Hon. Kenneth J. Gonzales (KG) · U.S. District Court for the District of New Mexico
=== Courtroom Rules ===
COURTROOM RULES Dress and Conduct Attorneys and parties shall conduct themselves with decorum and civility. Attorneys are required to dress in a professional manner. Parties also are expected to appear dressed in a manner appropriate for federal court. (E.g., shorts, T-Shirts, tank tops, strapless tops, tennis shoes, and sandals are not allowed.) Witnesses, jurors and spectators are expected to dress in a manner consistent with the dignity of the Court. The following minimum standards apply: 1. Men should wear shirt with a collar and long pants. (Jeans are acceptable). 2. Women should wear a dress, or a blouse and skirt or long pants. (Jeans are acceptable). 3. All laypersons should wear shoes in the courtroom. 4. Shorts, T-Shirts, and revealing clothing are not acceptable. (Anything that reveals the midriff or underclothing). 5. Hats or caps must be removed while in the courtroom. Deviations from the above standards by laypersons (other than those who are in custody at the time of the proceeding) should be brought to attention of court personnel and approved by the Court prior to entering the courtroom. Food, including chewing gum, is not allowed in the courtroom, except for throat lozenges when necessary. Stand when you speak. Do not refer to any party or attorney by their first name. Always use surnames. Always address the Court only; do not address or argue with opposing counsel in the presence of the jury. If counsel must confer with one another, please request permission of the Court for a moment to do so privately and quietly. Remain behind the podium when addressing the Court or speaking to the jury. Argument on Motions In most cases, Judge Gonzales will grant a request for oral argument. Telephone hearings may be set for out-of-town counsel if the motion is non-dispositive. In these instances, if one side will need to appear by telephone, Judge Gonzales will require both sides to appear by telephone. (Appearance via cellular telephone will not be approved). When appearing via telephone, and to ensure an accurate record, counsel should identify themselves by name when speaking and avoid interrupting or speaking while other speakers are being heard. Counsel is required to appear in-person for dispositive motions. 1 Opportunities for Young Lawyers Judge Gonzales is aware of the current trend that clearly shows more cases are resolved without going to trial. As a result, there are fewer opportunities for attorneys to “stand up” in court, particularly for young, less experienced lawyers (lawyers practicing less than five years). Judge Gonzales strongly encourages litigants and firms to seek opportunities for young lawyers to appear at hearings before the court and make oral argument, especially on motions and responses that young lawyers drafted or significantly contributed to drafting. In instances where Judge Gonzales will be ruling on a motion or response handled by a young lawyer, Judge Gonzales is inclined to weigh in favor of granting requests for oral argument in court. Judge Gonzales understands that in some circumstances having a young lawyer present oral arguments may not be appropriate and/or in the best interests of the client. Even so, Judge Gonzales believes it is important to provide young lawyers with substantive speaking opportunities to gain experience in court, as the benefits of such experience will accrue to the young lawyer, their clients, and the legal profession in general. After the conclusion of a case, Judge Gonzales generally will be available to visit with any young lawyers who wish to receive feedback relating to their in-court appearances. Other Courtroom Rules Counsel’s mobile devices shall be on silent mode before entering the courtroom; telephone calls are not allowed in courtroom while court is in session. Please provide two weeks advance notice when you require teleconferencing, intend to utilize the courtroom’s video displays, or have other presentation technology questions. 2
=== Instruction for Civil Cases ===
PRETRIAL INSTRUCTIONS FOR CIVIL CASES BEFORE THE HONORABLE KENNETH J. GONZALES UNITED STATES DISTRICT JUDGE TRIAL PREPARATION IN CIVIL CASES – The following procedures shall be followed unless otherwise determined by the Court. I. PRETRIAL CONFERENCES 1. 2. 3. An Initial Pretrial Conference will be set approximately two months prior to trial. At this pretrial conference, counsel shall be prepared to discuss the substance of all pending motions. This means the Judge may ask you questions about the merits of pending motions. Parties should inform Judge Gonzales of any motions in limine that they plan to file. Counsel shall also be prepared to address any unresolved issues prior to the commencement of the trial. Counsel shall also have their calendars in front of them in the event the Court decides to set a definite trial setting at this conference. Call of the Calendar, if necessary, will be set approximately two weeks prior to trial. A Final Pretrial Conference will be set closer to trial. Prior to this pretrial conference, the parties should exchange exhibit lists. During this pretrial conference, the parties shall inform Judge Gonzales if there are going to be objections to exhibits so the Judge can rule on objections prior to trial. Please bring draft copies of the Pretrial Order. The Judge will go over the witnesses identified in the Pretrial Order and provide the various deadlines necessary to complete and file the Pretrial Order. Parties should contact Theresa A. Hall, judicial assistant, in writing if discovery deadlines are extended beyond the final pretrial conference date in order to allow her to vacate the final pretrial conference and reset it for a later date. Theresa A. Hall’s phone number is 575- 528-1640. II. PRETRIAL DEADLINES 1. 2. Throughout these pretrial instructions, the term “trial” refers to the date set in the written notice for commencement of the trailing docket. Counsel must seek leave of the Court in the form of a written motion to extend any pretrial deadline. 3. Where a submission deadline falls on a Saturday, Sunday or a holiday, the deadline becomes the next business day. 1 Event Exhibit List Deadline Thirty (30) days before trial Twenty (20) days before trial Witness List Twenty (20) days before trial Deposition Testimony Designations Fifteen (15) days before trial Comment Counsel for each party shall file with the Clerk, and provide to opposing counsel, a proposed exhibit list. Counsel will specify for each exhibit the Rules(s) of Evidence or other legal authority upon which the admission of the exhibit is sought. A separate list of stipulated exhibits shall also be filed at this time. Counsel for each party shall file with the Clerk a complete list of all objections to the exhibits offered, specifying the Rule(s) of Evidence or other legal authority upon which an objection is based. Counsel shall file a complete list of witnesses in the order to be called with the Clerk in conformance with the Pretrial Order. Deposition testimony designations shall be filed with the Clerk fifteen (15) days before trial. Objections to Deposition Testimony Designations Motions in Limine Daubert Motions Jury Instructions Thirty (30) days before trial Ten (10) days before trial Objections to use of deposition testimony shall be filed with the Clerk ten (10) days before trial. The parties must confer about any disputes and, if unable to resolve any differences, must notify the Court in writing. Responses are due twenty (20) days before trial. Replies to motions in limine will not be entertained unless specifically requested and allowed. Parties shall provide advance notice of intent to introduce or challenge expert testimony so that the Court has sufficient time before the trial to schedule a Daubert hearing, if necessary. Please refer to detailed requirements for jury instructions set out herein. Same as the pretrial motion deadline set by the Magistrate Judge in the Scheduling Order Thirty (30) days before trial 2 Joint Statement of the Case Voir Dire Questions Ten (10) days before trial The parties shall submit a brief joint statement of the case to be submitted together with the jury instructions. Ten (10) days before trial Any party wishing to participate in Bench Trials: Proposed Findings of Fact and Conclusions of Law Bench Trials: Trial Briefs Ten (10) days before trial Parties are to file with the Clerk voir dire must file proposed voir dire questions with the Clerk. Seven (7) days before trial proposed Findings of Fact and Conclusions of Law, with references to exhibits and proposed testimony. Trial briefs outlining the basic legal theories, anticipated evidence in support of such theories, and the legal basis of any anticipated evidentiary disputes must be filed with Clerk. III. MOTIONS IN LIMINE Counsel is reminded of the following: “The purpose of a motion in limine is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201, 1208 (D. Kan. 2008) aff'd, 402 Fed.Appx. 337 (10th Cir. 2010) (internal quotations omitted). Accordingly, motions in limine “give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably effect the fairness of the trial.” Stewart v. Hooters of Am., Inc., 2007 WL 1752843, at *1 (M.D. Fla.). While pretrial in limine rulings can save time and avoid interruptions at trial, “a court is almost always better situated during actual trial to assess the value and utility of evidence.” Mendelsohn, 587 F. Supp. 2d at 1208 (citation omitted). Consequently, motions in limine are disfavored and courts defer making in limine rulings unless the “evidence is clearly inadmissible on all potential grounds.” Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”). See also Stewart, 2007 WL 1752843, at *1. Moreover, litigants may not raise non-evidentiary matters in limine. Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). In other words, parties may not litigate theories or defenses in a motion in limine which “have been or should have been resolved at an earlier stage” of litigation, such as in a motion for summary judgment. Id. Counsel also is reminded that “[a] ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district 3 court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). For that reason, the Court may amend its ruling during the course of trial. Luce v. United States, 469 U.S. 38, 41–42 (1984) (holding that in limine “ruling is subject to change when the case unfolds…. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). IV. EXHIBITS 1. 2. IN ORDER TO MAINTAIN EFFICIENCY AND ORGANIZATION OF THE COURT’S RECORD OF THE PARTIES’ NUMEROUS EXHIBITS DURING TRIAL, PARTIES SHALL FILE THEIR FINAL EXHIBIT LISTS WITH THE COURT PRIOR TO TRIAL. Charts, plats, diagrams, etc., will be marked and ready as to measurements, landmarks, and other identifying factual material before trial. Counsel is strongly encouraged to stipulate to exhibits wherever possible, particularly regarding their authenticity. Exhibits shall be marked and identified (Plaintiff's on yellow labels by numbers and Defendant's on blue labels by letters, e.g., A,B,C, . . . AA, AB, AC). Use of exhibit notebooks (Plaintiff’s and Defendant’s) is encouraged for those exhibits to which neither party has objections. V. WITNESSES 1. 2. Clients and witnesses are expected to be on time, and counsel should always have witnesses available to fill a full trial day (i.e., 9:00 a.m. - 5:00 p.m.). All expert reports must have been exchanged in advance of trial in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure. Cumulative expert testimony will not be permitted. VI. DEPOSITION TESTIMONY 1. 2. Consistent with the Federal Rules of Civil Procedure, deposition testimony may be introduced into evidence. If a deposition is used in part, counsel shall mark the parts to be used for opposing counsel. The court copy shall also be marked. Plaintiff will use yellow marker and Defendant blue marker. This does not apply to cross-examination or rebuttal. VII. GUIDELINES FOR TRIAL 1. Trials will begin at 9:00 a.m. Counsel shall be in the courtroom no later than 8:30 a.m. and be prepared to discuss any matter that should be addressed outside the presence of the jury. Be on time for each court session. Counsel shall follow the time as displayed on the clock inside the courtroom. Trial engagements take 4 2. 3. 4. 5. 6. 7. 8. precedence over any other business. If you have matters in other courts, make other arrangements in advance for the handling of such matters. A multi-day jury trial will recess at about 5:00 p.m. The Court generally will recess each morning and afternoon for a 15-minute comfort break and a 60- minute lunch break for attorneys (75-minutes for the jury). Stand when you speak. Do not refer to any party or attorney by their first name. Always use surnames. Always address the Court only; do not address or argue with opposing counsel in the presence of the jury. If counsel must confer with one another, please request permission of the Court for a moment to do so privately and quietly. In opening statements, present a concise summary of the facts. Do not argue the facts nor discuss law. Do not describe in detail what particular witnesses will say. The time for opening statements will be limited to the amount of time determined by the Court. Counsel will be responsible for monitoring their own time limit, but the Court may remind counsel if s/he exceeds limit. When you object in the presence of the jury, make it short and to the point. Do not argue its merits in the presence of the jury. Do not argue the ruling in the presence of the jury. Remain behind the podium when addressing the Court or speaking to the jury. In final argument, you may paraphrase an instruction but do not quote extensively from any instruction. Parties should notify the Court at least two weeks in advance of trial if they require audio-visual or other special equipment. If parties are unfamiliar with the operation of courtroom technology, they shall make arrangements with my judicial assistant, Theresa Hall at (575)528-1640, to schedule a time to test and run the equipment. Parties are responsible for operating any of this equipment. Please bring in actual DVD(s) and/or other electronic or technical exhibits to be used in the trial to assure their compatibility with the Court’s equipment. VIII. PREPARATION OF JURY INSTRUCTIONS Prepare your proposed jury instructions in accordance with these directions. File the proposed jury instructions with citations with the Clerk’s office in accordance with D.N.M. LR-Cv 5.1 at least THIRTYTY (30) DAYS before trial is scheduled. Refer to the Court’s external website in order access Judge Gonzales’s trial preparation materials: www.nmcourt.fed.us. 1. Parties shall meet and confer in advance of the deadline to agree on as many instructions as possible. PARTIES SHALL SUBMIT A SET OF MUTUALLY 5 ACCEPTABLE JURY INSTRUCTIONS ON THE SUBSTANTIVE CLAIMS, OR BE PREPARED TO SUBMIT A LEGAL BASIS FOR THEIR OBJECTIONS TO EACH INSTRUCTION ON WHICH THEY DO NOT AGREE. Parties shall file written objections to an opposing parties’ submitted instructions. These objections are due THREE (3) working days after jury instructions are due. The Joint Statement of the Case should be submitted at the same time the jury instructions are submitted, but should be filed separately. IN ADDITION TO ELECTRONICALLY FILING THEIR SUBMISSIONS REGARDING JURY INSTRUCTIONS, Plaintiff and Defendant shall submit to the Court through the email address ([email protected]) on the chambers web page for proposed orders, the following: (1) the set of mutually acceptable jury instructions; (2) disputed jury instructions; (3) proposed special verdict forms; and (4) joint statement of the case. The requested instructions and Joint Statement of the Case must be submitted in Word or Rich Text format. Jury instructions without citations are no longer needed. Directions regarding submission of STOCK instructions: Parties should not submit stock instructions. Instead, parties should refer to the Court’s approved set of stock instructions, available on the chambers web page under “Stock Civil Jury Instructions.” Parties should include a separate page with a list of requested stock instructions as each is described at the bottom of the web site instructions. The parties should refer to Tenth Circuit pattern civil instructions for substantive instructions. Carefully proofread each instruction for errors in spelling, grammar, punctuation, and citations, and for unintended deviations from pattern instructions used as sources. 2. 3. 4. 5. 6. 7. 8. 9. Submit a cover sheet on all sets of instructions. 6 10. Submit no more than one instruction per page. (See Fig. 1 below). (PLTF'S) OR (DEFT'S) OR (JOINT) INSTRUCTION NO. 1 Members of the Jury, You have now heard all of the evidence in the case and will soon hear the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. Citation . . . Fig.1 with Citation 7
