IATR: 1988 Col FILIBERTO OJEDA RIOS - INSTRUCCIONES DE LA CORTE A LOS JURADOS

INSTITUTO

ALEJANDRO TAPIA Y RIVERA

Colección

COMANDANTE FILIBERTO OJEDA RIOS

DOCUMENTOS HISTÓRICOS Y PÚBLICOS

de los JUICIOS FEDERALES contra el COMANDANTE MACHETERO

FILIBERTO OJEDA RIOS LÍDER del

EJERCITO POPULAR BORICUA (EPB)

Colección Lcdo. Luis Abreu Elías, abogado de la Defensa Años 1985-1989

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTORICO

PACB PAGB - IHTRODUCTION

COURT'S INSTRUCTIONSTO THEJURY

(single defendant)

Mr. Foreman, Members of the Jury:

On July 14 the jury was sequestered upon my instructions. This decision of the Court has no bearing and is in no way related to the issue of guilt or innocence in this case. It was adopted as a measure to preclude any publicity that could be created and which could interfere with your evaluation of the evidence and your ultimate decision.

You have now heard all of the evidence and the final arguments made by the attorneys for the parties in this case.

It is my duty now to instruct you on the law. Please listen attentively to my explanation on the principles of law. You must follow and apply these principles in reaching your decision on the question of innocence or guilt.

In any trial by jury there are two judges. I amone of them and you--the jury--is the other Judge. As a presiding Judge I determinad what testimony and what documents were relevant for your consideration. It is my duty at the end of the trial to instruct you on the law that you shall apply to the case.

DUTYTO FOLLOWINSTRUCTIONS,ETC.

{SINGLE DEFENDANT)

Although you are the judges of the facts, in determining what actually happened in this case--that is, in reaching your decision as to the facts--it is your sworn duty to follow the law as I explain it to you.

You must follow all of my instructions as a whole and you must not ignore or give special attention to any one instruction. You must not question the wisdom or the correctness of any rule of rule that I state to you. • You must not ' substitute or follow your own ideas or your··own opinions as to what the law is or what the law should be. It is your duty to apply the law as it is set forth in these instructions, whether you agree with them or not, ~egardless of the consequenc~sj

It is also your d~tf', 1 ¡Z}ªse your verdict exclusively on the testimony and ~t1á'6cumentary evidence and to consider all of the evidence impartially, without feeling prejudice or feeling sympathy for anyone. That was the promise you made before you were accepted as jurors in this case and that was also the oath you took after the parties

CONT.DUTYTO FOLLOWINSTRUCTIONS.ETC.

chose each of you. The court, the attorneys and the parties have the right to expect nothing less from you. I am confident that you will uphold the oath you took and that you will respect the trust placed upan you.

Justice thru trial by jury must always depend upan the willingness ·of each individual juror to seek the truth as to the facts from the same evidence presented to all the jurors, and to arrive ata verdict by applying the same rules of law as given in the instruction of the court.

PRESUMPTIOHOP IHHOCEHCB, BURDEHOP PROOP, REASOHABLBDOUBT (WHEHAHY DEFEHDAHTDOES HOT TESTIFY)

As I told you earlier, the indictment or formal the defendant is not evidence of guilt.

Indeed, defendant is presumed by law to be innocent. The law / never imposes upon an accused the burden or duty of calling any \J witnesses or of producing any evidence at all• ¡~a

wh

The law does not require a defendant to prove his innocence at any time. The government always has the burden of proving him guilty beyond a reasonable doubt.

This burden of proof never shifts to the accused. If the government fails to meet its burden of proof, you must find the defendant[s] not guilty.

Even though the government•s burden of proof is a strict or a heavy one, it is not necessary that the defendant's guilt be preven beyond all possible doubt. What is required is that the government' s proof. exclude any reasonable doubt concerning his guilt. A reasonable doubt is a real doubt, based upon reason and based upon common sense after careful and impartial consideration of all the evidence presented and admitted in the case.

y1To be included if requested only.

J 'Y''-'

If the proof is such that you would hesitate to rely and act u pon i t in the most important of your own af fairs, then the government has failed to preve the def endant guil ty beyond a reasonable doubt. You must remember that a defendant is never to be convicted on mere suspicion or conjecture.

So, _i.f you, as the jury, after a careful andan impartial

~onsideration of all the evidence admitted in this case, have a S~\o\.reasonable doubt that the defendant is ou hl~.~ -

~~ust find him guilty. If you view the evidence in this case as

• ~' reasonably permitting either of two conclusions--one of innocence the other of guilt--you should, of course, adopt the conclusion of innocence.

