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Sample Jury Instructions—Conspiracy to Deprive Civil Rights

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION No. 91-32-01-CR-5 UNITED STATES OF AMERICA UNITED STATES' PROPOSED v. JURY INSTRUCTIONS LLOYD RAY PICHE Pursuant to Fed.R.Crim.P. 30, the United States respectfully requests that this Honorable Court include in its charge to the jury the Court's standard instructions concerning: --the role of the Court and the role of the jury; --the jurors' duty to follow instructions; --the Indictment; --reasonable doubt, presumption of innocence, and burden of proof; --evidence: direct and circumstantial, argument of counsel and comment of Court; --inferences; --on or about; --credibility; --expert witnesses; --impeachment: inconsistent statement, prior convictions; --multiple counts; --punishment; --duty to deliberate; --unanimity; --verdict. The United States would request that the Court not give its standard instructions on the term "specific intent." Because specific intent requires additional explanation with respect to civil rights charges, the United States respectfully submits its proposed Instruction 10 as an alternative. Respectfully submitted this _____ day of _________, 1991. GOVERNMENT'S PROPOSED INSTRUCTION NO. 1 The Indictment reads as follows: THE GRAND JURY CHARGES: COUNT ONE Beginning on or about July 28, 1989, and continuing until on or about July 29, 1989, in and near the "Cue N Spirits", a place of public accommodation in Raleigh, North Carolina, in the Eastern District of North Carolina, defendant LLOYD RAY PICHE did willfully and knowingly conspire and agree with another person known to the grand jury willfully to injure, oppress, threaten and intimidate Lanh Tang, Ming Hai Loo, Chi Cuong Ta, Ton That Thai Nguyen, Tai Trong Le, Hong Thanh Nguyen, and Minh Van Lam, who were then inhabitants of the State of North Carolina, in the free exercise and enjoyment of the right secured to them by the Constitution and laws of the United States to the full and equal enjoyment of the services, facilities, and accommodations of any place of public accommodation without discrimination on the ground of race, color and national origin, which conspiracy resulted in the death of Ming Hai Loo. It was part of the plan and purpose of the conspiracy that the defendant LLOYD RAY PICHE and another person known to the grand jury would threaten, intimidate and assault Lanh Tang, Ming Hai Loo, Chi Cuong Ta, Ton That Thai Nguyen, Tai Trong Le, Hong Thanh Nguyen, and Minh Van Lam, because of their race, color and national origin and because they were enjoying the facilities and services of a place of public accommodation. GOVERNMENT'S PROPOSED INSTRUCTION NO. 2 The defendant is charged in Count One of the indictment with having violated Section 241 of Title 18, United States Code. The words of this statute that are pertinent to Count One read as follows: If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; ...[they shall be guilty of a crime against the United States]. __________________________ Authority: 18 U.S.C. 𨵉 GOVERNMENT'S PROPOSED INSTRUCTION NO. 3 The offense charged in Count One described by Section 241 has five elements: First: Two or more persons must conspire, that is, there must be a conspiracy. Second: The purpose of their conspiracy must be to injure, oppress, threaten or intimidate one or more persons. Third: One of the victims must be an inhabitant of the State of North Carolina. Fourth: The conspiracy must be directed at the free exercise or enjoyment by such an inhabitant of a right or privilege secured by the Constitution or laws of the United States. Fifth: The actions of the defendant resulted in the death of Ming Hai Loo. If you find from the evidence that these five elements have been established beyond a reasonable doubt, then proof of the offense is complete. ____________________________ Authorities: United States v. Guest, 383 U.S. 745 (1966). Wilkins v. United States, 376 F.2d 552, 562 (5th Cir. 1967). GOVERNMENT'S PROPOSED INSTRUCTION NO. 4 The first element of this offense, conspiracy, requires proof that: the alleged conspiracy existed, and the defendant knowingly and intentionally became a member of the conspiracy. A conspiracy is a combination or agreement of two or more persons to accomplish some unlawful purpose. Thus, a conspiracy might be called a kind of partnership for criminal purposes in which each member becomes the agent of every other member. The essence of the offense is the agreement to violate or disregard the law. What the evidence must show to establish that a conspiracy existed is that the members in some way or manner, positively or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan. However, the evidence need not show that the members of an alleged conspiracy entered into any express or formal agreement. That is, the government is not required to show that the conspirators directly stated between themselves what their object or purpose was to be, the