=== Instruction for Criminal Cases ===
PRETRIAL INSTRUCTIONS FOR CRIMINAL CASES BEFORE THE HONORABLE KENNETH J. GONZALES UNITED STATES DISTRICT JUDGE ________________________________________________________________________ TRIAL PREPARATION IN CRIMINAL CASES – The following procedures shall be followed unless otherwise determined by the Court. I. CALL OF THE CALENDAR 1. 2. 3. 4. Trial counsel must plan to appear on behalf of client. If unable to appear, please advise the Court no less than 24 hours before Call of the Calendar and arrange for substitute counsel. Call of the Calendar is scheduled by the Court. Please be prepared to address the following: a. b. Number of days needed for trial; and Motions to Continue. All motions to continue trial shall be filed no later than 48 hours prior to the Call of the Calendar and state the grounds for the motion in accordance with 18 U.S.C. § 3161(h)(7) and United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009). Counsel also shall specify the number motions to continue that have been filed in the underlying case and shall specify the facts and circumstances giving rise to a continuance of trial setting. If the case is a multiple defendant case, counsel is to state in the motion each defendant’s position in the motion and preferably file a joint motion to continue. Counsel shall provide chambers with a proposed Order. See sample Order attached to these instructions. A sample Order in Word format may also be found under Criminal Forms on the Judge’s webpage. II. PRETRIAL DEADLINES 1. 2. Throughout these pretrial instructions, the term “trial” refers to the date set in the written notice for commencement of the trailing docket. Counsel must seek leave of the Court in the form of a written motion to extend any pretrial deadline. 3. Where a submission deadline falls on a Saturday, Sunday or a holiday, the deadline becomes the next business day. Event Exhibit List Deadline Seven (7) days before trial Comment Counsel for each party shall file with the Clerk and provide to opposing counsel, a proposed exhibit list. Counsel will specify for each exhibit the Rule(s) of Evidence or other legal authority upon which the admissions of the exhibit is sought. A list of stipulated exhibits shall also be filed at this time. Any offer of exhibits into evidence that results from discovery later than seven (7) days before trial will be denied, except on a showing of good cause. Five (5) days before trial Counsel for each party shall file with Witness List Seven (7) days before trial Deposition Testimony Seven (7) days before trial the Clerk a complete list of all objections to the exhibits offered, specifying the Rule(s) of Evidence or other legal authority upon which an objection is based. Counsel shall furnish a complete list of witnesses in the order to be called to opposing counsel and file that list with the Clerk. Objections to use of deposition testimony shall be filed with the Clerk five (5) days before trial. Five (5) days before trial The parties must confer about any Jury Instructions Voir Dire Questions Motions in Limine and any other admissibility issues Seven (7) days before trial Seven (7) days before trial Twenty-one (21) days before trial disputes and, if unable to resolve any differences, must notify the Court in writing. Please refer to detailed requirements for jury instructions set out herein. Any party wishing to participate in voir dire must file proposed voir dire questions with the Clerk. Responses are due ten (10) days before trial. Replies to motions in limine will not be entertained unless specifically requested and allowed. Daubert Motions and other pretrial motions Twenty-one (21) days before trial (unless otherwise set earlier by Court Order). Parties shall provide advance notice of intent to introduce or challenge expert testimony so that the Court has sufficient time before the trial to schedule a Daubert hearing, if necessary. III. MOTIONS IN LIMINE Counsel is reminded of the following: “The purpose of a motion in limine is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201, 1208 (D. Kan. 2008) aff'd, 402 Fed.Appx. 337 (10th Cir. 2010) (internal quotations omitted). Accordingly, motions in limine “give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably effect the fairness of the trial.” Stewart v. Hooters of Am., Inc., 2007 WL 1752843, at *1 (M.D. Fla.). While pretrial in limine rulings can save time and avoid interruptions at trial, “a court is almost always better situated during actual trial to assess the value and utility of evidence.” Mendelsohn, 587 F. Supp. 2d at 1208 (citation omitted). Consequently, motions in limine are disfavored and courts defer making in limine rulings unless the “evidence is clearly inadmissible on all potential grounds.” Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”). See also Stewart, 2007 WL 1752843, at *1. Moreover, litigants may not raise non-evidentiary matters in limine. Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). In other words, parties may not litigate theories or defenses in a motion in limine which “have been or should have been resolved at an earlier stage” of litigation, such as in a motion for summary judgment. Id. Counsel also is reminded that “[a] ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). For that reason, the Court may amend its ruling during the course of trial. Luce v. United States, 469 U.S. 38, 41–42 (1984) (holding that in limine “ruling is subject to change when the case unfolds…. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). IV. EXHIBITS 1. IN ORDER TO MAINTAIN EFFICIENCY AND ORGANIZATION OF THE COURT’S RECORD OF THE PARTIES’ NUMEROUS EXHIBITS DURING TRIAL, PARTIES SHALL FILE THEIR FINAL EXHIBIT LISTS WITH THE COURT PRIOR TO TRIAL. Charts, plats, diagrams, etc., will be marked and ready as to measurements, landmarks, and other identifying factual material before trial. Counsel is strongly encouraged to stipulate to exhibits wherever possible, particularly regarding their authenticity. 2. 3. Any offer of exhibits into evidence that results from discovery later than seven (7) days before trial will be denied, except on a showing of good cause. Exhibits shall be marked and identified (Plaintiff's on yellow labels by numbers and Defendant's on blue labels by letters, e.g., A,B,C, . . . AA, AB, AC). Use of exhibit notebooks (Plaintiff’s and Defendant’s) is encouraged for those exhibits to which neither party has objections. Counsel is to identify each exhibit with its own individual number or letter; do not group exhibits together, e.g., photographs, diagrams, etc. These should be individually marked. If necessary, an exhibit which has subparts may be identified as Plaintiff’s 1.1, 1.2, 1.3 or Defendant’s A.1, A.2, A.3. This step is not necessary if an exhibit has multiple pages and would normally be treated as a single document, e.g., reports, letters, etc. V. WITNESSES 1. Clients and witnesses are expected to be on time, and counsel should always have witnesses available to fill a full trial day (i.e., 9:00 a.m. - 5:00 p.m.). 2. Cumulative expert testimony will not be permitted. VI. DEPOSITION TESTIMONY 1. 2. Consistent with the Federal Rules of Criminal Procedure, deposition testimony may be introduced into evidence. If a deposition is used in part, counsel shall mark the parts to be used for opposing counsel. The court copy shall also be marked. Plaintiff will use yellow marker and Defendant blue marker. This does not apply to cross-examination or rebuttal. VII. GUIDELINES FOR TRIAL 1. 2. The Court may schedule a pre-trial conference to be held 1-3 days prior to trial. During this conference, counsel shall be prepared to address any unresolved issues prior to the commencement of trial. Counsel is to bring copies of all exhibits with them to the pre-trial conference. Trial will begin at 9:00 a.m. Counsel shall be in the courtroom no later than 8:30 a.m. and be prepared to discuss any matter that should be addressed outside the presence of the jury. Be on time for each court session. Counsel shall follow the time as displayed on the clock inside the courtroom. Trial engagements take 3. 4. 5. 6. 7. 8. 9. precedence over any other business. If you have matters in other courts, make other arrangements in advance for the handling of such matters. A multi-day jury trial generally will recess at about 5:00 p.m. The Court generally will recess each morning and afternoon for a 15-minute comfort break and a 60-minute lunch break for attorneys (75-minutes for the jury). Stand when you speak. Do not refer to any party or attorney by their first name. Always use surnames. Always address the Court only; do not address or argue with opposing counsel in the presence of the jury. If counsel must confer with one another, please request permission of the Court for a moment to do so privately and quietly. In opening statements, present a concise summary of the facts. Do not argue the facts nor discuss law. Do not describe in detail what particular witnesses will say. The time for opening statements will be limited to the amount of time determined by the Court. Counsel will be responsible for monitoring their own time limit, but the Court may remind counsel if s/he exceeds limit. When you object in the presence of the jury, make it short and to the point. Be prepared if asked by the Court to provide authority for the basis of the objection. Do not argue its merits in the presence of the jury. Do not argue the ruling in the presence of the jury. Remain behind the podium when addressing the Court or speaking to the jury. In final argument, you may paraphrase an instruction but do not quote extensively from any instruction. Parties should notify the Court at least two weeks in advance of trial if they require audio-visual or other special equipment. If parties are unfamiliar with the operation of courtroom technology, they shall make arrangements with my judicial assistant, Theresa Hall at (575)528-1640, to schedule a time to test and run the equipment. Parties are responsible for operating any of this equipment. Please bring in actual DVD(s) and/or other electronic or technical exhibits to be used in the trial to assure their compatibility with the Court’s equipment. VIII. PREPARATION OF JURY INSTRUCTIONS Prepare your proposed jury instructions in accordance with these directions. File the proposed jury instructions with citations with the Clerk’s office in accordance with D.N.M. LR-Cv 5.1 at least SEVEN (7) days before trial is scheduled. Refer to the Court’s external website in order to access Judge Gonzales’s trial preparation materials: www.nmcourt.fed.us. 1. 2. 3. 4. 5. 6. 7. 8. 9. Parties shall meet and confer in advance of the deadline to agree on as many instructions as possible. PARTIES SHALL SUBMIT A SET OF MUTUALLY ACCEPTABLE JURY INSTRUCTIONS ON THE SUBSTANTIVE CLAIMS OR BE PREPARED TO SUBMIT A LEGAL BASIS FOR THEIR OBJECTIONS TO EACH INSTRUCTION ON WHICH THEY DO NOT AGREE. Parties shall file written objections to an opposing parties’ submitted instruction. These objections are due THREE (3) working days after jury instructions are due. IN ADDITION TO ELECTRONICALLY FILING THEIR SUBMISSIONS REGARDING JURY INSTRUCTIONS, Plaintiff and Defendant shall submit to the Court through the email address ([email protected]) on the chambers web page for proposed orders, the following: (1) the set of mutually acceptable jury instructions; (2) disputed jury instructions; and (3) proposed special verdict forms. The requested instructions must be submitted in Word or Rich Text format. Jury instructions without citations are no longer needed. Directions regarding submission of STOCK instructions: Parties should not submit stock instructions. Instead, parties should refer to the Court’s approved set of stock instructions, available on the chambers web page under “Stock Criminal Jury Instructions.” Parties should include a separate page with a list of requested stock instructions as each is described at the bottom of the web site instructions. The parties should refer to Tenth Circuit pattern criminal instructions for substantive instructions. Carefully proofread each instruction for errors in spelling, grammar, punctuation, and citations, and for unintended deviations from pattern instructions used as sources. Submit a cover sheet on all sets of instructions. Submit no more than one instruction per page. (See Fig. 1 below). (PLTF'S) OR (DEFT'S) OR (JOINT) INSTRUCTION NO. 1 Members of the Jury, You have now heard all of the evidence in the case and will soon hear the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. Citation . . . IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, Plaintiff, vs. (Defendant’s name), Defendant. CR No. ##-#### KG ORDER CONTINUING TRIAL SETTING This matter is before the Court on Defendant's [Unopposed] Motion to Continue Trial Setting (Doc. #). The Court having reviewed the defendant's motion, having been advised that Assistant U.S. Attorney [Name] does not oppose this motion, and; further, the motion by [Defendant’s name] having been filed in accordance with the provisions of 18 U.S.C. § 3161 (h)(7)(A) and it appearing that the ends of justice served by allowing this continuance outweigh the best interest of the public and the defendant in a speedy trial; the Court thus being fully advised in the premises finds that defendant’s motion is well-taken and should be granted. The Court having considered the motion and subsequent to any hearing to determine the appropriate length to continue the trial, being fully advised in the premises and in light of the holding in United States v. Toombs, 574 F.3d 1262 (2009), finds that the defendant has by his motion, created a sufficient record to justify granting the motion to continue. See id., 574 F.3d at 1271 (requiring that the record on a motion to continue “contain an explanation of why the mere occurrence of the event identified by the party as necessitating the continuance results in the need for additional time”). [Specify the number motions to continue that have been filed in the underlying case and shall specify the facts and circumstances giving rise to a continuance of trial setting] IT IS HEREBY ORDERED that Defendant's unopposed Motion be granted; and that the trial setting is continued for thirty (30) days; IT IS FURTHER ORDERED that Defendant's Unopposed Motion to Continue Jury Trial Setting until , 2022 at 9:00 a.m. be granted; and that pursuant to 18 U.S.C. § 3161(h)(7)(A), the delay resulting from the continuance shall be excluded for purposes of the Speedy Trial Act. _________________________________ UNITED STATES DISTRICT JUDGE
=== Instructions ===
INSTRUCTIONS FOR MOTIONS REQUESTING A FORM 13 PRESENTENCE REPORT When filing a motion for an order authorizing a "Form 13" presentence report, counsel is required to first obtain the client's written consent to (1) initiate the Form 13 presentence investigation and (2) pursuant to Fed. R. Crim. P. 32(e)(1), disclose the Form 13 PSR to counsel for defendant and for the United States. Generally, Judge Gonzales does not require the written consent of the client for this purpose. Judge Gonzales will accept the client's written consent with his/her signature as part of the motion itself, or signature in a consent form attached to the motion as an exhibit. Counsel is encouraged to utilize the consent form provided under this category. Please note that generally, in the event the motion is granted, Judge Gonzales will set a 55-day deadline by which the Form 13 PSR will be completed, unless he grants an extension.
