IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

United States of America

Crim. Case No. 14-126 (CCC)

Vs.

Juan Robles Alméstica

Defendants

MOTION TO SUBMIT PROPOSED JURY INSTRUCTIONS

TO THE HONORABLE COURT:

NOW COMES, defendant, through the undersigned attorneys, and

very respectfully state, allege and pray:

1. The appearing defendant submits the following jury instructions

for the court’s consideration.

BRIEF IN SUPPORT OF SUBMITTED JURY INSTRUCTIONS

- Section 924(c)(1)(B)(ii) incorporates a mens rea requirement.

2. The defendant in this case has been charged with a violation of

18 USC §924(c)(1)(A) &(B(ii), which carries a mandatory minimum of 30

years if a defendant is convicted of carrying a machinegun in furtherance

of a drug trafficking offense1.

3. The defendant submits the following jury instructions because the

above described offense includes a mens rea requirement regarding the

fact that the defendant knew that the weapon possessed was also a

machinegun.

4. The offense under §924(c)(1)(A) &(B(ii) would require that the jury

find that the defendant possessed a firearm during a drug trafficking

offense, and that such a firearm was a machine gun. The defendant

specifically contends that the jury must also be instructed to find that the

defendant must have been aware that the firearm was a machinegun in

order to find him guilty as per the charged offense.

5. The section itself does not provide a definition of the term

machinegun under section 924(c). Chapter 44 of 18 USC itself defines a

machinegun in reference to 26 U.S.C. § 5845(b). 18 USC §921(a)(23).

Section 5845 in turn defines a machine gun as “any weapon which shoots,

is designed to shoot, or can be readily restored to shoot, automatically

1 The statute requires predicate conduct that constitutes a violation of another drug statute or violent
crime, or offense. In this case the charged offense is a violation of 21 USC §841

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more than one shot, without manual reloading, by a single function of the

trigger. […]”

6. As charged, the statute would be read:

(c), (1), (A) […] [A]ny person who, during and in relation to any […]

drug trafficking crime […] for which the person may be prosecuted

in a court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition

to the punishment provided for such crime of violence or drug

trafficking crime— be sentenced to a term of imprisonment

(B)(ii) [of not less than thirty years], If the firearm possessed by a

person convicted of a violation of this subsection (ii) is a machinegun

or a destructive device, or is equipped with a firearm silencer or

firearm muffler,[…].

7. As explained by some courts that have addressed the issue, the

lack of an explicit mens rea requirement is not a bar for a trial court to read

one into the statute itself.

“In United States v. O'Brien , 560 U.S. 218, 130 S.Ct. 2169, 176

L.Ed.2d 979 (2010), the Supreme Court held that in a prosecution

under 18 U.S.C. § 924(c)(1)(B)(ii), proof that the weapon is a

machinegun is an element of the offense, not a mere sentencing

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enhancement, and must be proved beyond a reasonable doubt, thus

implicitly overruling earlier circuit precedent to the contrary, which

are discussed infra . While O'Brien did not address whether a mens

rea requirement applied in a prosecution under 18 U.S.C. §

924(c)(1)(B)(ii), certain long-standing principles help supply the

answer.

Criminal offenses generally include a mens rea element unless the

crime is subject to strict liability for a mere violation. “The existence

of a mens rea is the rule of, rather than the exception to, Anglo-

American jurisprudence.” United States v. United States Gypsum

Co ., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)

(quoting Dennis v. United States , 341 U.S. 494, 500, 71 S.Ct.

857, 95 L.Ed. 1137 (1951) ). In Staples v. United States , 511 U.S.

600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608(1994), the Supreme

Court applied this basic rule in finding that a mens rea requirement

applies in a prosecution for an automatic weapon offense under 26

U.S.C. § 5861(d), holding that the Government is “required to prove

that petitioner knew of the features” of his firearm “that brought it

within the scope of the Act.” The Supreme Court reasoned that “if

Congress had intended to make outlaws of gun owners who were

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wholly ignorant of the offending characteristics of their weapons, and

to subject them to lengthy prison terms, it would have spoken more

clearly to that effect.” Staples , 511 U.S. at 620, 114 S.Ct. 1793.

