IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

Transcription

1 Case 2:10-cr MHT-WC Document 2357 Filed 02/25/12 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, V. CR NO. 2:10cr186-MHT LARRY P. MEANS, Defendant. DEFENDANT LARRY P. MEANS SUGGESTED CHANGES AND OBJECTIONS TO THE COURT S PROPOSED JURY INSTRUCTIONS Defendant Larry P. Means, by and through counsel, hereby objects to the Court s proposed jury instructions 1 and requests the Court to amend the instructions as follows: 1. P. 1, last line, after specific facts add and requisite intent. Intent is a critical element of each offense. The instructions as it now stands would cause a jury to believe that it was not necessary find the requisite intent. 2. P. 2, line 4 after presented here during the trial, add as well as you may consider the lack of evidence which you may find as to any charge. All six of the defendants put on no evidence. The lack of evidence is an essential part of Defendant Means defense. 3. P.3, the third line from the bottom, delete until and substitute unless. 1 Means objections and proposed changes are based on the Court s charges given during the first trial which is inaccurate because of a number of not guilty verdicts as well as the removal of three Defendants. It is expected the Court will make the necessary changes.

2 Case 2:10-cr MHT-WC Document 2357 Filed 02/25/12 Page 2 of 5 4. P.3, after the first paragraph, insert, The defendants are being tried together because the Government has charged they acted together. You are to draw no adverse inference from that fact, and you will have to give separate consideration to the charges against each defendant. Do not think of the defendants as a group. 5. P. 5, line 5 after anything the lawyers say is not evidence in the case. and add, When a lawyer asks a question on cross-examination and the witness responds yes or otherwise agrees with the statement in the question, that is evidence in the case. The Defendants evidence to the extent it was presented came in on cross-examination. It is important to Defendant Means defense that it is clear to the jury regarding this issue. 6. P. 9, line 7 at the end of the paragraph after testimony or other evidence? add Was the witness testifying about what she recalled a person actually said, or was she testifying as to what he/she assumed they meant. The Court several times during the trial sustained objections when a witness testified they assumed something. 7. P. 14, the last line, instead of plan use the word agreement. See, U.S. v. Chandler, 388 F.3d 796, 806 (11th Cir P , Objection to last paragraph on P.19 through line 2 on P.20. which includes the word representative as an agent of the State of Alabama. This is an element which must be proved beyond a reasonable doubt whether a State Senator in Alabama is an agent of the State. 9. P.20, line 4 insert explicit before quid pro quo. 10. P.21, line 14, insert explicit before quid pro quo.

3 Case 2:10-cr MHT-WC Document 2357 Filed 02/25/12 Page 3 of P.21, in the last full paragraph beginning, However, when there is, delete a and insert an explicit quid pro quo. This should be used in other paragraphs as well when the term quid pro quo is used. The Court has said this is the standard where campaign funds are involved. 12. P.22, line 18, substitute the word may for the word can. Use of can suggests that an inference can always be drawn whereas, the evidence may be insufficient to permit an inference 13. P.22 and 23, Objection to language which permits an explicit promise or solicitation to be inferred. It should provide that the promise or solicitation must not only be explicit, but also express. 14. P. 24. Delete all references to Count 7. Means was found not guilty of that count. 15. P. 25 After Sixth add explicit before quid pro quo. 16. P. 28 Delete all references to Means. He was found not guilty of Counts 19 and P. 31 Delete all references to Means. He was found not guilty of Counts The Court is requested to give the following additional charges: a. The Government asked Jennifer Pouncy what she thought or understood Larry Means to have meant by some statement. You should never treat any such statement by a witness as actually being evidence that Mr. Means meant what the witness says that he meant. What people mean, by the words that they say, is up to you to decide under the

4 Case 2:10-cr MHT-WC Document 2357 Filed 02/25/12 Page 4 of 5 specific instructions I have given you. A witness cannot tell you what another person meant. If a witness s impression of what somebody else meant is ever relevant, it would only be to give some context or to explain why the witness then reacted the way she did - and not as evidence that the witness was right in her thinking about what the other person meant. What is important is not what the person hearing the statement may have assumed was meant, but what you determine, if you can beyond a reasonable doubt, what Larry Means meant. b. You have heard testimony from some witnesses that, in their view, they themselves offered what they considered to be bribes. Such testimony is not evidence that any other person, including Larry Means, offered a bribe to anyone or agreed to accept a bribe. c. In addition to the other instructions I have given you regarding conspiracy, you may not convict any defendant of conspiracy unless you unanimously agree on the identify of an official who was the recipient of the bribe. Larry Means contends that where the alleged quid pro quo is an otherwise legitimate campaign contribution for his or her campaign, contributions given, promised, or accepted to or by an elected official related to his vote on a particular issue, do not constitute a federal criminal offense under 18 U.S.C. 666 in that such activities are protected by the First Amendment to the Constitution of the United States and the jury should be so instructed. Larry Means adopts and incorporates by reference his prior requested instructions (Doc.#1200 which are not included in the Court s instructions, and which are correct statements of the law, and Means objects to the failure of the Court to include them. Means

5 Case 2:10-cr MHT-WC Document 2357 Filed 02/25/12 Page 5 of 5 further adopts and incorporates by reference the proposed additional instructions or objections submitted by any other defendant in the case. Respectfully submitted this the 25 th day of February OF COUNSEL: REDDEN, MILLS & CLARK, LLP 940 Financial Center th Street North Birmingham, Alabama ( office WNC@rmclaw.com /s/ William N. Clark William N. Clark (CLA013 Attorney for Defendant Larry P. Means CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served upon the following and all counsel of record electronically on this the 25 th day of February, M. Kendall Day US Department of Justice, Criminal Division Public Integrity Section 1400 New York Avenue, NW Washington, DC /s/ William N. Clark OF COUNSEL