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United States v. Johnson

United States District Court, E.D. California

April 27, 2017



          GARLAND E. BURRELL, JR. Senior United States District Judge

         Attached are proposed voir dire questions, initial jury instructions, instructions that may be given during trial if a party makes the request, closing jury instructions, and verdict form.

         Defendant's proposed following voir dire question is not included in the attached proposed voir dire:

Would you as a juror decide the guilt or innocence of the defendant solely on the basis of the evidence presented in the courtroom?

Def.'s Proposed Voir Dire ¶ 6, ECF No. 54. This proposed question appears inconsistent with proposed closing jury instruction number 4, which is based on instruction number 3.5 in the Manual of Model Criminal Jury Instruction for the District Courts of the Ninth Circuit (2010), and instructs the jury, in part, that “[a] reasonable doubt is a doubt based upon reason and common sense.” The parties shall respond to the proposed voir dire questions, as soon as practicable, and shall request a bench conference, if one is necessary, before the commencement of voir dire to discuss any perceived issues of the proposed approach herein. Failure to respond shall be deemed acquiescence to the proposed voir dire.

         The bracketed optional language shall be clarified by a party or the parties as soon as feasible Trial will commence at 9:00 a.m. on May 2, 2017.


         VOIR DIRE

         Good morning and welcome to the United States District Court. Thank you for both your presence and your anticipated cooperation in the questioning process we are about to begin. You are performing an important function in our legal system.

         The court personnel who will assist me in this trial are on the platform below me. The Courtroom Deputy Clerk is Shani Furstenau. Next to her is the Certified Court Reporter. Ms. Furstenau, please administer the oath to the prospective jurors.

         We are about to begin what is known as voir dire. Voir dire consists of questions designed to provide the court and the parties with information about each potential juror. After questioning is complete, the parties will exercise what is known as peremptory challenges.

         1. Counsel, the Jury Administrator has already randomly selected potential jurors and their names are on the sheet you have been given in the order of the random selection. Each potential juror has been placed in his or her randomly-selected seat, and has been given a large laminated card on which the number is placed showing the order in which the potential juror was randomly selected.

         2. I will ask the potential jurors questions as a group. If a potential juror has a response, he or she shall raise the laminated card. Generally, you will be given an opportunity to respond in accordance with the numerical order in which you are seated, meaning the potential juror in the lowest numbered seat will respond first. If no card is raised, I will simply state “no response” and then ask the next question. If you know it is your turn to respond to a question, you may respond before I call your seat number by stating your seat number, then your response. That could expedite the process.

         3. If a potential juror concludes a question unduly pries into a private matter, the potential juror may request to respond out of the earshot of other potential jurors. I'm authorized to try to protect legitimate privacy interests, but may ask questions in the area that you indicate a desire to discuss in private to determine whether it, or any aspect of the matter, should be responded to as indicated. This approach is taken because the trial should be open unless I have a legitimate reason to close an aspect of it.

         4. The presentation of evidence and closing argument portions of the trial are expected to be completed in approximately three weeks, after which the case will be submitted to the jury for jury deliberation. Trial will be conducted on Tuesdays, Wednesdays, and Thursdays, from 9:00 a.m. to about 4:30 p.m. However, once you commence jury deliberations, you will be expected to deliberate every day except weekends until you complete your deliberations. Does the schedule pose a special problem for any prospective jury?

         5. Counsel may make any desired introductions and the government shall name anticipated witnesses it may call so it can be determined whether any potential jury knows or has contact with a person named.

         a. Do you know and or have you had any contact with a person just named?

         6. This is a criminal case in which the United States charges defendant Paul Johnson with arson to federal property, obstruction of justice, and making false statements. The government alleges that on February 3, 2012, Mr. Johnson maliciously set fire to his Forest Service truck. The government further alleges that Mr. Johnson obstructed justice by misleading three witnesses who observed the fire by telling them that he had already called for help, when he had not. Finally, the government alleges that Mr. Johnson made false statements to government officials regarding the cause of the vehicle fire. Mr. Johnson has pleaded not guilty to each of these allegations. The allegations in the indictment are not evidence. The defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt. The government has the burden of proving every element of the charges beyond a reasonable doubt.

         7. In light of the allegations, does any potential juror prefer not being a juror on this case?

         8. Is there anything about the allegations which causes you to feel that you might not be a fair juror in this case?

         9. Is there any reason why you would not be able to be a juror and/or to give your full attention to this case?

         10. Have you, any member of your family, or any close friend been arrested for a crime or been the defendant in a criminal case?

         11. Do you have any religious or moral objection to sitting in judgment of another's conduct in a court of law?

         12. Have you ever served as a juror in the past, in any capacity?

         a. State whether it was a civil or criminal case, and whether the jury reached a verdict, but do not state the actual verdict reached.

         13. Would you tend to believe the testimony of a witness just because of that witness's present or former state or federal law enforcement employment, or other governmental employment?

         14. You are required to apply the law I will give you even if you believe a different law should apply. If you cannot agree to what I just said, please raise your hand.

         15. Do you have any difficulty with the rule of law that a person charged with a crime is presumed innocent and need not present any evidence, and the government at all times bears the burden of proving guilt beyond a reasonable doubt?

         16. Do you have any problem with the rule of law that a defendant need not testify on his own behalf and that if a defendant chooses not to testify, that factor may not be considered by you in your deliberations?

         17. Is there anything that we have not discussed that you suspect a trial participant would desire to know?

         18. The Courtroom Deputy Clerk will give the juror in seat number one a sheet on which there is information we seek. Please pass the sheet to a potential juror near you after you respond.

         Please state:

         a. your juror seat number; b. your name and educational background; c. the educational background of any person residing with you; d. your present and former occupations; and e. the present and former occupations of any person residing with you.



         INSTRUCTION NO. 1

         Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some initial instructions. At the end of the trial, I will give you more detailed written instructions that will control your deliberations. A copy of these instructions will be available in the jury room for you to consult. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts.

         To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy.

         Please do not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be - that is entirely up to you.

         INSTRUCTION NO. 2

         This is a criminal case brought by the United States government. The government charges the defendant with one count of arson to federal property, one count of obstruction and three counts of making a false statement. The charges against the defendant are contained in the Indictment. The Indictment is simply the description of the charges made by the government against the defendant; it is not evidence of anything.

         The defendant has pleaded not guilty to the charges and is presumed innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant has the right to remain silent and never has to prove innocence or to present any evidence.

         INSTRUCTION NO. 3

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

(1) the sworn testimony of any witness;
(2) the exhibits which are received in evidence; and
(3) any facts to which the parties agree.

         INSTRUCTION NO. 4

         The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

(1) statements and arguments of the attorneys;
(2) questions and objections of the attorneys;
(3) testimony that I instruct you to disregard; and
(4) anything you may see or hear when the court is not in session, even if what you see or hear is done or said by one of the parties or by one of the witnesses.

         INSTRUCTION NO. 5

         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. 6

         There are rules of evidence that control what can be received in evidence. When a lawyer asks a question or offers an exhibit in evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, or the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been.

         Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

         INSTRUCTION NO. 7

         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 ...

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