 386 F.3d 383, 395 (2d Cir. 2004) [observing that because "no conceivable meritorious reason exists for knowingly submitting false information on a passport application," conviction did not require defendant's "awareness of the generally unlawful nature of his or her conduct"].  Only in rare cases where the line between innocent and culpable conduct is particularly difficult to ascertain, as in cases involving "highly technical statutes that present[] the danger of ensnaring individuals engaged in apparently innocent conduct," Bryan v. United States, 524 U.S. at 194, does willfulness require a specific intent to violate a particular law. 

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Chapter 46: Willfulness
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Willfulness
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F 1.20 - Willfully Defined

Sample Instruction: Innocent Possession (10th Circuit)

It is a defense to the charge of unlawful possession of a firearm that the defendant's possession of the firearm constituted innocent possession.
    
Possession of a firearm constitutes innocent possession where:
    
1. The firearm was obtained innocently and held with no illicit purpose; and
    
2. Possession of the firearm was transitory, i.e., in light of the circumstances presented there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.
    
If you find that the defendant possessed a firearm specified in Count 1 and that possession constituted innocent possession, you should find the defendant not guilty.

Source: United States v. Herron, 432 F.3d 1127, 1135 (10th Cir. 2005); United States v. Mason, 233 F.3d 619, 622-25, 344 U.S. App. D.C. 91 (D.C. Cir. 2000); but see United States v. Palma, 511 F.3d 1311, 1316 (11th Cir. 2008) (declining to decide whether the defense exists). 

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56.3 - Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession
107.3.3 - Ex-felon: Carrying Firearm -- Applicability Of Momentary, Innocent And Justifiable Possession
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F 12.40 - Possession of Deadly Weapon
F 12.40 n7 - Possession Of A Cane Sword (PC 12020(a)): Scienter/Knowledge Requirement

Predeliberation Questions Must Come From Individual Jurors Not The Jury As A Group (1st Circuit)

Because the jurors must not prematurely deliberate, they should not discuss the evidence before the case is submitted to them.  Accordingly, it is important for the judge to make it clear that juror questions about the testimony should come from individual jurors.  See United States v. Diaz, 597 F.3d 56, 61 (1st Cir. Mass., No. 08-1766, March 3, 2010).

Sample Instruction:

Even though you may submit questions at any time you are not permitted to discuss such questions among yourselves before deliberations begin.  No one should be deliberating now. And one word there struck our attention. There can't be any questions from the jury yet because you haven't started deliberating yet, and you can't start deliberating. So at this point, if some individual juror wants to ask a question, that's fine; but as a jury, no one should be talking about the case. It's a flat ban. And you might wonder why because you'll just be talking about it in a day or two. It's because you haven't heard everything. You haven't heard all the witnesses, and you haven't heard all the legal instructions, and that's why we want you not to be talking about it in the jury room. So to the extent that there was any lack of clarity before, I'm making it crystal clear now, when you go back for the break or you go back afterwards or tomorrow morning as you're coming in, no one can talk about the case until I send the verdict to you and give you the instructions. 

Source: Adapted from admonishment approved in United States v. Diaz, supra, 597 F.3d 61-62.

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Chapter 283: Communication With Jury
283.6 - Communication With Jury: Communication Should Be In Writing But May Be From Individual Juror Rather Than Jury As A Whole
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F 17.43c - Juror Inquiry: Any Juror May Communicate With The Court At Any Time
F 3550 Inst 2 - Individual Juror May Communicate With Judge

3rd Circuit Holds That Trial Judge’s “Inappropriate” Comments Vouching For Witness Were Not Cured By Limiting Instruction

In Gov't of the V.I. v. Williams, 370 Fed. Appx. 294, 295-298 (3d Cir. V.I., No. 08-3521, March 17, 2010) the defense attempted to impeach the prosecution’s eyewitness by eliciting the fact that he was high on marijuana when he observed the gunman.  The judge sustained a prosecution objection and made comments which the jurors could have viewed as “vouching for [the witness’s] credibility and supporting his ability to identify the gunman.” Ibid.  Accordingly, the reviewing court held that “the trial judge's comments [were] so out of bounds that no cautionary instruction to the jury could remove their prejudicial effect. [Citation.]”

