Federal District Court Relies On “Quick Verdict” In Finding That The Prosecutor’s Improper Closing Argument “Poisoned The Well”

A new trial may be granted pursuant to FRCP 22(a) in “the interests of justice” where there has been improper comment and argument by the government and the improper comments have so "poisoned the well" that the trial's outcome was likely adversely affected. United States v. Azubike, 504 F.3d 30, 38-39 (1st Cir. 2007); United States v. Carpenter, 494 F.3d 13, 22-23 (1st Cir. Mass. 2007). In making the latter assessment, factors to be considered include the extent of the improper remarks, the context, the likely effect of any curative instructions, and the weight of the evidence against the defendant. Carpenter, 494 F.3d at 23; see also Azubike, 504 F.3d at 39.

In United States v. Carpenter, 2011 U.S. Dist. LEXIS 98548 (D. Mass. 9/1/2011, No. 04-10029-GAO) the defendant was charged with nineteen counts of fraud each of which required consideration of evidence specific to that count.  The prosecutor, however, emphasized a “global” approach in closing argument which improperly suggested that the jurors need not consider the specifics of each count.  And, the fact that the jurors only deliberated for approximately two hours before convicting the defendant suggested that the prosecutor’s argument had poisoned the well:

“A jury is not required to deliberate for any specific amount of time before reaching a verdict. The speed of the jury's deliberations certainly could not be an independent factor justifying the grant of a new trial motion. However, the brevity of the deliberations in this case raises a serious concern that the jury was led into adopting a global theme that allowed it to resolve all nineteen counts in a short time.

. . .

If the twelve jurors had spent an equal amount of time on the transactions of each of the seven exchangors over the roughly two hours they spent deliberating, they would have spent a little more than fifteen minutes on each. It is possible that a diligent and efficient jury could have given adequate consideration to the matters in that time, but the possibility is too palpable to ignore that the jury instead took a more generalized view in response to the government's meta-narrative of Benistar's breaches of promises of safety and security driven by the defendant's greed.

. . .

It is possible the jury carefully focused on the proper questions and thoroughly examined the evidence in its variations with respect to each of the exchange transactions. If so, the verdict would be soundly based. It is also possible, however, that the government's repeated emphasis on the defendant's having broken his promises to the exchangors in order to enhance his own wealth by using their money distracted the jury from their proper inquiry and led them to render a quick verdict that was not based on the necessary conclusions about fraud, most especially specific intent to defraud. Reluctantly, this Court concludes that the government's arguments ‘poisoned the well’ to the extent that the verdict was likely affected. It must be set aside.”

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272.4 Prosecutor Misconduct During Summation/Closing Argument

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PG X(G)(1)  Argument Of Prosecutor Heightens Prejudice

Counsel Was Ineffective By Arguing Against A Lesser Included Instruction Based On A Misapprehension Of The Law

"[C]ourts may not indulge 'post hoc rationalization' for counsel's decision making that contradicts the available evidence of counsel's actions. . . ."  Thus, in Loughmiller v. Dickinson, (E.D. Cal. 9/2/2011, No: 2:09-cv-02094-JKS) defense counsel was deficient when he argued against a lesser included manslaughter instruction based on a misapprehension of the law. By doing so, counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Harringtonv. Richter, 562 U.S.____; 131 S. Ct. at 790 (2011) Accordingly, the Court of Appeal erred when it concluded that Loughmiller received effective assistance of counsel. Loughmiller, supra.

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92.9.6.3 Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective Assistance Of Counsel

265.3 Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction

295.3.2 Ineffective Assistance Of Counsel At Trial

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PGVI(C)(4)  Failure to Request Necessary Jury Instructions as IAC

LIO II(D) Duty Of Court To Instruct On Lesser Included Offense Over Defense Objection

9th Circuit Concludes That Jurors Would Have Been Misled By Contradictory Instructional Language Defining Felony Murder

Reciting the language of Arizona's felony murder statute, the trial judge in Jackson v.Ryan, (9th Cir. Ariz. 9/1/2011, No. 10-15067) stated that: “[A] person commits first degree murder if such person, acting alone or with one or other persons, commits or attempts to commit robbery or kidnapping, and in the course of and in the furtherance of such offense, or the immediate flight from such offense, such person or another person causes the death of any person.” However, the judge went on to say that the "homicide [need not] have been committed to perpetrate the felony." And, it ended by declaring: "It is enough if the felony and the killing were part of the same series of events."