EVIDENCE-STIPULATIONS, INDICTMENT, AND RULINGS ON OBJECTIONS

It is your duty to determine the facts, and in so doing, you must consider only the evidence the Court has admitted in the case. The evidence in this case consists of the sworn testimony of the witnesses who came before you, regardless of w~o1m~h~ve c~l).ed (7u-Q &rJ~~ them. The evidence also includes the documents that ere admitted and marked as exhibits, regardless of who may have presented them; and also all facts which have been stipulated or agreed upon.

When the attorneys on both sides stipulated or agreed as to the existence of a fact, this means that they both accepted that fact as true. You must accept the stipulation as evidence, and consider that fact as preved.

At times during the trial you heard lawyers make objections to questions asked by other lawyers or to answers gi ven by witnesses. This simply meant that the lawyers were requesting that I make a decision on a particular question of law. Do not reach any conclusion from such objections or from my rulings or decisions on the objections raised. As I have said, thes~ly related to legal questions that I had to determine and should not influence your thinking. When I sustained an objection to a question, the witness was not allowed to answer it. Do not try to guess what the witness might have answered if I had permitted him/her to do so. Remember that any statements, objections or arguments made by the lawyers are not evidence in this case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call

your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own memory or recollection and your own interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you. Also, during the trial I occasionally made comments to the lawyers, or asked questions of a witness, or admonished a witness concerning the manner in which he should respond to the questions of counsel. Do not assume from anything I may have said that I have any opinion concerning any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts.

EVIDENCE--INFERENCES--DIRECT AND CIRCUMSTANTIAL

In considering the evidence you are expected to use your good sense and give the evidence a reasonable and fair interpretation, in light of your common knowledge of the natural tendencies and inclinations of human beings.

As I told you in my preliminary instructions, evidence may be either director circumstantial. "Direct evidence" is direct proof of a fact, for example, the testimony of an eye-

witness who has actual knowledge of a fact. "Circumstantial evidence" is indirect evidence. It is proof of one or more facts from which you can find another fact. I will give you a simple example of circumstantial evidence: .lf you leave the courthouse and you see water on the sidewalks and you see eeople carrying umbrellas, even though you have no direct evidence that it rained for you have not actually seen the rain falling, you may infer from the water on the street and the people carrying umbrellas that it rained before. The water on the street and the people with the umbrellas are circumstantial evidence of the fact that it rained. Before you decide a fact by circumstantial evidence, consider all the evidence in the light of reason, experience and common sense.

While you can consider only the evidence presented, whether director circumstantial, you are permitted to make such reasonable inferences from the testimony and the documenta as you feel are justified in the light of common experience. You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the evidence presented.

To summarize, you may consider both direct and circumstantial evidence in deciding this case. The law permita you to give equal weight to both kinds of evidence. It is for yo~ . to·decide how much weight you give to any evidence. t

CREDIBILITY OP WITNESSES

I have told you that you must consider all of the evidence. This does not mean that you must accept all of the evidence as true or accurate.

You are the only judges of the credibility or "believability" of each witness and you alone decide how much weight you give to his/her testimony. It is for you to decide whether you believe what each witness had to say and how important that testimony was. In doing this consider his/her relationship to the government or to the def endant; the interest, if any, of the wi tness in the outcome of the case; the way he/she testifies; the opportunity the witness has to observe orto acquire knowledge about the facts as to which he/she testified; his/her recollection or memory of events, the candor, sincerity of the witness, and the extent to which his or her te~timony has been supported or contradicted by other credible evidence. In short, you can accept or reject the testimony of any witness in whole or in part.

In reaching a verdict, do not make any decisions simply because there were more witnesses on one side than on the other. The weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of a fact. You may, for example, find that the testimony of a smaller number of witnesses as to a fact is more credible than the testimony of a larger number of witnesses to the contrary. You shall consider the testimony of each witness and then decide how much you believe of what he or she had to say.

IMPEACBMENT INCONSISTENTSTATEMENTONLY

(Insert after basic instructions, "credibility," only if needed.)

A witness may be discredited by contradictory evidence, by showing that he testified falsely on a material matter, or that at sorne other time the witness said or did something, or failed to say or do something, which is inconsistent with his testimony in court.

The earlier contradictory statements were brought to your attention only to help you decide if you believe that witness' testimony at trial. You cannot use those earlier statements as evidence in this case. However, if a witness said something different about a particular matter before and the two stories are conflicting, there may be reason for you to doubt his testimony here. It is up to you to decide that.

[It may be that a witness denied having made such a statement. In that case you must first determine whether he made the statement and then, whether you believe his or her testimony at trial.]

If a witness is shown to have knowingly testified falsely, you have a right to distrust that witness' testimony in other matters. You may reject all of his testimony or give it such credibility as you think it deserves.

Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, mayor may not cause you to discredit that testimony. Two or more persons that witness an incident ora transaction may see or may hear it differently. An innocent misrecollection, like failure to remember, is not uncommon. When you weigh the ef f ect of a discrepancy, always consider whether the inconsistency or discrepancy is related toan important matter orto an unimportant detail or whether the discrepancy results from an innocent mistake or from intentional falsehood. You will then decide whether the witness should or should not be believed.

