Request to Charge by USA as to Bernard Okojie — USA v. Okojie (Dkt. 85, S.D. Ga.)

Record facts

U.S. District Court for the Southern District of Georgia · No. 4:22-cr-00084-LGW-BWC · Doc. 85 · 2023-03-07 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF GEORGIA 
SAVANNAH DIVISION 
 
UNITED STATES OF AMERICA 
) 
) 
) 
 
 
CASE NO: 4:22-CR-084 
v. 
) 
 
 
BERNARD OKOJIE 
) 
) 
 
 
GOVERNMENT’S PROPOSED JURY INSTRUCTIONS 
 
 
NOW COMES the United States of America, by and through Jill E. 
Steinberg, United States Attorney for the Southern District of Georgia, and the 
undersigned Assistant United States Attorneys, and respectfully submits the 
following proposed jury instructions, as taken from the Eleventh Circuit 
Pattern Jury Instructions (Criminal) and other sources as noted and modified 
as necessary for the facts of this case:   
PRELIMINARY INSTRUCTIONS 
P1 Criminal Cases 
BASIC INSTRUCTIONS 
B1 Face Page - Introduction 
B2.1 Duty to Follow Instructions and the Presumption of Innocence 
B2.2 Duty to Follow Instructions and the Presumption of Innocence 
when a Defendant does not Testify 
B3 Definition of Reasonable Doubt 
B4 Consideration of Direct and Circumstantial Evidence; Argument of 
Counsel; Comments by the Court 
B5 Credibility of Witnesses 
B6.1 Impeachment of Witnesses because of Inconsistent Statements 
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B6.3 Impeachment of Witnesses because of Inconsistent Statements 
(Defendant with no Felony Conviction Testifies) 
B8 Introduction to Offense Instructions 
B9.1A On or About; Knowingly; Willfully - Generally 
B10.2 Caution: Punishment (Single Defendant, Multiple Counts) 
B11 Duty to Deliberate 
B12 Verdict 
SPECIAL INSTRUCTIONS 
S2.1 Confession or Statement of a Single Defendant 
S4.1 Similar Acts Evidence (Rule 404(b), Fed. R. Evid.) 
S5 Note-taking 
S8 Deliberate Ignorance as Proof of Knowledge 
OFFENSE INSTRUCTIONS 
O51 Wire Fraud 18 U.S.C. § 1343 
O54 Conspiracy to Commit Wire and Bank Fraud 18 U.S.C. § 1349 
O74.5 Money Laundering Conspiracy 18 U.S.C. § 1956(h) 
TRIAL INSTRUCTIONS 
G3 Separately Tried Coconspirators 
T1.1 Cautionary Instruction Similar Acts Evidence (Rule 404(b), Fed. 
R. Evid.) 
T2 Explanatory Instruction - Prior Statement or Testimony of a 
Witness 
 