=== Waiver ===
UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO ______________________________________________________________________________ Defendant's Approval to Institute a Presentence Investigation or Disclose the Presentence Report Before Conviction or Plea of Guilty ______________________________________________________________________________ I _________________________________, hereby consent to a presentence investigation by the probation office of the United States District Court. This investigation is for the purpose of obtaining information that may be useful in the event I should hereafter plead guilty or nolo contendere or be found guilty. By this consent, I do not admit guilt or waive any rights. □ □ I agree to have the investigative report disclosed to the attorney for the government, as well as to my attorney. I agree to have the investigative report disclosed to the judge for review prior to pleading guilty or nolo contendere. I have read, or had read to me, the foregoing consent and fully understand it. _________________ (Date) ____________________________________ (Signature of Defendant) _________________ (Date) ____________________________________ (Defendant’s Attorney)
=== Standing Order Regarding Motions to Revoke Las Cruces Magistrate Judge's Detention Order Pursuant to 18 U.S.C. § 3145 ===
Case 1:22-mc-00004 Document 35 Filed 07/01/22 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO IN THE MATTER OF: MOTIONS TO REVOKE DETENTION ORDER PURSUANT TO 18 U.S.C. § 3145 ENTERED BY A LAS CRUCES MAGISTRATE JUDGE ORDER No. 22-MC-00004-35 Absent exceptional circumstances, in the event a defendant files a motion to revoke a detention order pursuant to 18 U.S.C. § 3145, entered by a Las Cruces Magistrate Judge, the District Court will consider only evidence that was before the Magistrate Judge when the detention order was entered. See generally United States v. Oaks, 793 F. App’x 744 (10th Cir. 2019). In the event a defendant offers new facts or evidence, the defendant first must file a motion before the Las Cruces Magistrate Judge to reconsider the detention order. See 18 U.S.C. § 3142(f) (allowing hearing to be reopened to consider material information not known to the movant at time of hearing); United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2013) (clarifying procedure under § 3142(f) requiring reconsideration only by judicial officer who made original decision). FOR THE COURT: __________________________________ UNITED STATES DISTRICT JUDGE __________________________________ UNITED STATES DISTRICT JUDGE Notices 1:22-mc-00004 Administrative Orders U.S. District Court United States District Court - District of New Mexico Notice of Electronic Filing The following transaction was entered on 7/1/2022 at 3:35 PM MDT and filed on 7/1/2022 Case Name: Case Number: Filer: Document Number: 35 Administrative Orders 1:22-mc-00004 Administrative Orders Docket Text: STANDING ORDER: In the Matter of Motions To Revoke Detention Orders Pursuant To 18 U.S.C. §3145 Entered By A Las Cruces Magistrate Judge (mre) 1:22-mc-00004 Notice has been electronically mailed to: 1:22-mc-00004 Notice has been delivered by fax to: 1:22-mc-00004 Notice has been delivered by USPS to: The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1167529506 [Date=7/1/2022] [FileNumber=12040833-0 ] [879987429974c475112426095bbb25d5a37defffff0115d4ea5763b9c9a7e9d066c f66a0fbd695e4fd2fa47256df3562d64168f857498f614146cc9284fa6de4]]
=== Standing Order Regarding Motions to Revoke Magistrate Judge's Detention Order Pursuant to 18 U.S.C. § 3145 ===
Case 1:26-mc-00012-KG Document 1 Filed 04/21/26 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO IN THE MATTER OF: MOTIONS TO REVOKE DETENTION ORDER PURSUANT TO 18 U.S.C. § 3145 ENTERED BY A MAGISTRATE JUDGE STANDING ORDER No. 26-MC-0012 KG Absent exceptional circumstances, in the event a defendant files a motion to revoke a detention order before Chief Judge Gonzales pursuant to 18 U.S.C. § 3145, entered by a Magistrate Judge, Chief Judge Gonzales will consider only evidence that was before the Magistrate Judge when the detention order was entered. See generally United States v. Oaks, 793 F.App’x 744 (10th Cir. 2019). In the event a defendant offers new facts or evidence, the defendant first must file a motion before the Magistrate Judge to reconsider the detention order. See 18 U.S.C. § 3142(f) (allowing hearing to be reopened to consider material information not known to the movant at time of hearing); United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2013) (clarifying procedure under § 3142(f) requiring reconsideration only by judicial officer who made original decision). /s/ Kenneth J. Gonzales___________________ CHIEF UNITED STATES DISTRICT JUDGE • Please note that this document has been electronically filed. To verify its authenticity, please refer to the Digital File Stamp on the NEF (Notice of Electronic Filing) accompanying this document. Electronically filed documents can be found on the Court’s PACER public access system. Notices 1:26-mc-00012-KG Standing Order Regarding Motions to Revoke Detention Orders U.S. District Court United States District Court - District of New Mexico Notice of Electronic Filing The following transaction was entered on 4/21/2026 at 3:23 PM MDT and filed on 4/21/2026 Case Name: Case Number: Filer: Document Number: 1 Standing Order Regarding Motions to Revoke Detention Orders 1:26-mc-00012-KG Docket Text: STANDING ORDER: In the Matter of Motions to Revoke Detention Order Pursuant to 18 U.S.C. § 3145 Entered by a Magistrate Judge (cg) 1:26-mc-00012-KG Notice has been electronically mailed to: 1:26-mc-00012-KG Notice has been delivered by fax to: 1:26-mc-00012-KG Notice has been delivered by USPS to: The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1167529506 [Date=4/21/2026] [FileNumber=14648530- 0] [3fd6ebacf30ba1bb106aa3ba50a3de4eee03b50e231902005c9b377ca9df2b8235 02d4ff4bebb24ec3f7466c3673e5f0563c5cd7915b1423c3d9d0b0cf776273]]
=== General Order Regarding the Filing of Highly Sensitive Documents ===
Case 1:24-mc-00004 Document 12 Filed 06/21/24 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO IN RE: GENERAL ORDER REGARDING THE FILING OF HIGHLY SENSITIVE DOCUMENTS 24-MC-00004-12 GENERAL ORDER SUPERSEDING 21-MC-00004-06 WHEREAS, federal courts are updating their security procedures to uniformly protect highly sensitive documents (HSDs), a narrow subset of sealed documents that must, for their protection, be stored outside the court’s electronic systems; THE COURT FINDS that good cause exists to permit nonelectronic filing under Civil Rule 5(d)(3)(A) and Criminal Rule 49(b)(3)(A), and to adopt revised HSD guidance. THEREFORE, IT IS HEREBY ORDERED that, effective as of the date of this order and until such time as the court orders otherwise, HSDs will be filed and served in paper form, in accordance with this Order and the Administrative Procedures Manual and will be maintained by the clerk’s office in a secure paper filing system. This General Order supersedes any and all prior court orders regarding HSDs (namely 21-MC-00004-06), and any and all inconsistent provisions in existing local rules or other general orders of this court. 1. Documents and Materials Subject to this Order information a. This order applies to a document or other material that contains sensitive, but unclassified, that warrants exceptional handling and storage procedures to prevent significant consequences that could result if such information were obtained or disclosed in an unauthorized manner. Although frequently related to law enforcement materials, especially sensitive information in a civil case could also qualify for HSD treatment. Additionally, the presiding judge may further identify documents or other material they consider to be HSDs. Please review the presiding judge’s Chambers Procedures page for any such information, which can be found on the court’s web site. b. Any party seeking to file an HSD must, before such filing, seek leave of court for such filing in the manner provided in the Administrative Procedures Manual. c. The Administrative Procedures Manual contains procedures for filing motions to designate a document as an HSD, transmitting HSDs to the Clerk’s Office, and for service of such filings. Case 1:24-mc-00004 Document 12 Filed 06/21/24 Page 2 of 2 d. Any dispute as to whether a document is an HSD shall be resolved by the presiding judge or the chief judge when no presiding judge is assigned. e. Once a document or series of documents has been designated as HSD, a copy of the order granting HSD designation must be included with each document filed as an HSD. 2. Removal of Existing HSDs or Highly Sensitive Cases from the Court’s Electronic Filing System a. Upon motion of a party or upon its own motion, the court may determine that a document, case, or any portion of it, that has been filed electronically is highly sensitive and direct that the HSD or case be removed from the court’s electronic filing system and maintained by the Clerk’s Office in a secure paper filing system. b. A party’s motion to remove an HSD or highly sensitive case from the court’s electronic filing system shall explain why such document or case is highly sensitive under the criteria set out in paragraph 1(a) above or why it should otherwise be subject to the heightened protection for HSDs. 3. Questions about HSD Filing Procedures Any questions about how an HSD should be filed with the court pursuant to this General Order should be directed to the Clerk’s Office at (505) 348-2075. IT IS SO ORDERED, this 21st day of June, 2024. FOR THE COURT, PURSUANT TO ADMINISTRATIVE ORDER MISC. NO. 83-252: /s/ William P. Johnson Chief United States District Judge District of New Mexico 2 Notices 1:24-mc-00004 Administrative Orders U.S. District Court United States District Court - District of New Mexico Notice of Electronic Filing The following transaction was entered on 6/21/2024 at 11:55 AM MDT and filed on 6/21/2024 Case Name: Case Number: Filer: Document Number: 12 Administrative Orders 1:24-mc-00004 Docket Text: GENERAL ORDER SUPERSEDING 21-MC-00004-06: Regarding the Filing of Highly Sensitive Documents (cg) 1:24-mc-00004 Notice has been electronically mailed to: 1:24-mc-00004 Notice has been delivered by fax to: 1:24-mc-00004 Notice has been delivered by USPS to: The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1167529506 [Date=6/21/2024] [FileNumber=13150076- 0] [7a6387a8bb688686280564eb501d1175e7df9a59f81c9c8ddd40aa4d11c0238abd 06984d424d1283ba3e3cc368ccaa198c2ad87a8df6dba5308d64690c46428f]]
=== Criminal Stock Jury Instructions ===
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO , Plaintiff, vs. Defendant. Cr. No. COURT’S INSTRUCTIONS TO THE JURY Members of the Jury: In any jury trial there are, in effect, two judges. I am one of the judges, you are the other. I am the judge of the law. You, as jurors, are the judges of the facts. I presided over the trial and decided what evidence was proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict. In explaining the rules of law that you must follow, first, I will give you some general instructions which apply in every criminal case—for example, instructions about burden of proof and insights that may help you to judge the believability of witnesses. Then I will give you some specific rules of law that apply to this particular case and, finally, I will explain the procedures you should follow in your deliberations, and the possible verdicts you may return. These instructions will be given to you for use in the jury room, so you need not take notes. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.03 Cr.01 Jury Instruction No. ___ DUTY TO FOLLOW INSTRUCTIONS (Single Defendant) You, as jurors, are the judges of the facts. But in determining what actually happened— that is, in reaching your decision as to the facts—it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. However, you should not read into these instructions, or anything else I may have said or done, any suggestion as to what your verdict should be. That is entirely up to you. It is also your duty to base your verdict solely upon the evidence. That was the promise you made and the oath you took. You must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases. [You should not discuss or consider the possible punishment in any way while deciding your verdict.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.04 (modified). Cr.02a Jury Instruction No. ___ DUTY TO FOLLOW INSTRUCTIONS (Multiple Defendants) You, as jurors, are the judges of the facts. But in determining what actually happened— that is, in reaching your decision as to the facts—it is your sworn duty to follow all of the rules of law as I explain them to you. [Unless otherwise stated you should consider each instruction to apply separately and individually to each Defendant on trial.] You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. However, you should not read into these instructions, or anything else I may have said or done, any suggestion as to what your verdict should be. That is entirely up to you. It is also your duty to base your verdict solely upon the evidence. That was the promise you made and the oath you took. You must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases. [You should not discuss or consider the possible punishment in any way while deciding your verdict.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.04 (modified). Cr.02b Jury Instruction No. ___ BURDEN OF PROOF The United States has the burden of proving the Defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The United States has the burden of proving the Defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the Defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant’s guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the United States’ proof exclude any “reasonable doubt” concerning the Defendant’s guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.05 Cr. 03a Jury Instruction No. ___ BURDEN OF PROOF (Any Defendant does not testify) The United States has the burden of proving the Defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. [A defendant has an absolute right not to testify and may not be compelled to testify. No inference of any kind should be drawn from the election of a defendant not to testify, and that fact should not be considered by you in any way or even discussed in your deliberation.] The United States has the burden of proving the Defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the Defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant’s guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the United States’ proof exclude any “reasonable doubt” concerning the Defendant’s guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.05 Cr. 03b Jury Instruction No. ___ CONSPIRACY 18 U.S.C. § 371 The Defendant is charged in count _____ with a violation of 18 U.S.C. § 371. This law makes it a crime to conspire to commit an offense against the United States. To find the Defendant guilty of this crime you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: the Defendant agreed with at least one other person to violate the law. Second: one of the conspirators engaged in at least one overt act furthering the conspiracy’s objective. Third: the Defendant knew the essential objective of the conspiracy. Fourth: the Defendant knowingly and voluntarily participated. Fifth: there was interdependence among the members of the conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the conspiracy charged. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.19 Comment United States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir. 2000); United States v. Hanzlicek, 187 F.3d 1228, 1232 (10th Cir. 1999); United States v. McVeigh, 153 F.3d 1166, 1196 (10th Cir. 1998); United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995); United States v. Johnson, 12 F.3d 1540, 1545 (10th Cir. 1993); United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir. 1993). In drafting Instruction 2.19 (and the correlative drug conspiracy instruction, 2.87), the Committee considered the state of Tenth Circuit conspiracy law. The United States Code contains a number of conspiracy statutes in addition to the general conspiracy statute, 18 U.S.C. section 371, and the narcotics conspiracy statute, 21 U.S.C. section 846. See, e.g., 18 U.S.C. section 241(conspiracy against rights of citizens); 18 U.S.C. section 286 (conspiracy to defraud the government with respect to claims); 18 U.S.C. section 1951 (interference with commerce by threats or violence); and 21 U.S.C. section 963 (conspiracy to import or export controlled substances). These statutes are necessarily affected by the instructions given in the more common conspiracy cases brought under the general and drug conspiracy statutes. Proof of an overt act is a required element in conspiracies charged under 18 U.S.C. section 371, but proof of an overt act is not required in 21 U.S.C. section 846 conspiracies. United States v. Shabani, 513 U.S. 10, 13 (1994). This important distinction between these two statutes has become blurred in recent Tenth Circuit conspiracy cases. See, e.g., Rahseparian, 213 F.3d at 1272. In stating the elements of a section 371 conspiracy, Rahseparian omits the overt act requirement. Id. (citing United States v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995), a section 846 case). The Tenth Circuit is unique, at least among federal jurisdictions, in requiring the inclusion of “interdependence” between or among conspirators as an essential element of conspiracies charged under 18 U.S.C. section 371 and 21 U.S.C. section 846. Interdependence, as an essential element of § 371 conspiracy, is an innovation of Tenth Circuit jurisprudence that evolved during the 1990s. It now appears to be settled law. See, e.g., United States v. Quarrell, 310 F.3d 664, 678 (10th Cir. 2002) (including interdependence as an element of 18 U.S.C. § 371) (citing Hanzlicek, 187 F.3d at 1232 ; United States v. (Jalal) Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000) (same); Rahseparian, 231 F.3d at 1272 (same); United States v. Lampley, 127 F.3d 1231, 1243 (10th Cir. 1997) (same); United States v. Dimeck, 24 F.3d 1239, 1242 (10th Cir. 1994) (same); Arutunoff, 1 F.3d at 1116 (same). Use Note Conspiracy to commit a particular substantive offense requires at least the degree of criminal intent necessary to commit the underlying offense. United States v. Feola, 420 U.S. 671, 686 (1975). If the underlying offense requires a special criminal intent (for example, premeditation or malice), further instruction on that intent would be