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16.14.3.8 - Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses
272.5.4 - Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument
272.4.5 - Prosecutor Misconduct: Improper Vouching For Witness
The Shellow Instructions
Jury As Sole Judge Of The Credibility Of The Witness
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PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error
PG X(E)(25) - Credibility Contest Between Prosecution And Defense Witnesses Is Close Case
F 2.019 n9 - Prosecution Misconduct: Vouching For Witnesses
F 3530 Note 1 - Jury Not To Take Cue From The Judge: Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses

Limiting Instructions: Cooperating Witness Guilty Plea (9th Circuit)

The jury must be told "in unequivocal language that the plea may not be considered as evidence of a defendant's guilt." United States v. Halbert, 640 F.2d 1000, 1006-07 (9th Cir. 1981).

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19.4.2 - Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant
19.4.4 - Witness Who Has Pled Guilty: Limited Purpose Instruction
26.2.3 - Witness Who Has Entered Guilty Plea: Limited Purpose Instruction
The Shellow Instructions
Witness Bias: Leniency For Testimony
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F 3.10a - Jury Not To Consider Guilty Plea Of Accomplice
F 334 Inst 2 (a & b) - Jury Not To Consider Guilty Plea Of Accomplice

Sample Instruction: Accomplice Liability – Neither General Suspicion Of Criminal Activity Nor Mere Presence And Knowledge Are Sufficient (1st Circuit)

The Government must prove that one or the other Defendant consciously shared the other Defendant's knowledge of the underlying criminal act and intended to help him. The Defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its execution to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting.   

Source: United States v. Perez-Melendez, 599 F.3d 31, 38 (1st Cir. P.R., No. 08-2225, No. 08-2226, March 17, 2010).

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25.6 - Accomplices: Cautionary Instructions
Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)
251.6 -Mere Presence, Knowledge, Association, Etc.
The Shellow Instructions
Accomplice: Presence And Knowledge Not Sufficient
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F 3.16 - Accomplice as Matter of Law
F 401.6 Inst 12 (a-d) - Presence And Knowledge Insufficient For Aiding And Abetting Liability
F 401 Note 8 - Mere Presence: Argument Strategy

Failure To Administer Oath To Impaneled Jury As Reversible Error (Michigan)

In People v. Becktel (Mich. Ct. App., No. 289533, Mar. 4, 2010) [NOTICE: This opinion is UNPUBLISHED] the defendant was convicted on the basis of a verdict from a jury that never received the oath or affirmation that must be administered between jury selection and the start of trial.  The reviewing court reversed the conviction “in recognition of the need to preserve the fairness, integrity, and public reputation of our judicial proceedings. [Citations.]”  

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10.3 - Swearing Or Impaneling the Jury
16.15.1 - Judge, Rather Than Clerk Or Bailiff, Should Administer The Oath To The Jury

Can Bare Hands Be Deadly Weapons Under The Federal Assault Statute? (9th Circuit)

United States v. Rocha, 598 F.3d 1144, 1153-1158 (9th Cir. Cal., No. 08-50175, March 18, 2010) extensively discussed the state and federal case law on the question of whether body parts, e.g., bare hands, can qualify as a deadly weapon under 18 USC 113(a)(3).  The 9th Circuit concluded that bare hands do not qualify as a deadly weapon under the statute.

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77.3.3.1 - Assault With A Deadly Weapon: Defense Theory That Bare Hands Or Feet Are Not Deadly Weapons
77.3.2.1 - Assault: Footwear May Be Deadly Weapon Depending On Manner Of Use
106.4.4.13 - Dangerous Or Deadly Weapon: Whether Bare Hands Are A Deadly Weapon
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F 9.08a - Assault With Deadly Weapon: Bare Hands Or Feet Are Not Deadly Weapons (PC 245(a))
F 9.08b - Assault With Feet: Footwear As Deadly Weapon
F 860.5 Inst 14 - Assault With Deadly Weapon: Bare Hands Or Feet Are Not Deadly Weapons (PC 245(a))
F 860.5 Inst 15 - Assault With Feet: Footwear As Deadly Weapon

