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.
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.
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.
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.
The supposed justification for the late filings appears to arise from defense counsel's "reservation of rights" letter.
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.
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.
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.