                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                    UNITED STATES COURT OF APPEALS                       June 12, 2008
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                       No. 07-1213
          v.                                              (D. Colorado)
 JOSHUA J. HALL,                                   (D.C. No. 05-cr-425-REB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.


      On December 14, 2006, a jury in the United States District Court for the

District of Colorado convicted Joshua J. Hall of three offenses: retaliation against

a witness, see 18 U.S.C. § 1513(b)(2); conspiracy to retaliate against a witness,

see id. §§ 371, 1513(e); and possessing and brandishing a firearm in furtherance

of a crime of violence, see id. § 924(c)(1)(A). The district court sentenced him to

192 months’ imprisonment. He appeals, challenging only the district court’s


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1.
mens rea instructions to the jury. Taking jurisdiction under 28 U.S.C. § 1291, we

affirm.

                               I. BACKGROUND

A.    Facts

      The witness against whom Mr. Hall retaliated was Clifford Cline. Mr.

Cline became a witness after law-enforcement officials found a shotgun in a car

that he owned after it had been impounded because of its involvement in a crime.

Mr. Cline had loaned the car to Mr. Hall, who in turn had loaned it to his brother

Michael. An agent of the Bureau of Alcohol, Tobacco, and Firearms (ATF) called

Mr. Cline to ask him to come to the ATF office for an interview about the

shotgun. Before the interview Mr. Cline and Mr. Hall fabricated an explanation

for the gun that would omit any mention of Mr. Hall, for whom there existed

outstanding arrest warrants, and keep Mr. Hall out of trouble. After the

interview, Mr. Cline assured Mr. Hall that he had stuck to their story.

      Nevertheless, Mr. Hall became suspicious of Mr. Cline. In September

2004, he asked Marissa Yingling-Windbush to call Mr. Cline and invite him to a

hotel room where she and Mr. Hall had been drinking alcohol and smoking

methamphetamine. Mr. Cline agreed to come. When he arrived, she opened the

door while Mr. Hall hid in the bathroom. After Mr. Cline entered the room, she

locked the door behind him and Mr. Hall emerged with a gun. He questioned Mr.

Cline about his involvement with the ATF. Although Mr. Cline denied any

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involvement, Mr. Hall hit him with his fists and the gun. Then the three got high

to relax. Mr. Hall later made a phone call and three men arrived at the hotel

room. After a short discussion Mr. Hall and one of the three new arrivals, Aaron

Bowen, began to beat Mr. Cline. Apparently because of the noise he was making,

they moved Mr. Cline to a trailer house to continue the questioning and beating.

They warned Mr. Cline that he and his children would be harmed if he went to the

authorities. Mr. Cline managed to drive away and get help, but spent three days

in a hospital as a result of his injuries.

B.    Court Proceedings

      A federal grand jury charged Mr. Hall, Ms. Yingling-Windbush, and Mr.

Bowen with retaliation and conspiracy to retaliate against Mr. Cline for providing

information to ATF agents. It also charged them with possessing and brandishing

a firearm in furtherance of the crime. At trial, Mr. Hall appears to have denied

possessing the pistol. He also defended all the charges on the theory that he was

too impaired by alcohol and drugs to have the requisite intent. In support of this

theory, he called an expert witness to testify about the effects of

methamphetamine, marijuana, and alcohol on his mental capacity.

      The district court’s instructions on the elements of each of the three

charged crimes stated what mens rea had to be proved. The court also gave an

instruction on voluntary intoxication. Two of the court’s instructions are the




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focus of this appeal. One is the following instruction on the elements of

conspiracy:

              Defendant is charged in Count Two of the Indictment with
      violation of Title 18, United States Code, Section 371. This law makes
      it a crime to conspire to commit an offense against the United States,
      specifically, in this instance, conspiring to retaliate against a witness.
      To find defendant guilty of this crime, you must be convinced that the
      government has proved each and all of the following five (5) essential
      elements beyond a reasonable doubt:
              First: that defendant agreed with at least one other person to
      violate the law; and
              Second: that one of the conspirators engaged in at least one overt
      act furthering the conspiracy’s objective; and
              Third: that defendant knew the essential objective of the
      conspiracy; and
              Fourth: that defendant knowingly and voluntarily participated;
      and
              Fifth: that there was interdependence among the members of the
      conspiracy; that is, the members, in some way or manner, intended to
      act together for their shared mutual benefit within the scope of the
      conspiracy charged.