Cross-Racial Identification: Whether Jurors May Rely On “Their Own Experience” (Massachusetts)

In Commonwealth v. Jean, 2010 Mass. App. Unpub. LEXIS 196 (Mass. App. Ct., No. 2010 08-P-1502, Mar. 2, 2010) [NOTICE: This case is UNPUBLISHED] the judge gave the following defense requested instruction:

"Jurors, you may also take into account whether the evidence shows that there were identifications made or attempted by someone of a different race as this may influence someone's ability to make an accurate identification. If this is also your own experience, you may consider it in evaluating the witness's testimony. [¶]  You may also consider of course whether there are other factors present in this case which overcome any such difficulty of identification. For example,  you may conclude that the witness has had sufficient contacts with members of the defendant's race that he would not have greater difficulty in making a reliable identification."

On appeal the defendant contested that the jurors should not be permitted to disregard the cross-racial instruction based on their own personal experience.  The reviewing court relied on Commonwealth v. Bly, 448 Mass. 473, 496, 862 N.E.2d 341 (2007) which affirmed the denial of a requested cross-racial instruction because it was “expressed in broad language that ostensibly replaces the common understanding of the juror."  Thus, the Jean court concluded that the instruction was a “not inappropriate effort to craft an instruction on cross-racial identification that takes Bly’s admonition into consideration.”

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31.4.5 - Juror Misconceptions Regarding Cross-Racial Identification
32.1.2 - Cross-Racial Voice Identification
276.5 - Jury Reliance On Common Sense
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Evidence: Eyewitness Identification
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F 2.92 n17 - Juror Misconceptions Regarding Cross-Racial Identification
F 105.1 Inst 4 (a & b) - Juror Reliance On Common Sense Or Experience May Compromise The Reasonable Doubt Standard
F 315.1.3 Inst 2 (a-e) - Eyewitness Factors: Cross-Racial Identification Increases Risk Of Mistake
F 315.1.4 Inst 3 - Eyewitness Identification: Honest Mistake/Cross Racial [CC 3400 Pinpoint Format]

Sample Instruction: Mere Preparation Insufficient To Prove Intent Element of Attempt (9th Circuit)

The defendant is charged in the indictment with attempting to commit [specify crime charged].  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 intended to [specify elements of crime charged]; and
    
Second, the defendant did something that was a substantial step toward committing the crime.
    
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

Source: 9th Circuit Model Criminal Jury Instructions, 5.3 [Attempt], approved in United States v. Hofus, 598 F.3d 1171, 1175-1177 (9th Cir. Nev., No. 09-10076, March 19, 2010) [jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime].

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66.2 - Attempt: Mere Preparation Or Intent Not Sufficient
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Attempt: Mere Preparation Insufficient
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F 7.50a - Resisting Executive Officer (PC 69): Requirement Of Specific Intent

Even If There Is No “Live” Issue As To An Element Of The Charge The Prosecution’s Burden To Prove The Element Remains (Massachusetts)

In Commonwealth v. Perez, 76 Mass. App. Ct. 439, 443 (Mass. App. Ct., No. 08-P-1824, March 5, 2010) the only evidence that the substance at issue was cocaine consisted of drug certificates which were improperly admitted per Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542, 174 L. Ed. 2d 314 (2009).  The Massachusetts appellate court reversed even though the nature of the substance was not a “live" issue: “The Commonwealth bears the burden of proving beyond a reasonable doubt every element of the charged crime of distribution of cocaine, particularly whether the substances were cocaine and their weight. The Commonwealth argues that the nature of the substances was not a live issue at trial and that the defense concentrated on claiming that the evidence was insufficient to show that the defendant possessed the cocaine that had been buried. These arguments are unavailing. The Commonwealth is not relieved of its burden of proving every element of a crime beyond a reasonable doubt either by a defendant's failure to contest an essential element, [citation], or by pursuing his particular theory of the case. [Citations.]."