details of the conspiracy, or the means by which the object or purpose was to be achieved. Ordinarily only the results of a conspiracy, rather than the agreement itself, are observable. Also, because the essence of a conspiracy offense is the making of the agreement itself, it is not necessary for the United States to prove that the conspirators actually succeeded in accomplishing their unlawful plan. __________________________ Authorities: Devitt and Blackmar, Federal Jury Practice and Instructions (3rd. Ed., 1977), § 27.04. Direct Sales Co. v. United States, 319 U.S. 703, 714 (1943). United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987). United States v. Morado, 454 F.2d 167 (5th Cir.), cert. denied, 406 U.S. 917 (1972). United States v. Warner, 441 F.2d 821, 830 (5th Cir.) cert. denied, 404 U.S. 829 (1971). GOVERNMENT'S PROPOSED INSTRUCTION NO. 5 In addition to finding that a conspiracy existed, you must also find that the defendant knowingly and intentionally became a member of the conspiracy. A person may become a member of a conspiracy without full knowledge of all the details of the conspiracy. Before the jury may find that the defendant, or any other person, became a member of a conspiracy, the evidence must show that the conspiracy was formed, and that the defendant, or other person who is claimed to have been a member, knowingly and willfully participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy. To participate knowingly and willfully means to participate voluntarily and intentionally and not because of accident or mistake. So if the defendant, or any other person, intentionally encourages, advises or assists, for the purpose of furthering the undertaking or scheme, then he or she thereby becomes a knowing and willful participant and a co-conspirator. The extent of any defendant's participation in the conspiracy is not determinative of his guilt or innocence. A defendant may be convicted as a conspirator even though he may not have participated in all the acts that were taken in furtherance of the conspiracy. Furthermore, in order to establish that a defendant willfully conspired, the Government need not show that the acts of the defendant were of long duration. ____________________________ Authorities: Devitt and Blackmar, Federal Jury Practice and Instructions (3rd ed. 1977) § 27.05. United States v. Falcone, 311 U.S. 205, 210 (1940). United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987). United States v. Morado, 454 F.2d 167, 175 (5th Cir. 1971), cert. denied, 406 U.S. 917 (1972). United States v. Warner, 441 F.2d 821, 830 (5th Cir.), cert. denied, 401 U.S. 829 (1971). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 6 The Indictment charges the defendant with conspiring to injure, oppress, threaten and intimidate Lanh Tang, Ming Hai Loo, Chi Cuong Ta, Ton That Thai Nguyen, Tai Trong Le, Hong Thanh Nguyen, and Minh Van Lam. It is not necessary that the United States prove that the defendant conspired to violate the rights of each victim named in the Indictment. It would be sufficient if the United States proves, beyond a reasonable doubt, that the defendant willfully conspired with someone to violate the rights of one of the named victims. But, in that event, in order to return a verdict of guilty, you must unanimously agree upon which victim's rights were violated. ____________________________ Authorities: Fifth Circuit Pattern Jury Instructions, p. 73, 4.2 (modified)(1985 ed.). GOVERNMENT'S PROPOSED INSTRUCTION NO. 7 The second element of the offense charged in Count One is that the plan of the conspirators was to injure, oppress, threaten, or intimidate one or more inhabitants of the State of North Carolina. The words "injure," "oppress," "threaten" or "intimidate" are not used in any technical sense, but may cover a variety of conduct intended to harm, frighten, punish, or inhibit the free action of other persons. _______________________ Authorities: United States v. Harris, 701 F.2d 1095 (4th Cir.), cert. denied, 103 S.Ct. 3554 (1983). Posey v. United States, 416 F.2d 545 (5th Cir. 1969), cert. denied, 397 U.S. 946 (1970). GOVERNMENT'S PROPOSED INSTRUCTION NO. 8 The third element of the offense is present if an individual against whom the conspiracy was directed was an inhabitant of the State of North Carolina. If you find that one or more of the victims was in fact physically present in the State of North Carolina at the time of the incident charged in the Indictment, then he was an inhabitant of a state within the meaning of the statute. ________________________ Authorities: United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981)(a review of the legislative history reveals Congress intended to include all persons present in the United States within the protection of § 242). But see United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990)(inhabitancy requires intent to remain in the country for some period of time longer than a few hours). GOVERNMENT'S PROPOSED INSTRUCTION NO. 9 If you