130.

Sample Jury Instructions—18 U.S.C. § § 2, 245(b)(2)(F)

GOVERNMENT'S PROPOSED INSTRUCTION NO. 14 COUNT TWO On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Lanh Tang, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 15 COUNT THREE On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully injure, intimidate and interfere, and attempt to injure, intimidate and interfere, with Ming Hai Loo, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment, resulting in bodily injury to, and the death of Ming Hai Loo. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 16 COUNT FOUR On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Chi Cuong Ta, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 17 COUNT FIVE On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Ton That Thai Nguyen, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 18 COUNT SIX On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Tai Trong Le, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 19 COUNT SEVEN On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Hong Thanh Nguyen, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 20 COUNT EIGHT On or about July 28, 1989, in Raleigh, North Carolina in the Eastern District of North Carolina, defendant LLOYD RAY PICHE, aided and abetted by a person known to the grand jury, did by force and threat of force, willfully intimidate and interfere, and attempt to intimidate and interfere, with Minh Van Lam, because of his race, color, and national origin, and because he was enjoying the goods and services of the "Cue N Spirits", a facility which serves the public and is principally engaged in selling beverages for consumption on the premises and is a place of entertainment. All in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(F). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 21 With respect to Counts Two through Eight, Title 18, United States Code, Section 245(b)(2)(F) provides in pertinent part: Whoever...by force or threat of force willfully injures, intimidates or interferes with...any person because of his race, color...or national origin and because he is or has been...enjoying the goods, services, facilities, privileges, advantages, or accommodations of...any...facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or...any other place of exhibition or entertainment which serves the public...[shall be guilty of an offense against the United States]. ___________________________ Authorities: 18 U.S.C. § 245 UNITED STATES' PROPOSED JURY INSTRUCTION NO. 22 Four essential elements are required to be proved beyond a reasonable doubt in order to establish the offense charged in the Indictment. FIRST: The defendant must have used either force or the threat of force. SECOND: The actions of the defendant must have injured, intimidated, or interfered with the named victim. THIRD: The defendant must have acted because of the named victim's race, color or national origin and because the named victim was or had been enjoying the facilities of the Cue 'N Spirits, a place which serves the public and which is principally engaged in selling food or beverages for consumption on the premises and is a place of entertainment which serves the public. FOURTH: The defendant must have acted willfully. _______________________________ Authorities: 18 U.S.C. § 245(b)(2)(F) United States v. Price, 464 F.2d 1217 (8th Cir.), cert. denied, 409 U.S. 1040 (1972). United States v. Johns, 615 F.2d 672 (5th Cir. 1980). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 23 The first element requires proof that the defendant used force or threat of force against the named victim. The term "force" includes the use of physical power other than the power of oral or written speech. Force means power, violence, compulsion, or restraint exerted upon a person. Force may be proven by finding that the defendant committed any form of violence against the victim. "Threat of force" means that a threat, either through words or gestures, to inflict some harm upon the victim was made to the victim. ___________________________ Authorities: United States v. Griffin, 525 F.2d 710 (1st Cir. 1975), cert. denied, 424 U.S. 945 (1976). United States v. Price, 464 F.2d 1217 (8th Cir.), cert. denied, 409 U.S. 1040 (1972). 1968 U.S. Code Cong. and Admin. News 1837, 1838-40, 1843, 1845. UNITED STATES' PROPOSED JURY INSTRUCTION NO. 24 The second element of this offense is that the defendant must have injured, interfered with, or intimidated the named victim. The words "interfere with" and "intimidate" and "injure" as used here have no technical meaning, but are to be understood in their ordinary meaning and cover a variety of conduct intended to harm or frighten other persons. UNITED STATES' PROPOSED JURY INSTRUCTION NO. 25 The third and fourth elements of this offense concern the defendant's intent. The Indictment charges that the defendant did willfully intimidate and interfere, or attempted to intimidate and interfere, with the victim because of his race, color, and national origin, and because he had been enjoying the facilities of a place of entertainment which serves the public or a public place which was principally engaged in selling beverages for consumption on the premises. An act is done willfully if it is done voluntarily and intentionally and with a specific intent to do something that the law forbids. With respect to this statute, specific intent means that the defendant (1) intended to engage in conduct which would intimidate or interfere with the victim, and (2) that the defendant engaged in such conduct because of the victim's race, color, or national origin and (3) because the victim was enjoying the use of a place of entertainment or a public place which was principally engaged in selling beverages for consumption on the premises. As I previously instructed you with respect to Count One, specific 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 present you may consider all the attendant circumstances of the case. With respect to whether the defendant intended to intimidate or interfere with the victim, I charge you that 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 the defendant intended all the consequences that a person, standing in like circumstances and possessing like knowledge, should have expected to result from his or her act or acts knowingly done. If you find that the Cue 'N Spirits was a place of entertainment which served the public or that it was a facility which was principally engaged in selling beverages for consumption on the premises, and if you find that on the evening of July 28, 1989, the named victim was enjoying the facilities of the Cue 'N Spirits, then I instruct you that the named victim was engaged in activities specifically protected by the statute. If you further find beyond a reasonable doubt that the defendant injured, interfered with or intimidated the named victim because of his race, color, or national origin, and because he had been enjoying the goods, services or facilities of the Cue 'N Spirits, then the United States has proven this element of the offense. It is not necessary to show or prove that the defendant was thinking in statutory terms at the time