| GOVERNMENT'S PROPOSED INSTRUCTION NO. 13 SECTION 242 Counts Two through Nineteen charge individual defendants violating Section 242 of Title 18, United States Code. The relevant part of Section 242 reads as follows: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . [shall be guilty of an offense against the United States]. ________________________ Authorities: 18 U.S.C. �� UNITED STATES' PROPOSED INSTRUCTION NO. 14 ELEMENTS—SECTION 242 The Government must prove four, and in some counts, five, elements to establish the offenses charged in Counts Two through Nineteen: First: The person upon whom the alleged acts were committed must have been an inhabitant of a state, district or territory of the United States, here, the State of California. Second: The defendant must have been acting under color of law. Third: The conduct of the defendant must have deprivedthe victim of some right secured or protected by the Constitution of the United States. Fourth: The defendant must have acted willfully, that is, with a specific intent to violate the protected constitutional right. Fifth:In only the counts where it is charged, that is, Counts Two, Three, Five, Seven, Eight, Nine, and Eleven through Fourteen, the offense must have resulted in bodily injury to the victim. ________________________ Authorities: Screws v. United States, 325 U.S. 91 (1945)(elements of 18 U.S.C. �� offense). United States v. Senak, 477 F.2d 304, 306 (7th Cir. 1973), cert. denied, 414 U.S. 856 (1973) (lists the elements). UNITED STATES' PROPOSED INSTRUCTION NO. 15 ELEMENT ONE: INHABITANCY The first element of this offense requires that the victim be an inhabitant of a state or territory, here California. A person is an inhabitant under for these purposes if he or she is present within California at the time of the offense. If you find that the victim referred to in the specific count was in fact physically present in California at the time of the incident charged in that count, then he or she was then an inhabitant of a state within the meaning of the statute. ________________________ Authorities: United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981)(a review of the legislative history reveals Congress intended to include all persons present in the United States within the protection of ��). UNITED STATES' PROPOSED INSTRUCTION NO. 16 ELEMENT TWO: COLOR OF LAW The second element requires color of law. As I have previously instructed you, the term "color of law" means that the defendant acted in his official capacity or else claimed to do so, even if he misused or abused his power by violating the law himself. In order to convict a defendant under any of Counts Two through Nineteen, you must find that at the time the offense was committed the defendant or defendants were acting or purporting to act in their official capacities as police officers. ______________ Authorities: United States v. Classic, 313 U.S. 299, 326 (1941)(misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of law). Screws v. United States, 325 U.S. 91, 107-11 (1945)(officers performing official duties, whether they misuse their lawful authority, act under color of law). Williams v. United States, 341 U.S. 97, 99-100 (1951)(misuse of lawful authority can constitute action taken under color of law). Monroe v. Pape, 365 U.S. 167, 183-187 (1961)("under color of state law" includes misuse of power possessed by virtue of state law and made possible because the wrongdoer is clothed with the authority of state law). Griffin v. Maryland, 378 U.S. 130 (1964)("If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law."). UNITED STATES' PROPOSED INSTRUCTION NO. 17 ELEMENT THREE: PROTECTED RIGHT The third element to be proved is that the conduct of the defendant or defendants must have deprived the victim of a right secured or protected by the Constitution or laws of the United States. Different Constitutional rights are involved in different counts. In Counts Two, Five, Eight, Nine and Eleven through Fourteen the indictment charges certain defendants with using unreasonable and unnecessary force. I have previously instructed you that the Fourth Amendment guarantees to all of us the right to be secure in our persons against unreasonable seizures by means of the unjustified use of force by public officials. Counts Four, Six, and Ten charge certain defendants with making or aiding and abetting false arrests. An individual's Fourteenth Amendment right not to be deprived of liberty without due process of law also includes the right to be free from arrest by a police officer unless the arresting officer has sufficient reason, known as probable cause, to believe that the person has committed, is committing, or is about to commit a crime. Counts Three and Seven charge defendant BROUSSARD with willfully failing to prevent other officers in his presence and under his supervision from willfully assaulting people who were in official custody or detention. The Fourteenth Amendment right be free from the deprivation of liberty without due process of law includes the right to be kept free from harm while in official custody or detention. In other words, a police officer has a duty to ensure that persons who are within his control or in the custody of officers under his supervision are not unnecessarily assaulted by those officers. Counts Eighteen and Nineteen charge defendant REESE with willfully giving false evidence in a state court proceeding. The Fourteenth Amendment's protection against the deprivation of liberty without due process of law also includes the right not to have police officers knowingly present false evidence in official proceedings. The state court hearing charged is such an official proceeding. Counts Fifteen through Seventeen charge specific various defendants with stealing money from persons who were