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3.1.2 - Duty To Instruct On Elements Of Charge Even If Uncontested
270.2 - Presumption Of Innocence - Prosecution Burden To Prove Guilt 
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Evidence Generally
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PG X(C)(1)(b)(I) - Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt
PG X(C)(1)(d) - Reversal Per Se Applies Even If Evidence “Uncontroverted”

Do Jurors Read The Written Instructions?

Often courts presume that the jurors fully and carefully read the written instructions they are given during deliberations.  See e.g., People v. McLain (1988) 46 C3d 97, 111, fn 2 [With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed “that the jurors were guided by the written version ...”]; see also People v. Prieto (2003) 30 C4th 226, 255 [“the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions”]; People v. Majors (1998) 18 C4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury]; People v. Crittenden (1994) 9 C4th 83, 138 [written instructions control over misspoken oral instructions].) [relying on written instruction to cure error in the oral instructions].  In reality, however, there is no assurance that the jurors even look at the written instructions much less fully and carefully read them. It is only through oral instruction that it “can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (1985) 10 Kan.App.2d 397 [699 P2d 585]; see also State v. Castoreno (1994) 255 Kan. 401, 411-12 [874 P2d 1173, 1180-81; People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Ibid.).  For example, in Fowler v. Lewis, 2010 U.S. Dist. LEXIS 36795, 28-38 (N.D. Cal., No. C-02-03834 RMW, Mar. 19, 2010) post-verdict juror declarations indicated that the jury failed to consult the jury instructions.  However, the declarations were excluded under FRE 606(b).

Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition.

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2.1 - Instruction Delivery: Written/Oral/Recorded
2.5.11 - Preservation Of Written Instructions Given To The Jury
276.1.1 - Deliberations: Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
296.2.2.6 - Written Instructions To The Jury As Reversible Error
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PG V(G) - Written Instructions to the Jury
F 1.00 n3 - Written Instructions To The Jury
F 200.1.2 - Availability Of Written Instructions

Juror Unanimity: Failure To Tailor Instructions To The Facts (Florida)

In Lark v. State, 29 So. 3d 1165, 1165-1166 (Fla. Dist. Ct. App. 3d Dist., No. 3D08-1347, March 3, 2010) the information charged Lark with, in relevant part, one count of resisting Officer Gonzalo Garcia of the Miami Springs Police Department without violence (count 4), and one count of resisting Officers Edwin Diaz and/or Patrick Calvo of the Miami-Dade County Police Department without violence (count 7). The evidence at trial was that, following a robbery, Lark drove a vehicle in a high speed chase with two police cars, one driven by Officer Garcia, the other driven by Officers Diaz and Calvo. Officers Garcia and Calvo testified at trial, Officer Diaz did not.

The record reflects that the jury instruction on count 4 for resisting a law enforcement officer without violence correctly identified Officer Garcia as the officer involved in that count. However, the instruction relating to count 7 mistakenly identified Officer Garcia rather than Officer Diaz as one of the officers involved in that charge, asking whether "Lark resisted, obstructed or opposed Gonzalo Garcia and/or Patrick Calvo" without violence. Although this error was brought to the trial court's attention, and the court agreed to rectify it, the instruction went to the jury with the erroneous substitution of Officer Garcia for Officer Diaz. The jury returned a general verdict finding Lark guilty on both count 4 and 7.

The reviewing court concluded that the erroneous jury instruction combined with the general verdict effectively permitted the jury to twice find Lark guilty for the same offense of resisting Officer Garcia without violence. See Gaskin v. State, 869 So. 2d 646, 647 (Fla. 3d DCA 2004) [finding reversible error where the improper jury instruction provided a legally insufficient basis for a conviction and where the general verdict of guilty as to the charged crime made it impossible to determine that the verdict was not based on the improper portion of the jury instruction]. The court therefore reversed count 7. 

Note: Even if the correct officer had been included the count 7 instruction may still have been defective by using “and/or” language. See this post. 

