IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xxxxxxxxxx (PLF)

)

xxxxxxxxx xxxxxxxxxx, )

)

Defendant. )

_________________________ )

DEFENDANT'S PROPOSED JURY INSTRUCTIONS

xxxxxxxxxxxxxxxxx, through undersigned counsel, respectfully proposes the following jury instructions:⁽¹⁾

I. GENERAL INSTRUCTIONS.

1.07 Question Not Evidence

1.08 Expert Testimony

1.10 Evaluation of Prior Inconsistent Statement

1.22 A Juror's Recognition of a Witness or Other Party Connected to the Case

2.01 Function of the Court

2.02 Function of the Jury

2.03 Jury's Recollection Controls

2.04 Evidence in the Case

2.05 Statements of Counsel

2.06 Indictment Not Evidence

2.07 Inadmissible and Stricken Evidence

2.08 Burden of Proof - Presumption of Innocence

2.09 Reasonable Doubt as modified by the District of Columbia Court of Appeals

The government has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is mor likely true than not, or, in some cases, that its truth is highly probably. In criminal cases such as this one, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.Reasonable doubt, as the name implies, is a doubt based upon a reason -a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant's guilt then you have a reasonable doubt.

Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guess work; it is a doubt based upon reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. Its burden is to prove guilt beyond a reasonable doubt.

Smith v. United States,709 A.2d 78, 82 (D.C. 1998) (en banc)

2.10 Direct and Circumstantial Evidence

2.11 Credibility of Witnesses

2.13 Number of Witnesses

2.14 Nature of Charges Not to Be Considered

2.26 Police Officer's Testimony

2.27 Failure of Defendant to Testify (if applicable)

2.44 Flight or concealment by Defendant

II. INSTRUCTIONS ON CHARGED OFFENSES.

A. Count One (18 U.S.C. § 922(g)(1)).

4.79 Possession of Firearm⁽²⁾

Additional requested instruction regarding Mr. xxxxxx's prior conviction:

The only relevance of Mr. xxxxxx's prior conviction is for purposes of determining whether Mr. xxxxxx falls into the category of individuals who are covered by the statute. This prior conviction should not in any way be considered by you for purposes of determining whether it is more likely or less likely that Mr. xxxxxx possessed a handgun on February 25th. Rather, you may only consider the prior conviction in determining whether the government has met its burden of establishing this specific element of the offense.

(See 3.08) Possession - Defined There are two kinds of possession: actual and constructive. A person has actual possession of something, in this case the gun, if he has direct physical control over it. He has constructive possession of something if he does not have direct physical control over it, but knowingly has both the power and the intention at a given time to control it.

Mere presence near something is not enough to show possession. Mere knowledge of the location of something is not enough to show possession. To prove possession, the government must prove beyond a reasonable doubt that the defendant had actual or constructive possession of the loaded gun.

III. CLOSING INSTRUCTIONS.

2.71 Election of Foreperson

2.72 Unanimity

2.73 Exhibits During Deliberations

(depending upon Court's practice)

2.75 Communications Between Court and Jury During Jury's Deliberations

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Proposed Jury Instructions was served by hand-delivery on July 30, 1998 to:

Office of the United States Attorney

for the District of Columbia

G. Bradley Weinsheimer

555 - 4th Street, N.W.

Washington, D.C. 20001

__________________________

L. Barrett Boss

1. The numbered instructions listed below are taken from the "Redbook" instructions printed in Criminal Jury Instructions for the District of Columbia (4th ed. 1993). Mr. xxxxxx reserves the right to submit a theory-of-defense instruction and to propose additional instructions based upon the evidence at trial. Our office has all of the Redbook Instructions on a floppy disk, and we would be happy to provide Chambers with the requested instructions on a disk if that would be of assistance.

2. We are mindful that the charge actually alleges two violations of § 922(g)(1): possession of the firearm and of ammunition. The standard instructions should be slightly modified to account for this. In addition, given that the statute refers to persons who have been convicted of a crime punishable by imprisonment for a term exceeding one year, we will request that the Court and the government, throughout the trial, use this terminology, as opposed to the word "felon." Instruction 4.79 can be easily modified to accomplish this objective. Finally, in light of the parties stipulation regarding the interstate transportation element of the offense, there is no need to read the portion of the instruction that provides a detailed explanation of that element.