From: [i--s--t] at [delphi.com]
Newsgroups: talk.politics.guns
Subject: Davidian Jury Instructions 4/7
Date: Tue, 22 Feb 94 01:28:34 -0500

                        AIDING AND ABETTING
 
     Count Two alleges that each named Defendant aided and abetted
the other Defendants as well as other unknown persons in the
commission of this offense. You are instructed as follows with
regard to what "aiding and abetting" means:
     Title 18, United States Code, Section 2, provides that the
guilt of a defendant in a criminal case may be established without
proof that the defendant personally did every act constituting the
offense alleged.  The law recognizes that, ordinarily, anything a
person can do for himself may also be accomplished by that person
through direction of another person as his or her agent, or by
acting in concert with, or under the direction of, another person
or persons, in a joint effort or enterprise.
     So, if another person is acting under the direction of a
defendant of if the defendant joins another person and performs
acts with the intent to commit a crime, then the law holds that
defendant responsible for the acts and conduct of such other
persons just as though the defendant had committed the acts of
engaged in such conduct.
     Notice, however, that before any defendant may be held crim-
inally responsible for the acts of others it is necessary that the
accused deliberately associate himself in some way with the crime
and participate in it with the intent to bring about the crime.
     Of course, mere presence at the scene of a crime and knowledge
that a crime is being committed are not sufficient to establish
that a defendant either directed or aided and abetted the crime
 
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unless you find beyond a reasonable doubt that the Defendant under
consideration was a participant and not merely a knowing spectator.
     In other words, you may not find the Defendant guilty unless
you find beyond a reasonable doubt that every element of the
offense as defined in these instructions was committed by some
person or persons and that the Defendant voluntarily participated
in its commission with the intent to violate the law.
 
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                          SELF-DEFENSE
 
     In this self-defense instruction, the "male gender" pronouns
will include Defendant Ruth Riddle.
     If a Defendant was not an aggressor, and had reasonable
grounds to believe and actually did believe that he was in imminent
danger of death or serious bodily harm from which he could save
himself only by using deadly force against his assailants, he had
the right to employ deadly force in order to defend himself.  By
"deadly force" is meant force which is likely to cause death of
serious bodily harm.
     In order for a Defendant to have been justified in the use of
deadly force in self-defense, he must not have provoked the assault
on him or have been the aggressor.  Mere words without more, do not
constitute provocation or aggression.
     The circumstances under which a Defendant acted must have been
such as to produce in the mind of a reasonably prudent person,
similarly situated, the reasonable belief that the other persons
were then about to kill him or to do him serious bodily harm.  In
addition, a Defendant must have actually believed that he was in
imminent danger of death or serious bodily harm and that deadly
force must be used to repel it.
     If evidence of self-defense is present, the government must
prove beyond a reasonable doubt that a Defendant did not act in
self-defense.  If you find that the government has failed to prove
beyond a reasonable doubt that a Defendant did not act in self-
defense, you must find that Defendant not guilty.  In other words,
 
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if you have a reasonable doubt whether of not a Defendant acted in
self-defense, your verdict must be not guilty as to that Defendant.
     If a Defendant had reasonable grounds to believe and actually
did believe that he was in imminent danger of death or serious
bodily harm and that deadly force was necessary to repel such
danger, he would be justified in using deadly force in self-
defense, even though it may afterwards have turned out that the
appearances were false.  If these requirements are met, he could
use deadly force even though there was in fact neither purpose on
the part of the other persons to kill him or do him serious bodily
harm, nor imminent danger that it would be done, nor actual
necessity that deadly force be used in self-defense.
     If a Defendant had reasonable grounds to believe and actually
did believe that he was in imminent danger of death or serious
bodily harm and that deadly force was necessary to repel such
danger, he was not required to retreat or to consider whether he
could safely retreat.  He was entitled to stand his ground and use
such force as was reasonably necessary under the circumstances to
save his life or protect himself from serious bodily harm.
     However, if a Defendant could have safely retreated but did
not do so, his failure to retreat is a circumstance which you may
consider, together with all other circumstances, in determining
whether he went farther in repelling the danger, real or apparent,
then he was justified in doing under the circumstances.
     Even if the other persons were the aggressors and a Defendant
was justified in using force in self-defense, he would not be
 
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entitled to use any greater force than he had reasonable grounds to
to believe and actually did believe to be necessary under the
circumstances to save his life or avert serious bodily harm.
     In determining whether a Defendant used excessive force in
defending himself, you may consider all the cimcumstances under
which he acted.  The claim of self-defense is not necessarily
defeated if greater force than would have seemed necessary in
careful reflection was used by a Defendant in the heat of passion
generated by an assault upon him.  A belief which may be
unreasonable in careful reflection may be actually and reasonably
entertained in the heat of passion.
     You must distinguish resisting arrest from self-defense.  If
you find that the government has proved beyond a reasonable doubt
that a Defendant knew before he acted that the ATF agents were law-
enforcement officers who intended to search Mount Carmel or to
arrest one or more of its occupants, and that the Defendant under
consideration acted to avoid arrest or to prevent the search of
Mount Carmel, you may not acquit that Defendant by reason of self-
defense.  Additionally, if you are convinced beyond a reasonable
doubt that a Defendant prepared to ambush the ATF agents upon their
arrival at Mount Carmel by changing into combat clothing, gathering
pistols or rifles, loading magazines, or distributing hand
grenades, you may not acquit that Defendant by reason of self-
defense.
     Generally, the law forbids forcible resistance to law
enforcement officers executing search and arrest warrants.
 