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3.2.10 - Duty To Relate The Law To The Facts
273.6 - When Is Jury Unanimity Instruction Required
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PG XI(B) - Propriety Of Modified Or Tailored CALCRIM Instructions
F 17.01 - Juror Unanimity
F 3500 - Unanimity/Duplicity
FORECITE CG 3.7 - [Failure To Tailor Elements To The Facts And Charge]

9th Circuit Holds That Specific Juror Unanimity Does Not Apply To The Substantial Step Element Of Attempt Crimes

The 2003 version of the 9th Circuit’s model instruction on attempts provides as follows:

"Second, the defendant did something that was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step." Model Crim. Jury Instr. 9th Cir. 5.3 (2003).

In United States v. Hofus, 598 F.3d 1171, 1175-1177 (9th Cir. Nev., No. 09-10076, March 19, 2010) the judge failed to give this specific unanimity portion of the instruction.  On appeal Hofus argued that the judge erred in light of Richardson v. United States, 526 U.S. 813, 817 (1999) which held that "a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element." 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). The appellate court concluded that the failure to give the unanimity language was not error because the jurors need not unanimously agree as to which particular act by the defendant constitutes a substantial step.  Hofus, 598 F.3rd at 1176.  Thus, even though the jurors must unanimously agree that the prosecution has proved each element of the charge, the jurors “need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime. [Citation to Richardson.]” Under this interpretation even if different jurors found that different actions constituted Hofus's substantial step, the differences would be differences only of means. Ibid.

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Chapter 66: Attempt
Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)
The Shellow Instructions
Attempts
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F 6.00 - Attempt
F 460 - Attempt
F 17.01 - Juror Unanimity
F 3500.1 - Unanimity: Duty To Instruct
Lesser Included Offenses III Attempts

Review Of Jury Instruction On Habeas Corpus: Standard Of Prejudice (USSC)

"Habeas relief for a due process violation concerning an absent or defective jury instruction is available only when the absence of an instruction, or a defective instruction, infects the entire trial with unfairness." Albrecht v. Horn, 485 F.3d 103, 129 (3d Cir. 2007) (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977) (an improper state court instruction warrants the granting of habeas relief only upon a showing that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely [that] the instruction is undesirable, erroneous, or even universally condemned") (internal citations and quotation marks omitted). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Id., see also Real v. Shannon, 600 F.3d 302, 309-310 (3d Cir. Pa., No. 07-4532, March 3, 2010).

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Chapter 298: Habeas Corpus
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PG VII - Federal Constitutional Issues

Conviction Reversed For Failure To Instruct Jury To Determine Whether Or Not A Crucial Witness Was An Accomplice (Arkansas)

In Torrence v. State, 2010 Ark. App. 225, 1-5 (Ark. Ct. App., No. CACR09-679, March 10, 2010) the primary evidence against the defendant consisted primarily of the testimony of a witness by the name of Pennington whose testimony was the sole corroboration of the testimony of witness Jones, who was an accomplice to the crime. At trial, appellant asserted that Pennington was also an accomplice and moved at the appropriate times for a directed verdict on the ground that the testimony of one accomplice cannot provide corroboration for that of another. See Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976). The trial court denied the motions, ruling that Pennington was not an accomplice as a matter of law. At the close of the evidence, appellant proffered a jury instruction based on Arkansas model instruction No. AMI Crim. 2d 403, which would have had the jury decide as a factual matter whether Pennington was an accomplice. The trial court refused to give the requested instruction.

The reviewing court held that the trial court erred in refusing to submit the accomplice issue to the jury via the requested instruction: “There was clearly a fact question as to Pennington's accomplice status: Pennington admitted that he himself had told some people that he started the fire. Even though Pennington later claimed to investigators that he was "only kidding," we think that Pennington's admission of making a statement against his own penal interest is more than sufficient to raise a jury question as to whether he was an accomplice. Even where the verdict is supported by substantial evidence, we will reverse where a witness's testimony raises a question as to his accomplice status and the trial court refuses to give a correct instruction permitting the jury to decide the question. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). We reverse and remand on this ground.” Torrence v. State, supra.

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25.6 - Accomplices: Cautionary Instructions
38.1 - Accomplice Corroboration
The Shellow Instructions
Accomplices
Accomplice Witness, With Immunity
Forecite California™
F 334 - Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice
F 335 - Accomplice Testimony: No Dispute Whether Witness Is Accomplice

Sample Instruction: Definition Of The Term “Especially” (Arizona)

“Especially” means unusually great or significant.