Rec. vol. II, doc. 311, at 18. (The quoted language is identical in all relevant

respects to Tenth Circuit Pattern Criminal Jury Instruction § 2.19 (2006)).

Mr. Hall submitted a proposed instruction that differed from the above instruction

only by adding a sixth element, which he asked that the court insert between the

fourth and fifth elements of the given instruction. Mr. Hall’s proposed element

provided: “the defendant intended to further or advance the object of the

conspiracy.” Id. vol. VII, at 457. The court rejected Mr. Hall’s proposed

instruction and overruled his objection.




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      The second instruction relevant to this appeal is the one that defined

“knowingly”:

      The term “knowingly,” used in these instructions to describe the alleged
      state of mind of defendant, means that he was conscious and aware of
      his action, realized what he was doing or what was happening around
      him, and did not act because of ignorance, mistake, or accident.

Id. vol. II, doc. 311, at 23 (This language is identical in all relevant respects to

model instruction § 17.04 in 1A Kevin F. O’Malley, et al., Federal Jury Practice

and Instructions (5th ed. 2008)). Mr. Hall objected to the instruction, apparently

because it omitted the word “intentionally.” He submitted as an alternative a

Tenth Circuit pattern jury instruction, which states:

      When the word “knowingly” is used in these instructions, it means that
      the act was done voluntarily and intentionally, and not because of
      mistake or accident. Although knowledge on the part of the defendant
      cannot be established merely by demonstrating that the defendant was
      negligent, careless, or foolish, knowledge can be inferred if the
      defendant deliberately blinded himself to the existence of a fact.
      Knowledge can be inferred if the defendant was aware of a high
      probability of the existence of [the fact in question], unless the
      defendant did not actually believe [the fact in question].

Rec. vol. II, doc. 293, Attach. 3 (quoting Tenth Circuit Pattern Criminal Jury

Instruction § 1.37 (2006)). The district court rejected the alternative instruction.

      Also pertinent on appeal is Mr. Hall’s proffered instruction on “specific

intent,” which stated:

      The crimes of retaliation against a witness, aid and abet, and
      conspiracy, are specific intent crimes. A specific intent crime is one in
      which the defendant knows that he is committing certain unlawful acts
      and, in addition, commits the acts intending to achieve an unlawful

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      purpose. Specific intent is more than a mere intention to perform an
      act. The defendant must also intend that further consequences result
      from the act. Before you can find the defendant guilty of any of these
      crimes, the Government must prove beyond a reasonable doubt that the
      defendant acted with the specific intent described above.

Rec. vol. II, doc. 293, Attach. 4. He argued that without the instruction,

considering the court’s instructions in their entirety, the government would

effectively be relieved of its duty to prove, and the jury of its duty to find, that he

had acted with the mens rea required to be convicted of the crimes. The court

disagreed.

                                 II. DISCUSSION

      “We review the district court’s decision to give a particular jury instruction

for abuse of discretion. The instructions given are reviewed de novo to determine

whether, in their entirety, they correctly state the governing law.” Summers v.

Missouri Pac. R.R. Sys., 132 F.3d 599, 606 (10th Cir. 1997) (citations omitted).

“We reverse only if we have a substantial doubt the jury instructions properly

guided the jury in its deliberations and we find prejudice.” United States v.

Haslip, 160 F.3d 649, 654 (10th Cir. 1998) (emphasis in original).

      Mr. Hall first argues that the conspiracy instruction inadequately instructed

the jury on the element of intent, because it failed to inform the jury that the

government needed to prove that he intended to “‘advance or further the object of

the conspiracy.’” Aplt’s Br. at 16 (quoting, with modification, United States v.