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Therefore, the general rule is that knowledge of an officer's
status in law enforcement would automatically negate any claim of
self-defense.  However, under the Fourth Amendment, an individual
has the right to be free from the use of excessive force by a law
enforcement officer even when that officer is making a lawful
search or arrest.  It has always been a policy of the law to
protect the physical integrity of every person from unauthorized
violence.  This right arises from the Constitution's guarantee to
be free from unlawful attack upon one's person.  Therefore, if a
federal officer uses excessive force, that is, force that is not
reasonable under all the circumstances from the officer's
viewpoint, a citizen has the right to defend himself from such
force.  However, the citizen may only use so much force as is
necessary to stop the officer's use of excessive force.  A citizen
may only use deadly force under the circumstances I have already
explained to you.
     Therefore, if you determine that the ATF agents caused the
Defendant under consideration to reasonably and honestly believe
that he was about to be killed or receive serious bodily harm due
to the agents' use of excessive or unreasonable force, then self-
defense would be appropriate if all of the above elements are met.
On the other hand, if you find that the ATF agents' conduct caused
the Defendant under consideration to believe that he or someone
similarly situated was about to be arrested or that Mount Carmel
was about to be searched, and he acted to resist arrest, then self-
defense would not be appropriate.
 
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     You are instructed that federal agents are not automatically
entitled to use deadly force to make an arrest or to conduct a
search.  If a suspect threatens an officer with a weapon of if
there is probably cause to believe that the suspect has committed
a crime involving the infliction or threatened infliction of
serious bodily harm, deadly force may be used to apprehend that
suspect.  An officer cannot, however, seize an unarmed, non-
dangerous suspect by shooting him dead.
 
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     You are instructed that federal law provides that upon the
request of a federal law enforcement officer or an attorney for the
government, based upon an affidavit containing probable cause, a
search warrant may be issued by a federal magistrate for a search
of property or for a person within the federal district.  Moreover,
if it appears from a complaint, a written statement of the facts
constituting an offense charged, or from an affidavit or affidavits
that an offense has been committed and that the named Defendant has
committed it, a warrant for the arrest of the named Defendant shall
issue to any officer authorized to execute it.  The search and
arrest warrants entered into evidence in this case are, as such,
lawful process.
 
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     I have explained what the government has to prove for you to
convict a Defendant of aiding and abetting the murder of a federal
agent.  Your first task is to decide whether the government has
proved, beyond a reasonable doubt, that the Defendant under
consideration committed that crime.  If your verdict on that is
guilty as to a particular Defendant, you are finished with regard
to that Defendant.  But if your verdict is not guilty as to a
particular Defendant, or if you are unable to reach a verdict as to
a particular Defendant, you should then consider whether that
Defendant is guilty of voluntary manslaughter.
     Manslaughter is the unlawful killing of a human being without
malice.  Voluntary manslaughter is committed when a human being is
killed unlawfully in the sudden heat of passion caused by adequate
provocation.
     In order for a particular Defendant to be guilty of voluntary
manslaughter, you must be convinced beyond a reasonable doubt that
the government has proved the following elements:
 
     First:    That the Defendant under consideration aided and
               abetted the killing of ATF Special Agents Steven D.
               Willis, Robert Williams, Conway C. LeBleu and Todd
               W. McKeehan without lawful justification;
 
     Second:   That the persons killed were federal officers as
               described below, who were then engaged in the
               performance of their official duty, as charged;
 
     Third:    That the Defendant under consideration acted in the
               heat of passion; and
 
     Fourth:   That the heat of passion was caused by an adequate
               provocation.
 
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     For a determination of whether the person killed was a federal
officer who was engaged in the performance of his official duty,
refer to the explanation on page __ of these Instructions.
     For a full explanation of "aiding and abetting," refer to page
___ of these Instructions.
     "Heat of passion" is such a passion or emotion as naturally
would be aroused in the mind of an ordinary reasonable person of
average disposition in the same or similar circumstances as
confronted the Defendant under consideration at the time the
killing occurred.  It is such a state of passion, or hot blood, or
rage, anger, resentment, terror or fear as to indicate the absence
of deliberate design to kill or as to cause one to act on impulse
without reflection.
     Thus, the law does not consider the peculiarities of a
particular Defendant's nature or temperament or condition.  It will
occur to you that the underlying reason for this rule is the same
as that which was the basis of the "reasonable man" rule in the law
of self-defense.  The passion which was aroused from the facts and
circumstances that confronted the Defendant under consideration
must be such as also would have aroused the passion of an
ordinarily reasonable person likewise situated.
     The basic inquiry is whether or not at the time of the
killing, the reason and judgement of the Defendant under
consideration was obscured or disturbed by passion--or dethroned,
to use another expression--to such an extent as would cause an
ordinarily reasonable person of average disposition to act rashly
 
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and without deliberation and from passion rather than judgement.
     Before you may find that the Defendant under consideration
acted in the heat of passion, you must also find that there was
"adequate provocation."  Provocation, in order to be adequate to
reduce the offense from murder to voluntary manslaughter, must be
such as might naturally induce a reasonable man in the passion of
the moment to lose self-control and to act on impulse and without
reflection.
     A blow or other personal violence may constitute adequate
provocation.  But a trivial or slight provocation, entirely
disproportionate to the violence of the retaliation, is not
adequate provocation to reduce the offense from murder to voluntary
manslaughter.  Mere words standing alone, however, no matter how
insulting, no matter how offensive, no matter how abusive, are not
adequate to reduce the offense.
     You should ask yourself whether the ordinarily reasaonable man,
placed in the same situation in which the Defendant under
consideration found himself or herself, and knowing what the
Defendant under consideration then knew or believed he or she knew,
have been thrown into such heat of passion?
 
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