The reviewing court held that  the introductory sentence reciting the statutory language was not sufficient to cure the court's final and incorrect assertion that felony murder had no facilitation requirement.

First, the reviewing court emphasized that in assessing how a reasonable juror would have understood the charge, the court must pay "careful attention to the words actually spoken to the jury." Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (citing Ulster Cnty. Court v. Allen, 442 U.S. 140, 157-59 n.16, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)).

Next, the court noted that (1) A reasonable juror would have understood the court's opening sentence to mean that there is an "in furtherance of" or facilitation element in felony murder and (2) at the same time, a reasonable juror would have understood the court's final "same series of events" sentence as meaning the opposite—that there must be only a temporal link between the underlying felony and the homicide. Finally, the court looked to "'the context of the overall charge'" (Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)) and found three features illustrative: (1) the fact that the "same series" sentence was the court's final word on the elements of felony murder, (2) the use of the phrase "[i]t is enough," and (3)the lack of any other clarifying instruction. Taking these factors together, the court held that a reasonable juror would have resolved the court's contradictory explanations of felony murder by finding that the "same series of events" instruction negated its "in furtherance of" instruction. Hence, there was “a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution."  Estelle v.McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

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92.9 Felony Murder, Statutorily Specified Offenses

300.4.5 Constitutional Claims: Contradictory Instructions On Element

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PG VII(C)(10) Contradictory Instructions On Element

F 8.21 Felony Murder

F 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act

Sample Instruction: Disclosure Of Insider Information – Lack Of Intent As Defense Theory (2nd Circuit)

In this case, ________ <name of defendant> contends that he did not provide ________ <name of person receiving information> with insider information with the understanding that she would use [it] to buy and sell securities. According to ________ <name of defendant> , any material non[-]public information that ________ <name of person receiving information> may have received from him was shared with her as part of a relationship in which they shared work and personal confidences.

[Source: Given and approved in United States v. Gansman, (2d Cir. N.Y. 9/9/2011, No. 10-0731-cr).]

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Chapter 45: Criminal Intent

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Criminal Intent

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F 3.30 - Act and Intent

F 3.31 - Specific Intent

Exhibiting Harmful Material To A Child: Failure To Sufficiently Define Knowledge Element Was Reversible Error (Wisconsin)

State v. Gonzalez, 2011 WI 63, P94 (Wis. 7/7/2011, No. 2009AP1249-CR) held that the jury was not instructed explicitly or implicitly that it had to determine whether the defendant had knowingly exhibited the harmful material to the child, as distinguished from accidentally or unknowingly exhibiting harmful material to the child. The jury instruction did not sufficiently define the first element of the crime, namely, that the State must prove beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. Accordingly, the instruction misled the jury into believing that the prosecution did not have the burden of proving every element of the crime beyond a reasonable doubt.  Therefore the jurors likely applied the potentially confusing instruction in an unconstitutional manner.

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Chapter 47: Knowledge

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Knowledge

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F 3.30a General Intent: Knowledge Element

F 1140 Showing Or Sending Harmful Material To Seduce A Minor (PC 288.2(a) & (b))

Judge’s Decision To Not Answer A Juror Inquiry Should Be Explained To The Jurors (Wisconsin)

Even if  The judge’s communication with the deliberating jury is a critical stage of the trial. State v.Anderson, 2006 WI 77, ¶¶67-69, 291 Wis. 2d 673, 717 N.W.2d 74. However, it has been argued that the judge’s decision not to respond to a jury question may not be equivalent to communicating with the deliberating jury such that a decision not to respond constitutes a critical stage of the trial. See Statev. Gonzalez, 2011 WI 63, P94 (Wis. 7/7/2011, No. 2009AP1249-CR).  In Gonzalez, the reviewing court did not decide whether a trial judge’s decision not to respond to a jury question constitutes a critical stage of the trial, or whether the judge’s delay of two to three hours in advising counsel of the jury's questions violated the defendant's constitutional rights.

