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Document 1198
Filed 09/06/16
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Plaintiff,
vs.
DEFENDANTS CHALLENGE TO
COUNT FIVE JURY INSTRUCTION
RYAN BUNDY,
Defendant.
Judge: Hon. Anna J. Brown
Case 3:16-cr-00051-BR
Document 1198
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is misleading and prejudicial and should be stricken from the final instructions. There is
no issue of aiding and abetting any theft in this case.
Significantly, the Supreme Court in Morissette v. United States, 342 U.S. 246 (1952)
specifically added an element (and thus the requirement of an addition to the jury
instructions) to 18 U.S.C. 641. Indeed the Supreme Court reversed a conviction on the
ground that criminal intent was an essential prerequisite of criminal liability under 641,
and that the existence of such intent was not to be presumed as a matter of law, but was to
be found by the jury.
The Third Circuit held that after Morissette, the absence of a criminal-intent jury
instruction requires reversal of a 641 conviction. United States v. Kemble, 197 F.2d
316 (3rd Cri. 1952). It is clear that there is a material omission in the Ninth Circuits
pattern instructions for 641 in the wake of Morissette.
The requirement of a specific-intent-to-transfer-to-ones-personal-use-and-permanentlydeprive-the-owner instruction is also made clear by a look at the common law of theft. In
United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970), the Court of Appeals found
(just as did the Supreme Court in Morissette) that "Section 641 was intended by
Congress to codify the common law crimes of larceny and embezzlement . . . Those
common law crimes required a finding of specific intent to take property for ones own
use and thereby permanently deprive an owner of property.
The common law of theft is, of course, ancient. And at common law, theft is not
committed where a defendant intended only to temporarily deprive the owner of
possession, and merely intended to use the property and then return it.[2] For example
there are a number of published cases holding that joy riding is not auto theft, for
example. See, e.g., United States v. Trinder, 1 F. Supp. 659 (D.Mont. 1932).[3] In Ryan
Bundys case, the evidence will show that there wasnt even a temporary use of the
property. The evidence will show that cameras were simply taken down and safely
stored for redelivery to the Government.
In State v. Langford, 483 So. 2d 979 (La. 1986), the Louisiana Supreme Court as much
as suggested that a stated intention to return a removed object to its owner is an
affirmative defense to a larceny charge. The Court wrote that "a defendant must show
both that he had the intent to return the property within a reasonable time, and that he had
a substantial ability to do so." Id. at 985, citing Wayne R. LaFave & Austin W. Scott, Jr.,
Criminal Law 88 (1972).
Applying the same standard, the Louisiana Supreme Court reversed a conviction for theft
in State v. McBride. 504 So. 2d 840 (La. 1987). The defendant took jewelry worth more
than $ 1000 from his sister and pawned it to borrow $ 100. He gave the pawn ticket to his
mother, along with an explanation of what he did. The court concluded that he had the
ability to repay the loan and redeem the jewelry. "Under these circumstances, we
conclude that any reasonable trier of fact would have a reasonable doubt that the
defendant intended to permanently deprive his sister...." Id. at 842.
Interestingly, the Model Penal Code (at Section 223.0) defines the term deprive (as used
in larceny statutes) as "(a) to withhold property of another permanently for so extended a
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period as to appropriate a major portion of its economic value, or with intent to restore
only upon payment of reward or other compensation; or (b) to dispose of the property so
as to make it unlikely that the owner will recover it."
Am Jurs Larceny discussion cites a handful of cases expanding on the same principle:
50 Am Jur 2d Larceny 1
1 Common-law definition, generally
A legal dictionary defines common-law "larceny" as the unlawful taking and carrying
away of someone else's personal property with the intent to deprive the possessor of it
permanently [citing Blacks Law Dictionary] a definition that, in its essentials, has been
approved in numerous court decisions. See, e.g., U.S. v. Waronek, 582 F.2d 1158 (7th
Cir. 1978); In re Giarratano, 299 B.R. 328 (Bankr. D. Del. 2003), order aff'd (D. Del.
Nov. 29, 2004); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); McIntosh v. State,
105 Neb. 328, 180 N.W. 573, 12 A.L.R. 798 (1920) (stating that this definition as used in
jury instructions embraces all essential elements of the crime); Goertz v. State, 29 Okla.
Crim. 261, 233 P. 768 (1925).
* *
Many courts have defined larceny in more comprehensive terms: the felonious taking by
trespass and carrying away by any person of the personal goods or things of another from
any place, without the latter's consent and with the felonious intent to deprive the owner
of his or her property permanently and to convert it to the taker's own use. Nugent v.
Ashcroft, 367 F.3d 162(3d Cir. 2004); Ackerson v. U.S., 185 F.2d 485 (8th Cir. 1950);
U.S. v. Posner, 408 F. Supp. 1145 (D. Md. 1976), aff'd, 551 F.2d 310 (4th Cir. 1977);
State v. Vars, 154 Conn. 255, 224 A.2d 744 (1966); Fitch v. State, 135 Fla. 361, 185 So.
435, 125 A.L.R. 360 (1938); State v. Green, 170 N.J. Super. 292, 406 A.2d 310 (App.
Div. 1979); State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965); State v. Jones, 628
S.E.2d 436 (N.C. Ct. App. 2006); Cook v. State, 196 Tenn. 104, 264 S.W.2d 571 (1954);
State v. Grant, 135 Vt. 222, 373 A.2d 847, 85 A.L.R.3d 913 (1977); State v. Ruggles, 183
W. Va. 58, 394 S.E.2d 42 (1990).
38 At common law and under some statutes, it is specified that there must be a
criminal intent to deprive the owner of his or her property wholly and permanently.