find (1) the existence of a conspiracy, (2) whose plan was to injure, oppress, threaten or intimidate, (3) an inhabitant of the State of North Carolina, then you must consider the fourth element of the offense, the element involving protected rights. This element requires proof that the conspiracy was directed toward the exercise or enjoyment of rights secured and protected by the Constitution or laws of the United States. In other words, you must find that the conspirators intended to engage in conduct which violated a right that was protected by the Constitution or laws of the United States. Count One of the indictment charges that the defendant conspired to injure, oppress, threaten, or intimidate seven Asian-Americans in the free exercise and enjoyment of their right secured by the laws of the United States "to the full and equal enjoyment of the services, facilities, privileges, advantages and accommodations of any place of public accommodation without discrimination on the ground of race, color, or national origin." Every person has the right to use a place of public accommodation regardless of his or her race, color, or national origin. The laws of the United States, in particular Title 42, United States Code, Section 2000a, protect the right of persons to use the facilities of a place of public accommodation without interference because of their race, color, or national origin. In this case, if you find that the conspiracy was directed against an inhabitant's use of a place of public accommodation because of the inhabitant's race, color, or national origin, then you may find that the conspirators agreed to interfere with that inhabitant's federally protected right. __________________________ Authorities: United States v. Price, 383 U.S. 787, 800 (1966) (statute precludes interference with all rights protected by Constitution or federal statutes). Title 42, United States Code, Section 2000a GOVERNMENT'S PROPOSED INSTRUCTION NO. 10_ A place of public accommodation is any establishment that is used by members of the general public for entertainment, that is, recreation, fun, or pleasure, and in which the sources of entertainment move in interstate commerce. It is the duty of the Court and not the jury to determine whether the Government's evidence, if you believe it beyond a reasonable doubt, established that the Cue 'N Spirits was a place of public accommodation. In other words, with respect to the public accommodation aspect of the Indictment, you need only to decide whether the witnesses who testified regarding this issue were credible to the extent that you believe their testimony beyond a reasonable doubt. You have heard various witnesses testify about the Cue 'N Spirits, the games and other equipment located in the facility, and the activities performed by the customers. You have also heard that pool equipment and alcoholic beverages were manufactured out-of-state. If you believe such witnesses beyond a reasonable doubt, then I instruct you that the evidence in this case meets the requirements of the law and you may find that the Cue 'N Spirits is a place of public accommodation. _____________________________ Authorities: Daniel v. Paul, 395 U.S. 298 (1969). Miller v. Amusement Enterprises, 394 F.2d 342 (5th Cir. 1968). United States v. Hooper, 575 F.2d 496, 497 (5th Cir. 1978) (approving instruction concerning mixed question of fact and law). United States v. Summers, 598 F.2d 450, 455-56 (5th Cir. 1979)(approving instruction concerning mixed question of fact and law). United States v. Tarrant, (N.D. Texas 1990)(instruction given by trial court). GOVERNMENT'S PROPOSED INSTRUCTION NO. 11 Next, you must determine whether the defendant intended to violate the right of one or more of the victims as I have just explained that right. The Indictment charges that the defendant did conspire and agree willfully to injure, oppress, threaten and intimidate the victims. An act is done willfully if it is done voluntarily and intentionally and with a specific intent to do something that the law forbids. With respect to this statute, specific intent means that the defendant, if and when he formed or joined the conspiracy, did so with the intent that the victims be deprived of their right to enjoy the facilities of the Cue 'N Spirits because of their race, color, or national origin. With regard to specific intent, you are instructed that intent is a state of mind and can be proven by circumstantial evidence. Indeed, it can rarely be established by any other means. In determining whether this element of specific intent was present you may consider all the attendant circumstances of the case. With respect to whether the defendant intended to deprive the victims' of their right to enjoy the facilities of the Cue 'N Spirits, I charge you that you may infer that a person ordinarily intends all the natural and probable consequences of an act knowingly done. In other words, you may in this case infer and find that the defendant intended all the consequences that a