necessary. The verdict form should include a finding as to the overt act. Regarding the notion of interdependence, please refer to Instruction 2.87. Regarding aiding and abetting, if there is an aiding and abetting count, a separate instruction should be given. A suggested instruction follows: Sometimes jurors have difficulty understanding the legal difference between the criminal offenses of “conspiracy” and “aiding and abetting.” “Conspiracy” depends and is based on any agreement, unspoken or expressed, whether carried over into a conspiratorial act or not; whereas “aiding and abetting” depends on a showing of conscious participation in a criminal act, i.e., knowingly assisting in the performance of the criminal act charged. It is the element of “agreement” that distinguishes conspiracy from aiding and abetting. Cr. 04a Jury Instruction No. ___ CONTROLLED SUBSTANCES - CONSPIRACY 21 U.S.C. § 846 The Defendant is charged in count _____ with a violation of 21 U.S.C. § 846. This law makes it a crime for anyone to conspire with someone else to violate federal laws pertaining to controlled substances. In this case, the Defendant is charged with conspiracy to [describe the conspiracy alleged in the Indictment]. To find the Defendant guilty of this crime you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: two or more persons agreed to violate the federal drug laws; Second: the Defendant knew the essential objective of the conspiracy; Third: the Defendant knowingly and voluntarily involved himself in the conspiracy; and Fourth: there was interdependence among the members of the conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the conspiracy charged. [Fifth: the overall scope of the conspiracy involved [name amount] of a substance containing a detectable amount of [name substance].] Conspiracy - Agreement A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose. It is a kind of “partnership in criminal purposes” in which each member becomes the agent or partner of every other member. Once a person becomes a member of a conspiracy, he is held legally responsible for the acts of the other members done in furtherance of the conspiracy, even though he was not present or aware that the acts were being committed. Mere similarity of conduct among various persons, and the fact they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. The evidence in the case need not show that the members entered into any express or formal agreement. Nor is it necessary that the evidence show that the members stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished. In order to establish proof that a conspiracy existed, the evidence must show beyond a reasonable doubt that the members in some way or manner, or through some contrivance, expressly or impliedly came to a mutual understanding to try to accomplish a common and unlawful plan. Evidence The evidence in the case need not establish that all the means or methods set forth in the Indictment were agreed upon to carry out the alleged conspiracy; nor that all means or methods, which were agreed upon, were actually used or put into operation; nor that all of the persons charged to have been members of the alleged conspiracy were members. Rather, the evidence in the case must establish beyond a reasonable doubt that the alleged conspiracy was knowingly formed; and that one or more of the means or methods described in the Indictment were agreed upon to be used, in an effort to effect or accomplish some object or purpose of the conspiracy, as charged in the Indictment; and that two or more persons, including the Defendant, were knowingly members of the conspiracy. Membership in Conspiracy If you conclude from the evidence beyond a reasonable doubt that a conspiracy as charged did exist, then you must next determine whether the Defendant was a member of that conspiracy; that is, whether the Defendant participated in the conspiracy with knowledge of its unlawful purposes and in furtherance of its unlawful objectives. In determining whether the Defendant was a member of the conspiracy, the jury must consider only his acts and statements. The Defendant cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that [he] was one of its members. Interdependence To be a member of the conspiracy, the Defendant need not know all of the other members or all of the details of the conspiracy, nor the means by which the objects were to be accomplished. Each member of the conspiracy may perform separate and distinct acts. It is necessary, however, that for the Defendant to be a member of the conspiracy, the United States must prove beyond a reasonable doubt that [he] [she] was aware of the common purpose and was a willing participant with the intent to advance the purposes of the conspiracy. In other words, while a defendant need not participate in all the acts or statements of the other members of the conspiracy to be bound by them, the acts or statements must be interdependent so that each member of the conspiracy depends upon the acts and statements of the other conspirators to make the conspiracy succeed. Extent of Participation The extent of a defendant’s participation in the conspiracy is not relevant to whether he is guilty or not guilty. A defendant may be convicted as a conspirator even though he plays a minor part in the conspiracy. His financial stake, if any, in the venture is a factor that may be considered in determining whether a conspiracy existed and whether the Defendant was a member of it. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.87 (modified) Please refer to the Comment following Instruction 2.19 (the general conspiracy instruction, 18 U.S.C. section 371). Comment The elements are taken from United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003); United States v. Ruiz-Castro, 92 F.3d 1519, 1530 (10th Cir. 1996). The definition of “interdependence” is taken from United States v. Heckard, 238 F.3d 1222, 1231-32 (10th Cir. 2001) (noting interdependence exists where each coconspirator’s activities “constituted essential and integral steps toward the realization of a common, illicit goal”) (citations omitted). See also United States v. Evans, 970 F.2d 663, 670-71 (10th Cir. 1992) (coconspirator’s actions must facilitate the endeavors of other members of the charged conspiracy or facilitate the venture as a whole). Interdependence is related to the concern of whether the evidence shows a single conspiracy or multiple conspiracies. See United States v. Small, 423 F.3d at 1182 (“a single conspiracy does not exist solely because many individuals deal with a common central player . . . [w]hat is required is a shared, single criminal objective, not just similar or parallel objectives between similarly situated people”) (quoting United States v. Evans, 970 F.2d at 670). See also Instruction 2.20 and United States v. Carnagie, 533 F.3d 1231, 1237-44 (10th Cir. 2008). Carnagie concerned a section 371 conspiracy, but contains a detailed discussion of interdependence. Carnagie also notes that the proof necessary to establish interdependence may be different in a section 371 conspiracy than in a section 846 (drug) conspiracy. 533 F.3d at 1239 n.5. The government need not allege nor prove the commission of an overt act in furtherance of a section 846 conspiracy. United States v. Shabani, 513 U.S. 12, 15 (1994). Drug quantity is not an element, United States v. Thompson, 237 F.3d 1258, 1261-62 (10th Cir. 2001), unless the quantity somehow would have the effect of increasing the penalty beyond the statutory maximum. However, drug quantity should be added as an element if it is charged in the indictment and a special verdict form which requires the jury to specify drug quantity should be used. Please refer to the Use Note following Instruction 2.19 (the general conspiracy instruction, 18 U.S.C. section 371). Use Note Ordinarily, venue is not an issue. When it is an issue, it will be necessary to instruct that venue lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an act in furtherance of the conspiracy was committed. Venue must be proved by a preponderance of the evidence, not beyond a reasonable doubt. United States v. Record, 873 F.2d 1363, 1366 (10th Cir. 1989). Depending on how the case is tried, it may be appropriate to instruct that the agreement necessary for a conspiracy need not be explicit but may be inferred from the circumstances, United States v. Rangel-Arreola, 991 F.2d 1519, 1522 (10th Cir. 1993), and that the government may prove a drug conspiracy entirely with circumstantial evidence, United States v. Mendoza- Salgado, 964 F.2d 993, 1006 (10th Cir. 1992). Cr. 04b Jury Instruction No. ___ ATTEMPT AND CONSPIRACY 21 U.S.C. § 963 Title 21, United States Code, Section 963, makes it a crime for anyone to attempt or conspire with someone else to commit an offense against the laws of the United States. In this case, the Defendant is charged with conspiring to __________________________________. A “conspiracy” is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of “partnership in crime” in which each member becomes the agent of every other member. For you to find the Defendant guilty of this crime, you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: That two or more persons made an agreement to commit the crime of _________________ as charged in the Indictment; and Second: That the Defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose. Third: That there was interdependence among the Defendant and the other person or persons joining in the agreement to commit the crime. Interdependence means that the participants intended to act together for their mutual benefit to accomplish a shared, unlawful purpose. One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict that defendant for conspiracy even though the Defendant had not participated before and even though the Defendant played only a minor part. The United States need not prove that the alleged conspirators entered into any formal agreement, or that they directly stated between themselves all the details of the scheme. Similarly, the United States need not prove that all of the details of the scheme alleged in the Indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator. Cr.04c Jury Instruction No. ___ CONTROLLED SUBSTANCES - POSSESSION WITH INTENT TO DISTRIBUTE 21 U.S.C. § 841(a)(1) The Defendant is charged in count _____ with a violation of 21 U.S.C. section 841(a)(1). This law makes it a crime to possess a controlled substance with the intent to distribute it. To find the Defendant guilty of this crime you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: the Defendant knowingly or intentionally possessed [name controlled substance] as charged; Second: the Defendant possessed the substance with the intent to distribute it; and Third: the weight of the [name controlled substance] Defendant possessed was at least [name amount] as charged. [Fourth: [serious bodily injury] [death] resulted from use of [name controlled substance].] [Name controlled substance] is a controlled substance within the meaning of the law. To “possess with intent to distribute” means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.85 (modified) The third element is submitted to the jury under the principle of Apprendi v. New Jersey, 530 U.S. 466 (2000), because the statute imposes increased maximum penalties based on the quantity of the substance. See 21 U.S.C. § 841(b). Apprendi also requires that the fourth Use Note element be submitted to the jury where the indictment alleges serious bodily injury or death that would result in an increased penalty under 21 U.S.C. § 841(b). If the parties dispute the quantity of the substance or whether serious bodily injury or death resulted from the use of the substance, the court should consider giving a lesser included offense instruction. See United States v. Lacey, 86 F.3d 956, 970 (10th Cir. 1996) (lesser included offense instruction not appropriate where quantities were sufficient for distribution and too great for simple possession); United States v. Burns, 624 F.2d 95, 104 (10th Cir. 1980) (lesser included offense instruction should have been given where evidence could have supported conviction for either distribution or possession). Alternatively, where the parties dispute the amount of the substance, the court may substitute for the third element a special interrogatory on the verdict form asking the jury to determine the exact amount of the controlled substance. Where the offense involves two or more controlled substances, and the indictment alleges quantities of each substance sufficient to raise the maximum sentence, the court should submit an additional element to the jury for a finding on each controlled substance, and a specific finding as to quantity should appear on the verdict form. 21 U.S.C. § 841(b) also imposes increased penalties where the defendant has a prior conviction for a felony drug offense. Under current law, the court need not submit the question of a prior conviction to the jury. See Apprendi, 530 U.S. at 489-90; Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). The court need not submit to the jury for resolution facts increasing the statutory minimum sentence. Harris v. United States, 536 U.S. 545, 567-68 (2002). “[T]he quantity of the drug possessed is a circumstance which may permit the inference that the possessor had an intent to sell, deliver or otherwise distribute.” United States v. King, 485 F.2d 353, 357 (10th Cir. 1973); accord United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004); United States v. Gama-Bastides, 222 F.3d 779, 787 (10th Cir. 2000); United States v. Delreal-Ordones, 213 F.3d 1263, 1268 n.4 (10th Cir. 2000); United States v. Wood, 57 F.3d 913, 918 (10th Cir. 1995). Cr.04d Jury Instruction No. ___ AID AND ABET 18 U.S.C. § 2(a) Each count of the Indictment also charges a violation of 18 U.S.C. section 2, which provides that: “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” This law makes it a crime to intentionally help someone else commit a crime. To find the Defendant guilty of this crime, you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: someone else committed the charged crime, and Second: the Defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the United States must prove that the Defendant consciously shared the other person’s knowledge of the underlying criminal act and intended to help him. The Defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its commission to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.06 The Committee believes that this instruction is consistent with Nye & Nissen v. United States, 336 U.S. 613, 618-19 (1949); United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999); United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996). Comment Cr.04e Jury Instruction No. ___ USING/CARRYING A FIREARM DURING COMMISSION OF A DRUG TRAFFICKING CRIME OR CRIME OF VIOLENCE 18 U.S.C. § 924(c)(1) The Defendant is charged in count _____ with a violation of 18 U.S.C. section 924(c)(1). This law makes it a crime to [use] [carry] a firearm during and in relation to any [drug trafficking crime] [crime of violence] for which a person may be prosecuted in a court of the United States. To find the Defendant guilty of this crime you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: the Defendant committed the crime of [name of crime], [as charged in count ____ of the Indictment.] You are instructed that [name of crime] is a [drug trafficking crime] [crime of violence]; Second: the Defendant used or carried a firearm; Third: during and in relation to [name of crime]. The phrase “during and in relation to” means that the firearm played an integral part in the underlying crime, that it had a role in, facilitated (i.e., made easier), or had the potential of facilitating the underlying crime. A defendant knowingly “uses” a firearm when it (1) is readily accessible and (2) is actively employed during and in relation to the underlying crime. A defendant knowingly “carries” a firearm when he (1) possesses the firearm through the exercise of ownership or control and (2) transports or moves the firearm from one place to another. In determining whether the Defendant knowingly [used] [carried] a firearm during and in relation to the underlying crime, you may consider all of the facts received in evidence including the nature of the crime, the usefulness of a firearm to the crime, the extent to which a firearm actually was observed before, during and after the time of the crime, and any other facts that bear on the issue. A firearm plays an integral part in the underlying crime when it furthers the purpose or effect of the crime and its presence or involvement is not the result of coincidence. The United States must prove a direct connection between the Defendant’s [use] [carrying] of the firearm and the underlying crime but the crime need not be the sole reason the Defendant [used] [carried] the firearm. The term “firearm” means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term “firearm” also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.06 Use Note This instruction applies when the indictment charges using or carrying a firearm “during and in relation to” a drug trafficking crime or a crime of violence. It must not be used when the indictment charges “possession” of a firearm “in furtherance of” a drug trafficking crime or crime of violence. United States v. Avery, 295 F.3d 1158, 1172-77 (10th Cir. 2002). Instead, use Instruction 2.45.1. Alternative Instruction: Title 18, United States Code, Section 924(c)(1), under which Defendant is charged in Count _____, makes it a crime for anyone to carry a firearm during and in relation to a drug trafficking crime. For you to find the Defendant guilty of the crime charged in Count ___________, you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: Second: That the Defendant committed the crime alleged in Count ________; and That the Defendant knowingly carried a firearm during and in relation to the Defendant's commission of the crime alleged in Count _____________. The United States is not required to prove that the Defendant actually fired the weapon or brandished it at someone in order to prove "use," as that term is used in this instruction. However, you must be convinced beyond a reasonable doubt that the firearm played a role in or facilitated the commission of a drug offense. In other words, you must find that the firearm was an integral part of the drug offense charged. The term "firearm" means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term "firearm" also includes the frame or receiver silencer, or destructive device. (check the indictment; if it charges “use” then read Bailey 118 S.Ct. 253 and probably use “actively employed in” instead of “an integral part of”) Cr.04f Jury Instruction No. ___ You will note that the Indictment charges that the crime was committed on or about [date]. The United States must prove beyond a reasonable doubt that the Defendant committed the crime reasonably near [date]. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.18 Comment A similar instruction was approved in United States v. Agnew, 931 F.2d 1397, 1401, 1410-11 (10th Cir. 1991). In United States v. Poole, 929 F.2d 1476, 1482 (10th Cir. 1991), the court wrote: “the ‘on or about’ instruction . . . has been approved by this Circuit on numerous occasions.” Care should be taken in giving this instruction if the defendant has raised an alibi defense. See Brian H. Redmond, Annotation, Propriety And Prejudicial Effect Of “On or About” Instruction Where Alibi Evidence In Federal Criminal Case Purports To Cover Specific Date Shown By Prosecution Evidence, 92 A.L.R. Fed. 313 (1989). The district court, however, retains the discretion to give an “on or about” instruction even when an alibi defense is raised. United States v. Phillips, 869 F.2d 1361, 1368-69 (10th Cir. 1988); United States v. Lucero, 601 F.2d 1147, 1150 (10th Cir. 1979). The district court will consider the coincidence, or lack thereof, of a specific date upon which the crime was committed, as alleged and proved, with the specific date of the alibi. Cr.04g Jury Instruction No. ___ FALSE STATEMENT IN ACQUISITION OF FIREARMS The Defendant is charged with a violation of 18 U.S.C. § 924(a)(1)(A). This law makes it a crime for anyone to make a false statement in a record that federal law requires a federally licensed firearms dealer to keep. Federal law requires a licensed firearms dealer to maintain firearm transactions records on ATF Form 4473. To find the Defendant guilty of this crime you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First: the Defendant knowingly made a false statement or representation in an ATF Form 4473; and Second: the statement pertained to information that the law requires a federally licensed firearms dealer to keep. An entry in a record is “false” if it was untrue at the time it was made, and the person making it, knew it was untrue. The term “firearm” means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term “firearm” also includes the frame or receiver of any such weapon, or any firearm muffler or firearm silencer, or destructive device. Comment See Alvarez-Ronquillo, 19cr3240 KG. This instruction is based on United States v. Johnson, 60 Fed. Appx. 260, 262 (10th Cir. 2003) and United States v. Howell, 37 F.3d 1197, 1202 (7th Cir. 1994). The definition of “firearm” is from Tenth Circuit Criminal Pattern Jury Instruction 2.41. Cr.04h Jury Instruction No. ___ KNOWINGLY - DELIBERATE IGNORANCE When the word “knowingly” is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the Defendant cannot be established merely by demonstrating that the Defendant was negligent, careless, or foolish, knowledge can be inferred if the Defendant deliberately blinded himself to the existence of a fact. Knowledge can be inferred if the Defendant was aware of a high probability of the existence of [the fact in question], unless the Defendant did not actually believe [the fact in question]. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.37 Comment Although the deliberate ignorance instruction in general was discouraged, it may be given “when the Government presents evidence that the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of prosecution.” United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000) (internal quotation marks omitted). If given, a similar deliberate ignorance instruction was approved as the preferred language in Delreal-Ordones. Id. at 1267; see also United States v. Glick, 710 F.2d 639, 643 (10th Cir. 1983). “The purpose of the instruction is to alert the jury that the act of avoidance could be motivated by sufficient guilty knowledge to satisfy the knowing element of the crime.” Delreal- Ordones, 213 F.3d at 1268-69 (quotation marks and brackets omitted). “The district court need not insist upon direct evidence of conscious avoidance of a fact before tendering a deliberate ignorance instruction. To establish a defendant’s ‘deliberate ignorance,’ the Government is entitled to rely on circumstantial evidence and the benefit of the favorable inferences to be drawn therefrom.” Id. at 1268 (citation omitted). Cr.05a Jury Instruction No. ___ WILLFULLY - TO ACT Source: Tenth Circuit Criminal Pattern Jury Instruction 1.38 Comment The Committee does not recommend any general instruction defining the term “willfully” because no single instruction can accurately encompass the different meanings this term has in federal criminal law. This term is “a word ‘of many meanings, its construction often being influenced by its context.’” Screws v. United States, 325 U.S. 91, 101 (1945), quoting Spies v. United States, 317 U.S. 492, 497 (1943). In light of the confusion in the law regarding the meaning of the word “willful,” the Committee suggests that, when a statute uses this word, care should be taken to distinguish between its meanings. A “willfulness” requirement may impose on the government the burden of proving that the defendant had knowledge of his conduct, or that his conduct was unlawful, or of the precise legal duty, the violation of which forms the substance of the charges against the defendant. The following commentary is intended to highlight the difficulty surrounding the willfulness requirement. “The word ‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” Bryan v. United States, 524 U.S. 184, 191 (1998). “Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind.” Id. “As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’” Id. Although the term “willful” can denote a specific intent requirement, this is not always the case. See United States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (discussing specific intent); United States v. Jackson, 248 F.3d 1028, 1031 n.2 (10th Cir. 2001) (“the word ‘willfully’ does not always require specific intent”); United States v. Youts, 229 F.3d 1312, 1315-16 (10th Cir. 2000) (term “willfully” used in train wreck statute does not require for conviction proof of specific intent to wreck a train). An example of willfulness understood as intentional conduct is found in United States v. Hilliard, 31 F.3d 1509, 1517 n.5 (10th Cir. 1994) (“willfully” is proved where the defendant “knowingly performed an act, deliberately and intentionally ‘on purpose’ as contrasted with accidently, carelessly or unintentionally”). Willfulness understood as intentional conduct that the actor knows to be a violation of law is developed in a series of Supreme Court cases. In Cheek v. United States, 498 U.S. 192 (1991), the Court held that, because of the complexity of the tax laws, “willfulness” requires proof of a “voluntary, intentional violation of a known legal duty.” Id. at 201. The Supreme Court applied the teachings of Cheek to the Bank Secrecy Act in Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (willful violation of antistructuring provision required proof that defendant “knew the structuring in which he engaged was unlawful”). More recently, in Bryan, 524 U.S. at 196-98, the Supreme Court examined the federal firearm licensing requirement of 18 U.S.C. § 924(a)(1)(D), and interpreted the willfulness element to require proof that the defendant knew his conduct was unlawful, but not that the defendant knew the precise legal duty which he was charged with violating. Cr.05b Jury Instruction No. ___ ACTUAL OR CONSTRUCTIVE POSSESSION The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over an object or thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it. [More than one person can be in possession of an object if each knows of its presence and has the power and intention to control it.] [A defendant has joint possession of an object when two or more persons share actual or constructive possession of it. However, merely being present with others who have possession of the object does not constitute possession.] [In the situation where the object is found in a place (such as a room or car) occupied by more than one person, you may not infer control over the object based solely on joint occupancy. Mere control over the place in which the object is found is not sufficient to establish constructive possession. Instead, in this situation, the United States must prove some connection between the particular defendant and the object.] [In addition, momentary or transitory control of an object, without criminal intent, is not possession. You should not find that the Defendant possessed the object if he possessed it only momentarily, and either did not know that he possessed it or lacked criminal intent to possess it.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.31 Comment United States v. Colonna, 360 F.3d 1169, 1178-79 (10th Cir. 2004); United States v. Holland, 116 F.3d 1353, 1358 (10th Cir. 1997) (possession instruction set out and not challenged), overruled on other grounds by Bousely v. United States, 523 U.S. 614, 622-24 (1998); United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998) (in joint occupancy case, government must show connection linking defendant to contraband); United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (control of premises alone is insufficient); United States v. Adkins, 196 F.3d 1112, 1114-15 (10th Cir. 1999) (discussing “fleeting possession” instruction). See United States v. Avery, 295 F.3d 1158, 1177-81 (10th Cir. 2002) (discussing possession in various situations). Cr.06 Jury Instruction No. ___ With respect to the question of whether or not a defendant intended to distribute any controlled substance, you are instructed that the quantity of the controlled substance allegedly possessed by a defendant, if proved, may be considered by the jury in light of all of the other evidence in the case in determining whether or not a defendant intended to distribute any such substance. Whether or not evidence of a particular quantity of substance shows an intent to distribute the same, and the significance to be attached to any such evidence, are matters exclusively within the province of the jury. Cr.07 Jury Instruction No. ___ LESSER INCLUDED OFFENSE If you unanimously find the Defendant not guilty of the offense charged, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the Defendant is guilty or not guilty of [_______]. The difference between these two offenses is that, to convict the Defendant of [_______], the United States does not have to prove [insert element]. This is an element of the greater offense, but not of the lesser included offense. For you to find the Defendant guilty of [_______], the United States must prove each of the following elements beyond a reasonable doubt: [insert elements of lesser offense]. If you are convinced that the United States has proved all of these elements beyond a reasonable doubt, you may find the Defendant guilty of the lesser included offense. If you have a reasonable doubt about any of these elements, then you must find the Defendant not guilty of the lesser included offense. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.33 Comment Schmuck v. United States, 489 U.S. 705, 716 (1989) (offense is not necessarily included within another unless the elements of the lesser are a subset of the greater offense); United States v. Moore, 108 F.3d 270, 273 (10th Cir. 1997) (noting that “[o]nly when an appellate court is convinced that the evidence issues are such that a rational jury could acquit on the charged crime but convict on the lesser crime may the denial of a lesser included offense be reversed,” and, based on the evidence, holding no error in refusing to charge on simple possession as a lesser included offense of possession with intent to distribute); United States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (proof of differentiating element must be sufficiently in dispute). This instruction has been drafted to allow a lesser included instruction to be given, not only when the jury finds the defendant not guilty of the greater offense, but also when the jury cannot unanimously reach a verdict, and the defendant requests such instruction. Although the Tenth Circuit has not decided whether such an instruction is appropriate, the weight of authority supports giving such instruction, at least when the defendant requests it. See Darks v. Mullin, 327 F.3d 1001, 1008 n.2 (10th Cir. 2003). Where the evidence would prevent any rational jury from acquitting a defendant of the greater offense charged and convicting him of the lesser included offense, the district court does not abuse its discretion in denying a request for a jury instruction on the lesser included offense. United States v. Harris, 313 F.3d 1228, 1240-41 (10th Cir. 2002) (discussing four-part test). Use Note Cr.08a Jury Instruction No. ___ We have just talked about what the United States has to prove for you to convict a Defendant of sexual abuse of a minor under 18 U.S.C. § 2243(a). Your first task is to decide whether the United States has proved, beyond a reasonable doubt, that the Defendant committed that alleged crime. If your verdict on that alleged crime is guilty, you are finished. But if your verdict as to that alleged crime is not guilty, or if you are unable to reach a verdict, you should go on to consider whether the Defendant is guilty of abusive sexual contact under 18 U.S.C. § 2244(a). To find the Defendant guilty of the lesser included crime of abusive sexual contact, in violation of Section 2244(a), the United States must prove each of the following elements beyond a reasonable doubt: First: that the Defendant knowingly engaged in sexual contact with ________; Second: that at the time of the sexual contact __________ had attained the age of 12 years of age but had not yet attained the age of 16 years; Third: that the Defendant was at least four (4) years older than ___________; Fourth: that the incident occurred in Indian Country; and Fifth: that this happened within the State and District of New Mexico, on or about _____________. If your verdict is that the Defendant is guilty of sexual abuse of a minor under 18 U.S.C. § 2243(a), you need go no further. But if your verdict on that crime is not guilty, or if you are unable to reach a verdict on it, you should consider whether the Defendant has been proved guilty of abusive sexual contact under 18 U.S.C. § 2244(a). Of course, if the United States has not proved beyond a reasonable doubt that the Defendant committed either crime, your verdict as to the Defendant must be not guilty of all charges. Cr.08b Jury Instruction No. ___ ENTRAPMENT As a defense to the crimes charged in the Indictment, the Defendant has asserted that he was entrapped. The Defendant was entrapped if - - the idea for committing the crime(s) originated with government agents, and the government agents then persuaded or talked the Defendant into committing the crime(s), and - the Defendant was not already willing to commit the crime(s). When a person has no previous intent or purpose to violate the law, but is induced or persuaded by officers or agents to commit a crime, he is entrapped and the law, as a matter of policy, forbids his conviction in such a case. On the other hand, when a person already has the readiness and willingness to violate the law, and the officers or agents merely provide him with an opportunity to commit the crime and do so even by disguise or ruse, there is no entrapment. In order to return a verdict of guilty as to [the Defendant] for the crime(s) of [name crime or crimes charged], you must find beyond a reasonable doubt that the Defendant was not entrapped. [Add as appropriate: For purposes of this case, [_______], the informant, was an agent of the law enforcement officers.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.27 Comment The Committee has chosen not to use the word “predisposition” as it sounds overly technical and thus may be confusing to the average juror. This instruction is based on United States v. Scull, 321 F.3d 1270, 1274-76 (10th Cir. 2003), and United States v. Cerrato-Reyes, 176 F.3d 1253, 1262-63 (10th Cir. 1999) (and Tenth Circuit cases cited therein). To establish a defense of entrapment, Scull seems to require proof of more than persuasion by the government agent. “‘Inducement’ is ‘government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.’” 321 F.3d at 1275 (quoting United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986 . Inducement is neither established by evidence of solicitation, standing alone, nor “‘by evidence that the government agent initiated the contact with the defendant or proposed the crime.’” Id. (quoting Ortiz, 804 F.2d at 1165). Cr.09a Jury Instruction No. ___ ENTRAPMENT (Multiple Defendants) As a defense to the crimes charged in the Indictment, the Defendant, ______________, has asserted that he was entrapped. The Defendant was entrapped if - the idea for committing the crime(s) originated with government agents, and - the government agents then persuaded or talked the Defendant into committing the crime(s), and - the Defendant was not already willing to commit the crime(s). When a person has no previous intent or purpose to violate the law, but is induced or persuaded by officers or agents to commit a crime, he is entrapped and the law, as a matter of policy, forbids his conviction in such a case. On the other hand, when a person already has the readiness and willingness to violate the law, and the officers or agents merely provide him with an opportunity to commit the crime and do so even by disguise or ruse, there is no entrapment. In order to return a verdict of guilty as to [the Defendant] for the crime(s) of [name crime or crimes charged], you must find beyond a reasonable doubt that the Defendant was not entrapped. [Add as appropriate: For purposes of this case, [____________________________], the informant, was an agent of the law enforcement officers.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.27 Comment The Committee has chosen not to use the word “predisposition” as it sounds overly technical and thus may be confusing to the average juror. This instruction is based on United States v. Scull, 321 F.3d 1270, 1274-76 (10th Cir. 2003), and United States v. Cerrato-Reyes, 176 F.3d 1253, 1262-63 (10th Cir. 1999) (and Tenth Circuit cases cited therein). To establish a defense of entrapment, Scull seems to require proof of more than persuasion by the government agent. “‘Inducement’ is ‘government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.’” 