ATTORNEYINTERVIEWING WITNESS

It is proper for an attorney--be it the prosecutor, the defense stand-by counsel or the defendant as his own attorney--to interview any witness in preparation for trial.

TESTIMONYOP EXPERTS

During the trial you heard the testimony of William Albrecht, an expert presented by the government on firearms identification. This witness was permitted to testify even though he did not actually witness any of the events involved in this case.

The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call "expert witnesses." Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state an opinion as to relevant and material matter, in which they profess to be expert, and may also state their reasons for their opinion. Merely beca use they have expressed an opinion does not mean, .. however, that you must accept that opinion. The same as with any other witness, it is up to you to decide whether you believe his testimony and choose to rely upon it. Part of that decision will depend on your j udgment about whether the expert' s background of training and experience is sufficient for ~to give the expert opinion that you heard. You must~lso decide whether his opinion was based on

sound reasons, judgment and information.

STIPULATIONS OP FACT (IP NEEDED)

While we were hearing evidence you were told that the government and the defendant agreed, or stipulated, that as to the MP5's, they are an adequate representation of the MP5's that agents have testified were allegedly carried by them before or during the arrest of Filiberto Ojeda-Rios, noting that the ones before the court are of the semi-automatic version as compared to the fully automatic version in the alleged possession of said agents on August 30, 1985.

As to the 11308 11 rifle, it was stipulated that it is an adequate representation of the weapon that Special Agent Norris testified that was allegedly carried by Special Agent Michael Fain on August 30, 1985 before or during the arrest of Filiberto OjedaRios.

There is no disagreement over that, so there was no need for evidence by either side on that point. You must accept that as fact4- 1 even though nothing more was said about it one way or the other.

Federal Judicial center, Pattern criminal Jury Instructions, 1982, p. 18 (Modified)

WITNESES - DEFENDANT'SFAILURETO

TESTIFY

The de f endl'in t 1 did not testify in this case. Under our Constitution, he • has no obligation to testify orto present any evidence because it is the prosecution's burden to prove the defendant guilty beyond a reasonable doubt. That burden remains with the prosecution throughout the entire trial and never shifts to the defendant. A defendant is never required to provo that he is innocent.

You may not att~ch any significance to the fact thatT!~ defendant did not testify. No adverse inf~renc;;2 .sgainat ii!.~ may be drawn by you because he did not take the witness stand and you may not consider this against him in any way during your deliberations.

*If requested by any of the defendants who did not testify.

OFFENSB INSTRUCTIOH A (INDICTMENT)

(PAUSE}

Members of the jury, I am now going toread to you from the indictment filed against defendant in this case. I must remind you again that an indictment is but a formal method of accusing a def endant of a e rime. It is not evidence against the defendant and does not create any presumption or permit any inference of guilt. (Attach photocopy of indictment.)

READ COPY OP' INDICTMENT ATTACJIED.

There are a total of eight separata counts in~ indictment. There are 4 counts--counts 1, 3, 5 and 7--that es¿~6epa:Rt:e violations of section 111 of Title 18, United States Code. In a few moments I will read to you what Section 111 provides and I will explain to you the essential elements of the offenses charged under Section 111 in these four counts.

The~e re 4 other counts--specifically counts 2, 4, 6 and 8 IZ-.5 that cb~qparata :violations of section 924 (e) of Title 18, United States Code. Again, I will shortly be explaining to you what Section 924(c) provides and I will point out the essential elements of the offenses charged under Section 924 (e) in those counts.

against the defendant in each of the eight counts of the indictment. Each count and the evidence pertaining to it, should be considered separately. However, it is important for you to understand that if you find the defendant not guilty of count 1 you must also find him not guilty

of count 2. If you find him guilty of count 1, you will then proceed to consider his guilt or innocence in count 2. You will follow this same procedure as to the pairs composed of counts 3 and 4; counts 5 and 6 and counts 7 and 8.

For example, I repeat--If you find Mr. Ojeda-Rios not guilty as to count 3, then you must also find him not guilty as to count 4. If you find him guilty as to count 3, then you proceed to consider his guilt or innocence as to count 4. You will, as I have instructed, do the same thing as to the other pairs of counts-meaning counts 5 and 6 and counts 7 and 8.

I N D I C T H E N T

In this case the Indictment reads as follows: IN THEUNITEDSTATESDISTRICTCOURT FORTHE DISTRICTOF PUERTORICO

UNITED STATES OF AMERICA, Plaintitf, v. FILIBERTO INOCENCIOOJEDA-RIOS, Defendant.