 
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P1 
Preliminary Instructions – Criminal Cases 
Members of the Jury: 
Now that you have been sworn, I need to explain some basic principles 
about a criminal trial and your duty as jurors. These are preliminary 
instructions. At the end of the trial I will give you more detailed instructions. 
Duty of jury: 
It will be your duty to decide what happened so you can determine 
whether the defendant is guilty or not guilty of the crime charged in the 
indictment. At the end of the trial, I will explain the law that you must follow 
to reach your verdict. You must follow the law as I explain it to you even if you 
do not agree with the law. 
What is evidence: 
You must decide the case solely on the evidence presented here in the 
courtroom. Evidence can come in many forms. It can be testimony about what 
someone saw or heard or smelled. It can be an exhibit admitted into evidence. 
It can be someone’s opinion. Some evidence proves a fact indirectly, such as a 
witness who saw wet grass outside and people walking into the courthouse 
carrying wet umbrellas. Indirect evidence, sometimes called circumstantial 
evidence, is simply a chain of circumstances that proves a fact. As far as the 
law is concerned, it makes no difference whether evidence is direct or indirect. 
You may choose to believe or disbelieve either kind and should give every piece 
of evidence whatever weight you think it deserves. 
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What is not evidence: 
Certain things are not evidence and must not be considered. I will list 
them for you now: 
• Statements and arguments of the lawyers. In their opening 
statements and closing arguments, the lawyers will discuss the 
case, but their remarks are not evidence; 
• Questions and objections of the lawyers. The lawyers’ questions 
are not evidence. Only the witnesses’ answers are evidence. You 
should not think that something is true just because a lawyer’s 
question suggests that it is. For instance, if a lawyer asks a 
witness, “you saw the defendant hit his sister, didn’t you?” – that 
question is no evidence whatsoever of what the witness saw or 
what the defendant did, unless the witness agrees with it. 
There are rules of evidence that control what can be received into 
evidence. When a lawyer asks a question or offers an exhibit and a lawyer on 
the other side thinks that it is not permitted by the rules of evidence, that 
lawyer may object. If I overrule the objection, then the question may be 
answered or the exhibit received. If I sustain the objection, then the question 
cannot be answered, and the exhibit cannot be received. Whenever I sustain an 
objection to a question, you must ignore the question and not try to guess what 
the answer would have been. 
Sometimes I may order that evidence be stricken and that you disregard 
or ignore the evidence. That means that when you are deciding the case, you 
must not consider that evidence. 
Some evidence is admitted only for a limited purpose. When I instruct 
you that an item of evidence has been admitted for a limited purpose, you must 
consider it only for that limited purpose and no other. 
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Credibility of witnesses: 
In reaching your verdict, you may have to decide what testimony to 
believe and what testimony not to believe. You may believe everything a 
witness says, or part of it, or none of it. In considering the testimony of any 
witness, you may take into account: 
• The opportunity and ability of the witness to see or hear or 
know the things testified to; 
• The witness’s memory; 
• The witness’s manner while testifying; 
• The witness’s interest in the outcome of the case and any bias or 
prejudice; 
• Whether other evidence contradicted the witness’s testimony; 
• The reasonableness of the witness’s testimony in light of all the 
evidence; and 
• Any other factors that bear on believability. 
I will give you additional guidelines for determining credibility of 
witnesses at the end of the case. 
Rules for criminal cases: 
As you know, this is a criminal case. There are three basic rules about a 
criminal case that you must keep in mind. 
First, the defendant is presumed innocent until proven guilty. The 
indictment against the defendant brought by the government is only an 
accusation, nothing more. It is not proof of guilt or anything else. The 
defendant therefore starts out with a clean slate. 
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Second, the burden of proof is on the government until the very end of 
the case. The defendant has no burden to prove [his] [her] innocence or to 
present any evidence, or to testify. Since the defendant has the right to remain 
silent and may choose whether to testify, you cannot legally put any weight on 
a defendant’s choice not to testify. It is not evidence. 
Third, the government must prove the defendant’s guilt beyond a 
reasonable doubt. I will give you further instructions on this point later, but 
bear in mind that the level of proof required is high. 
Conduct of the jury: 
Our law requires jurors to follow certain instructions regarding their 
personal conduct in order to help assure a just and fair trial. I will now give 
you those instructions: 
1. Do not talk, either among yourselves or with anyone else, about 
anything related to the case. You may tell the people with whom 
you live and your employer that you are a juror and give them 
information about when you will be required to be in court, but 
you may not discuss with them or anyone else anything related to 
the case. 
2. Do not, at any time during the trial, request, accept, agree to 
accept, or discuss with any person, any type of payment or benefit 
in return for supplying any information about the trial. 
3. You must promptly tell me about any incident you know of 
