Free Proposed Jury Instructions - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant United States Attorney Arizona State Bar No. 013288 Two Renaissance Square 40 N. Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, No. CR 04-594-03-PHX-ROS Plaintiff, v. Marcial Avila-Anguiano, Defendant. The United States of America, through undersigned counsel, submits the following proposed PROPOSED MODIFIED JURY INSTRUCTION

17 modified jury instruction regarding Count 3 of the Superseding Indictment and respectfully 18 requests the Court give this instruction to the jury at the close of the trial in this case. 19 Count 3 of the Superseding Indictment in this case charges only use, carrying and 20 brandishing of the Romarm semiautomatic assault rifle. It does not charge possession. 21 Therefore, whether possession in the context of this charge involves more than mere possession 22 of the firearm is moot. The attached proposed modified instruction eliminates the possession 23 element and relies on the model instruction language regarding use, carrying and brandishing. 24 The government proposes one additional modification to the proposed instruction. The 25 Ninth Circuit model instruction does not contain a definition of "brandish." However, 18 U.S.C. 26 § 924(c)(4) defines "brandish" as follows: 27 28 For purposes of this subsection, the term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm

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known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. 18 U.S.C. § 924(c)(4). The government's proposed modified instruction quotes the above

3 provision. 4 Based on the foregoing, the United States respectfully requests the Court give the attached 5 proposed instruction to the jury in place of the previously-submitted instruction relating to Count 6 3. For the Court's convenience, the government is submitting an electronic clean copy to the 7 Court's chambers. 8 Undersigned counsel has conferred with counsel for the defendant, and he tentatively is in 9 agreement with the government's proposed language. 10 Respectfully submitted via CM/ECF this 22 day of August, 2005. 11 12 13 14 15 16 17
Philip Seplow

PAUL K. CHARLTON United States Attorney District of Arizona

Joseph E. Koehler Assistant United States Attorney
A Copy of the foregoing served this date via transmittal of Notice of Electronic Filing to CM/ECF registrant(s):

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8.65 FIREARMS--USING OR CARRYING IN COMMISSION OF A CRIME OF VIOLENCE

The defendant is charged in Count 3 of the indictment with using, carrying, or brandishing 3 a firearm during and in relation to a crime of violence in violation of Section 924(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the 4 government must prove each of the following elements beyond a reasonable doubt: 5 6 Second, the defendant knowingly used, carried, or brandished a Romarm semiautomatic 7 rifle; and 8 9 The defendant has "used" a firearm if he or she has actively employed the firearm in relation 10 to hostage taking. Use includes any of the following: 11 12 13 14 (1) brandishing, displaying, or striking with a firearm; (2) referring to a firearm in the offender's possession; (3) the silent but obvious and forceful presence of a firearm in plain view. Third, the defendant used, carried, or brandished the Romarm semiautomatic rifle during and in relation to the crime. First, the defendant committed the crime of hostage taking as charged in Count 2 of the indictment;

A defendant carries a firearm if the defendant knowingly possesses or carries the firearm. Carrying is not limited to carrying weapons directly on the person, but can include circumstances 15 such as carrying in a vehicle or a locked compartment of a vehicle. The term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate 17 that person, regardless of whether the firearm is directly visible to that person. 18 19 20 21 22 23 24 25 26 27 28
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A defendant takes such action "in relation to the crime" if the firearm facilitated or played a role in the crime.

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