321 F.3d at 1275 (quoting United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986 . Inducement is neither established by evidence of solicitation, standing alone, nor “‘by evidence that the government agent initiated the contact with the defendant or proposed the crime.’” Id. (quoting Ortiz, 804 F.2d at 1165). Cr.09b Jury Instruction No. ___ INSANITY If you conclude that the United States has proved beyond a reasonable doubt that the Defendant committed the crime charged, you must then consider whether the Defendant should be found “not guilty by reason of insanity.” Under the law, a person is not criminally liable for his conduct while insane. Insanity is therefore a defense to the crime charged. The Defendant has presented evidence of insanity at the time he committed the crime charged. For you to return a verdict of not guilty by reason of insanity, the Defendant must prove 1) that he suffered from a severe mental disease or defect when he committed the crime; and (2) that, as a result of this mental disease or defect, he was not able to understand what he was doing or to understand that it was wrong. Insanity may be temporary or permanent. You may consider evidence of the Defendant’s mental condition before, during, and after the crime, in deciding whether he was legally insane at the time of the crime. Unlike other aspects of a criminal trial, the Defendant has the burden of proving an insanity defense. The Defendant does not have to prove insanity beyond a reasonable doubt, however, but only by clear and convincing evidence. Clear and convincing evidence is evidence that makes it highly probable that the Defendant was insane. You should render a verdict of “not guilty by reason of insanity” if you find, by clear and convincing evidence, that the Defendant was insane when he committed the crime charged. Although the Defendant has raised the issue of insanity, the United States still has the burden of proving all of the essential elements of the offense charged beyond a reasonable doubt. Remember that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.34 18 U.S.C. § 17(a) provides that insanity is an affirmative defense: Comment It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. A defendant is not entitled to an insanity instruction unless the evidence shows a mental disease or defect that rendered him unable to appreciate the nature and quality or wrongfulness of his acts. United States v. Holsey, 995 F.2d 960, 963 (10th Cir. 1993). 18 U.S.C. § 17(b) places the burden of proof by clear and convincing evidence upon the Defendant. While the “clear and convincing” standard is a fairly high one, it does not call for the highest levels of proof. “If evidence would permit the jury to find to a high probability that the Defendant was insane, an insanity instruction is required.” United States v. Denny-Shaffer, 2 F.3d 999, 1016 (10th Cir. 1993) (discussing multiple personality disorder for purposes of insanity defense) (italics and quotations omitted). The Supreme Court has held that the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241-4247, does not require an instruction concerning the consequences of a not guilty by reason of insanity (NGI) verdict, and that “such an instruction is not to be given as a matter of general practice.” Shannon v. United States, 512 U.S. 573, 587 (1994); see Neely v. Newton, 149 F.3d 1074, 1085-86 (10th Cir. 1998) (rejecting claims that the New Mexico guilty but mentally ill (GBMI) statute violated due process, and that the jury should have been told of consequences of NGRI and GBMI). The three possible verdicts are set forth in 18 U.S.C. § 4242(b), Special verdict. The Defendant claims that he was insane at the time of the events alleged in the indictment. If you conclude that the United States has proved beyond a reasonable doubt that the Defendant committed the crime as charged, you must then consider whether the Defendant should be found “not guilty only by reason of insanity.” The Defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the Defendant was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. On the issue of insanity, it is the Defendant who must prove his insanity by clear and convincing evidence. You should render a verdict of “not guilty only by reason of insanity” if you are persuaded by clear and convincing evidence that the Defendant was insane when the crime was committed. Remember, then, that there are three possible verdicts in this case: guilty, not guilty, and not guilty only by reason of insanity. Cr.10 Jury Instruction No. ___ DEFENDANT’S NON-INVOLVEMENT (ALIBI) Evidence has been introduced tending to establish an alibi - that the Defendant was not present at the time when, or at the place where, the Defendant is alleged to have committed the offense charged in the Indictment. The United States has the burden of proving that the Defendant was present at that time and place. Unless the United States proves this beyond a reasonable doubt, you must find the Defendant not guilty. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.35 United States v. Haala, 532 F.2d 1324, 1329-30 (10th Cir. 1976) (discussing when alibi defense instruction not necessary). Alibi is not an affirmative defense, but an evidentiary matter. Popularization of the term “alibi” has led to a negative connotation. This draft instruction tries to avoid that negative connotation and to avoid confusion as to the burden of proof. Comment Cr.11 Jury Instruction No. ___ Although intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent. So evidence that a defendant acted or failed to act while in a state of intoxication is to be considered in determining whether or not the defendant acted, or failed to act, with specific intent, as charged. If the evidence in the case leaves you with a reasonable doubt whether, because of the degree of a defendant’s intoxication, the mind of the accused was capable of forming, or did form, specific intent to commit the crime charged, you should acquit the accused of that crime. Always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Cr.12 Jury Instruction No. ___ SELF-DEFENSE OR DEFENSE OF ANOTHER The Defendant [name the Defendant] has offered evidence that he was acting in [self- defense] [defense of another]. A person is entitled to defend [himself] [another person] against the immediate use of unlawful force. But the right to use force in such a defense is limited to using only as much force as reasonably appears to be necessary under the circumstances. [A person may use force which is intended or likely to cause death or great bodily harm only if he reasonably believes that force is necessary to prevent death or great bodily harm to [himself] [another]]. To find the Defendant guilty of the crime charged in the Indictment, you must be convinced that the United States has proved beyond a reasonable doubt: Either, the Defendant did not act in [self-defense] [defense of another], Or, it was not reasonable for the Defendant to think that the force he used was necessary to defend [himself] [another person] against an immediate threat. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.28 As with most affirmative defenses, once the defendant raises the defense, the government must establish beyond a reasonable doubt that the defendant’s action was not in self-defense. United States v. Corrigan, 548 F.2d 879, 881-84 (10th Cir. 1977). Comment Cr.13 Jury Instruction No. ___ You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and the facts that I have judicially noticed. Nothing else is evidence. The lawyers’ statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence. During the trial, I did not let you hear the answers to some of the questions that the lawyers asked. I also ruled that you could not see some of the exhibits that the lawyers wanted you to see. And sometimes I ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all of these things. Do not even think about them. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.06 This instruction is consistent with federal practice generally. United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002); United States v. Sanders, 929 F.2d 1466, 1470 (10th Cir. 1991). Use Note Paragraph (2) should be tailored to delete any references to kinds of evidence not relevant to the particular trial. If the court has taken judicial notice of a fact, the term “judicial notice” should be explained to the jury. Paragraph (4) should also be tailored depending on what has happened during trial. It is settled practice to give a general instruction defining what is and is not evidence. In some cases, there may not be any stipulations, or any judicially noticed facts. In such cases, paragraph (2) should be tailored to eliminate the unnecessary and irrelevant language. The strongly worded admonition in paragraph (4) regarding proffered evidence that was rejected or stricken may be necessary to counteract the jurors’ natural curiosity and inclination to speculate about these matters. This paragraph should be tailored to fit the particular facts of the case. If, for example, there was no occasion during the course of the trial to order that things the jurors saw or heard be stricken from the record, the language in this paragraph dealing with such matters should be omitted. Cr.14 Jury Instruction No. ____ Any notes that you have taken during this trial are only aids to your memory. If your memory differs from your notes, you should rely on your memory and not on the notes. Your notes are only to refresh your recollection. The notes are not evidence. If you have not taken notes, you should rely on your independent recollection of the evidence and should not be influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror about the testimony. Cr.14a Jury Instruction No. ___ [There are, generally speaking, two types of evidence from which a jury may properly determine the facts of a case. One is direct evidence, such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, the proof of a chain of facts which point to the existence or non-existence of certain other facts.] [As a general rule, the law makes no distinction between direct and circumstantial evidence. The law simply requires that you find the facts in accord with all the evidence in the case, both direct and circumstantial.] While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in the light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.07 Comment See United States v. Rahseparian, 231 F.3d 1267, 1271-72 (10th Cir. 2000); United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir. 1995); United States v. McIntyre, 997 F.2d 687, 702-03 & nn.16-18 (10th Cir. 1993). Use Note The bracketed first two paragraphs are optional. Some judges instruct before closing argument, some after. If instructions are given after closing argument, the Committee suggests that this instruction be modified depending on whether the attorneys have referred to the distinction between direct and circumstantial evidence during their closing arguments. Cr.15 Jury Instruction No. ___ I remind you that it is your job to decide whether the United States has proved the guilt of the Defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or “believability” of each witness and the weight to be given to the witness’s testimony. An important part of your job will be making judgments about the testimony of the witnesses [including the Defendant] who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the United States or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection - like failure of recollection - is not uncommon. [The testimony of the Defendant should be weighed and his credibility evaluated in the same way as that of any other witness.] [The Defendant did not testify and I remind you that you cannot consider his decision not to testify as evidence of guilt. I want you to clearly understand, please, that the Constitution of the United States grants to a Defendant the right to remain silent. That means the right not to testify or call any witnesses. That is a constitutional right in this country, it is very carefully guarded, and you should understand that no presumption of guilt may be raised and no inference of any kind may be drawn from the fact that a Defendant does not take the witness stand and testify or call any witnesses.] In reaching a conclusion on a particular point, or ultimately in reaching a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other. Cr.16 Jury Instruction No. ___ IMPEACHMENT BY PRIOR INCONSISTENCIES (Defendant does not testify) You have heard the testimony of [name of witness]. You have also heard that, before this trial, he made a statement that may be different from his testimony here in court. This earlier statement was brought to your attention only to help you decide how believable his testimony in this trial was. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.10 Use Note This instruction must be given when a prior inconsistent statement which does not fall within Fed. R. Evid. 801(d)(2)(A) has been admitted. If several prior inconsistent statements were admitted, some for impeachment purposes and others as substantive evidence, this instruction should identify which statements were offered for impeachment purposes. It should also be given during trial as a limiting instruction, if requested under Fed. R. Evid. 105. This seems consistent with United States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987). Cr.17a Jury Instruction No. ___ IMPEACHMENT BY PRIOR CONVICTION You have heard evidence that the Defendant has been convicted of a felony, that is, a crime punishable by imprisonment for a term of years. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of his testimony you will believe in this trial. The fact that the Defendant has been convicted of another crime does not mean that he committed the crime charged in this case, and you must not use his prior conviction as proof of the crime charged in this case. You may find him guilty of the crime charged here only if the United States has proved beyond a reasonable doubt that he committed it. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.11 The court should consider giving this instruction at the conclusion of the defendant’s testimony as well as at the conclusion of the trial. Use Note Cr.17b Jury Instruction No. ___ IMPEACHMENT BY PRIOR INCONSISTENCIES (Defendant testifies) You have heard the testimony of [name of witness]. You have also heard that, before this trial, he made a statement that may be different from his testimony here in court. This earlier statement was brought to your attention only to help you decide how believable his testimony in this trial was. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court. [If the Defendant testifies, the Defendant’s testimony should be weighed and considered, and the Defendant’s credibility determined, in the same way as that of any other witness.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.10 Use Note This instruction must be given when a prior inconsistent statement which does not fall within Fed. R. Evid. 801(d)(2)(A) has been admitted. If several prior inconsistent statements were admitted, some for impeachment purposes and others as substantive evidence, this instruction should identify which statements were offered for impeachment purposes. It should also be given during trial as a limiting instruction, if requested under Fed. R. Evid. 105. This seems consistent with United States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987). The bracketed material (paragraph 3) was not included in the 10th Circuit Pattern Jury Instructions. Cr.17c Jury Instruction No. ___ IMPEACHMENT BY PRIOR CONVICTION AND INCONSISTENCIES You have heard the testimony of [name of witness]. You have also heard that, before this trial, he made a statement that may be different from his testimony here in court. This earlier statement was brought to your attention only to help you decide how believable his testimony in this trial was. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court. [The Defendant has a right not to testify. If the Defendant does testify, however, the Defendant’s testimony should be weighed and considered, and the Defendant’s credibility determined, in the same way as that of any other witness. Evidence of a defendant’s previous conviction of a crime is to be considered by you only insofar as it may affect the credibility of the Defendant as a witness, and must never be considered as evidence of guilt of the crime for which the Defendant is on trial.] Source: Tenth Circuit Criminal Pattern Jury Instructions 1.10, 1.11 Use Note This instruction must be given when a prior inconsistent statement which does not fall within Fed. R. Evid. 801(d)(2)(A) has been admitted. If several prior inconsistent statements were admitted, some for impeachment purposes and others as substantive evidence, this instruction should identify which statements were offered for impeachment purposes. It should also be given during trial as a limiting instruction, if requested under Fed. R. Evid. 105. This seems consistent with United States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987). The bracketed material was not included in the 10th Circuit Pattern Jury Instructions. Cr.17d Jury Instruction No. ___ IMPEACHMENT BY PRIOR CONVICTION (Witness Other Than Defendant) The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a [felony, that is, of a crime punishable by imprisonment for a term of years] or of a [crime of dishonesty or false statement]. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any [prior felony conviction] [crime of dishonesty] that was used to impeach a witness. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.12 Use Note Fed. R. Evid. 609 expressly requires that evidence of a felony conviction shall be admitted, subject to Rule 403. It is important that the court conduct, on the record, a Rule 403 balancing before determining whether to admit or exclude evidence of a felony conviction. United States v. Howell, 285 F.3d 1263, 1269-70 (10th Cir. 2002). Rule 403 balancing is not required if the prior crime involves dishonesty or false statements. United States v. Begay, 144 F.3d 1336, 1338 (10th Cir. 1998). A crime of dishonesty or false statement does not need to be a felony. Care must be exercised, however, because some offenses that may sound like crimes of dishonesty may not be. See, e.g., United States v. Dunson, 142 F.3d 1213, 1215-16 (10th Cir. 1998) (holding that shoplifting is not “automatically” a crime of dishonesty or false statement). The court should consider giving this instruction at the conclusion of the witness’s testimony, as well as at conclusion of the trial. Cr.17e Jury Instruction No. ___ The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a [felony, that is, of a crime punishable by imprisonment for a term of years] or of a [crime of dishonesty or false statement]. