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United States v. Lara

United States District Court, E.D. California

April 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EMILIO LARA, Defendant.

          CLOSING JURY INSTRUCTIONS AND VERDICT FORM

          GARLAND E. BURRELL, JR. SENIOR UNITED STATES DISTRICT JUDGE

         A Minute Order issued on March 30, 2018, requiring each party to propose desired jury instructions or modifications to previously transmitted instructions, if any, and directed the United States to submit another proposed verdict form. ECF No. 112. Attached are updated closing jury instructions and verdict form, created after reviewing each party's proposed changes. The verdict form also reflects the judgment of acquittal on count 28 by excluding it from the form.

         The government proposes changes to Instruction Nos. 16 and 22 in light of it having dropped some of the charges against Defendant. Those changes are incorporated in the attached instructions, and Instruction No. 13 has been modified to effect the same changes.

         Defendant requests additional language be included in Instruction No. 12, which the Ninth Circuit Model Criminal Jury Instructions (“Model Instructions”) includes as optional language in brackets. Specifically, Defendant requests the instruction read:

You have heard evidence that the defendant committed other acts not charged here. You may consider this evidence only for its bearing, if any, on the question of the defendant's intent, plan, knowledge, identity, absence of mistake, or absence of accident, and for no other purpose. You may not consider this evidence as evidence of guilt of the crime for which the defendant is now on trial.

         Def's Proposed Closing Jury Instructions at 3:2-6, ECF No. 114. The last sentence of what Defendant proposes need not be included since the “instruction [without the bracketed language], considered as a whole, accurately and clearly state[s] the law.” United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015). The instruction as written adequately prescribes that the jury may consider the referenced evidence only for its bearing, if any, on specified propositions. However, the language of the instruction will be changed to omit that the other acts evidence may be used to show a plan, in light of how this word could be construed and the present trial record evincing that a “scheme” is not involved in the charges. This exclusion is in light of the Webster's II New College Dictionary definition of the word “plan, ” which includes the following: “A detailed scheme, program, or method worked out beforehand for the accomplishment of an object.” Plan, Webster's II New College Dictionary (1995).

         Defendant also includes as a replacement for Instruction No. 15 what appears to be a good faith instruction as to facts and law. Defendant proposes the jury be instructed:

In order to prove that the defendant acted “willfully, ” the government must prove beyond a reasonable doubt that the defendant knew federal tax law imposed a duty on him, and the defendant intentionally and voluntarily violated that duty. To act willfully in this context is not to merely act ignorantly, but to act with a bad purpose or evil motive. The defendant may not be convicted if you find he merely acted with recklessness, negligence, carelessness, or mistake, nor if he acted innocently, nor even if he acted with gross negligence or gross carelessness. Rather, to be convicted, the defendant must have acted with criminal or evil intent.
A defendant who acts on a good faith misunderstanding as to the existence or nonexistence of facts does not act willfully, even if his understanding is wrong or unreasonable. Thus, in order to prove that the defendant acted willfully, the government must prove beyond a reasonable doubt that the defendant knew the return he advised or procured the preparation of included a false statement.
A defendant who acts on a good faith misunderstanding as to the requirements of the law also does not act willfully, even if his understanding of the law is wrong or unreasonable. Nevertheless, merely disagreeing with the law does not constitute a good faith misunderstanding of the law because all persons have a duty to obey the law whether or not they agree with it. Thus, in order to prove that the defendant acted willfully, the government must also prove beyond a reasonable doubt that the defendant did not have a good faith belief that he was complying with the law.
In short, good faith is an absolute defense to the charges in this case. A defendant is under no burden to prove his good faith; rather the prosecution must prove that the defendant knew the expenses or deductions were false or fraudulent. The defendant cannot be convicted unless he knew the expenses or deductions he is found to have inputted were false or fraudulent.

         Def's Proposed Closing Jury Instructions at 5:2-26.

         Defendant's proposed Instruction No. 15 contains unexplained legal terms and includes good faith instructions that need not be given here. The Comment to Ninth Circuit Model Instruction 9.42, on which the Court's Instruction No. 13 is based, cites United States v. Hickey, in which the Ninth Circuit states: “[O]ur case law is well settled that a criminal defendant has no right to any good faith instruction when the jury has been adequately instructed with regard to the intent required to be found guilty of the crime charged . . . .” 580 F.3d 922, 931 (9th Cir. 2009) (quoting United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004)). This is true “notwithstanding the normal rules governing ‘theory of defense' requests.” Shipsey, 363 F.3d at 967. Since the instruction adequately instructs with regard to the intent required to be found guilty of the charged crimes, Defendant's proposed changes are rejected.

         Defendant also proposes including in Instruction No. 19 “profession, occupation, or economic circumstances” to the list of attributes contained in the final sentence of the provided instruction. This change has been made. Following those words, Defendant proposes adding two sentences the subject matter of which is already adequately captured by the instruction; therefore, this proposal is rejected.

         Defendant urges the inclusion of his Instruction No. 24 regarding eyewitness identification.

Generally, the Ninth Circuit has not required a cautionary instruction regarding eyewitness testimony. See People of the Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1981); United States v. Cassasa, 588 F.2d 282, 285 (9th Cir. 1978). Since 1989, the Committee has recommended against the giving of an eyewitness identification instruction because it believes that the general witness credibility instruction is sufficient.

         Comment, Model Instruction 4.11. Therefore, Defendant's proposed instruction will not be given.

         Finally, Defendant proposes inclusion of his Instruction No. 25, admonishing the jury not to be exposed to outside information. An initial jury instruction adequately instructs the jury on this matter. Therefore, Defendant's proposed Instruction No. 25 will not be given.

         CLOSING JURY INSTRUCTIONS

         INSTRUCTION NO. 1

         Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. Each of you now possesses a copy of these instructions that you may take with you into the jury room to consult if you desire.

         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 as I give it to 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. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. 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.

         INSTRUCTION NO. 2

         The indictment is not evidence. 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.

         INSTRUCTION NO. 3

         [A defendant in a criminal case has a constitutional right not to testify. In arriving at your verdict, the law prohibits you from considering in any manner that the defendant did not testify.]

         OR

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

         INSTRUCTION NO. 4

         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 and 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.

         INSTRUCTION NO. 5

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

• the sworn testimony of any witness;
• the exhibits received in evidence; and
• any facts to which the parties have agreed.

         INSTRUCTION NO. 6

         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:

• 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, 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.
• 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.
• Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

         INSTRUCTION NO. 7

         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.

         INSTRUCTION NO. 8

         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 ...


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