either under arrest or detention. The Fourteenth Amendment also protects every person from the deprivation of property without due process of law. Consequently, a police officer, while acting under the color of his authority, may not steal money from individuals with whom he comes in contact. The individual from whom money or other property is taken is entitled to certain processes, such as a hearing, before money belonging to him can be permanently taken away from him by a state authority such as a police officer. I instruct you that all of these rights are rights secured and protected by the Constitution of the United States. _________________________ Authorities: Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989) (claims that law enforcement officials have used excessive force in the course of a "seizure" of a person are more properly characterized as invoking Fourth Amendment protection and must be judged by reference to Fourth Amendment "reasonableness standard"). Tennessee v. Garner, 471 U.S. 1 (1985)(to determine whether a seizure is reasonable, the extent of the intrusion on the suspect's rights under the Fourth Amendment must be balanced against the governmental interest in law enforcement). Gerstein v. Pugh, 420 U.S. 103, 111 (1975)(probable cause standard of arrest). United States v. Price, 383 U.S. 787, 800 (1966)(statute precludes interference with all rights protected by Constitution or federal statutes). Monroe v. Pape, 365 U.S. 167, 171 (1961)(§ 242 is satisfied by allegation of facts constituting a deprivation under color of law of a right guaranteed by the Fourteenth Amendment by state agencies). Williams v. United States, 341 U.S. 97, 101 (1951) ("[w]here police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution."). Screws v. United States, 325 U.S. 91, 98 (1945)(Trial jury must be instructed that the defendant had the purpose to deprive the victim of constitutional rights; factors the jury can consider are malice, weapons, character and duration of the assault, and provocation, if any). Logan v. United States, 144 U.S. 263 (1892)(right to be secure from unauthorized violence while in official custody). United States v. Walker, 785 F.2d 1237 (5th Cir. 1986) (intentional arrest of victim by police officer without probable cause violates 18 U.S.C. ��). United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985)(Police officer's failure to keep victim from harm while in official custody violates 18 U.S.C. ��). United States v. Alonso, 740 F.2d 862 (11th Cir. 1984)(theft of money from victim by police officers violates victim's constitutional right to be free from the deprivation of property without due process of law.). United States v. McQueeney, 674 F.2d 109 (1st Cir. 1982)(false arrest). United States v. Harrison, 671 F.2d 1159 (8th Cir. 1982)(excessive force by police officer). United States v. McClean, 528 F.2d 1250 (2d Cir. 1976)(theft of money from victim by police officers violates victim's constitutional right to be free from the deprivation of property without due process of law.). Lynch v. United States, 189 F.2d 476 (5th Cir. 1951)(sheriff and deputy sheriff convicted of violating 18 U.S.C. �� for willful failure to keep people in their custody or control free from harm). Catlette v. United States, 132 F.2d 902 (4th Cir. 1943) (deputy sheriff convicted of violating 18 U.S.C. �� for willful failure to keep people in his custody or control free from harm). UNITED STATES' PROPOSED INSTRUCTION NO. 18 ELEMENT FOUR: WILLFULNESS The fourth element is that the defendant must have acted willfully. I instruct you that an act is done willfully if it is done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is, with an intent to violate a specific protected right. The specific intent which a defendant must possess be found guilty on a given count depends on which right that count charges has been violated. For the eight counts in which various defendants are charged with intentionally using unreasonable force, the requisite specific intent is the intent to use more force than is necessary under the circumstances. For the three counts charging false arrests, the requisite specific intent is the intent to arrest the victim without having probable cause to believe he or she committed a crime for which he or she was arrested. For the two counts in which defendant REESE is charged with willfully causing false evidence to be presented in an official criminal proceeding, the requisite specific intent is the intent to give false evidence against the victim. For two counts in which defendant BROUSSARD is charged with willful failure to keep a detainee from harm, the requisite specific intent is the intent to deliberately not take action to prevent an officer from assaulting the detainee. For the three counts in which certain defendants are charged with stealing money from individuals who were under arrest or detention, the requisite specific intent is the intent to take and keep for the defendants' own use the money which was in the possession of the detainee. With regard to specific intent, you are instructed that intent is a state of mind and can be proven by circumstantial evidence. Indeed, it can rarely be established by any other means. In determining whether this element of specific intent was satisfied, you may consider all the attendant circumstances of the case. You may infer that a person ordinarily intends all the natural and probable consequences of an act knowingly done. In other words, you may in this case infer and find that a defendant intended all the consequences that a person, standing in like circumstances and possessing like knowledge, should have expected to result from his acts knowingly done. As noted before, it is not necessary for you to find that the defendants were thinking in constitutional