These principles are embraced in the Fourth Circuit. See United

States v. Tomlinson , 67 F.3d 508, 513 (4th Cir.1995) (holding

that Staples requires that when a conviction turns on “possession of

a particular type of firearm” the Government must prove that a

defendant knew of a firearm's “particular nature”); United States v.

Forbes , 64 F.3d 928, 932 (4th Cir.1995) (reasoning that “the

concept of mens rea is so ‘firmly embedded’ in ‘the background rules

of the common law,’ that it is not at all surprising that Congress might

include it in one statute and inadvertently omit it in the next”

(quoting Staples , 511 U.S. at 605, 114 S.Ct. 1793 )); United States

v. Langley , 62 F.3d 602, 607 (4th Cir.1995) (en banc) (“[A] mens

rea requirement [will not be extended] to a defendant's felony status

or...to an interstate nexus element” for different offenses under § 924

(c) (1), but these violations differed from “ordinary citizens ...

possessing a firearm unaware of its automatic firing capability as

in Staples.”).”

Ruiz v. United States, 146 F. Supp. 3d 726, 731 (D. Md. 2015)

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 8. To wit, two courts have considered and found that subsection

(B)(ii) does not implement a mens rea requirement even after O’Brien.

United States v. Burwell , 690 F.3d 500, 516 (D.C.Cir.2012), and United

States v. Haile, 685 F.3d 1211 (11th Cir.2012) (per curiam). However,

both courts have made these rulings citing to adherence to long-standing

Circuit precedent. United States v. Ruiz 146 F. Supp. 3d 726, 731, 733

(D. Md. 2015)

9. The D.C. Circuit precedent is United States v. Harris , 959 F.2d

246(D.C.Cir.1992) which was decided prior to Staples v. United

States , 511 U.S. 600, 619, (1994). The precedent for the Eleventh Circuit

was United States v. Ciszkowski , 492 F.3d 1264 (11th Cir. 2007). This

decision concluded that the section did not carry a specific mens rea

requirement, and that since the subsection actually established a

sentencing factor it would not read a mens rea requirement into it. Id at

1269. Both of these contentions were properly addressed by the Supreme

Court in Staples and O’Brien discussed infra. In Haile, decided in 2012,

the Eleventh Circuit made no effort whatsoever in explaining why the basis

for its prior determination survived O’Brien, let alone discussed Staples.

United States v. Haile, 685 F.3d 1211, 1218 (11th Cir.2012).

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 10. The issue in these circuit precedents was that most circuits

that had addressed the issue had heavily relied on the notion that the

enhanced mandatory minimums provided by subsection (A)(ii) through

(B)(ii) were all sentencing factors, to determine that they incorporated no

mens rea requirement. These rulings were effectively discredited in

O’Brien, while they were not expressly overruled since they turned on the

issue of mens rea. Stephanie Siyi Wu, Unknown Elements: the Mens Rea

Question in 18 USC §924(c)(1)(B)(ii)’s Machine Gun Provision, 114

Columbia Law Review 407, at page 415-416.

11. The Supreme Court held that the inclusion of the enhanced

mandatory minimum provision in subsection (B)(ii) is based upon the

particular choice for the firearm, and defendant’s mental culpability for

such the choice in question and therefore it was an element of the offense.

“The immense danger posed by machineguns, the moral depravity in

choosing the weapon, and the substantial increase in the minimum

sentence provided by the statute support the conclusion that this

prohibition is an element of the crime, not a sentencing factor. It is

not likely that Congress intended to remove the indictment and jury

trial protections when it provided for such an extreme sentencing

increase. See Jones, 526 U. S., at 233 (“It is at best questionable

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 whether the specification of facts sufficient to increase a penalty

range by two-thirds, let alone from 15 years to life, was meant to carry

none of the process safeguards that elements of an offense bring

with them for a defendant’s benefit”). Perhaps Congress was not

concerned with parsing the distinction between elements and

sentencing factors, a matter more often discussed by the courts when

discussing the proper allocation of functions between judge and jury.