THEGRANDJURY CHARGES:

I N D I C T M E N T

CRIMINALNO. 88-318 (CC)

VIOLATION: TITLE 18, use SECTIONS 111, 1114, and 924(c)

(EIGHT COUNTS)

COUNTONE

On or about August 30, 1985, in the Distrlct of Puerto Rico and within the jurisdiction of this Court, FILIBERTO n,oeEHeiO

OJEDARIOS, the defendant heretn, dtd forcib'ly assaul t, res is t, oppose, impede, intimidate, anrl interfere with Federal Bureau of Investigation Special Agent Abelardo J. Alba, a person designated in Title 18, United States Code, Section 1114, while the said Special Agent was engaged in and on account of the performance of his official duties, by firing with a deadly and dangerous weapon, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135. All in violation of Title 18, United States Code, Sections 111

COUNTTWO

On or about August 30, 1985, in the District of Puerto Rico and within the jurisdiction of this Court, FILIBERTO

OJEDA RIOS, the defendant herein, knowingly, willfully and unlawfully did carry and use firearms, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135 anda Smith &

Wesson semi-automatic pistol, 9 millimeter caliber, Model 59, with its serial number obliterated, during and in relation to a crime of violence, for which he might be prosecuted in a Court of the United States, that is the forcible assault upon Federal Bureau of Investigation, Special Agent Abelardo J. Alba, while said Special Agent was engaged in the performance of his offic ial duties, al 1 in violation of Title 18, United States Code, Section 924(c).

COUNTTHREE

On or about Augus t 30, 1985, in the Dis trie t of Puerto Rico and within the jurisdiction of this Court, FILIBERTO

OJEDA RIOS, the defendant herein, did forcibly assault, resist, oppose, impede, intimidate, and interfere wi'th Federal Bureau of Investigation Special Agent Roger D. Browning, a person designated in Tit le 18, United Sta tes Code, Section 1114, while the said Special Agent was engaged in and on account of the performance of his official duties, by firing with a deadly and dangerous weapon, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135. All in violation of Title 18, United States Code, Sections 111 .:.

COUNTFOUR

; On or about August 30, 1985, in the District of Puerto Rico and within the Jurisdiction of this Court, FILIBERTO

OJEDA RIOS, the defendant herein, knowingly, willfully and

unlawful ly did carry and use firearms, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Seria·1 Number SA20135 and a Smith & Wesson semi-automatic pistol, 9 millimeter caliber, Model 59, with its serial number obliterated, during and in relation to a crime of violence, for which he might be prosecuted in a Court of the United States, that is the forcible assault upon Federal Bureau of Investigation, Special Agent Roger D. Browning, while said Special Agent was engaged in the performance of his official duties, al 1 in violation of Title 18, United States Code, Section 924(c).

COUNT FIVE

On or about August 30, 1985, in the District of Puerto Rico and within the jurisdiction of this Court, •. FILIBERTO - : .--:--:'

OJEDA RIOS, the defendant herein, did forcibly assault, resist, oppose, impede, intimida te, and interfere with Federal Bureau of Investigation Special Agent Thomas R. Norris, a person designated in Title 18, United States Code, Section 1114, while the said Special Agent was engaged in and on account of the performance of his official duties, by firing with a deadly and dangerous weapon, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135. All in violation of Title 18 United States Code, Sections 111

COUNT SIX

On or about August 30, 1985, in the District of Puerto Rico and within the jurisdiction of this Court, FILIBERTO

o.JEDA RIOS, the defendant herein, knowingly, willfully and unlawful ly did carry and use firearms, to wit: Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135 anda Smith & Wesson semi-automatic pistol, 9 millimeter caliber, Model 59, with its serial number obliterated, during and in relation to a crime of violence, for which he might be prosecuted in a Court of the United States, that is the forcible assault upon Federal Bureau of Investigation Special Agent Thomas R. Norris, while said Special Agent was engaged in the performance of his official duties, all in violation of Title 18, United States Code, Section 924(c).

COUNT SEVEN

On or about August 30, 1985, in the District of Puerto Rico and within the jurisdiction of this Court, FILIBERTO

o.JEDA RIOS, the defendant herein, did forcibly assault, resist, impede, intimidate and interfere with Federal Bureau of Investigation Special Agents Jacques Island, James R. Shine and Martin D. Brown, persons designated in Title 18, United States Code, Section 1114, while said Special Agents were engaged in and on account of the performance of their official duties by raising like he were going to shoot the aforesaid Agents, a Smith & Wesson semi-automatic pistol, 9 millimeter caliber, Model 59., with its serial number obliterated, said pistol being a deadly and dangerous weapon. Code, Sections 111

All in violation of Title 18, United Sta tes

COUNT EIGHT

On or about August 30, 1985, in the District of Puerto Rico and within the jurisdiction of this Court, FILIBERTO

OJEDA RIOS, the defendant herein, knowingly, willfully and unlawfully did carry and use firearms, to wit: a Uzi carbine, 9 millimeter caliber, Model A, Serial Number SA20135 anda Smith & Wesson semi-automatic pistol, 9 millimeter caliber, Model 59, with its serial number obliterated, during and in relation to a crime of violence for which he might be prosecuted in a Court of the United States, that is an assaut as defined by Title 18, United States Code, Section 111 and 1114, upon Federal Bureau of Investigation Special Agents, Jacques Island', James R. Shine and Martin D. Brown, while said Special Agents were engaged in the performance of their official duties, all in violation of Title 18, United States Code, Section 924(c).

