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United States v. Fabricant

October 6, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DANIEL JOSEPH FABRICANT, DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER RE: DEFENDANT'S MOTION FOR A NEW TRIAL, MOTION FOR A JUDGMENT OF ACQUITTAL, AND MOTION TO CORRECT HIS NAME IN THE COURT FILE.

Before the Court are Defendant's (1) Motion for a New Trial [691, 758] (2) Motion for a Judgment of Acquittal [692], and (3) Motion to Correct His Name in the Court File [787]. The Court having reviewed all papers submitted pertaining to these Motions and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

I. Motion for a New Trial

Defendant's Motion for a New Trial is DENIED.

Defendant and Defendant's Co-Counsel set forth various grounds for a new trial, none of which warrants the Court granting Defendant's Motion.

A. Defendant's Self Representation

Defendant's Co-Counsel argues that the Court should not have allowed Defendant to represent himself in light of the recent Supreme Court decision in Indiana v. Edwards, 128 S.Ct. 2379 (2008). In Edwards, the Supreme Court permitted trial courts to insist on representation from counsel when a defendant is competent enough to stand trial but suffers from sufficiently severe mental illness such that the defendant would not be able to competently conduct trial proceedings. Id. at 2387-88.

Here, the Court was not concerned that Defendant was too mentally ill to conduct trial proceedings when the Court decided that Defendant can represent himself. Thus, as nothing in Edwards affects the Court's prior decision to allow Defendant to proceed pro se, a new trial is not warranted on that basis.

B. Simple Possession Jury Instruction

Defendant's Co-Counsel argues that the Court should have instructed the jury on the charge of simple possession. Defendant's Co-Counsel, however, agreed to a set of jury instructions that did not contain an instruction for simple possession. Moreover, Defendant himself never intelligibly voiced his objections to not having a simple possession instruction. The Court, for its part, was not required to sua sponte instruct the jury on the lessor included offense of simple possession. United States v. Boone, 951 F.2d 1526, 1541-41 (9th Cir. 1991). Thus, the fact that no such instruction was given is not a sufficient basis for a new trial.

C. Limiting Jury Instruction about Co-Defendant

Defendant argues that the Court should not have given the jury a limiting instruction on the disposition of Co-Defendant Myers case. The Ninth Circuit, however, has allowed courts to give limiting jury instructions about the disposition of a co-defendant's case when necessary. See United States v. Barrientos, 758 F.2d 1152, 1157-58 (9th Cir. 1985). Thus, the Court's limiting jury instruction about Co-Defendant's Myers case is not a sufficient basis for a new trial.

D. Defendant's Direct Examination

Defendant's Co-Counsel argues that the Court's alleged insistence that Co-Counsel Kennedy conduct Defendant's direct examination deprived Defendant of the opportunity to take the stand on his own behalf and violated Defendant's right to represent himself. The Court, however, merely stated that Defendant had to testify in a question-and-answer format and that Co-Counsel had to be involved. This requirement was sufficiently within the Court's authority to set procedural parameters around Defendant's presentation of evidence. See Fed. R. Evid. 611(a) (allowing the court to exercise reasonable control over the mode of interrogating witnesses). By setting this procedure, the Court neither prevented Defendant from testifying on his ...


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