person, standing in like circumstances and possessing like knowledge, should have expected to result from his or her act or acts knowingly done. Specific intent to violate a federally protected right does not mean that the defendant had to be thinking in statutory or legal terms. In other words, you do not have to find that the defendant knew that the Cue 'N Spirits was a place of public accommodation, that the defendant knew that the victims had a right to be in the facility, or that the conspirators knew that the right they intended to interfere with was a federally protected right. It is only necessary that the alleged conspirators intended to do an act which would have interfered with the victims' use of the Cue 'N Spirits and that he intended to do the act because of the victims' race, color, or national origin. The government does not have to prove that the sole purpose of the conspiracy was to interfere with the right in question. It does not matter that the defendant may have also been motivated by anger, revenge, or some other motive. If you find that the defendant intended to interfere with the victims' use of the Cue 'N Spirits because of race, color, or national origin, the presence of other motives does not make his conduct any less a violation of the law. Therefore, if you find beyond a reasonable doubt that the defendant agreed or conspired with another with the specific intent to deprive one or more of the victims of his right to enjoy the use of a place of public accommodation, that is, the Cue 'N Spirits, because of his race, color, or national origin, then the conspiracy was directed at the exercise or enjoyment of a right secured by the laws of the United States, and the offense would be complete. _________________________ Authorities: United States v. Anderson, 417 U.S. 211, 223-26 (1974). United States v. Guest, 383 U.S. 745, 760 (1966). United States v. Ellis, 595 F.2d 154 (3rd Cir.), cert. denied, 444 U.S. 838 (1979)(specific intent to violate constitutional right need not be predominate purpose of conspiracy). United States v. Price, 464 F.2d 1217, 1218 (8th Cir.), cert. denied, 409 U.S. 1040 (1972)(person ordinarily intends natural consequences of acts). Ninth Circuit Pattern Jury Instructions, p.76, ڋ.05 Comment (1989 ed.) (definition of "willfully" may depend on statute involved). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 12 The fifth and final essential element that the United States must prove is that the defendant's actions resulted in the death of Ming Hai Loo. In order for you to find the defendant guilty as to this portion of Count One, you must find that Ming Hai Loo's death was a natural and foreseeable consequence of the acts committed by the defendant or a co-conspirator. It is not necessary for the United States to prove that the defendant intended Mr. Loo to die as a result of his actions. Nor need the United States prove that the defendant struck the blow that directly caused Mr. Loo's death. If death results does not mean "if death was intended" or "directly caused by the defendant." Rather, the statue is designed to deter the type of conduct that creates an unacceptable risk of loss of life. If you find that the defendant willfully engaged in a conspiracy, that the defendant or a co-conspirator committed acts during the course of the conspiracy which resulted in the victim's death, and the death was a natural and foreseeable result of the acts, then you may find that this final element has been established. ___________________________ Authorities: United States v. Harris, 701 F.2d 1095, 1101 (4th Cir.), cert. denied, 463 U.S. 1214 (1983). United States v. Hayes, 589 F.2d 811, 821 (5th Cir.), cert. denied, 444 U.S. 847 (1979). United States v. Calhoun, No. 84-5228 (4th Cir. July 3, 1985)(unpublished)(death resulting conviction upheld where the defendant contributed to or hastened the death of the victim). UNITED STATES' PROPOSED JURY INSTRUCTION NO. 13 I have just charged you with respect to what the United States has to prove for you to convict the defendant of the crime of conspiracy to violate protected federal rights with death resulting. Your first task is to decide whether the United States has proved, beyond a reasonable doubt, that the defendant committed that crime. If your verdict on that is guilty, you are finished with respect to Count One. If your verdict is not guilty, or if you are unable to reach a verdict, you should go on to consider whether the defendant is guilty of the crime of conspiracy to violate protected federal rights. You should find the defendant guilty of the crime of conspiracy to violate protected federal rights if the United States has proven, beyond a reasonable doubt, that the defendant did everything I charged you before except that it did not prove that the defendant's actions resulted in the death of Ming Hai Loo. ____________________________ Authorities: Fifth Circuit Pattern Jury Instructions, p. 45, 1.32 (1990 [INDENT]ed.). [cited in Civil Rights Resource Manual 60]