DANIEL F. LOPEZ ROMO UNI TED STATES ATTORNE.Y DISTRICT OF PUERTORICO

Date: August 24, 1988

TRUE BILL

FOREPERSON

STATUTEDEFINING OFFENSE

Section 111 to Title 18 of U.S.C.A. provides in part that:

"Whoever forcibly assaults resists, opposes, impedes, intimidates, or interferes with any person designated in Section 1114 of this title while engaged in or on account of the performance of his official duties", shall be guilty of an offense against the laws of the United States; and further provides that:

"Whoever in the commission of any such acts uses a deadly or dangerous weapon," shall be punished as provided by law.

Devitt and Blackmar Practice and Instructions Section

CONJUNCTIVB CBARGB

Where a statute specifies several alternative ways in which an offense may be committed, such as Section 111 of Title 18, u.s.c., which the United States alleges was violated in counts 1, 3, 5, and 7 of the indictment, the indictment may allege the several ways in the conjunctive by the use of the word "and." If one or more of the alternatives is proved beyond /;c::lsonable doubt, that is sufficient for conviction in those~u~ts.~ I\

ESSENTIAL ELEMENTSOF OPPENSB

Three essential elements are required to be proved in order

to establish the offenses charged in counts one, three, five and seven of the indictment which refer to Section 111, just cited.

First, That the defendant forcibly assaulted, resisted, opposed, impeded, intimidated or interfered with an officer of the Federal Bureau of Investigation, a person designated in Section 1114 of Title 18 u.s.c., while such officer was engaged in or on account of the performance of his official duties, as charged;

Second: That he used a deadly or dangerous weapon in the commission of the forcible assault, as charged; and

Third: That he did such acts willfully.

You will recall that I read you the indictment. The government alleged in counts 1, 3 and 5 that the offenses charged in those counts were committed by firing an UZI. As to count 7, the government alleged that the offense was committed by raising a semi-automatic Smith and Wesson pistolas if he were going to shoot the agents named in that count.

As stated before, the burden is always upon the prosecution to prove beyond a reasonable doubt every essential element of the crime charged; the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

Devitt and Blackmar, Federal Jury Practice and Instructions, §42.0S (modified) (3d. edition, 1977)

ASSAULT - SEVERAL VICTIMS

As to Count Seven

Ladies and gentlemen of the jury:

I instruct you members of the jury that in order to prove the offense charged in count seven the goverrunent does not have to prove beyond a reasonable doubt that all three FBI agents mentioned in that count were forcibly assaulted, resisted, impeded, intimidated or interfered as a result of defendant's alleged actions. It is sufficient if the goverrunent proves this beyond a reasonable doubt as to one of the agents mentioned in that count to establish that particular element of the offense.

Ladner v. united states, 358 u.s. 169 (1958) United states v. Rivera-Ramos. 856 F.2d 420 (1st cir. 1988) united states v. Alexander, 471 F.2d 923 (o.e. 1953)

ASSAULTDEFINED

Any willful attempt or threat to inflict injury upon the person of another when coupled with an apparent present ability so to do, and ~ny intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault. An assault may be committed without actually touching, or striking, or doing bodily harm, to the person of another.

So, a person who has the apparent present ability to inflict bodily harm or injury upon another person, by the use of a deadly or dangerous weapon, and willfully attempts, or even threatens, to inflict such bodily harm, as by intentionally pointing a loaded pistol or gun at the other person, may be found guilty of focibly assaulting the other person with a deadly or dangerous weapon.

Devitt and Blackmar, Federal Jury Practice and Instructions Section 42.04 (3rd. Ed. 1977)

"RESIST" DEFINITION

To oppose. This word properly describes an opposition by direct action and quasi forcible means.

Black's Law Dictionary (Revised 4th Edition), West Publishing Co., p. 1474

11IMPEDE11 DEFINITION

Impede in the context of the allegations made in the indictment in counts 1, 3, and 5 means to obstruct, h~heck or delay by firing with an UZI and in the context o~ount 7 i~;;;/e ,1 means to obstruct, hinder, check or delay by raising as if defendant were going to shoot the agents mentioned there with a semi-automatic pistol.

