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United States v. Peel

United States District Court, Eastern District of California

November 6, 2014

DONALD J. PEEL, Defendant.


GARLAND E. BURRELL JR. Senior United States District Judge

Attached are the Court’s proposed closing jury instructions, conditional closing jury instructions, and verdict form. Any proposed modifications should be submitted as soon as practicable.

In the attached instructions, the Court has attempted to eliminate unnecessary language and to more closely follow the language used in the Ninth Circuit Model Criminal Jury Instructions and the federal and California law upon which they are based. The goal is to “help the jurors to concentrate on the question[s] at hand.” Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997).

For example, the definition of “sexual penetration” in the closing instruction concerning the charged crime has been tailored to fit the record in this case. It is questionable whether the definition of “sexual penetration” needs to include reference to penetration by anything except “any body part, except a penis.” If further definition of “sexual penetration” is required, the explanation provided should be clearer and supported by the record.

The majority of the substance contained in Defendant’s supplemental proposed jury instruction, which concerns the charged offense, is included in the Court’s proposed instructions on the charged offense. However, instruction concerning a mistake of age defense under California law will not be provided. As held in the October 30, 2014 Order on Motions in Limine

“[C]ircuits [that have] address[ed] th[e] question have held that knowledge of the victim’s age is not a required element of the statute.” United States v. Daniels, 653 F.3d 399, 409 (6th Cir. 2011) (compiling cases); see also United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001) (“Ignorance of the victim’s age provides no safe harbor from the penalties in 18 U.S.C. § 2423(a).”).
Further, none of underlying California Penal Code sections which Defendant is alleged to have intended to violate, i.e., “sexual intercourse in violation of California Penal Code Section 261.5, oral copulation in violation of California Penal Code Section 288a, and sexual penetration in violation of California Penal Code Section 289” include mistake of age as an element. (Indictment 2:3-5, ECF No. 6; see Cal. Penal Code '' 261.5(a), (c), 288a(a), (b)(1), 289(h); see also California Criminal Jury Instructions (“CALCRIM”) Nos. 1071, 1082, 1102.) Rather, courts have recognized mistake of age as a defense to the crimes. See e.g., People v. Hernandez, 61 Cal. 2d 529, 536 (1964); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015 (9th Cir. 2009); see also CALCRIM Nos. 1071, 1082, 1102. Accordingly, Defendant could be charged for violating the referenced California crimes regardless of any mistake of age concerning L.P.

(Order on Mots. in Limine 4:4-26, ECF No. 89.)

Defendant’s proposed “Theory of Defense” instruction is not included in the attached instructions and will not be given to the jury. (See Def.’s Proposed Jury Instructions 11, ECF No. 68.) Although “[a] defendant is entitled to have the jury instructed on his or her theory of defense, as long as that theory has support in the law and some foundation in the evidence[, ]” United States v. Perdomo-Espana, 522 F.3d 983, 986-87 (9th Cir. 2008), “[a] ‘theory of defense’ instruction need not be given when it is simply a recitation of the facts told from the defendant’s perspective.” United States v. Parker, 991 F.2d 1493, 1497 (9th Cir. 1993). Here, the proposed instruction “[i]s more like a closing argument than a statement of applicable law[, ]” and “is adequately covered by the [instructions concerning the charged offense].” Id.; see also United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992) (“A defendant is not entitled to any particular form of instruction, nor is he entitled to an instruction that merely duplicates what the jury has already been told.”).

Further, the parties’ proposed “conditional” jury instructions, that are still being considered, are attached hereto as “conditional” instructions.


Instruction No.

Members of the jury, now that you have heard all the evidence and the arguments of the parties, it is my duty to instruct you on the law which applies to this case. Each of you is in possession of a copy of these jury instructions, which you may take into the jury room for your use if you find it necessary.

It is your duty to find the facts from all the evidence in the case. To those facts you must apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you and according to the law. You will recall that you took an oath promising to do so at the beginning of the case.

In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important.

Instruction No.

The evidence you are to consider in deciding what the facts are consists of:

the sworn testimony of any witness;
the exhibits that are received into evidence; and
any facts to which the parties have agreed.

Instruction No.

Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

First, arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, 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.
Second, questions and objections by the lawyers are not evidence. Attorneys have a duty to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it.
Third, testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, sometimes testimony and exhibits are received only for a limited purpose; if I give a limiting instruction, you must follow it.
Fourth, anything you see or hear when the court is not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

Instruction No.

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 one 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.

Instruction No.

[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.]


[The defendant has testified. You should treat this testimony just as you would the testimony of any other witness.]

Instruction No.

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. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.

In considering the testimony of any witness, you may take into account:

the opportunity and ability of the witness to see or hear or know the things testified to;
the witness’s memory;
the witness’s manner while testifying; the witness’s interest in the outcome of the case and any bias or prejudice;
whether other evidence contradicted the witness’s testimony;
the reasonableness of the witness’s testimony in light of all ...

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