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any [prior felony conviction] [crime of dishonesty] that was used to impeach a witness. You have heard evidence that the Defendant has been convicted of a felony, that is, a crime punishable by imprisonment for a term of years. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much of his testimony you will believe in this trial. The fact that the Defendant has been convicted of another crime does not mean that he committed the crime charged in this case, and you must not use his prior conviction as proof of the crime charged in this case. You may find him guilty of the crime charged here only if the United States has proved beyond a reasonable doubt that he committed it. Source: Tenth Circuit Criminal Pattern Jury Instructions 1.11, 1.12 The court should consider giving this instruction at the conclusion of the defendant’s testimony as well as at the conclusion of the trial. Use Note Cr.17f Jury Instruction No. ___ IMPEACHMENT BY EVIDENCE OF UNTRUTHFUL CHARACTER You have heard the testimony of [name of witness], who was a witness in the [United States] [defense] case. You also heard testimony from others concerning [their opinion about his character for truth-telling] [his reputation, in the community where he lives, for telling the truth]. It is up to you to decide from what you heard here whether [name of witness] was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning his [reputation for] truthfulness. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.13 Under Fed. R. Evid. 608(a), a witness is not limited to reputation testimony, but may also state his opinion as to the character of another witness for truthfulness. Comment This instruction should be rarely, if ever, needed. Cf. Instructions 1.09 (Evidence of Good Character) and 1.09.1 (Evidence of Reputation for Honesty). Cr.17g Jury Instruction No. ___ The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a [felony, that is, of a crime punishable by imprisonment for a term of years] or of a [crime of dishonesty or false statement]. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any [prior felony conviction] [crime of dishonesty] that was used to impeach a witness. You have heard the testimony of [name of witness], who was a witness in the [United States’s] [defense] case. You also heard testimony from others concerning [their opinion about his character for truth-telling] [his reputation, in the community where he lives, for telling the truth]. It is up to you to decide from what you heard here whether [name of witness] was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning his [reputation for] truthfulness. Cr.17h Jury Instruction No. ___ [During the trial you heard the testimony of ________________ who expressed opinions concerning _______________________________.] In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters. You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.17 Use Note In the typical one-expert case (e.g., drugs), the bracketed sentence may be omitted. Where expert opinions are in issue, the names of the experts and a description of their opinions might be inserted. Cr.18 Jury Instruction No. ___ ACCOMPLICE—INFORMANT—IMMUNITY An accomplice is someone who joined with another person in committing a crime, voluntarily and with common intent. The testimony of an accomplice may be received in evidence and considered by you, even though it is not supported by other evidence. You may decide how much weight it should have. You are to keep in mind, however, that accomplice testimony should be received with caution and considered with great care. You should not convict a defendant based on the unsupported testimony of an alleged accomplice, unless you believe the unsupported testimony beyond a reasonable doubt. Informant An informant is someone who provides evidence against someone else for a personal reason or advantage. The testimony of an informant alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilt, even though not corroborated or supported by other evidence. You must examine and weigh an informant’s testimony with greater care than the testimony of an ordinary witness. You must determine whether the informant’s testimony has been affected by self-interest, by an agreement he has with the United States, by his own interest in the outcome of the case, or by prejudice against the Defendant. You should not convict a defendant based on the unsupported testimony of an informant, unless you believe the unsupported testimony beyond a reasonable doubt. Immunity A person may testify under a grant of immunity (an agreement with the United States). His testimony alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilt even though it is not corroborated or supported by other evidence. You should consider testimony given under a grant of immunity with greater care and caution than the testimony of an ordinary witness. You should consider whether testimony under a grant of immunity has been affected by the witness’s own interest, the United States’ agreement, the witness’s interest in the outcome of the case, or by prejudice against the Defendant. On the other hand, you should also consider that an immunized witness can be prosecuted for perjury for making a false statement. After considering these things, you may give testimony given under a grant of immunity such weight as you feel it deserves. You should not convict a defendant based on the unsupported testimony of an immunized witness, unless you believe the unsupported testimony beyond a reasonable doubt. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.14 United States v. Bridwell, 583 F.2d 1135, 1142 (10th Cir. 1978). Comment When the immunity instruction is given, the nature of the agreement with the government should be spelled out in the instruction. United States v. Valdez, 225 F.3d 1137, 1139-41 (10th Cir. 2000). Use Note Cr.19a Jury Instruction No. ____ ACCOMPLICE—CO-DEFENDANT—PLEA AGREEMENT The United States called as one of its witnesses an alleged accomplice, who was named as a co-defendant in the Indictment. The United States has entered into a plea agreement with the co-defendant, providing [e.g., for the dismissal of some charges and a recommendation of a lesser sentence than the co-defendant would otherwise likely receive]. Plea bargaining is lawful and proper, and the rules of this court expressly provide for it. An alleged accomplice, including one who has entered into a plea agreement with the United States, is not prohibited from testifying. On the contrary, the testimony of an alleged accomplice may, by itself, support a guilty verdict. You should receive this type of testimony with caution and weigh it with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a guilty plea to the offense charged is not evidence of the guilt of any other person. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.15 The bracketed material in the first paragraph should be adapted to the particular case. Use Note Cr.19b Jury Instruction No. ___ WITNESS’S USE OF ADDICTIVE DRUGS The testimony of a drug abuser must be examined and weighed by the jury with greater caution than the testimony of a witness who does not abuse drugs. [Name of witness] may be considered to be an abuser of drugs. You must determine whether the testimony of that witness has been affected by the use of drugs or the need for drugs. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.16 Comment The use of an addict instruction was discussed with approval by the Tenth Circuit in United States v. Smith, 692 F.2d 658, 660-61 (10th Cir. 1982); there, however, the Court declined to find error in the trial court’s refusal to give such instruction in light of the instructions read as a whole. See also United States v. Nicholson, 983 F.2d 983, 991 (10th Cir. 1993). Cr.20 Jury Instruction No. ___ EVIDENCE OF GOOD CHARACTER [The Defendant has offered evidence of his reputation for good character.] [The Defendant has offered evidence of someone’s opinion as to his good character.] You should consider such evidence along with all the other evidence in the case. Evidence of good character may be sufficient to raise a reasonable doubt whether the Defendant is guilty, because you may think it improbable that a person of good character would commit such a crime. Evidence of a defendant’s character, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt. You should also consider any evidence offered to rebut the evidence offered by the Defendant. You should always bear in mind, however, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.09 The Committee suggests that United States v. McMurray, 656 F.2d 540, 550-51 (10th Cir. 1980), neither mandates nor precludes the use of the word “alone”. See United States v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990), overruling on other grounds recognized by United States v. Schleibaum, 130 F.3d 947, 949 (10th Cir. 1997). The matter is, however, subject to some debate. Comment There is no per se rule that the “evidence of good character alone” instruction must be given either sua sponte or upon request. The trial courts should consider this issue on a case-by- case basis, and give the “evidence of good character alone” instruction when the circumstances of a particular case so require. See, e.g., Michelson v. United States, 335 U.S. 469, 476 (1948); Edgington v. United States, 164 U.S. 361, 366 (1896); Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1967) (en banc); Bird City Equity Mercantile Exch. v. United States, 338 F.2d 790, 791- 92 (10th Cir. 1964). Cf. Instruction 1.13 (Impeachment By Evidence of Untruthful Character). The word “alone” can be inserted in the second paragraph, when appropriate: “Evidence of good character alone may be sufficient... .” Use Note Cr.21 Jury Instruction No. ___ VOLUNTARINESS OF STATEMENT BY DEFENDANT (Single Defendant) Evidence has been presented about a statement attributed to the Defendant alleged to have been made after the commission of the crime [or crimes] charged in this case but not made in court. Such evidence should always be considered by you with caution and weighed with care. Any such statements should be disregarded entirely unless the other evidence in the case convinces you beyond a reasonable doubt that the statement was made knowingly and voluntarily. In determining whether any such statement was knowingly and voluntarily made, consider, for example, the age, gender, training, education, occupation, and physical and mental condition of the Defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement. If, after considering all this evidence, you conclude by a preponderance of the evidence that the Defendant’s statement was made knowingly and voluntarily, you may give such weight to the statement as you feel it deserves under all the circumstances. [Alternatively: In determining whether any such statement is reliable and credible, consider factors bearing on the voluntariness of the statement. For example, consider the age, gender, training, education, occupation, and physical and mental condition of the Defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement. You are permitted to consider the Defendant’s statements as relevant evidence as long as you find by a preponderance of the evidence that the statements were made voluntarily. Preponderance of evidence is evidence sufficient to persuade you that a fact is more likely present than not present.] Source: Tenth Circuit Criminal Pattern Jury Instruction 1.25 Comment The Committee has not used the terms “confession” and “admission.” These labels that the law gives to statements may be confusing in jury instructions. “‘[S]tatements’ is a more neutral description than ‘confession,’ and should be used in its place . . . unless the statements can be considered a ‘complete and conscious admission of guilt–a strict confession,’” United States v. Gardner, 516 F.2d 334, 346 (7th Cir. 1975) (quoting Opper v. United States, 348 U.S. 84, 91 (1954 , in which case the instruction may be adapted by the trial judge. In Lego v. Twomey, 404 U.S. 477 (1972), the Supreme Court set the minimum burden of proof required to establish that a confession is voluntary when such confession has been challenged as involuntary. The Court stated that the burden must be “at least by a preponderance of the evidence.” The court stated that the states are free to adopt a higher standard as a matter of state law. In United States v. McCullah, 76 F.3d 1087, 1100 (10th Cir. 1996), the Tenth Circuit incorporated the language of Lego, “at least by a preponderance of the evidence,” thereby establishing the burden for this circuit. United States v. Toles, 297 F.3d 959, 965-66 (10th Cir. 2002), discusses voluntariness analysis but does not include gender specifically among factors to be considered. Nothing in Toles seems to suggest that those factors specifically referred to are exhaustive. According to Toles, the determination of voluntariness is based on the totality of circumstances, including the characteristics of the accused and the details of the interrogation. See also United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999). Such factors include age, intelligence, education of the defendant, length of detention, length and nature of questioning, whether defendant was advised of constitutional rights and whether defendant was subjected to physical punishment. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997). The instruction is consistent with United States v. March, 999 F.2d 456, 462-63 (10th Cir. 1993), and United States v. Janoe, 720 F.2d 1156, 1163-64 (10th Cir. 1983). Use Note See Instruction 1.05.1 for “preponderance of evidence.” Language in brackets is alternative language incorporating the separate preponderance instruction. Cr.22a Jury Instruction No. ___ CONFESSION-STATEMENT - VOLUNTARINESS (Multiple Defendants) Evidence relating to any statement attributed to the Defendant alleged to have been made after the commission of the crime (or crimes) charged in this case but not made in court, should always be considered by you with caution and weighed with care. Any such statements should be disregarded entirely unless the other evidence in the case convinces you beyond a reasonable doubt that the statement was made knowingly and voluntarily. In determining whether any such statement was knowingly and voluntarily made, you should consider, for example, the age, gender, training, education, occupation, and physical and mental condition of the Defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement. If, after considering all this evidence, you conclude by a preponderance of the evidence that the Defendant’s statement was made knowingly and voluntarily, you may give such weight to the statement as you feel it deserves under all the circumstances. Of course, any such statement should not be considered in any way whatsoever as evidence with respect to any other defendant on trial. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.26 See Comment to Instruction 1.25 Cr.22b Jury Instruction No. ___ IDENTIFICATION TESTIMONY The United States must prove, beyond a reasonable doubt, that the offense[s] charged in this case was actually committed and that it was the Defendant who committed it. Thus, the identification of the Defendant as the person who committed the offense[s] charged is a necessary and important part of the United States’ case. You should evaluate the credibility of any witness making an identification in the same manner as you would any other witness. You should also consider at least the following questions: Did the witness have the ability and an adequate opportunity to observe the person who committed the offense[s] charged? You should consider, in this regard, such matters as the length of time the witness had to observe the person in question, the lighting conditions at that time, the prevailing visibility, the distance between the witness and the person observed, and whether the witness had known or observed the person before. Is the testimony about an identification made after the commission of the crime[s] the product of the witness’s own recollection? In this regard, you should consider very carefully the circumstances under which the later identification was made, including the manner in which the Defendant was presented to the witness for identification and the length of time that elapsed between the crime[s] and the witness’s subsequent identification. If, after examining all of the testimony and evidence in this case, you have a reasonable doubt as to the identity of the Defendant as the person who committed the offense[s] charged, you must find the Defendant not guilty. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.29 This instruction should be given whenever identification testimony has become an issue because of lack of corroboration or limited opportunity for observation, because the witness’s memory has faded by the time of trial, or because of law-enforcement induced problems that might affect the reliability of identification testimony. Comment This instruction takes account of United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972). An instruction consisting only of the first and last paragraphs may be consistent with United States v. Pena, 930 F.2d 1486, 1492-93 (10th Cir. 1991), and United States v. Thoma, 713 F.2d 604, 607-08 (10th Cir. 1983) (discussing when cautionary instruction is needed). The Committee believes that elaboration on the specific circumstances surrounding an identification is best left to argument at trial. Cr.23 Jury Instruction No. ___ You have heard evidence of other [crimes] [acts] [wrongs] engaged in by the Defendant. You may consider that evidence only as it bears on the Defendant’s [e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident] and for no other purpose. Of course, the fact that the Defendant may have previously committed an act similar to the act[s] charged in this case does not mean that the Defendant necessarily committed the act[s] charged in this case. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.30 Comment This instruction is based on the Ninth Circuit’s Model Jury Instruction (criminal) 4.3. It follows Tenth Circuit precedent. See, e.g., United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir. 1988). It respects the four factors of proper limited purpose, relevance, prejudice analysis, and the right to a limiting instruction mentioned in Huddleston v. United States, 485 U.S. 681, 691- 92 (1988). Use Note Merely reading the text of Federal Rule of Evidence 404(b) is not the best way to instruct the jury. United States v. Doran, 882 F.2d 1511, 1524 (10th Cir. 1989). This instruction should be given during trial when requested under Fed. R. Evid. 105, see Huddleston v. United States, 485 U.S. 681, 691-92 (1988), and in closing instructions. The government bears the burden of demonstrating how the proffered evidence is relevant to an issue in the case. In demonstrating the relevance of proffered other acts evidence, “‘[t]he Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts.’” Cuch, 842 F.2d at 1176 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985 . Before such evidence is admitted “it must tend to establish intent, knowledge, motive or one of the enumerated exceptions; must have real probative value, not just possible worth; and must be reasonably close in time to the crime charged.” Id. Cr.24 Jury Instruction No. ____ The interpreter has been here only to help us communicate during the proceedings. The interpreter is not a party in the case, has no interest in the case, and has been and will continue to be completely neutral. Accordingly, the interpreter has not been working for either party. The interpreter's sole responsibility has been to enable us to communicate with each other. Treat the interpretation of the witness’s testimony as if the witness had spoken English and no interpreter was present. Do not allow the fact that testimony is given in a language other than English to influence you in any way. If any of you understand the language of the witness, disregard completely what the witness has said in the witness’s language. Consider as evidence only what has been provided by the interpreter in English. You should make your deliberations on the basis of the official interpretation. Cr.24a Jury Instruction No. ____ During the trial, you listened to audio recordings in the Spanish language. Each of you was given a transcript of the recording which was admitted into evidence. The transcript is a translation of the Spanish language audio recording. Although some of you may know the Spanish language, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript as the official document to be used in the deliberation and disregard any different meaning. The same applies to documents admitted in the Spanish language wherein the English translation is to be used in the deliberations. Source: O'Malley, Grenig, & Lee, Fed. Jury. Prac. & Instr. Crim Comp HB § 19:1 Cr.24b Jury Instruction No. ____ The evidence in this case includes facts to which the lawyers have agreed or stipulated. A stipulation means simply that the United States and the Defendant accept the truth of a particular proposition or fact. Since there is no disagreement, there is no need for evidence apart from the stipulation. You must accept the stipulation as fact to be given whatever weight you choose. Cr.24c Jury Instruction No. ___ CAUTION—CONSIDER ONLY CRIME CHARGED (Single Defendant and Single Count) You are here to decide whether the United States has proved beyond a reasonable doubt that the Defendant is guilty of the crime charged. The Defendant is not on trial for any act, conduct, or crime not charged in the Indictment. It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defense to a criminal charge. The question of the possible guilt of others should not enter your thinking as you decide whether this Defendant has been proved guilty of the crime charged. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.19 Comment See United States v. Oberle, 136 F.3d 1414, 1422-23 (10th Cir. 1998), approving instruction directing jury not to concern themselves with the guilt of anyone except the defendant over objection that it directed jurors to ignore defendant’s defense of mistaken identity. Use Note The Committee suggests that this instruction be given if the defendant has an instruction as to a person other than the defendant being guilty of the crime. Modification of this instruction will be necessary in those cases where the evidence necessarily raises the question of the guilt of others such as conspiracy or aiding and abetting. Modification should also be considered in cases in which an alibi or mistaken identification is raised. Cr.25a Jury Instruction No. ___ CAUTION - CONSIDER ONLY CRIME CHARGED (Single Defendant and Multiple Counts) A separate crime or offense is charged in each count of the Indictment. Each charge and the evidence pertaining to it should be considered separately. The fact that you may find the Defendant guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged. You are here to decide whether the United States has proved beyond a reasonable doubt that the Defendant is guilty of the crime charged. The Defendant is not on trial for any act, conduct, or crime not charged in the Indictment. It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defense to a criminal charge. The question of the possible guilt of others should not enter your thinking as you decide whether this Defendant has been proved guilty of the crime charged. Source: Tenth Circuit Criminal Pattern Jury Instructions 1.19, 1.22 (modified for single defendant) Comment See United States v. Oberle, 136 F.3d 1414, 1422-23 (10th Cir. 1998), approving instruction directing jury not to concern themselves with the guilt of anyone except the defendant over objection that it directed jurors to ignore defendant’s defense of mistaken identity. The Committee suggests that this instruction be given if the defendant has an instruction as to a person other than the defendant being guilty of the crime. Use Note Modification of this instruction will be necessary in those cases where the evidence necessarily raises the question of the guilt of others such as conspiracy or aiding and abetting. Modification should also be considered in cases in which an alibi or mistaken identification is raised. Cr.25b Jury Instruction No. ___ MULTIPLE DEFENDANTS—SINGLE COUNT The rights of each of the Defendants in this case are separate and distinct. You must separately consider the evidence against each Defendant and return a separate verdict for each. Your verdict as to one Defendant, whether it is guilty or not guilty, should not affect your verdict as to any other Defendant. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.21 Comment This instruction is based on Kotteakos v. United States, 328 U.S. 750, 772 (1946); United States v. Edwards, 69 F.3d 419, 434 n.8 (10th Cir. 1995). Cr.25c Jury Instruction No. ___ MULTIPLE DEFENDANTS - MULTIPLE COUNTS A separate crime is charged against one or more of the Defendants in each count of the Indictment. You must separately consider the evidence against each Defendant on each count and return a separate verdict for each Defendant. Your verdict as to any one Defendant or count, whether it is guilty or not guilty, should not influence your verdict as to any other Defendants or counts. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.22 Comment This instruction combines the concepts contained in “Single Defendants–Multiple Counts” and “Multiple Defendants–Single Count” instructions. The second paragraph should be modified when guilt of one charge is a prerequisite for conviction of another charge. See, e.g., 18 U.S.C. § 1961 (R.I.C.O. conviction requires proof of two predicate offenses). Use Note Cr.25d Jury Instruction No. ___ If you find the Defendant [or Defendants] guilty, it will be my duty to decide what the punishment will be. You should not discuss or consider the possible punishment in any way while deciding your verdict. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.20 Cr. 25e Jury Instruction No. ____ Any verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. In other words, your verdict must be unanimous. It is your duty as jurors to consult with one another, and to deliberate in an effort to reach agreement if you can do so without giving up your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are not partisans. You are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in the case and you must decide whether the United States has proved the Defendant guilty beyond a reasonable doubt. Cr.26a Jury Instruction No. ____ During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, computer, the Internet, any text or instant messaging service, blog, or any website such as Facebook, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. I expect you to inform me if you become aware of another juror’s violation of these instructions. You may not use electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social media may be wrong, incomplete, or inaccurate. You are permitted to discuss the case with only your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors and the parties in this case. This would unfairly and adversely impact the judicial process. Cr.26b Jury Instruction No. ___ EXPLANATION OF VERDICT FORMS (Single Verdict) In a moment, the Courtroom Deputy will escort you to the jury room. Please take your copies of the instructions that I have just read. Any exhibits admitted into evidence will be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. [The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions.] To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on the count listed in the Indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone. A form of verdict has been prepared for your convenience. The foreperson will [write/circle] the unanimous answer of the jury [in the space provided] for the count listed in the Indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the court security officer. I will either reply in writing or bring you back into the court to respond to your message. Under no circumstances should you reveal to me the numerical division of the jury. Source: Tenth Circuit Criminal Pattern Jury Instruction 1.23 Concerning the admonition against disclosure of the numerical division of the jury, see Brasfield v. United States, 272 U.S. 448, 449-50 (1926). Comment The bracketed material in the second paragraph might be appropriate when the trial judge provides the jurors with written copies of the instructions. Use Note The Committee recognizes that many judges do not routinely instruct on the verdict form. For those who do, the bracketed notation “Explain the Verdict Form” indicates an appropriate place for that instruction to be given. Cr.27a Jury Instruction No. ___ EXPLANATION OF VERDICT FORMS (Multiple Verdicts) In a moment, the Courtroom Deputy will escort you to the jury room. Please take your copies of the instructions that I have just read. Any exhibits admitted into evidence will be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. [The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions.] To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the Indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone. A form of verdict has been prepared for your convenience. The foreperson will [write/circle] the unanimous answer of the jury [in the space provided] for each count of the Indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the court security officer. I will either reply in writing or bring you back into the court to respond to your message. Under no circumstances should you reveal to me the numerical division of the jury. Cr.27b Jury Instruction No. ___ You have heard testimony that a firearm was seized at the Defendant’s residence and offered by the United States for you to consider as a tool of the drug trafficking trade. Mere presence of a firearm at the scene is not enough by itself to find that the Defendant committed a drug trafficking offense, because the firearm's presence may be coincidental or entirely unrelated to the underlying offense that is charged in the Indictment. Source: Tenth Circuit Criminal Pattern Jury Instruction 2.45.1 (modified) Cr.28 Jury Instruction No. ____ JANE/JOHN DOE Both the Indictment and these instructions refer to the alleged victim of the crime charged in the Indictment as “Jane Doe.” Jane Doe is not the alleged victim’s real name, but rather a pseudonym used to protect her privacy in documents that may be viewed by the general public. The victim’s real name was provided to you during the trial, and you should not draw any inferences about the guilt of the Defendant based on the use of the pseudonym “Jane Doe” in these documents. Source: USA v. Smith, Cr. No. 07-791 MCA, (Doc. 109) at 7, filed July 24, 2008. Cr.29
=== Standard Criminal Jury Instructions Checklist ===
If entry is in CAPITAL LETTERS, you must include it in the jury instruction packet; if entry is underlined, the parties will supply that instruction. An * means that the instruction must be individualized. JUDGE GONZALES’ STANDARD CRIMINAL JURY INSTRUCTIONS WORK SHEET I. CRIME CHARGED CAPTION; COURT WILL INSTRUCT* (Cr.01) DUTY TO FOLLOW INSTRUCTIONS (single defendant on trial) (Cr.02a) (multiple defendants on trial) (Cr.02b) CHARGE AND PLEA* (supplied by government) BURDEN OF PROOF; REASONABLE DOUBT (all defendants testify) (Cr.03a) (any defendant does not testify) (Cr.03b) SUBSTANTIVE OFFENSE (CODE PROVISIONS/ELEMENTS); Use 10th Circuit Pattern Criminal Jury Instructions, with the following exception: "on or about" and definitions (if necessary) (Cr.04g) II. DEFENSES Use 10th Circuit Pattern Criminal Jury Instructions III. EVIDENCE EVIDENCE - ARGUMENT OF COUNSEL (Cr.14) JURY NOTETAKING (Cr. 14a) DIRECT/CIRCUMSTANTIAL EVIDENCE (Cr.15) CREDIBILITY OF WITNESSES (Cr.16) IMPEACHMENT (inconsistent statement only & no defendant testifies) (Cr.17a) use with: (witness has felony conviction & deft testifies w/out felony conviction) (Cr.17e) (witness has felony conviction & deft testifies with felony conviction) (Cr.17f) (inconsistent statement, a felony conviction & no defendant testifies) (Cr.17b) (inconsistent statement & a defendant testifies) (Cr.17c) (inconsistent statement & a defendant testifies with a felony conviction) (Cr.17d) (bad reputation for truth) (use with one of the above) (Cr.17g) (felony conviction & bad reputation for truth) (use with one of the above) (Cr.17h) Expert testimony (Cr.18) Testimony of accomplice or informer (accomplice or informer) (Cr.19a) (co-defendant who entered into a plea agreement) (Cr.19b) Witness on addictive drugs (Cr.20) Character evidence (Cr.21) Confession; voluntariness Use 10th Circuit Pattern Criminal Jury Instruction 1.25 (single defendant) or 1.26 (multiple 1 If entry is in CAPITAL LETTERS, you must include it in the jury instruction packet; if entry is underlined, the parties will supply that instruction. An * means that the instruction must be individualized. defendants). Combine with 10th Circuit Instruction 1.05.1 Identification testimony (Cr.23) Similar acts evidence (Cr.24) Use of Spanish Interpreter (Cr.24a) English Transcript Of Spanish (Cr.24b) “Stipulation” Definition (Cr.24c) IV. DELIBERATION CAUTION; PUNISHMENT (single defendant & single count) (Cr.25a) (single defendant & multiple counts) (Cr.25b) (multiple defendants & single count) (Cr.25c) (multiple defendants & multiple counts) (Cr.25d) COURT’S DUTY TO DECIDE PUNISHMENT (Cr.25e) DUTY TO DELIBERATE (Cr.26a) JUROR USE OF SOCIAL MEDIA (Cr.26b) EXPLANATION OF VERDICT FORM(S) (single verdict form) (Cr.27a) (multiple verdict forms) (Cr.27b) VERDICT FORMS(S) * V. OTHER INSTRUCTIONS TOOLS OF THE DRUG TRADE (FIREARMS) (Cr.28) JANE/JOHN DOE (Cr. 29) 2
=== Clerkship Opportunities ===
CLERKSHIP OPPORTUNITIES Judge Gonzales has two clerkship positions, one of which is filled by a career law clerk. The second position is filled by a rotating one or two year law clerk. The primary duties of law clerks are research and writing, mostly in civil cases. Normally, this involves preparing bench memoranda for pretrial conferences and motion hearings, drafting memorandum opinions and orders, and preparing jury instructions. In addition, Judge Gonzales normally has a law clerk present during court proceedings where the clerk has the responsibility of administering oaths and keeping minutes of the proceeding. Applicants for the law clerk position should have a record of academic excellence, law review or other legal journal experience, and superior legal writing talent. Preference is given to applicants with specific interest in New Mexico. Judge Gonzales accepts applications at the Online System for Clerkship Application and Review (OSCAR). For information on the application process and to apply, go to https://oscar.symplicity.com. Interested candidates should submit a letter of interest, a resume, undergraduate and law school transcripts, three letters of recommendation and a writing sample.
=== Externship Opportunities ===
EXTERNSHIP OPPORTUNITIES Judge Gonzales seeks law students who are interested in externing in his chambers, preferably those who have completed two years of law school. Externs generally work twelve (12) hours per week during the spring and fall semesters, and up to twenty (20) hours per week during the summer. Although the externship is an unpaid position, externs typically receive law school credit for their externship, depending on the policy of the extern’s law school. Externs in Judge Gonzales’ chambers are given a wide range of legal research and writing responsibilities and can expect to gain considerable insight into the federal judicial process during their externship. In Judge Gonzales’ chambers, externs perform legal research and writing primarily related to dispositive motions in civil matters, such as motions to dismiss, motions to remand, and motions for summary judgment. Externs may also perform legal research and writing relating to motions to suppress in criminal cases. In addition, externs may be asked to attend motion hearings, pleas, sentencings, pretrial conferences and trials. Applicants for externships must have superior research and writing skills, preferably with experience on a law review or journal. In addition, candidates should be self-motivated, display significant academic achievement, and have a good sense of humor. To apply for an externship position in Judge Gonzales’ chambers, interested candidates should submit the following materials to Hon. Kenneth J. Gonzales, 100 N. Church Street, Law Cruces, NM 88001: Letter of interest Resume Undergraduate transcript (at least 3 semesters) Law school transcript Two references (preferably from professors or former employers) Legal writing sample
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