Black's Law Dictionary, (Revised 4th Edition) West Publishing co., p. 887

11 INTIMIDATB11 DEPIHITIOH

The word "intimidate" means to make timid or fearful or to inspire or affect with fear. In the context of counts 1, 3, and 5 the intimidation is alleged to have occurred by firing the UZI at each agent and in the context of count 7 the intimidation is alleged to have occurred by raising as if Mr. Ojeda-Rios were going to shoot the agent mentioned there with a semi-automatic pistol.

United states v. Marcello, 423 F.2d 993, 1010 (1970), footnote 26.

PERSON DESIGNATED IN TITLB 18 u.a.e. SECTION 1114

In counts 1, 3, 5 and 7 it is alleged that the FBI agents mentioned there are persons designated in Title 18 u.s.c. Section 1114. I instruct you as a matter of law that agents of the FBI are included in the list of persons mentioned in that statute.

POlfERS OP FEDERAL BUREAU OP INVESTIGATIOH

§3052. Powers of Federal Bureau of Investigation

The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States.

Title 18, United States Code, Section 3052.

GOVERNMENT'S PROPOSED SPECIAL JURY INSTRUCTION NO. 38 (a)

Failure to have signed cap~ of Search and Seizure Warrant at the time o executing the same

Ladies and gentlemen of the jury:

You are hereby instructed that the law does not require the government agents to have in their possession when executing a search and seizure warrant copy of the same signed by the Magistrate.

CF; United States v. Harrin~ton

504 F.2d 130 (7th Cir. 974); t--J/A ( l:>4

United States v. McKenzie

446 F.2d 949 (6th Cir. 1971); N/A

Shaw v. United States /A 209 F.2d 298 (O.e. 1954); ti

J ohnson v. United Sta tes N/ f't •)· 8'"-CJ 46 F.2d 7 (6th clr. 1931) r • 1 '

GOVERNMENT'SPROPOSEDSPECIAL JURY INSTRUCTIONNO. 38(b)

Failure to Possess Arrest Warrant Previously Issued

Ladies and gentlemen of the jury:

You are hereby instructed that the law does not require government agents to have in their possession, when effectuating an arrest, a copy of the arrest warrant as long as they have reliable information of an outstanding warrant for arrest.

United States v. George 625 F. 2d 1081 (3rd Cir. 1980)

United States v. Smith 468 F.2d 383 (3rd Cir. 1972)

USB OPA PIREARM DURING AND IN RELATION TO ANY CRIMB OP VIOLENCB

Title 18, United States Code, Section 924 (e) provides as follows:

Whoever, during in relation to any crime of violence, including a crime of violence which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm shall be punished as provided by law.

EFFECT OP POSSESSIOH OP DANGEROUSWEAPOH

The mere fact that you may find from the evidence that Mr. ojeda-Rios possessed the weapons mentioned in the indictment does not constitute an offense against the laws of the United States. If you do not find beyond a reasonable doubt from the evidence that Mr. Ojeda-Ríos used, as defined in these instructions, those weapons to intimidate, impede, interfere or assault the agents of the FBI mentioned in the various counts of the indictment while such officers were engaged in the performance of their official duties, as charged, it is immaterial that Mr. Ojeda-Rios may have had such weapons in his possession.

ESSENTIAL BLEMENTS

Three essential elements are required to be proved in order to establish the offenses charged in counts 2, 4, 6 and 8 of the indictment related to Section 924{c). These are the following:

1) that Mr. Ojeda-Rios committed the crimes of violence as alleged in the corresponding counts 1, 3, 5 and 7 and 2) that in committing such crimes of violence as charged in counts 1, 3, 5 and 7 he carried and used a 9mm UZI carbine anda 9mm semi-automatic Smith & Wesson pistol, 3) that he did so knowingly, willfully and unlawfully.

11VIOLENT CRIMB 11 DEJ'INITION

The term crime of violence, as used in counts 2, 4, 6 and 8, means an offense that is a felony and--

(A) has asan element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Title 18, United States Code, Section 924(c) (3) (A) and B)

"FIREARM"DEFINED

Under 18, United States Cede, §92l(a)(3), the term "firearm" includes "any weapon ... which will or is designed to or may readily be converted to expela projectile by the action of an explosive ... "