of the incident. You may find that a defendant acted with the requisite specific intent even if you find that he had no real familiarity with the particular statutory rights involved, provided that you find that the defendant willfully and consciously did the act which deprived the victim of his statutory rights. Furthermore, if you find that the defendant had the motivation I have just described, it would not matter if the defendant had other motives as well for doing what he did, such as personal anger or revenge. In other words, given the existence of the defendant's motive to interfere with the named victim's use of the Cue 'N Spirits because of race, color, or national origin, the presence of other motives does not make his conduct any less a violation of the law. ___________________________ Authorities: Anderson v. United States, 417 U.S. 227 (1974). United States v. Ramey, 336 F.2d 512, 515 (4th Cir. 1964), cert. denied, 379 U.S. 972 (1965). United States v. Dean, 722 F.2d 92, 94 (5th Cir. 1983). United States v. Price, 464 F.2d 1217 (8th Cir.), cert. denied, 409 U.S. 1040 (1972). Crews v. United States, 160 F.2d 746 (5th Cir. 1947)(one is presumed to have intended normal consequences of one's acts). United States v. Griffin, 525 F.2d 710, 712 (1st Cir. 1975), cert. denied, 424 U.S. 945 (1976). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 26 An additional element of Count Three is that the defendant's actions resulted in the death of Ming Hai Loo. In order for you to find the defendant guilty as to this portion of Count Three, you must find that Ming Hai Loo's death was a natural and foreseeable consequence of the acts committed by the defendant. It is not necessary for the United States to prove that the defendant intended Mr. Loo to die as a result of his actions. Nor need the United States prove that the defendant struck the blow that directly caused Mr. Loo's death. If death results does not mean "if death was intended" or "directly caused by the defendant." Rather, the statue is designed to deter the type of conduct that creates an unacceptable risk of loss of life. If you find that the acts of the defendant in this case contributed to or hastened the death of Ming Hai Loo and were such as to create an unacceptable risk of the loss of life to Ming Hai Loo, then you may find that this final element has been established. ___________________________ Authorities: United States v. Harris, 701 F.2d 1095, 1101 (4th Cir.), cert. denied, 463 U.S. 1214 (1983). United States v. Hayes, 589 F.2d 811, 821 (5th Cir.), cert. denied, 444 U.S. 847 (1979). United States v. Calhoun, No. 84-5228 (4th Cir. July 3, 1985)(unpublished)(death resulting conviction upheld where the defendant contributed to or hastened the death of the victim). United States v. Marler, 756 F.2d 206 (1st Cir. 1985). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 27 I have just charged you with respect to what the United States has to prove for you to convict the defendant of the crime of interference with federally protected activities with death resulting. Your first task is to decide whether the United States has proved, beyond a reasonable doubt, that the defendant committed that crime. If your verdict on that is guilty, you are finished with respect to Count Three. If your verdict is not guilty, or if you are unable to reach a verdict, you should go on to consider whether the defendant is guilty of the crime of interference with federally protected activities. You should find the defendant guilty of the crime of conspiracy to violate protected federal rights if the United States has proven, beyond a reasonable doubt, that the defendant did everything I charged you before except that it did not prove that the defendant's actions resulted in the death of Ming Hai Loo. ____________________________ Authorities: Fifth Circuit Pattern Jury Instructions, p. 45, 1.32 (1990 ed.). GOVERNMENT'S PROPOSED INSTRUCTION NO. 28 Aiding and Abetting The guilt of an accused in a criminal case may be established without proof that he personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. 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." So, if a defendant willfully directs or authorizes another individual to commit the alleged acts, or if a defendant aids and abets another person by willfully joining together with such person in the commission of a crime, then the law holds the defendant responsible for the acts and conduct of such other person just as though he had committed the acts or engaged in such conduct himself. Notice, however, that before any defendant may be held criminally responsible for the acts of others it is necessary that the accused willfully associate himself in some way with the criminal venture, and willfully participate in it as he would in something he wishes to bring about; that is to say, that he willfully seek by some act or omission of his to make the criminal venture succeed. Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a spectator. In other words, 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 - 5th Cir. No. 1, Special Instructions (modified) UNITED STATES' PROPOSED JURY INSTRUCTION NO. 29 You have heard evidence that the defendant committed other acts of intimidation and harassment against other groups of racial minorities on prior occasions at the Korner Pocket. The fact that the defendant may have committed such acts is not any evidence or proof that, at a later time, the accused committed the acts charged in the indictment at the Cue 'N Spirits, even though the acts are of a like nature. Evidence as to the alleged earlier acts at the Korner Pocket may not therefore be considered by the jury in determining whether the accused did the acts charged in the indictment. However, the jury may consider evidence as to the alleged acts at the Korner Pocket in determining the state of mind or intent with which the accused did the acts charged in the indictment. In other words, if you find that the defendant harassed and intimidated Leonard Rowland at the Korner Pocket and a group of Asian-Americans at the Korner Pocket and that he did so with racial intent, then you may consider that as evidence that the defendant acted with racial intent when he engaged in similar conduct at the Cue 'N Spirits. ___________________ Authorities: Devitt and Blackmar, Federal Jury Practice and Instructions, (3rd Ed.), 䅊.15. Respectfully submitted, John R. Dunne Assistant Attorney General Civil Rights Division _______________________________ Suzanne Drouet Marvin Krislov Attorneys, Criminal Section U.S. Department of Justice P.O. Box 66018 Washington, D.C. 20035-6018 CERTIFICATE OF SERVICE I, Suzanne Drouet, do hereby certify that I have this date served the within and foregoing upon the defendant by mailing a copy of same to his attorney of record, Elizabeth Manton, Assistant Public Defender, P.O. Box 25967, Raleigh, North Carolina 27611-5967, in a properly addressed and franked envelope. THIS ________ day of ___________, 1991. ______________________________ Suzanne Drouet Attorney, Criminal Section Department of Justice P.O. Box 66018 Washington, D.C. 20035-6018 (202) 514-4152 [cited in Civil Rights Resource Manual 60]