The court did, however, recommend that judge’s apply Principle 15D of the American Bar Association Principles for Juries & Jury Trial as a best practice standard. Principle 15D states as follows:When jurors submit a question during deliberations, the court, in consultation with the parties, should supply a prompt, complete and responsive answer or should explain to the jurors why it cannot do so. ABA Principles for Juries and Jury Trials Principle 15 is entitled "Courts and Parties Have a Duty to Facilitate Effective and Impartial Deliberations." Accordingly, even if the judge decides not to respond to a juror inquiry that decision should be discussed with parties and explained to the jurors.

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Chapter 283: Communication With Jury

285.3 Supplemental Instructions: Jury Inquiry And Instructional Issues

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PG IX(D) -Response to Jury Inquiry

PG IX(F) -Sample Briefing on Court's Duty to Respond to Juror Inquiry

False In One – False In All Instruction Properly Denied (New Jersey)

State v.Scott, (App.Div. 7/6/2011; [Notice: This opinion is UNPUBLISHED.]) No. A-4271-08T4 considered whether the judge should have given the following instruction:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

The reviewing court noted that a "False in One - False in All" charge is not mandatory; rather, it is within the judge's discretion to give this charge in situations where the judge "reasonably believes a jury might find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84, 161 A.2d 511 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The charge may be given "when a witness intentionally testifies falsely as to some material fact." State v. Fleckenstein, 60 N.J. Super 399, 408, 159 A.2d 411 (App. Div.), certif. denied, 33 N.J. 109, 162 A.2d 338 (1960). To justify the charge, there must be willful falsification or "conscious falsehood," and the falsehood must be on a material, not a collateral, point. Ernst, 32 N.J. at 583.

Accordingly, the instruction was properly rejected because there was nothing in the record indicating the witness testified falsely as to a material fact.

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Chapter 27: Witness Credibility

27.7.8 Witness Willfully False (Falsus In Uno): Definition of "Material Part"

297.2.18 Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions

The Shellow Instructions

Witness Perjury: Falsus In Uno

Witness Credibility: Character For Truthfulness/Untruthfulness

Witness Credibility: Generally & Miscellaneous

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F 2.20 Witness Credibility

F 105.2 Jurors May Consider Anything Re: Truth Or Accuracy

Negating Inference That Defendant Has A Criminal Record Because Law Enforcement Had His/Her Fingerprints (New Jersey)

When the jurors have heard evidence that the defendant was fingerprinted on a prior occasion or was identified by his or her fingerprints a fingerprint instruction may be warranted. Cf., State v. Franklin, (App.Div. 7/5/2011, No. A-3559-09T1; [Notice: This opinion is UNPUBLISHED.]) [The lack of jury charge on fingerprints does not constitute error, let alone plain error, because no evidence of defendant's prior fingerprinting was admitted nor did the State assert that defendant was identified by his fingerprints].

For example, the standard fingerprint instruction in New Jersey explains that law enforcement’s possession of the defendant’s fingerprints does not mean that he/she “has a criminal record” because there are many ways fingerprints may be obtained from “legitimate sources.” See fingerprint instruction at www.judiciarystate.nj.us/criminal/juryindex.pdf. 

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25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted

32.2.3 Fingerprints: No Speculation As To Why Defendant’s Fingerprints Were On File

Polling Of Jurors: Judge Improperly Asked Dissenting Juror Why She Was Having “Second Thoughts” (Nevada)

In Salettav. State, 254 P.3d 111, 112-116 (Nev. 7/7/2011, No. 52428) the defendant was charged with indecent or obscene exposure. Following a very short deliberation, the jury returned a guilty verdict.

After the verdict was published and in response to a defense request for a jury poll, the judge polled the jury. The first six jurors affirmed the verdict, but the seventh juror dissented from the verdict. The court continued its poll, and the remaining jurors affirmed the verdict. Confronted with a non-unanimous jury poll, the district court excused all but the seventh juror and ordered an evidentiary hearing. The seventh juror was sworn in and examined by the State, defense, and the court. The juror was asked why she was having "second thoughts," whether she had enough time to deliberate, if she was coerced, when she changed her vote, and whether further deliberation would change her mind. The State moved to disqualify the seventh juror and use an alternate juror, and the defense moved for a mistrial based on the seventh juror's testimony. The court denied both motions, gave the jury additional instructions, and ordered them to resume deliberation.  The jurors again returned a guilty verdict. A subsequent jury poll revealed that the verdict was  unanimous.