Devitt and Blackmar, Federal Jury Practice and Instructions, Section 59.28

USB OP PIREARMS

As to the use of firearms in relation to counts 2, 4 and 6, the Court instructs you as follows: Mr. Ojeda-Rios is considered to have used the firearms described in those counts 2, 4 and 6 if the government proves beyond a reasonable doubt that he fired the UZI as charged in counts 1, 3 and 5 in addition that the 9mm semiautomatic pistol was in his possession or readily accessible in a manner that facilitated the carrying out of the assault charged in counts 1, 3 and s. It is necessary that the government prove beyond a reasonable doubt as to counts 2, 4 and 6 that Mr. OjedaRios fired the UZI. It is not necessary that the government prove I as to counts 2, 4 and 6 that the pistol was fired in order that it may be considered as having been used. As to the use of firearms in relation to count a, the Court instructs you as follows: Mr. Ojeda-Rios is considered to have used the firearms described in that count if the government provea beyond a reasonable doubt that he raised a 9mm semi-automatic pistolas if he were going to shoot agents Island, Shine and Brown and in addition that the UZI was in his possession and readily accessible in a manner that facilitated the carrying out of the assaul t charged in count 7. It is necessary that the government prove beyond a reasonable doubt as to count 8 that Mr. Ojeda-Rios raised the pistolas if he were going to shoot the agents mentioned before. It is not necessary that the government proveas to count 8 that Mr. Ojeda-Rios fired the UZI.

The term willfully is mentioned in counts 2, 4, 6 anda. An act is done willfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey orto disregard the law.

Devitt and Blackmar, Federal Jury Practica and Instructions, third edition, 1977, §14.06

11:KNOWINGLY" - TO ACT

The term knowingly is mentioned in counts 2, 4, 6 anda. An act is done "knowingly" if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

The purpose of adding the word "knowingly" is to insure that no one will be convicted for an act done because of mistake, or accident, or other innocent reason.

As stated before, with respect toan offense such as charged in this case, specif ic intent must be proved beyond rea sonable doubt before there can be a conviction.

Devitt and Blackmar, Federal Jury Practice and Instructions, third ed. 1977, §14.04

"UNLAWFULLY" -TO ACT

"Unlawful ly" means contrary to law. So, to do an act "unlawfully" means to do willfully something which is contrary to law. A one "willful y" if done with say, orto disr

Devitt and Blackmar, Federal Jury Practice and Instructions Third Edition, 1977, §16.09 the

ACT AND IH'rENT

To constitute the offenses charged in the indictment there must be the j oint operation of two essential elements, an act forbidden by law andan intent to do the act.

Bef ore a defendant may be found guil ty of a crime the prosecution must establish beyond a reasonable doubt that under the statutes referred to in these instructions the defendant was forbidden to do the acts charged in the indictment, and that he intentionally committed the acts.

As stated before, the law never imposes upen a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

1 oevitt and Blackmar, Federal Jury Practice and Instructions, 374, §14.01 (3d ed. 1977) Act and Intent.

PROOFOF INTENT

Intent ordinarily may not be preved directly, because there is no way of scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. You may consider any statement, actor omission of the defendant, and all other facts and circumstances in evidence which reflect his state of mind. As I have said, it is entirely up to you to decide what facts to find from the evidence.

SPECIFIC INTENT

The offensea charged require proof of specific intent

before the defendant can be convicted.

Specific intent, as the term impliea, means more than the general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids, that he purposely intended to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.

HOTIVB

Intent and motive are not to be confused. Motive is what prompts a person to actor fail to act. Intent refers only to the state of mind with which the act is done or omitted. The motive of the defendant is immaterial except insofar as evidence of motive may help in the determination of the defendant's state of mind or intent.

Devitt and Black:mar, Federal Jury Practice and Instructions. Third Edition 1977, §14.11 (modified)

SELP'-DEFENSE

Mr. ojeda-Rios has raised the defense of self-defense. A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself (or another) against the imminent use of unlawful force.

However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily harm to himself (or another).

If evidence of self-defense is present, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the goverrunent has failed to prove beyond a reasonable doubt that the defendant did not act in selfdefense, you must find the defendant not guilty. In other words, if you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty.

Devitt & Blackmar, §41.19

Mullaney v. Wilbur, 95 s.ct. 1881, 1889-91 (1975)

United States v. Jackson, 569 F.2d 1003, 1007-1010 (7th Cir. 1978) United States v. Jackson, 726 F.2d 1466, 1468-69 (9th Cir. 1984) United States v. Corrigan, 548 F.2d 879, 881-2 (10th Cir. 1977) Tennon v. Rickets. Warden, 642 F.2d 161, 163-4 (5th Cir. 1981) Thomas v. Leeke. Comm., 725 F.2d 246, 249-52 (4th Cir. 1984)

MISTAD AS TO NATURB OP ATTACK OR NEED POR PORCE

The law does not require that a person's perception about the need to defend himself from imminent attack be correct. It recognizes a right to defend oneself from any reasonable perception that one's life is in danger, or that one is in danger of imminent and serious bodily injury.

In appraising whether defendant properly acted in self-defense you can consider all on August 30, 1985, the circumstances surrounding Mr. Ojeda-Rios ..$ the day of the event. In order to decide I\ whether his perception was reasonable you must not only determine what the objective facts were as to what took place that morning but you must also decide what Mr. Ojeda-Rios' state of mind was.

