COURT'S PROPOSED JURY INSTRUCTIONS
EDWARD M. CHEN, District Judge.
Proposed Post-Trial Jury Instructions
3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW
It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law I give you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.
You must follow all these instructions and not single out some and ignore others; they are all important. Please do not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you.
3.2 CHARGE AGAINST DEFENDANT
NOT EVIDENCE—PRESUMPTION OF
INNOCENCE—BURDEN OF PROOF
The defendant has pleaded not guilty to the charges. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charges beyond a reasonable doubt.
[If applicable]
3.3 DEFENDANT'S DECISION NOT TO TESTIFY
A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.
[If applicable]
3.4 DEFENDANT'S DECISION TO TESTIFY
The defendant has testified. You should treat this testimony just as you would the testimony of any other witness.
3.5 REASONABLE DOUBT—DEFINED
Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.
A reasonable doubt is a doubt based upon reason and common sense. It is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.
If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.
3.6 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
(1) the sworn testimony of any witness;
(2) the exhibits received in evidence; and
(3) any facts to which the parties have agreed.
3.7 WHAT IS NOT EVIDENCE
In reaching your verdict you may consider only the testimony and exhibits received in evidence. The following things are not evidence and you may not consider them in deciding what the facts are:
1. Questions, statements, objections, and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer's questions to understand the answers of a witness, the lawyer's questions are not evidence. Similarly, what the lawyers have said in their opening statements, will say in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.
2. If applicable: Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence. [In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.]
3. Anything you may have seen or heard when the court was not in session is not evidence. Your are to decide the case solely on the evidence received at the trial.
3.8 DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which you can find another fact.
You are to consider both direct and circumstantial evidence. Either can be used to prove any fact. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
3.9 CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
(1) the witness's opportunity and ability to see or hear or know the things testified to;
(2) the witness's memory;
(3) the witness's manner while testifying;
(4) the witness's interest in the outcome of the case, if any;
(5) the witness's bias or prejudice, if any;
(6) whether other evidence contradicted the witness's testimony;
(7) the reasonableness of the witness's testimony in light of all the evidence; and
(8) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.
3.10 ACTIVITIES NOT CHARGED
You are here only to determine whether the defendant is guilty or not guilty of the charges in the indictment. The defendant is not on trial for any conduct or offense not charged in the indictment.
3.17 POSSESSION—DEFINED
A person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.
[If applicable]
4.6 IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT
You have heard evidence that the defendant has previously been convicted of crimes. You may consider that evidence only as it may affect the defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.
[If applicable]
4.8 IMPEACHMENT EVIDENCE—WITNESS
You have heard evidence that [name of witness], a witness, [specify basis for impeachment]. You may consider this evidence in deciding whether or not to believe this witness and how much weight to give to the testimony of this witness.
4.14 OPINION EVIDENCE, EXPERT WITNESS
You have heard testimony from people who, because of education or experience, were permitted to state opinions and the reasons for their opinions.
Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.
8.65A FIREARMS—UNLAWFUL POSSESSION—
CONVICTED FELON
(18 U.S.C. § 922(g)(1))
The defendant is charged in the indictment with the possession of a firearm in violation of Section 922(g)(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly possessed a Colt model MK IV Series 80 Combat Commander, .45 caliber handgun;
Second, the Colt model MK IV Series 80 Combat Commander, .45 caliber handgun had been transported from one state to another; and
Third, at the time the defendant possessed the Colt model MK IV Series 80 Combat Commander,.45 caliber handgun, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The parties have stipulated that prior to June 13, 2013, the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.
5.6 KNOWINGLY—DEFINED
An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that his acts or omissions were unlawful. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
"ON OR ABOUT" EXPLAINED
The government charges that the offenses alleged were committed "on or about" certain dates or "in or about" certain months or years. Although it is necessary for the government to prove beyond a reasonable doubt that the offenses were committed on dates reasonably near the relevant dates alleged in the indictment, it is not necessary for the government to prove that the offenses were committed precisely on the dates charged.
7.1 DUTY TO DELIBERATE
When you begin your deliberations, elect one member of the jury as your foreperson who will preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty, must be unanimous.
Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.
7.2 CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY
Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations:
Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website, Facebook, Twitter, or any other form of communication. It also applies to communicating with your family members, your employer, the media or press, and the people involved in the trial. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.
Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.
The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. If any juror is exposed to any outside information, please notify the court immediately.
7.3 USE OF NOTES
Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.
7.4 JURY CONSIDERATION OF PUNISHMENT
The punishment provided by law for this crime is for the court to decide. You may not consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.
7.5 VERDICT FORM
A verdict form has been prepared for you. If you have reached unanimous agreement on a verdict, your foreperson should complete the verdict form according to your deliberations, sign and date it, and advise the Courtroom Deputy that you are ready to return to the courtroom.
7.6 COMMUNICATION WITH COURT
If it becomes necessary during your deliberations to communicate with me, you may send a note through the Courtroom Deputy, signed by any one or more of you. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on any question submitted to you, including the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.