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287.5 Jury Poll

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PG V(L)  Polling Of Jury Following Verdict

Maryland Court Holds That Jurors With Expertise In Photograph Enlargement May Use Magnifying Glass To Enhance Photographic Exhibits During Deliberations

In Charleauv. State, (Md. Ct. Spec. App. 9/2/2011, No. 2644, September Term, 2009) the jurors were instructed as follows:

In evaluating this evidence, you should consider it in light of your own experiences. You may draw any reasonable inferences or conclusions from the evidence that you believe to be justified by common sense and your own experiences.

During deliberations a juror who purported to have expertise in photograph enhancement used a “magnifying glass or something of that nature, and that with that equipment and with his expertise they were able to blow up this picture in the jury room and then draw conclusions from that, and apparently one juror was able to or purported to say that his expertise allowed him to conclude that the person in the picture was in fact Mr. Charleau.”

The reviewing court held that no misconduct occurred because (1) a magnifying glass in no different than reading glasses – which obviously jurors may use and (2) a juror’s personal expertise may properly be utilized during deliberations:

“As the State maintained in its brief, ‘[t]here would be no cause to complain if a juror who was a medical doctor, for example, used his or her training and experience as a doctor in evaluating the evidence during jury deliberations.’ Likewise, there are many ways in which a person may have experience in image enhancement, which range from enlarging photos to working in a laboratory.”

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16.6.7 Juror Claim Of Personal Expertise During Deliberations

29.2.14 Jury Reliance On Professional Expertise Of Jurors

Chapter 276: Deliberations: Conduct and Duty of the Jury

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F 101.1 Note 8 Personal Expertise Of Juror

F 332 Inst 8 Juror Claim Of Personal Expertise During Deliberations

Right To Special Instruction To Correct Mistake Or Omission In General Instruction (Tennessee)

In Statev. Mayhew, (Tenn. Crim. App. 7/8/2011, No. W2009-02184-CCA-R3-CD) the defense claimed that the trial court erred by denying his request for a lost evidence instruction concerning certain bed linens that may have been taken from the victims' apartment during the initial police investigation, but which could not be located years later in preparation for trial. The reviewing court observed that a “‘defendant has a constitutional right to a complete and correct charge of the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.’ [Citation.]Special jury instructions may be given ‘to supply an omission or correct a mistake made in the general charge, to present a material question not treated in the general charge, or to limit, extend, eliminate, or more accurately define a proposition already submitted to the jury.’ [Citation.]"

The Tennessee Court of Appeal concluded that no special instruction was required because the loss of this evidence did not render the defendant's trial fundamentally unfair.

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297.2.11 Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous OrIncomplete Written Instruction

297.2.12 Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error InOriginal Instructions

297.2.13 Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One

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PG V(C)  Correction Of Defects

PG X(E)(9) Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction

PG X(E)(10) Correct Supplemental Instruction Does Not Cure Error

“Ill-Advised” Judge’s Comment Which Trivialized The Oral Rendition Of The Instructions (Kansas)

In Statev. Crawford, 2011 Kan. App. LEXIS 134, 33-35 (Kan. Ct. App. 9/9/2011, No. 103,881) the defendant argued that the district judge committed judicial misconduct and prejudiced his right to a fair trial by making the following statement immediately before reading the instructions to the jury."We're going to get jury instructions before we get closing arguments, and there's a silly rule that I get to read them to you even though you have them in front of you, although you have sworn you understand the English language well enough to read and answer the questions."

The reviewing court concluded that the comment was “ill-advised” by not prejudicial.

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16.14 Conduct Of Judge

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PG V(A)(4) Duty to Protect Defendant’s Rights

PG X(E)(2) Influence Of The Judge

Kansas Rejects Jury Nullification Instruction

The defendant in State v. Naputi, (Kan. 9/2/2011, No. 101,354) contended that the district court erred when it declined to modify the jury instruction on burden of proof to reflect the jury's power of nullification. Naputi argued that the jury's inherent power to ignore the rule of law should be reflected in the jury instructions and that the  severity of the sentence attached to his crimes is not intuitive because juries would not necessarily know that the act of touching a child on the thigh could result in a hard 25 life sentence, under “Jessica’s Law” which is a more severe punishment than if the defendant had intentionally killed the child without premeditation. Naputi cited two additional cases that recognized the power of jury nullification, but reject the idea that a defendant is entitled to have the jury informed of that power. See Silvers v. State, 38 Kan. App. 2d 886, 890, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008); People v. Nichols, 54 Cal. App. 4th 21, 23-24, 62 Cal. Rptr. 2d 433 (1997).