or legal terms at the time of the incidents, because a reckless disregard for a person's constitutional rights is evidence of a specific intent to deprive that person of those rights. You may find that a defendant acted with the requisite specific intent even if you find that he had no real familiarity with the Constitution or with the particular constitutional right involved, provided that you find that the defendant willfully and consciously did the act which deprived the victim of his or her constitutional rights. Nor does it matter that the defendant may have also been motivated by hatred, anger or revenge or some other emotion, provided that the intent which I have described to you is present. If you find that the defendant knew what he was doing and that he intended the consequences of his act, and if you find that that result constituted a deprivation of a constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim of that constitutional right. ________________________ Authorities: Ninth Circuit Pattern Jury Instructions, No. 5.05 1 Devitt and Blackmar, Federal Jury Practice and Instructions (3rd ed. 1977), § 14.06 at 384 (to act willfully). Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989) (elements of the Constitutional violation in the context of 42 U.S.C. �). Tennessee v. Garner, 471 U.S. 1 (1985)(elements of the Constitutional violation in the context of 42 U.S.C. �). Sandstrom v. Montana, 442 U.S. 510 (1979)(an inference that a person normally intends the consequences of his voluntary acts is permissible). Screws v. United States, 325 U.S. 91, 106 (1945)("[t]he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees."). United States v. Ragsdale, 438 F.2d 21, 23-26 (5th Cir.), cert. denied, 403 U.S. 919 (1971)(an instruction regarding ordinary consequences of voluntary acts is appropriate). United States v. Stokes, 506 F.2d 771, 776-77 (5th Cir. 1975)(to act willfully is to act with the intent to deprive another of his constitutional rights). United States v. Love, 767 F.2d 1052, 1059-60 (4th Cir. 1985), cert. denied, 474 U.S. 1081 (1986)(upheld instruction regarding inference that one normally intends the consequences of voluntary acts). United States v. O'Dell, 462 F.2d 224, 232 n. 10 (6th Cir. 1972)(the defendants need not have known specifically that they were violating constitutional rights). United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986) ("it is not necessary for the Government to prove that the defendant was thinking in constitutional terms at the time of the incident, for a reckless disregard for a person's constitutional rights is evidence of specific intent to deprive that person of those rights.") UNITED STATES' PROPOSED INSTRUCTION NO. 19 ELEMENT FIVE—BODILY INJURY In Counts Two, Three, Five, Seven through Nine, and Eleven through Fourteen the indictment charges that the offense resulted in bodily injury to the victim. In these counts only, the Government must also prove that the defendant's acts or failure to act resulted in bodily injury. The government need not prove that the defendant intended to cause bodily injury to the victims; the government need only prove that bodily injury resulted from the defendant's actions or inactions. "Bodily injury" means (a) a cut, abrasion, bruise or disfigurement; or (b) physical pain; or (c) illness; or (d) impairment of the function of a bodily member, organ, or mental faculty; or (e) any other injury to the body, no matter how temporary. ____________________________ Authorities: 18 U.S.C. �� (as amended effective November 18, 1988). 18 U.S.C. §��(f)(3), 1365(g)(4), 1515(a)(5), 1864(d)(2) (bodily injury defined for purposes of another Congressional provision). United States v. Marler, 756 F.2d 206, 216 (1st Cir. 1985) (interpreting "death results" clause of 18 U.S.C. ��). UNITED STATES' PROPOSED INSTRUCTION NO. 20 USE OF FORCE For the eight counts charging use of excessive force, another factor which you may consider in your determination of whether the defendant had the requisite specific intent to deprive a victim of the right is the nature and degree of force used by the defendant. A police officer may use the amount of force necessary to conduct an investigatory stop, make an arrest, or to defend himself or another from bodily harm. He may not, however, use more force than is reasonably necessary to accomplish those purposes. If you find that the defendant used force in a given incident, you may then consider whether the force used by the defendant was necessary in the first place or was greater than the force that would appear reasonably necessary to an ordinary, reasonable, and prudent person. To determine whether the defendants used excessive force, you should consider all of the circumstances from the point of view of a reasonable officer on the scene of the charged incident. However, provocation by mere insulting or threatening words will not excuse a physical assault by a law enforcement officer. Mere words, without more, do not constitute provocation or aggression on the part of the person saying those words. No law enforcement officer is entitled to use force against someone based on that person's verbal statements alone. If you determine that the force used was unnecessary and excessive, then you may consider that as evidence that the defendant acted with the requisite specific intent, that is, that he specifically intended to do that which the law forbids. ________________________ Authorities: See 2 Devitt and Blackmar, Federal Jury Practice and Instructions (3d ed. 1977), § 41.19 at 23l (mere words, without more, do not constitute provocation of aggression). See also Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J.) (concurring opinion) (law enforcement officers are reasonably expected to exercise a higher degree of restraint