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January 31, 1994


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"


 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 Court also has been genuinely disappointed by defense counsel's pattern of contentious conduct and dilatory tactics, as evidenced in part by the continual filing of last-minute motions. *fn4" The late-filed theory of defense instructions dealt with herein are further evidence of this pattern.

 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 counsel worked together and submitted jointly proposed jury instructions in a timely manner, as did the government.

 On January 6, the government rested its case-in-chief. The Court heard defendants' motions for judgment of acquittal on Friday, January 7, and Monday, January 10, and denied those motions on January 10. That same day, each defendant rested. Accordingly, the evidence closed on January 10. It was agreed by all parties that closing arguments would begin on Tuesday, January 18. *fn7" The Court needed the interim period to finalize jury instructions, to hold its customary informal instruction conference with all counsel, and to permit counsel to state their objections on the record pursuant to Rule 30. Additionally, most of the defense counsel expressed a desire to avoid splitting up closing arguments over a long weekend (which included the Martin Luther King, Jr., holiday).

 On January 12, the Court informed all counsel that the jury instructions would be available January 13, at 5:30 p.m., and that the instruction conference would take place the following day, January 14, at 2:00 p.m., after which they could formally state their objections for the record. When the informal conference on instructions began as scheduled, present were approximately 20 defense counsel, three prosecutors, the undersigned, and one of the undersigned's law clerks. The Court first raised seven questions regarding the instructions, seeking counsel's views prior to finalizing the instructions. *fn8" The Court accepted some of the proposed revisions; for instance, language from the defendants' jointly proposed theory of the defense instruction was incorporated into another instruction. *fn9" After the Court raised all of its own questions, it repeatedly invited defense counsel to raise their questions as to the Court's proposed instructions.

 At the conference, to the Court's considerable surprise, several defense counsel stated that they would be submitting additional proposed instructions on the theory of defense that evening. The Court responded that it could not preclude counsel from filing anything they chose, but assuredly did not state that it would accept new instructions as timely, in light of the fact that closing arguments were scheduled to begin the next business day, Tuesday, January 18. *fn10"

 The supposed justification for the late filings appears to arise from defense counsel's "reservation of rights" letter. *fn11" On the morning of January 10, shortly before each defendant in turn rested his case, defense counsel had filed, inter alia, additional proposed jury instructions, which, as noted, included a jointly proposed theory of the defense. Attached was a letter stating that "defendants' counsel respectfully reserve the right to propose instructions specific to each defendant's theory of the case or other matters that may arise . . . ." Letter from Lovida H. Coleman, Jr., to Judge Stanley S. Harris, January 10, 1994. *fn12" Although the January 10 submission was timely, as it was submitted before the close of the evidence, to the extent that counsel "reserved the right" to submit additional proposed instructions (which the Court never expressly addressed), all counsel were clearly on notice that the deadline for additional proposed instructions was "at the close of the evidence," pursuant to the express terms of Rule 30. *fn13"

 The reason for the requirement of Rule 30 that counsel file requests for jury instructions no later than "at the close of the evidence" is that the timely submission of jury instructions is necessary "for the court to 'inform counsel of its proposed action upon the requests prior to their arguments to the jury * * *' as the Rule directs." United States v. Tourine, 428 F.2d 865, 868 (2d Cir. 1970) (holding that the trial court properly went forward with charging the jury the day after the close of evidence and closing arguments, despite defendants' request for delay to submit additional proposed instruction) (alterations in original), cert. denied sub nom., Burtman v. United States, 400 U.S. 1020, 91 S. Ct. 581, 27 L. Ed. 2d 631 (1971). As the Second Circuit further explained:


if requests to charge are to be of any value at all to the trial judge, they must be filed sufficiently in advance of the giving of the charge so that they may be considered by the judge when he prepares the charge. The requirement that the requests be filed prior to the close of the evidence is also desirable for the purpose of enabling opposing counsel to frame his summation as well as make objections to the proposals. [Otherwise], both of these objectives are frustrated by [a defendant's] delay.

 428 F.2d at 869. Thus it is within the trial court's discretion to consider requests that are not submitted in compliance with the timeliness requirement of Rule 30. See United States v. Watson, 282 U.S. App. D.C. 305, 894 F.2d 1345, 1350 (D.C. Cir. 1990) (holding that, in the context of proposed jury instruction submitted after closing argument, the trial court's decision not to honor the request would not be overturned "absent abuse of [] discretion so as to amount to 'plain error'"). Under the express terms of Rule 30, defendants' proposed individual theory of defense instructions, submitted four days after the close of the evidence and the business day before closing arguments, were untimely. *fn14"

 Nevertheless, the Court did review all of the proposed theory of defense instructions and determined that it would not include them in the final jury instructions, in part because the substance of the proposals is conveyed in the instructions as a whole. United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 852 (D.C. Cir. 1993). Specifically, virtually every proposed theory of defense instruction requests the Court to instruct the jury that the defendant's theory is that: (1) it has not been proven that he participated in any conspiracy, and that if there is any evidence of a conspiracy, he denies that there was a single conspiracy as charged in the indictment; (2) he lacked the required specific intent in the money laundering or attempted money laundering counts; (3) with respect to those charged with attempted money laundering, he did not perform an act that constituted a "substantial step"; (4) he was entrapped; and (5) venue does not lie in the District of Columbia. Each of these is covered in the actual jury instructions. See Jury Instructions: Single or Multiple Conspiracies, Money Laundering, Attempt, Entrapment, and Venue. Other than the above, the various defendants' proposed theories of defense would have the Court either give its imprimatur to contentions that have no evidentiary support or merely rehearse the evidence, which a trial court is not required to do. United States v. Mathis, 175 U.S. App. D.C. 341, 535 F.2d 1303, 1305 (D.C. Cir. 1976) (noting that, with respect to a defendant's theory of defense, "a trial court need not 'rehearse the evidence.'")

 Accordingly, it hereby is

 ORDERED, that the requests of defendants Smyth, Adamson, deMesones, Karim, Castillo, Lovelace, and Reese to have the jury instructed on their individual theories of defense in the manner requested are denied.


 Stanley S. Harris

 United States District Judge

 Date: January 31, 1994

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