Source: Given in State v. Cropper, 223 Ariz. 522, 528 (Ariz.,No CR-08-0116-AP, March 11, 2010,).

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
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PG V(A)(8) Terms With Specialized/Technical Meaning:  Sua Sponte Duty to Define

Does Trading Drugs For A Gun Constitute Use Of Firearm In Furtherance Of A Drug Trafficking Crime? (1st Circuit)

In United States v. Gurka, 605 F.3d 40, 44-46 (1st Cir. R.I. 2010) the defendant traded drugs for a firearm. He argued that this did not violate 18 USC 924(c)(1)(A) because he did not "possess" the guns until the drug sale had been completed and, as a result, his possession did not "further" the drug trafficking crime.

The reviewing court rejected this argument:

As the district court said, whether or not receiving a gun is "use," [w]hen one receives a gun he clearly possesses it; and his possession of the gun at the end of the transaction is essential to the completion of that transaction. Common sense tells us if  the defendant had not accepted the gun (and never possessed it) the transaction would not have been consummated. Gurka, slip op. at 5. Given the terms of his barter agreement with the agent, Gurka's possession of the gun was an essential component of the drug sale. See Gardner, 2010 U.S. App. LEXIS 5029, 2010 WL 801707, at *4 ("Whether a person who acquires a gun with drugs does so in order to obtain the gun . . . or to sell drugs, that person furthers the sale of the drugs by possessing the gun because, in either case, but for the possession of the gun, the sale of drugs would not have occurred."); Mahan, 586 F.3d at 1189 ("When a defendant accepts a gun as payment for his drugs, his sale-and thus his crime-is incomplete until he receives possession of the firearm."); see also United States v. Frederick, 406 F.3d 754, 764 (6th Cir. 2005) ("As a matter of logic, a defendant's willingness to accept possession of a gun as consideration for some drugs he wishes to sell does promote or facilitate that illegal sale.") (internal quotation marks omitted).

To the extent that Watson has any bearing on Gurka's claims, it is in the Supreme Court's emphasis on the normal meaning of words, see 552 U.S. at 79, which only reinforces our conclusion. Gurka's possession of the gun "furthered" the drug crime with which he is charged by the ordinary understanding of the term. "[W]hile it is not natural to say that a person who trades drugs for guns 'uses' the guns in the transaction, it is natural to say that a person who trades drugs for guns 'possesses' the guns 'in furtherance of' the transaction." Gardner, 2010 U.S. App. LEXIS 5029, 2010 WL 801707, at *4.

Our holding as to the possession of a firearm in furtherance of a drug crime prong is consistent with the six circuits to have reached this issue, both before and after Watson. In United States v. Dolliver, 228 F. App'x 2 (1st Cir. 2007) (per curiam), which was unpublished, and issued several months before Watson was decided, we noted a "growing consensus" among circuit courts that bartering drugs for firearms constituted possession in furtherance. Id. at 3; see United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007); United States v. Boyd, 209 F. App'x 285, 290 (4th Cir. 2006) (per curiam); Frederick, 406 F.3d at 764.

Post-Watson, three more circuits have arrived at the same result. See Doody, 600 F.3d 752, 2010 WL 1253608, at *3; Gardner, 2010 U.S. App. LEXIS 5029, 2010 WL 801707, at *5; Mahan, 586 F.3d at 1189; see also United States v. Sterling, 555 F.3d 452, 458 (5th Cir. 2009) ("We . . . assume, without deciding, that bartering drugs for guns constitutes 'possession in furtherance' of a drug trafficking offense . . . ."). These courts' clear and persuasive reasoning further supports our conclusion.

The reviewing court also rejected Gurka’s argument that “fleeting” possession does not satisfy the statute:

“Section 924(c)(1)(A) applies to any possession of a gun that furthers a drug trafficking crime. Gurka's possession of the guns, however brief, ‘made the drug transaction possible, and thus furthered it, and § 924(c) requires no more.’[Citation]” Id. at p, 45.