People v. Riel, 22 Cal. 4th 1153, 96 Cal. Rptr. 2d 1, 998 P.2d 969 (2000); Itin v. Ungar,
17 P.3d 129 (Colo. 2000), as corrected, (Nov. 28, 2000); State v. Calonico, 256 Conn.
135, 770 A.2d 454 (2001); Fowler v. U. S., 374 A.2d 856 (D.C. 1977); State v. Hayes,
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837 So. 2d 1195 (La. 2003); Putinski v. State, 223 Md. 1, 161 A.2d 117, 82 A.L.R.2d 859
(1960); Com. v. Mills, 436 Mass. 387, 764 N.E.2d 854 (2002); People v. O'Reilly, 125
A.D.2d 979, 510 N.Y.S.2d 375 (4th Dep't 1986).
First, the Defendant knowingly and with criminal intent stole and
converted to their own use cameras and related equipment with the
intention of permanently depriving the owner of the use of this
property;
Third, the value of the cameras and related equipment was more than
$1,000.00.
Case 3:16-cr-00051-BR
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First, the Defendant knowingly stole and converted to their own use cameras and related
equipment with the intention of depriving the owner of the use of this property;
Second, the cameras and related equipment belonged to the United States; and
Third, the value of the cameras and related equipment was more than $1,000.00.
[2] Cf. also United States v. McCarty, 15 C.M.R. 692 (1954) (discussing the U.S.
Armys Manual for Courts-Martial, 1951: "'. . . An intent to steal is implicit in a
wrongful and intentional dealing with the property of another in a manner likely to cause
him to suffer a permanent loss thereof)
[3] See also Kovero v. Hudson Ins. Co., 255 N.W. 93 (Minn. 1934) (It appears to be the
general rule that theft requires that the wrongdoer, at the time of the taking, had the
criminal intent to steal, that is, permanently to deprive the owner of his property. The
taking of the car for a joy ride, with intent to return it in a brief time, is not a sufficient
showing of a theft thereof) (citing Repp v. American Farmers Mut. Auto. Ins. Co. 179
Minn. 167, 228 N.W. 605; Miller v. Phoenix Assur. Co. 221 Ill. App. 75; Hartford F. Ins.
Co. v. Wimbish, 12 Ga. App. 712, 78 S.E. 265; Michigan Commercial Ins. Co. v. Wills,
57 Ind. App. 256, 106 N.E. 725; Phoenix Assur. Co. v. Eppstein, 73 Fla. 991, 75 So. 537,
L.R.A. 1917F, 540; Valley Merc. Co. v. St. Paul F. & M. Ins. Co. 49 Mont. 430, 143 P.
559, L.R.A. 1915E, 327, Ann. Cas. 1916A, 1126; Van Vechten v. American Eagle F. Ins.
Co. 206 App. Div. 39, 200 N.Y.S. 514.
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DUTY TO DELIBERATE
After you have heard all of the witnesses testimony and the
parties closing arguments, it will
be your duty to deliberate,
which means to weigh and to evaluate all of the evidence calmly
and dispassionately and, in that process, to decide what the
facts are. To the facts as you find them, you should must apply the law
as I give it to you, whether you agree with the law or not, which
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the jury had power to deliberate upon matters outside the limited scope of his
instructions, and the U.S. Senate declined to convict and remove Chase.)
In deciding whether the government has proved any of the Defendants guilty beyond a
reasonable doubt of any of the charges, you must not consider
should
generally not consider what sentence or punishment the Court may impose
in the event you find any Defendant guilty of any charge.
[This change is most consistent with common law practice and therefore the requirements
of the Constitution. The Supreme Court has repeatedly stated that the scope and meaning
of trial by jury must be construed in accordance with their scope and meaning under
the common law of 1789-1791. See, e.g., United States v. Bailey, 444 U.S. 394, 415 n. 11
(1980).
At common law, jurors had knowledge and authority to consider sentencing. See the
discussion by Judge Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J.
951 (2013) (discussing the long history of juror involvement in sentencing under
common law principles); John H. Langbein, The English Criminal Trial on the Eve of
the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY,
1700-1900, at 36-37 (1987) (saying that as most accused persons lacked any defense on
the merits, the English criminal jury trial of the later eighteenth century . . . was
primarily a sentencing proceeding in which a jurys decision on conviction might be
based on the justice of the accompanying sentence as opposed to technical proof of the
crime).
See also Morgan v. Illinois, 504 U.S. 719 (1992). (Scalia, J., dissenting) (noting in a
death penalty discussion that the jury must always be given the option of extending
mercy) (citing Woodson v. North Carolina, 428 U.S. 280, at 303-305).
In Brown v. California, 479 U.S. 538 (1987), the Supreme Court permitted a state to
caution jurors against the influence of sympathy. The specific instruction at issue in
Brown, known as an anti-sympathy instruction, told jurors to ignore mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, and public feeling.
Courts, Chief Justice Burger wrote, have long held that in the practical business of
deciding cases the factnders, not unlike negotiators, are permitted the luxury of verdicts
reached by compromise. Cnty. Court v. Allen, 442 U.S. 140, 168 (1979) (Burger, C.J.,
concurring) (emphasis added). See also Allison Orr Larsen, Bargaining Inside the Black
Box, 99 Georgetown L. J. 1567 (2011) (discussing the longstanding recognition of the
legitimacy of compromise verdicts by juries).
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Law enforcement
officials who engage in stealth and deception,
such as by the use of informants and undercover
agents and the use of false names, should merit
harsh scrutiny.
RYAN BUNDYS PROPOSED LANGUAGE:
Case 3:16-cr-00051-BR
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________________________________________
*Filed on behalf of Mr. Bundy by standby counsel Lisa J. Ludwig, OSB #953387