Case 3:16-cr-00051-BR

Document 1434

Filed 10/14/16

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Per C. Olson, OSB #933863

HOEVET OLSON HOWES, PC
1000 SW Broadway, Suite 1500
Portland, Oregon 97205
Telephone: (503) 228-0497
Facsimile: (503) 228-7112
Email: per@hoevetlaw.com
Of Attorneys for Defendant Fry

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID LEE FRY,

Case No. 3:16-CR-00051-13-BR

DEFENDANTS PROPOSED JURY
INSTRUCTION REGARDING
DEFINITIONS OF KNOWINGLY
AND INTENTIONALLY

Defendant.

Defendant David Fry, through his attorney Per Olson, hereby submits this
proposed jury instruction regarding the definitions of knowingly and intentionally.
Count One
For purposes of Count One (on page 19 of the Courts First Draft Final Jury
Instructions).
For purposes of Count One, a particular Defendant acted knowingly if
that Defendant was aware that the objective of the alleged conspiracy was
preventing an officer of the United States Fish and Wildlife Service and/or Bureau
of Land Management from discharging the duties of his or her office by force,
threats, or intimidation, and did not act through ignorance, mistake, or accident.
For purposes of Count One, a particular Defendant acted intentionally or
with intent if that Defendant had the purpose or conscious desire to prevent an
officer of the United States Fish and Wildlife Service and/or Bureau of Land
Page 1 DEFENDANTS PROPOSED JURY INSTRUCTION
REGARDING MENS REA DEFINITIONS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

Case 3:16-cr-00051-BR

Document 1434

Filed 10/14/16

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Management from discharging the duties of his or her office by force, threats, or
intimidation.
The purpose of these instructions is to avoid confusing the jury and to comply
with Instruction 5.4 of the Manual of Model Criminal Jury Instructions for the Ninth
Circuit, which states that the use of generic intent instructions are discouraged and
[t]he preferred practice is to give an intent instruction that reflects the intent
requirements of the offense charged. See also United States v. Bell, 303 F.3d 1187,
1191 (9th Cir. 2002) (same).
The Model Penal Code generically defines knowingly as follows:
[a] person acts knowingly with respect to a material element of an
offense when: (i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of that nature or
that such circumstances exist; and (ii) if the element involves a result of
his conduct, he is aware that it is practically certain that his conduct will
cause such a result.
Model Penal Code 2.02(2)(b). The Model Penal Code provides that intentionally
means purposely, 1.13(12), and defines purposely as follows:
[a] person acts purposely with respect to a material element of an
offense when: (i) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage in conduct of that nature
or to cause such a result; and (ii) if the element involves the attendant
circumstances, he is aware of the existence of such circumstances or he
believes or hopes that they exist.
Model Penal Code 2.02(2)(a).
The underlying conduct in Count One is the act of joining a conspiracy or making
an agreement with another person or persons. Whether such conduct is criminal
depends on the mental state of the actor. See United States v. Bailey, 444 U.S. 394,
405 (1980) (explaining that culpability in inchoate offenses, including conspiracy,

Page 2 DEFENDANTS PROPOSED JURY INSTRUCTION

REGARDING MENS REA DEFINITIONS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

Case 3:16-cr-00051-BR

Document 1434

Filed 10/14/16

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requires special attention because a heightened mental state separates criminality

itself from otherwise innocuous behavior).
To find a Defendant guilty of Count One, the jury must find that the Defendant
acted (i.e, joined the conspiracy) while aware of a particular circumstance (i.e., the
object of the conspiracy). The current instruction that [a] person acts knowingly if the
person is aware of the act will confuse the jury, as the only act in Count One is the
joining of the conspiracy. The element of knowingly must focus on awareness of the
object of the conspiracy, not on awareness of an act.
Similarly, the current definition of intentionally will confuse the jury because it
provides that a person acts intentionally if the person has a purpose or conscious
desire to perform an act or to cause a result. (Emphasis added). The mental state of
intentionally pertains only to the causing of a particular result, i.e. preventing an officer
of the United States Fish and Wildlife Service and/or Bureau of Land Management from
discharging the duties of his or her office by force, threats or intimidation. The mental
state of intentionally does not pertain to the performance of an act.
In sum, Defendant moves to amend the instructions, disposing of the generic
intent definitions and replacing them with instructions that reflect the mens rea
requirements of the offense charged.
Count Two
Based on the foregoing principles, defendant requests that the terms knowingly
and intentionally in Count Two be defined as follows:
For purposes of Count Two, a particular defendant acted knowingly if he
aware that he, or a person he was aiding or abetting, possessed a firearm in a
federal facility.

Page 3 DEFENDANTS PROPOSED JURY INSTRUCTION

REGARDING MENS REA DEFINITIONS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

Case 3:16-cr-00051-BR

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Filed 10/14/16

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For purposes of Count Two, a particular defendant acted intentionally or

with intent if he had the purpose or conscious desire that the firearm or other
dangerous weapon be used in the commission of the conspiracy offense alleged
in Count One.

DATED this 14th day October, 2016.

HOEVET OLSON HOWES, PC
s/ Per C. Olson
Per C. Olson, OSB #933863
Attorney for Defendant David Fry

Page 4 DEFENDANTS PROPOSED JURY INSTRUCTION

REGARDING MENS REA DEFINITIONS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497