United States v. Gurka, 605 F.3d 40, 44-46 (1st Cir. R.I. 2010).

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117.3 - Use Or Carrying Of A Weapon Or Firearm: Defenses And Defense Theories
18 USC 924(c): Using Or Carrying A Firearm During And In Relation To Drug Trafficking Or Crime Of Violence

Sample Instruction: Prosecution’s Burden To Prove Existence Of Conspiracy To Commit Hobbs Act

To sustain the burden of proof of the crime of conspiracy to commit Hobbs Act robbery as charged in Count 1 of the indictment, the Government must prove the following three essential elements beyond a reasonable doubt. Number one, the conspiracy, agreement, or understanding to commit Hobbs Act robbery as described in the indictment was formed, reached or entered into by two or more persons. Number two, at some time during the existence or life of the conspiracy, agreement or understanding, the defendant knew the purposes of the agreement and with that knowledge then deliberately joined the conspiracy, agreement or understanding. And three, at some point during the existence or life of the conspiracy, agreement or understanding, one of its alleged members knowingly performed one of the overt acts charged in the indictment, and did so in order to further to-advance the purpose of the agreement.  So, unless the Government proves beyond a reasonable doubt that a conspiracy as I have just explained it, actually existed, then you must acquit the defendants.
   
Source: Adapted from portion of instruction approved in Austin v. United States, (E.D. Pa., No. 05-280, Mar. 10, 2010).

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Chapter 83: Conspiracy
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Conspiracy
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F 415.6 - Conspiracy: Defense Theories
F 415.8 - Conspiracy: Unanimity/Duplicity/Multiplicity
F 6.10 - Conspiracy

Bifurcated Trial: Whether First/Phase Trial Instructions Must Be Reread Verbatim At The Second/Trial Phase

In bifurcated trial there may be a need to clearly instruct the jurors at each phase of the proceedings.  For example, in California there has been some confusion in death penalty cases as to whether the judge may refer back to the guilt phase instructions or whether a completely new set of instructions should be given at the penalty phase.  (See People v. Babbitt, 45 Cal.3d 660, 718, fn 26 (1988).) 

In Hite v. Evans, (C.D. Cal. March 10, 2010) the district court noted that it had been “unable to find any United States Supreme Court case holding that jury instructions given in the first phase of a bifurcated jury trial must be repeated verbatim, rather than incorporated by reference, to the same jury for the second phase of the trial, let alone when the second phase of the trial is submitted to them for decision one day after the first phase of the trial was submitted to them.”  Nevertheless the better practice – at least in death penalty cases – is to provide the jury with a completely new set of instructions for the penalty phase.  See People v. Weaver, 26 Cal.4th, 876, 982 (2001).)

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F 8.84.1 - Guilt Phase Instructions

Leaving The Scene Of The Crime Is Not Flight (California)

See Anderson v. Felker, (C.D. Cal. March 10, 21010):  

The California Court of Appeal held that the trial court erred by instructing the jury pursuant to CALJIC 2.52 because there was nothing in the evidence to suggest that Petitioner’s act of driving away from the bar “was anything more than a mere departure from the scene of the crime,” and did not infer that he was motivated by a consciousness of guilt.” 

See also this post.

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34.3 - Flight
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PG VII(C)(7.1) -  Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
F 372.3 - Flight: Cautionary Instructions

Sample Instruction: Medicare Fraud (18 USC 1347) – Reasonable Interpretation Of Applicable Codes, Rules Or Regulations

A statement or claim is not knowingly and willfully false if it is the subject of a disputed legal question or if it represents a reasonable interpretation of applicable rules or regulations. In this regard, the government has the burden of proof beyond a reasonable doubt that the defendant’s statements or claims were not a reasonable interpretation of any applicable codes, rules or regulations.

Source: Given in United States v. Isley, 369 Fed. Appx. 80, 90 (11th Cir. Ga., No. 08-14534, March 10,  2010) [NOTICE: This opinion is UNPUBLISHED.]

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252.9 - Mistake Of Law
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F 3407 - Defenses: Mistake Of Law