involving an attempt by any person to improperly influence 
you or any member of the jury. 
4. Do not visit or view the premises or place where the charged 
crime was allegedly committed, or any other premises or place 
involved in the case. And you must not use Internet maps or 
Google Earth or any other program or device to search for a view 
of any location discussed in the testimony. 
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5. Do not read, watch, or listen to any accounts or discussions 
related to the case which may be reported by newspapers, 
television, radio, the Internet, or any other news media. 
6. Do not attempt to research any fact, issue, or law related to this 
case, whether by discussions with others, by library or Internet 
research, or by any other means or source. 
In this age of instant electronic communication and research, I want to 
emphasize that in addition to not talking face to face with anyone about the 
case, you must not communicate with anyone about the case by any other 
means, including by telephone, text messages, email, Internet chat, chat rooms, 
blogs, or social-networking websites and apps such as Facebook, Instagram, 
Snapchat, YouTube, or Twitter.  You may not use any similar technology of 
social media, even if I have not specifically mentioned it here.  
You must not provide any information about the case to anyone by any 
means whatsoever, and that includes posting information about the case, or 
what you are doing in the case, on any device or Internet site, including blogs, 
chat rooms, social websites, or any other means. 
You also must not use Google or otherwise search for any information 
about the case, or the law that applies to the case, or the people involved in the 
case, including the defendant, the witnesses, the lawyers, or the judge. It is 
important that you understand why these rules exist and why they are so 
important: 
Our law does not permit jurors to talk with anyone else about the case, 
or to permit anyone to talk to them about the case, because only jurors are 
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authorized to render a verdict. Only you have been found to be fair and only 
you have promised to be fair – no one else is so qualified. 
Our law also does not permit jurors to talk among themselves about the 
case until the court tells them to begin deliberations, because premature 
discussions can lead to a premature final decision. 
Our law also does not permit you to visit a place discussed in the 
testimony. First, you can’t be sure that the place is in the same condition as it 
was on the day in question. Second, even if it were in the same condition, once 
you go to a place discussed in the testimony to evaluate the evidence in light of 
what you see, you become a witness, not a juror. As a witness, you may now 
have a mistaken view of the scene that neither party may have a chance to 
correct. That is not fair. 
Finally, our law requires that you not read or listen to any news 
accounts of the case, and that you not attempt to research any fact, issue, or 
law related to the case. Your decision must be based solely on the testimony 
and other evidence presented in this courtroom. Also, the law often uses words 
and phrases in special ways, so it’s important that any definitions you hear 
come only from me, and not from any other source. It wouldn’t be fair to the 
parties for you to base your decision on some reporter’s view or opinion, or upon 
other information you acquire outside the courtroom. 
These rules are designed to help guarantee a fair trial, and our law 
accordingly sets forth serious consequences if the rules are not followed. I trust 
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that you understand and appreciate the importance of following these rules, 
and in accord with your oath and promise, I know you will do so. 
Taking notes: 
Moving on now, if you wish, you may take notes to help you remember 
what witnesses said. If you do take notes, please keep them to yourself until 
you and your fellow jurors go to the jury room to decide the case. Do not let 
note-taking distract you so that you do not hear other answers by witnesses. 
When you leave the courtroom, your notes should be left in the jury room. 
Whether or not you take notes, you should rely on your own memory of what 
was said. Notes are to assist your memory only. They are not entitled to any 
greater weight than your memory or impression about the testimony. 
Separate consideration for each defendant: 
Although the defendants are being tried together, you must give 
separate consideration to each defendant. In doing so, you must determine 
which evidence in the case applies to a particular defendant and disregard any 
evidence admitted solely against some other defendant[s]. The fact that you 
may find one of the defendants guilty or not guilty should not control your 
verdict as to any other defendant[s]. 
Course of the trial: 
The trial will now begin. First, the government will make an opening 
statement, which is simply an outline to help you understand the evidence as it 
comes in. Next, the defendant’s attorney may, but does not have to, make an 
opening statement. Opening statements are neither evidence nor argument. 
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The government will then present its witnesses, and counsel for the 
defendant may cross-examine them. Following the government’s case, the 
defendant may, if [he] [she] wishes, present witnesses whom the government 
may cross-examine. After all the evidence is in, the attorneys will present their 
closing arguments to summarize and interpret the evidence for you, and I will 
instruct you on the law. After that, you will go to the jury room to decide your 
verdict. 
ANNOTATIONS AND COMMENTS 
No annotations associated with this instruction. 
 