CAUTION--PUNISHMENT

I caution you, members of the jury, that you are here to determine the guilt or innocence of the defendant from the evidence in this case. The defendant ts not on trial for any actor conductor offense not alleged in the indictment. N~ther a e you called the guilt r innoc nce of any trial as th defend ts in this ret~rn a verdi~t as to person"r persons\not on

Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way, in arriving atan impartial verdict as to the guilt or innocence of the accused.

PRETRIALPtJBLICITY

There has been a su.bstantial amount of pu.blicity about this case and about the defendant in the newspapers, and also on radio and television. Some of this pu.blicity may have come to the attention of some of you at some point in time before the trial. You of course must put aside and completely disregard anything you may have read or heard about the case outside the courtroom, and your verdict must be based only on the evidence presented in court, in accordance with the court's instructions.

ADMONISHMENT OF ATTORNEYS

It is the duty of the Court to admonish an attorney who, out --L. of zeal of his cause, does something which is not in keeping with the rules of evidence or procedure.

You are to draw no inference against the side to whom admonition of the Court may have been addressed during the trial of this case.

Devitt & Blackmar, Federal Jury Practice and Instructions, Third Edition, 1977, §I0.12

FORMSOF VERDICT

Forms of verdict have been prepared for your convenience.

[Form of verdict read.]

You will take th 1 ~ • forir to the jury room and, when you have reached unanimous agreement as to your verdict, you will have your foreperson fill in, date and sign the (appro-.

priate) form and state the verdict upon which you unanimously agree, and then return with your verdict to the courtroom.

I wish to remind you that the practice of the courts of the Commonwealth of Puerto Rico where majority verdicts are allowed is not used in the federal court. In this Court the verdict must be unanimous, which means that all twelve of you must agree either to convictor to acquit the defendant.

FINAL TRIAL INSTRUCTIONS

FOREPERSON--DUTY

Upon retiring to the jury room, will act --as your foreperson. The foreperson will preside over your deliberations, and will be your spokesman here in Court.

FINAL TRIAL INSTR.UCTIOHS

DUTYTO DELIBERATE

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to talk with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each o~ you must decide the case for yourself only after consideration of the evidence with other members of the jury. In the course of your deliberations, do not hesitate to reexamine or reconsider your own opinions and change your mind, if you are convinced that you are wrong. But do not give up your honest conviction as to the weight or effect of evidence, solely because the others think differently, or merely to get the case over with.

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.

Neither by these instructions, nor by any ruling or remark which I have made, do I mean to indicate any opinion as to the facts oras to what your verdict should be. You are the sole and exclusive judges of the facts.

"If any reference by the court or by counsel to matters of evidence does not coincide with your own memory or recollection, it is your memory or recollection which should control during your deliberations."

FINAL JURY INSTRUCTIONS

CO>IMUNICATIONSWITH THE COURT

If it becomes necessary during your deliberations to communicate with the Court, you may senda written note by a Marshal, signed by your foreperson, or by one

or more members of the jury. No member of the jury should ever attempt to communicate with the Court by any • means other than a signed writing; and the Court will f never communicate with any member of the jury on any subject touching the merits of the case, otherwise than in writing, or orally here in open Court.

You will note from the oath about to be taken by the Marshal that he too as well as all 6ther persons, is forbidden to communicate in any way with any member of the jury on any subject touching this case.

Bear in mind also that you are never to reveal to any person--not evento the Court--how the jury stands, numerically or otherwise, on the question of the guilt or innocence of the accused, until after you have reached a; unanimous verdict.

FINAL TRIAL INSTRUCTIONS

OBJECTIONSTO CHARGE

"Ladies and gentlemen of the jury, while the Court has attempted to fully and fairly charge you as to the law, you are now going to be excused so that I may hear counsel's views on the charge I have just given you, and if I deem it necessary to charge you further, to correct, to add or modify the initial charge you will be called back for that reason. When the verdict forms and the exhibits are given to you that will be the precise m_oment that you may commence your deliberations."

MARSHAL'SOATHTAKEN(See Trial Outline).

AVAILABILITYOF EXRIBITSDURINGDELIBERATIORS

During the trial severa! items were received into evidence as exhibits. These exhibits will be sent into the jury room with you when you begin to deliberate. Exa~ine the exhibits tJt.lvwn~ [Ámong the papers sent to the jury room you will find the indictment filed against the defendants. Remember that this is not evidence in the case, but only a formal method of accusation. As I instructed you when the case began, the only functions of the indictment are to provide a way of filing charges in court and to notify the accused exactly what they are charged with so that they can prepare adequately. I am sending the indictment to the jury room because it is a lengthy document. t Remember, however, while you review the indictment that is not evidence against the accused but only a description of the charges filed agains t them .J