Blair, 54 F.3d 639, 642 (10th Cir. 1995)) (further internal quotation marks

                                          -6-
omitted). However, the quoted language is no more than a paraphrase of what

was already in the court’s instruction, which required the jury to find that Mr.

Hall “knew the essential objective of the conspiracy,” “knowingly and voluntarily

participated” in the conspiracy, and “intended to act . . . for [the coconspirators’]

shared mutual benefit within the scope of the conspiracy charged.” Rec. vol. II,

doc. 311, at 18. We fail to see how the jury could find those elements but not

find that Mr. Hall “intended to advance or further the object of the conspiracy.”

If one voluntarily participates in a conspiracy while knowing its objectives, one

must intend to further those objectives. One who does not intend to further the

objectives could not be described as “voluntarily” participating in the conspiracy

or “intend[ing] to act . . . for [the coconspirators’] shared mutual benefit within

the scope of the conspiracy.” Mr. Hall’s brief does not explain what difference

his proposed instruction could have made in this case, nor can we.

      Mr. Hall also argues that the district court’s instruction defining

“knowingly” misled the jury because it omitted the word “intentionally.” The

court’s instruction required, however, that the jury find that “he was conscious

and aware of his action, realized what he was doing or what was happening

around him, and did not act because of ignorance, mistake, or accident.” Id. at

23. While Mr. Hall was on permissible grounds to suggest that the district court

employ one of this Circuit’s pattern instructions, he has not explained what the

word “intentionally” would have added in the context of this case. See United

                                         -7-
States v. Triana, 477 F.3d 1189, 1196 (10th Cir. 2007) (finding that the district

court did not abuse its discretion, in part, because the defendant’s proposed

instruction could not have affected the verdict). Moreover, we note that other

circuits have approved definitional instructions for knowingly with substantially

similar language. See United States v. Lawson, 780 F.2d 535, 542 (6th Cir. 1985)

(“The word knowingly means that a defendant realized what he was doing and

was aware of the nature of his conduct.”); Pattern Criminal Federal Jury

Instructions for the Seventh Circuit, No. 4.06 (1999) (“When the word

‘knowingly’ . . . is used in these instructions, it means that the defendant realized

what he was doing and was aware of the nature of his conduct, and did not act

through ignorance, mistake or accident.”); Ninth Cir. Crim. Jury Instr. 5.6 (2000)

(“An act is done knowingly if the defendant is aware of the act and does not act

[or fail to act] through ignorance, mistake, or accident . . . .”); see also Model

Penal Code § 2.02(2)(b)(i) (“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 . . . .”). The district court did not err in giving its

“knowingly” instruction.

      Finally, Mr. Hall challenges the district court’s rejection of his proffered

instruction on specific intent, arguing that doing so relieved the government of its

duty to prove the mens rea required to be convicted of the crimes. He also

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contends that by rejecting the instruction the court denied him his constitutional

right to present a defense, namely that he was too impaired to form the requisite

specific intent. But there is no need for such an instruction if the other

instructions properly inform the jury regarding the elements of the charged

offenses, and, as we have seen, the jury was so informed. In addition, the jury

was instructed on voluntary intoxication. In that circumstance, a specific-intent

instruction can only create mischief. As we recently observed, the terms specific

intent and general intent are ambiguous and their use is often confusing, requiring

“further elaboration . . . to clarify precisely what the accused must know and

intend.” United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006); see

United States v. Zunie, 444 F.3d 1230, 1233–34 (10th Cir. 2006). The Supreme

Court has suggested that rather than attempt to define these terms, “[a] more

useful instruction might relate specifically to the mental state required under” the

particular statute in question. Liparota v. United States, 471 U.S. 419, 433 n.16

(1985). Here, the district court did just that. It acted wisely in rejecting the

proffered instruction.




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                      III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment below.



                             ENTERED FOR THE COURT


                             Robert H. Henry
                             Chief Circuit Judge




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