The reviewing court rejected this claim based on State v. McClanahan, 212 Kan. 208, Syl. ¶¶ 3, 4, 510 P.2d 153 (1973), which disapproved of the "do what you think is fair instruction" that was then set forth in the standard Kansas instruction, PIK Crim. 51.03. The instruction informed the jury that its members had the power to consider their own conscientious feelings about what was fair under the circumstances and to acquit the defendant if justice required such a result. 212 Kan. at 209. McClanahan found this instruction improper because it allowed the jury to ignore legal principles under the guise of a "fair" outcome. 212 Kan. at 214-15. McClanahan declared that "it is  [*23] the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon." 212 Kan. at 217.

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Chapter 280:Jury Nullification

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PG IX(K) -Jury Nullification Issues and Sanctions Against "Offending Jurors"

F 17.41.1n1  Juror Misconduct: Nullification --Strategy Note

F 200 Note 1 Duties Of Judge/Jury: JuryNullification

Manslaughter As Lesser Included Of Murder: Provocation/Heat Of Passion – Jurors Must Consider Verdicts Simultaneously (Kansas)

In jurisdictions where provocation and heat of passion can mitigate or reduce murder to manslaughter the order of deliberations may be important.  For example, if the jurors are told to consider and reject the murder allegation before considering the lesser offense of manslaughter the jurors may never be required to consider the impact of heat of passion on the murder charge.

This concern has been addressed in a line of Kansas cases the most recent of which is State v. Miller, 2011 Kan. LEXIS 311, 5-17 (Kan. 9/2/2011, No. 100,247) which reversed because the instructions, closing argument and verdict forms “led the jury to consider the lesser offenses sequentially rather than simultaneously.”  Miller, supra.  Miller relied on two earlier cases, Statev. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001) and State v. Graham, 275 Kan. 831 (Kan. 2003).  In both Graham and Cribbs the jurors were given the standard instructions requiring sequential rather than simultaneous consideration of the murder and manslaughter alternatives.  “. . .[T]his ‘reordering’ of the jury's decision-making process deprived the jury of the opportunity to consider the mitigating circumstances of heat of passion or sudden quarrel that reduce an intentional homicide from murder to voluntary manslaughter.” 275 Kan. at 837.  Similarly, the Court of Appeals panel in Cribbs found that the instruction told the jury, in essence, it "need not bother" to consider attempted voluntary manslaughter unless and until it failed to agree on defendant's guilt of attempted second-degree murder. 29 Kan. App. 2d at 924. Thus, the panel recognized that the jury "may never have fully analyzed whether the shooting was the product of heat of passion or a sudden quarrel, the factors that distinguish the greater and the lesser crimes and the reasons they require simultaneous deliberation when the evidence could support either." 29 Kan. App. 2d at 924.

In sum, “where there is evidence of mitigating circumstances justifying an instruction on voluntary manslaughter in a case where voluntary manslaughter is a lesser included offense, a failure to instruct the jury to consider such circumstances in its determination of whether the defendant is guilty of second-degree murder, is always error—and in most cases—presents a case of clear error." Graham, 275 Kan. at 837.

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92.7.3 Intentional Murder: Premeditation And Deliberation Issues

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F 520.6 Inst 1 The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder

Sample Instruction: Willful Blindness

In this case, there is a question whether ________ [defendant] knew that ________ [insert fact or circumstance at issue, e.g., “the luggage in question contained cocaine”]. When, as in this case, knowledge of a particular fact or circumstance is an essential part of the offense charged, the government may prove that ________ [defendant] deliberately closed his eyes to what would otherwise have been obvious to him.

No one can avoid responsibility for a crime by deliberately ignoring what is obvious. Thus, you may find that ________[defendant] knew that ________ [insert fact or circumstance at issue, e.g., “the luggage in question contained cocaine”] based on evidence which proves that: (1) ________ [defendant] consciously and deliberately tried to avoid learning about this circumstance.

