IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 1:06cr197-F

)

RODERICK CHARLES MELVIN )

UNITED STATES OF AMERICA’S PROPOSED FORFEITURE INSTRUCTIONS

Comes now the United States of America (United States), by and

through Leura G. Canary, United States Attorney, and John T.

Harmon, Assistant United States Attorney, and submits its Proposed

Forfeiture Instructions for use in the forfeiture proceedings of

the above-styled case.

The United States respectfully requests the Court, pursuant to

Rule 30 of the Federal Rules of Criminal Procedure, to include and

use the attached forfeiture instructions in charging the jury or,

in the alternative, to use in substance the principles of law

identified in the attached instructions in charging the jury.

Respectfully submitted this 21 day of November, 2006. st

FOR THE UNITED STATES ATTORNEY

 LEURA G. CANARY

/s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

Bar Number: 7068-II58J

Office of the United States Attorney

Middle District of Alabama

One Court Square, Suite 201 (36104)

Post Office Box 197

Montgomery, Alabama 36101-0197

Telephone:(334) 223-7280

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 1 of 11
2

CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2006, I electronically

filed the foregoing Proposed Forfeiture Instructions with the Clerk

of the Court using the CM/ECF system which will send notification

of such filing to the following: Tommie Brown Hardwick and Malcolm

Rance Newman.

/s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

Office of the United States Attorney

Middle District of Alabama

One Court Square, Suite 201 (36104)

Post Office Box 197

Montgomery, Alabama 36101-0197

Telephone:(334) 223-7280

Facsimile:(334) 223-7560

E-mail: John.Harmon@usdoj.gov

Bar Number: 7068-II58J

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 2 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 1

Members of the Jury:

Your verdict in this case does not complete your jury service,

as it would in most cases, because there is another matter you must

now consider and decide, namely, whether the Defendant should

forfeit certain property to the United States as a part of the

penalty for the crime charged in Count 1 of the indictment.

In a portion of the indictment not previously discussed or

disclosed to you, it is alleged that a certain firearm was involved

in the offense as charged in Count 1; and, in view of your verdict

finding the Defendant guilty of that offense, you must also decide,

under the law I will now explain to you, whether such firearm

should be forfeited to the United States.

The term “forfeited” simply means for someone to be divested

or deprived of the ownership of something as a part of the

punishment allowed by the law for the commission of certain

criminal offenses.

In deciding these forfeiture issues you should consider all of

the evidence you have already heard during the trial plus the

additional evidence, if any, that will be presented to you when I

finish giving you these instructions.

The forfeiture allegation of the indictment - a copy of which

will be provided to you for your consideration during your

supplemental deliberations - describes in particular the firearm

allegedly subject to forfeiture to the United States:

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 3 of 11
One Clerke, .22 LR revolver, serial number

182584.

In order to be entitled to the forfeiture of this firearm, the

United States must have proved by a preponderance of the evidence

that this firearm was involved in the offense as charged in Count

1 of the indictment.

A “preponderance of the evidence” simply means an amount of

evidence which is enough to persuade you that a claim or contention

is more likely true than not true. Proof beyond a reasonable doubt

as used earlier in your deliberations is not required and you

should put that standard out of your mind.

While deliberating concerning the issue of forfeiture you must

not reexamine your previous determination regarding the Defendant’s

guilt. However, all of the instructions previously given to you

concerning your consideration of the evidence, the credibility of

the witnesses, your duty to deliberate together, your duty to base

your verdict solely on the evidence without prejudice, bias or

sympathy, and the necessity of a unanimous verdict, will continue

to apply during these supplemental deliberations.

__________________________

Pattern Jury Instructions, Criminal Cases, Eleventh Circuit

 (2003 revision)

Federal Rule of Criminal Procedure 32.2 provides:

(a) Notice To The Defendant. A court shall enter a judgment of

forfeiture in a criminal proceeding unless the indictment or

information contains a notice to the defendant that the government

will seek the forfeiture of property as part of any sentence in

accordance with the applicable statute.

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 4 of 11
5

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 5 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 2

Title 18, United States Code, Section 922(g), makes it a

federal crime or offense for anyone who has been convicted of a

felony offense to possess any firearm in or affecting interstate

commerce.

The term “firearm” means any weapon which is designed to, or

may readily be converted to, expel a projectile by the action of an

explosive; and the term includes the frame or receiver of any such

weapon, or any firearm muffler or firearm silencer.

_________________________

Pattern Jury Instructions, Criminal Cases, Eleventh Circuit

 (2003 revision)

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 6 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 3

The law recognizes several kinds of possession. A person may

have actual possession or constructive possession. A person may

also have sole possession or joint possession.

A person who knowingly has direct physical control of

something is then in actual possession of it.

A person who is not in actual possession, but who has both the

power and the intention to later take control over something either

alone or together with someone else, is in constructive possession

of it.

If one person alone has possession of something, that

possession is sole. If two or more persons share possession, such

possession is joint.

Whenever the word “possession” has been used in these

instructions, it includes constructive as well as actual

possession, and also joint as well as sole possession.

_________________________

Pattern Jury Instructions, Criminal Cases, Eleventh Circuit

 (2003 revision)

United States v. Hastamorir, 881 F.2d 1551 (11 Cir. 1989) th

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 7 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 4

The phrase “crime punishable by imprisonment for a term

exceeding one year” generally means a crime which is a felony. The

phrase does not include any State offense classified by the laws of

that State as a misdemeanor.

I hereby instruct you that the crimes of Burglary 3 Degree; rd

Escape 2 Degree; and Burglary are crimes in the State of Alabama nd

punishable by imprisonment for a term exceeding one year as that

phrase is used in these instructions.

_________________________

2A Fed. Jury Prac. & Instr. §39.10 (5 ed.) th

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 8 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 5

Count 1 of the indictment and the forfeiture allegation list

the firearm which the United States contends was involved in or was

traceable to property involved in the unlawful possession of

firearms and ammunition violation. The Special Verdict Form

regarding forfeiture states the property which the indictment

alleges is such property regarding that Count. 

__________________________

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 9 of 11
UNITED STATES’ PROPOSED FORFEITURE INSTRUCTION NO. 6

You must reach a unanimous verdict as to each question on the

Special Verdict Form.

__________________________

Title 19, United States Code, Section 1615; U.S. v. $41,305 In Currency, 802 F.2d

1339, 1343 (11 Cir. 1986); U.S. v. One 1975 Ford F-100 Pickup Truck, 558 F.2d th

755, 756 (5 Cir. 1977). th

U.S. v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 904 (11th

Cir. 1985).

Granted 

Modified 

Denied 

Withdrawn 

Case 1:06-cr-00197-MEF-CSC Document 25 Filed 11/21/2006 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 1:06cr197-F

)

RODERICK CHARLES MELVIN )

UNITED STATES OF AMERICA’S PROPOSED SPECIAL VERDICT FORM

We, the Jury, unanimously find by a preponderance of the

evidence that a Clerke, .22 LR revolver, serial number 182584 was

involved in and was used in the Defendant’s violation of Count 1 as

stated in the indictment.

YES 

NO 

So, Say We All, this ____ day of ________________, 2006.

 

 FOREPERSON

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