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UNITED STATES v. SMYTH

January 31, 1994

UNITED STATES OF AMERICA
v.
PAUL P. SMYTH, JOHN E. ADAMSON, GREGORY L. deMESONES, MARION R. ENNIS, JR., SHAH J. KARIM, THOMAS A. McGEADY, JOSEPH SPRIGGS, III, JAMES R. BURNS, LUIS A. CASTILLO, RONALD LOVELACE, and ALBERT G. REESE, JR.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court are the proposed individual theory of defense instructions of defendants Smyth, Adamson, deMesones, Karim, Castillo, Lovelace, and Reese. These instruction were submitted on Friday, January 14, 1994, during and after the formal statement of objections to the Court's formulation of the jury instructions. On January 21, the Court denied defendants' requests to include those instructions in the final jury instructions. This Memorandum Order, issued on the 62d day of trial as closing arguments continue, more fully sets forth the Court's reasoning and describes the unusual course of events leading up to the final jury instructions. *fn1"

 Background

 The progress of this eleven-defendant trial has not been smooth. It has been, unfortunately, reflective of the general decline in civility exercised by attorneys that has become such a source of concern to observers of, and participants in, the judicial process.

 All of the approximately 23 attorneys who have entered appearances on behalf of the defendants are able and most are quite experienced. The Court approached the trial with optimism that, although vigorous representation of all parties would be expected, there would be a high degree of professionalism. Prior to opening statements, the Court reminded defense counsel to talk only about what the evidence would show. *fn2" That direction was honored mainly in the breach; basically there were eleven opening arguments rather than opening statements. (The record will reflect what was said, but one simple illustration was the statement by one defense counsel that she and her co-counsel were married and had three children.) There is no question but that the purpose of an opening statement is narrow: "It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument." United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 1082, 47 L. Ed. 2d 267 (1976) (Burger, C.J., concurring). *fn3"

 The practice Governing the Submission of Proposed Jury Instructions

 Rule 30 of the Federal Rules of Criminal Procedure, in relevant part, states:

 
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time, copies of such requests shall be furnished to all parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

 Fed. R. Crim. P. 30. The Court briefly explains -- as it is confident it previously did orally on the record -- its unvarying practice as to instructions in accordance with Rule 30.

 Instructions cannot feasibly be drafted "by committee" with the Court and all counsel. Rather, the Court directs the filing of proposed instructions by both sides, following which the Court prepares a composite set of instructions that it deems appropriate. Thereafter, the Court meets informally with counsel to give them an opportunity to change the Court's mind on any instruction. After counsel's positions have been analyzed, the Court finalizes its instructions, and asks the parties to state their objections on the record prior to closing arguments, so that compliance with Rule 30 may be accomplished without later stranding the jury for an undue amount of time.

 The Late-Filed Theory of Defense Instructions

 Defendants' individual proposed theory of defense instructions, submitted on Friday, January 14, 1994, during and after the formal statement of objections to the Court's formulation of the jury instructions, and four days after the close of the evidence, are clearly untimely under Rule 30.

 Although it is the normal practice of this Court to require parties to submit proposed jury instructions on the day before trial, the Court here departed from this practice, due to the anticipated four-month duration of this trial, as an accommodation to the parties. *fn5" Proposed jury instructions were due on December 17, 1993. *fn6" Defense ...


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