You may not find that ________ [defendant] knew that ________ [insert fact or circumstance at issue, e.g., “the luggage in question contained cocaine”]if you find that the defendant actually believed that this circumstance did not exist. Also, you may not find that ________ [defendant] knew that ________ [insert fact or circumstance at issue, e.g., “the luggage in question contained cocaine”]if you find only that ________ [defendant] should have known of the circumstance or that a reasonable person would have known of a high probability of the circumstance. It is not enough that ________ [defendant] may have been stupid or foolish, or may have acted out of inadvertence or accident. You must find that ________ [defendant] was actually aware of a high probability of the fact that ________ [insert fact or circumstance at issue, e.g., “the luggage in question contained cocaine”], deliberately avoided learning about it, and did not actually believe that it did not exist.

[Source: Given in United States v. Cordero, (E.D. Pa. 9/6/2011, No. 08-328-1,Criminal Action No. 08-328-2).]

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47.4 Deliberate Ignorance/Willful Blindness

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F 1.20a Willfully Defined: Knowledge Element

Multiplicity: False Statements

"'Multiplicity' involves charging the same criminal offense in two or more counts of an indictment or information." United States v. Ragland, 3 Fed. Appx. 279, 284 (6th Cir. 2001) (citing United States v. Stanfa, 685 F.2d 85, 86-7 (3d Cir. 1982)). However, where false statements are charged, analyzing an indictment for multiplicity requires determining "whether the questions and answers varied in subtle but meaningful ways, or whether the interviewing agent merely repeated or rephrased the same questions resulting in one alleged lie repeated multiple times." United States v. McCafferty, No. 10-cr-387, 2011 U.S. Dist. LEXIS 33567, 2011 WL 933771, at *11 (N.D.Ohio Mar. 6, 2011).

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34.4 False Statements

95.3 Perjury: Defenses And Defense Theories

276.8 Multiple Counts

The Shellow Instructions

Circumstantial Evidence: False Statements

FalseStatements On Income Tax Return (26 USC 7206(1)) And Filing False Tax Return (26 USC 7207)

Perjury

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F 2.03 Falsehood

F 362.1 False Statements: Preliminary Fact Instructions

Sample Instruction: Absence Of Co-Defendant (7th Circuit / 11th Circuit)

You will notice that ________ [co-defendant] and his counsel are absent. For reasons which are not part of your consideration, ________ [co-defendant] is no longer a part of the trial. I instruct you that this is not and should not be of concern to you in dealing with the question of whether ________ [defendant] is guilty or not guilty. Please do not speculate as to ________’s [co-defendant] absence or why he is no longer standing trial. And his absence should not control or influence your verdict in any way whatsoever with respect to ________ [defendant].

As I have previously instructed you, when defendants are tried together, the jury is called upon to determine the case of each defendant separately. That is still your job. The fact that we have only one defendant left in this trial should be of no concern to you because whatever your verdict is, it has to be based solely upon the evidence that's been received in this courtroom as it relates to the remaining defendant. I want to emphasize again that ________ [defendant] has entered a plea of not guilty and you should not consider ________’s [co-defendant] absence in any way in determining whether the government has proven ________ [defendant] guilty beyond a reasonable doubt.

[Source: adapted from United States v. Barrientos, 758 F.2d 1152, 1156 (7th Cir.1985) and United States v. Pelle, 263 F. App'x 833 (11th Cir. 2008) and given in United States v. Nelson, (M.D. Fla. 9/6/2011, NO. 3:10-cr-23-J-32TEM).]

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19.4 Disposition Of Charges As To Codefendant

19.4.3 No Consideration Of Evidence As To Dismissed Codefendant

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F 2.005 Dismissed Defendant

F 206 Inst 1 (a and b) Cautionary Instruction: Dismissed Defendant

Sample Instruction: Honest Services Post-Skilling (18 USC 1341 and 1346)

The government must prove beyond a reasonable doubt that the scheme or plan consisted of a bribe such that ________ [defendant] solicited, demanded, accepted, or agreed to accept payment from someone other than the________ [entity allegedly deprived of honest services], and that, in return for the payment,________ [defendant] intended to be corruptly influenced or rewarded for a transaction or series of transactions of the________ [entity allegedly deprived of honest services].