than the average citizen when confronted with verbal abuse). Williams v. United States, 341 U.S. 97, 102 note (1951)(in determining whether the requisite willful intent is present, the jury may consider attendant circumstances such as malice, the weapon used, the character and duration of the assault, and the time and manner in which the assault took place). Screws v. United States, 325 U.S. 91, 106 (1945)(intent may be inferred from all of the attendant circumstances). Houston v. Hill, 482 U.S. 451, 462-63 (1987) UNITED STATES' PROPOSED INSTRUCTION NO. 21 INTENT AND MOTIVE Intent and motive should never be confused. motive is what prompts a person to act. intent refers only to the state of mind with which the acts are done. Personal advancement and financial gain are two well recognized motives for some of human conduct. These laudable motives may prompt one person to voluntary acts of good and another to voluntary acts of crime. Good motive alone is never a defense where the act done is a crime. The motive of any defendant is immaterial except insofar as evidence of motive may aid in the determination of state of mind or intent. _________________ Authorities: Devitt and Blackmar, Federal Jury Practice and Instructions, (3rd Ed. 1977), 䅊.11. UNITED STATES' PROPOSED INSTRUCTION NO. 22 FALSE ARREST As I have stated, Counts Four, Six, and Ten charge that arrests were made without probable cause. The term "probable cause" is used to define the degree of knowledge an officer must have before he may arrest someone for committing a crime. Probable cause to arrest means facts and circumstances which would warrant a person of reasonable prudence and caution in believing that all of the elements of an offense have been committed by the person to be arrested. If an officer does not have this level of knowledge that a crime has been committed, then he may not make a lawful arrest. In Count Two you must determine whether defendant Houston had probable cause to believe that Jackie Dailey had committed the crime of loitering on or about Oakland Housing Authority property. In Count Six you must determine whether defendant Houston had probable cause to arrest Rosie Verduzco for resisting arrest.In Count Ten, you must determine whether defendant Broussard aided and abetted, as I will define that term, an arrest of David McClendon for possession of crack cocaine without probable cause to believe he had done so. _______________ Authorities: Michigan v. DeFillipo, 443 U.S. 31, 37 (1979). Gerstein v. Pugh, 420 U.S. 103, 111 (1975). United States v. Walker, 785 F.2d 1237, 1239 (5th Cir. 1986) United States v. McQueeney, 674 F.2d 109, 114 (1st Cir. 1982). United States v. Harrison, 671 F.2d 1159, 1162 (8th Cir.), cert. denied, 459 U.S. 847 (1982). GOVERNMENT'S PROPOSED INSTRUCTION NO. ___23___ AIDING AND ABETTING In Count Ten defendant Broussard is charged with aiding and abetting an unlawful arrest of David McClendon for possession of cocaine without probable cause to believe he had committed that crime. Further, in any of Counts Two through Nineteen, a defendant may be found guilty of willfully depriving the constitutional rights of another while acting under color of law, even if the defendant personally did not commit the act or acts constituting the crime, but aided and abetted in its commission.Title 18, United States Code, Section 2 provides: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal." "Whoever willfully causes an act to be done, which if directly performed by him or another would be an offense against the United States, is punishable as a principal." To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt: First: the deprivation of constitutional rights under color of law was committed; Second: the defendant knowingly and intentionally aided, counseled, commanded, induced or procured another person to commit the deprivation of constitutional rights under color of law; and Third: the defendant acted before the crime was completed. It is not enough that the defendant merely associated with the principal person who committed the offense, or was present at the scene of the crime, or unknowingly or unintentionally did things that were helpful to the principal. The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping the principal commit the deprivation of constitutional rights while under color of law. The government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted. You may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant willfully participated in its commission. ____________________ Authority: Pattern Jury Instruction - 9th Cir. No. 5.01, p. 68 (modified) Pattern Jury Instruction - 5th Cir. No. 1 Special Instructions (modified) United States v. Vines, 580 F.2d 850, 853 (5th Cir.), cert. denied, 439 U.S. 991 (1978) (aiding and abetting instruction proper even where the indictment does not specifically charge the offense). United States v. Avila-Macias, 577 F.2d 1384, 1390 nn 4 & 5 (9th Cir. 1978). Feldstein v. United States, 429 F.2d 1092 (9th Cir.) cert. denied, 400 U.S. 920 (1970). United States v. Jones, 425 F.2d 1048. 1057 (9th Cir.), cert. denied, 400 U.S. 823 (1970). United States v. Lester, 363 F.2d 68, 72 (6th Cir.1966), cert. denied, 385 U.S. 1002 (1967). GOVERNMENT'S PROPOSED INSTRUCTION NO. ___24___ "ON OR ABOUT"—PROOF OF You will note that the indictment charges that the offenses were committed "on or about" a certain date. The proof need not establish with certainty the exact date of each alleged offense. It is sufficient if the evidence establishes beyond a reasonable doubt that each offense was committed on a date or dates reasonably near the date or dates alleged. Devitt and Blackmar, Federal Jury Practice and Procedures, Section 13.05 (Third Edition 1977) (as modi
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