Instead, it likely was more focused on deterring the crime by creating

the mandatory minimum sentences. But the severity of the increase

in this case counsels in favor of finding that the prohibition is an

element, at least absent some clear congressional indication to the

contrary.”

U.S. v. O'BRIEN, 560 U.S. 218 , 230-31(2010)

12. The First Circuit also indicated that the severity of the chosen

mandatory minimum weighed in favor of interpreting subsection (B)(ii) as

an element of the offense rather than a sentencing factor because of

traditional construction principles. US v. O’Brien 542 F.3d 921, 924 (1st

Cir. 2008).

13. Thus, given the ruling in O’Brien, and the Court’s prior reading

of a mens rea requirement in Staples, the absence of prior circuit

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precedent rejecting a mens rea requirement, and the severity of the

punishment imposed by subsection (B)(ii), it is highly predictable that

posed with the issue, both the First Circuit and the Supreme Court would

hold that the Government must prove beyond a reasonable doubt that a

defendant faced with a §924(c)(1)(B)(ii) charge, was aware that the

weapon in question was a machinegun before committing the offense.

- Sectiion 924(c)(1)(A)(i) is a lesser included offense of subsection

(B)(ii).

14. Pursuant to the above, there is a probability that the jury may

find some but not all elements of the offense as charged. Whatever

tactical advantage the defendant may have reserved for trial is clearly

defeated by the filing of the jury instruction.

15. A defendant who requests an instruction on a lesser included

offense under Rule 31(c) of the Federal Rules of Criminal Procedure must

demonstrate that the elements of the lesser offense are a subset of the

charged offense. Schmuck v. United States 489 US 705, 716 (1989). The

analysis requires a textual comparison of the statutes and the elements

found in each offense. Id at 720. In order for a defendant to be entitled to

a lesser included instruction, the lesser offense must require proof of less

facts than the more serious offense. “A lesser included offense instruction

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is only proper where the charged greater offense requires the jury to find

a disputed factual element which is not required for conviction of the lesser

included offense.“ Sansone v. United States, 380 U.S. 343, 350 (1965)

16. The defendant contends that a violation of subsection (A)(i) is

inherent in a violation of subsection (B)(ii) on the facts of this case. The

defendant did not brandish or fire the weapon. The evidence suggests

that the defendant carried a Glock pistol which was modified after-market

to fire more than one round with a single pull of the trigger. There is no

evidence, however, that the defendant ever fired the weapon, that the

weapon had ever been used after the modification, or that the defendant

was aware of the aftermarket modification even if he was not certain that

the weapon could be fired.

17. The government has furnished no evidence of fingerprints,

DNA, or an admission by the defendant which implicates that even though

he may have been in possession of the bag which contained the pistol,

that he was ever aware of its contents, let alone that the bag contained a

pistol modified to fire like an automatic weapon or machinegun.

18. Hence, the defendant has submitted an instruction under

§924(c), and a separate instruction, which mirrors the patter instruction for

offenses under 18 USC §922(g). Thereby, the court may ask the jury to

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find the “use in furtherance prong” of §924(c)(1)(A)(ii), which requires a

finding that a firearm was used in furtherance of a drug trafficking offense.

And then to separately find the enhancing element, that the firearm

possessed by the defendant was a machinegun.

WHEREFORE, it is respectfully requested from this Honorable Court

that it considers the proposed jury instructions attached.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this July 2, 2018.

IT IS HEREBY CERTIFIED: that on this date the undersigned

attorney was filed the foregoing document with the Clerk of the Court using

the CM/ECF system which will send notification of such filing to all

attorneys of record.

100 Plaza Pradera SC Ste. 20 PMB 130

Toa Baja, PR 00949
Tel. 787-647-6632

S/ Julio C Alejandro S
JULIO CESAR ALEJANDO SERRANO
USDC-PR 216602
alejandroj.abogadopr@gmail.com

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