An individual who owes the public a duty to provide honest services does not violate the law merely by concealing, or failing to disclose, a financial interest. Having an undisclosed financial interest is not a crime, and, even if you should find that ________ [defendant] failed to disclose, or concealed, a financial interest, he cannot be convicted of honest services mail fraud simply for concealing, or failing to disclose, such a financial interest.

Rather, the government must prove beyond a reasonable doubt that the scheme or plan engaged in by ________ [defendant] consisted of bribery, as previously defined in this instruction. If an official serves his personal interests by taking or agreeing to take a bribe, the official or employee defrauds the public of honest services, even if the public agency suffers no monetary loss.

[Source: Given in United States v. Nelson, 2011 U.S. Dist. LEXIS 99841, 7-8 (M.D. Fla. 9/6/2011, NO. 3:10-cr-23-J-32TEM).]

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103.7 Mail Theft And Mail Fraud

The Shellow Instructions

18 USC 1341 Mail Fraud

Sample Instruction: Conspiracy – Interdependence Element

To be a member of the conspiracy, a defendant need not know all of the other members or all of the details of the conspiracy, nor the means by which the objects were to be accomplished. Each member of the conspiracy may perform separate and distinct acts. It is necessary, however, that for the defendant to be a member of the conspiracy, the government must prove beyond a reasonable doubt that the defendant was aware of the common purpose and was a willing participant with the intent to advance the purposes of the conspiracy. In other words, while a defendant need not participate in all the acts or statements of the other members of the conspiracy to be bound by them, the acts or statements must be interdependent so that each member of the conspiracy depends upon the acts and statements of the other conspirators to make the conspiracy succeed.

[Source: Given in United States v. McDowell, (D. Kan. 9/6/2011, No. 09-20133-JWL).] 

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Chapter 83: Conspiracy

The Shellow Instructions

Conspiracy

Conspiracy: Unlawful Acts Alone Not Sufficient

Forecite California™

F 6.10 Conspiracy

F 415 Conspiracy

F 415.3 Inst 2 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A"Common Purpose" 

Apprendi Error: Standard Of Prejudice

Apprendi errors requires the reviewing court  to "'determin[e] what evidence [the parties] would have introduced at trial' had the issue been properly presented." United States v. Zepeda-Martinez, 470 F.3d 909, 914 n.3 (9th Cir. 2006) (quoting United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th Cir. 2000), overruled on other grounds by  United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) ). For example, in United States v. Hunt, (9th Cir. Alaska 9/1/ 2011, No. 09-30334), it was speculative at best to predict what evidence the parties would have presented at trial relevant to Hunt's intent to possess cocaine.

“If Hunt's case had proceeded to trial, he could have raised Sixth Amendment or evidentiary objections, he could have presented expert testimony to counter the opinions of [the investigating detective], he could have cross-examined the various civilian and government witnesses called by the government, and he could have decided to testify to tell his side of the story. Most importantly, a jury would have evaluated and weighed the conflicting evidence.”

Moreover, unlike the defendant in Zepeda-Martinez, expressly contested the facts at issue and pointed to "evidence sufficient to support a contrary finding" Neder v. United States, 527 U.S. 1, 19 (U.S. 1999),. Although the Supreme Court in Neder did not expressly define what quantum of evidence is "sufficient to support a contrary finding," in light of the available record evidence, Hunt's denial of his intent in this case meets that standard. 

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296.2 Standards Of Prejudice On Appeal

296.2.7 Apprendi: Standard Of Prejudice On Appeal

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PG X(B) - Standards of Prejudice

PG X(C) - Nature of the Error Determines Standard of Prejudice

Instructions Standard Of Review: Context Of Proceedings Must Be Considered

In Boyde v. California, 494 U.S. 370 (1990), the Court made clear that "the context of the proceedings" must be considered when evaluating a jury instruction. 494 U.S. at 383; see id. at 380-81 ("Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting."). The Court repeated this mandate in Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991) and again in Victor v. Nebraska, where it noted that the Estelle Court "made clear that the proper inquiry is not whether the instruction 'could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it," 511 U.S. 1, 6, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (emphasis in original).

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296.1 Standards Of Review On Appeal

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PG X(A) -Standards of Review