 
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B1 
Face Page - Introduction 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF GEORGIA 
SAVANNAH DIVISION 
 
UNITED STATES OF AMERICA 
CASE NO. 422-CR-084 
-vs- 
 
BERNARD OKOJIE 
 
 
COURT’S INSTRUCTIONS 
TO THE JURY 
 
Members of the Jury: 
It’s my duty to instruct you on the rules of law that you must use in 
deciding this case. After I’ve completed these instructions, you will go to the 
jury room and begin your discussions – what we call your deliberations. 
You must decide whether the Government has proved the specific facts 
necessary to find the Defendant guilty beyond a reasonable doubt. 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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B2.1 
The Duty to Follow Instructions And the Presumption of Innocence 
 
Your decision must be based only on the evidence presented here. You 
must not be influenced in any way by either sympathy for or prejudice against 
the Defendant or the Government. 
You must follow the law as I explain it – even if you do not agree with 
the law – and you must follow all of my instructions as a whole. You must not 
single out or disregard any of the Court's instructions on the law. 
The indictment or formal charge against a defendant isn’t evidence of 
guilt. The law presumes every defendant is innocent. The Defendant does not 
have to prove [his] [her] innocence or produce any evidence at all. The 
Government must prove guilt beyond a reasonable doubt. If it fails to do so, you 
must find the Defendant not guilty. 
ANNOTATIONS AND COMMENTS 
 
In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) 
(The due process clause protects all criminal defendants “against conviction 
except upon proof beyond a reasonable doubt of every fact necessary to 
constitute the crime with which he is charged.”); see also Harvell v. Nagle, 58 
F.3d 1541, 1542 (11th Cir. 1995), reh’g denied, 70 F.3d 1287 (11th Cir. 1995). 
 
 
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B2.2 
The Duty to Follow Instructions and the Presumption Of 
Innocence When a Defendant Does Not Testify 
 
Your decision must be based only on the evidence presented during the 
trial. You must not be influenced in any way by either sympathy for or 
prejudice against the Defendant or the Government. 
You must follow the law as I explain it – even if you do not agree with 
the law – and you must follow all of my instructions as a whole. You must not 
single out or disregard any of the Court's instructions on the law. 
The indictment or formal charge against a Defendant isn’t evidence of 
guilt. The law presumes every Defendant is innocent. The Defendant does not 
have to prove his innocence or produce any evidence at all. A Defendant does 
not have to testify, and if the Defendant chose not to testify, you cannot 
consider that in any way while making your decision. The Government must 
prove guilt beyond a reasonable doubt. If it fails to do so, you must find the 
Defendant not guilty. 
ANNOTATIONS AND COMMENTS 
 
United States v. Teague, 953 F.2d 1525, 1539 (11th Cir. 1992), cert. denied, 506 
U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992), Defendant who does not 
testify is entitled to instruction that no inference may be drawn from that 
election; see also United States v. Veltman, 6 F.3d 1483, 1493 (11th Cir. 1993) 
(Court was “troubled” by “absence of instruction on the presumption of 
innocence at the beginning of the trial… Although the court charged the jury 
on the presumption before they retired to deliberate, we believe it 
extraordinary for a trial to progress to that stage with nary a mention of this 
jurisprudential bedrock.”) 
 
 
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B3 
Definition of “Reasonable Doubt” 
 
The Government's burden of proof is heavy, but it doesn’t have to prove a 
Defendant's guilt beyond all possible doubt. The Government's proof only has 
to exclude any “reasonable doubt” concerning the Defendant's guilt. 
A “reasonable doubt” is a real doubt, based on your reason and common 
sense after you’ve carefully and impartially considered all the evidence in the 
case. 
“Proof beyond a reasonable doubt” is proof so convincing that you would 
be willing to rely and act on it without hesitation in the most important of your 
own affairs. If you are convinced that the Defendant has been proved guilty 
beyond a reasonable doubt, say so. If you are not convinced, say so. 
ANNOTATIONS AND COMMENTS 
 
United States v. Daniels, 986 F.2d 451 (11th Cir. 1993), opinion readopted on 
rehearing, 5 F.3d 495 (11th Cir. 1993), cert. denied, 511 U.S. 1054, 114 S. Ct. 
1615, 128 L. Ed. 2d 342 (1994) approves this definition and instruction 
concerning reasonable doubt; see also United States v. Morris, 647 F.2d 568 
(5th Cir. 1981); Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 
583 (1994) (discussing “reasonable doubt” definition and instruction). 
 
 
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B4 
Consideration of Direct and Circumstantial Evidence; 
Argument of Counsel; Comments by the Court 
 
As I said before, you must consider only the evidence that I have 
admitted in the case. Evidence includes the testimony of witnesses and the 
exhibits admitted. But, anything the lawyers say is not evidence and isn’t 
binding on you. 
You shouldn’t assume from anything I’ve said that I have any opinion 
about any factual issue in this case. Except for my instructions to you on the 
law, you should disregard anything I may have said during the trial in arriving 
at your own decision about the facts. 
Your own recollection and interpretation of the evidence is what matters. 
In considering the evidence you may use reasoning and common sense to 
make deductions and reach conclusions. You shouldn’t be concerned about 
whether the evidence is direct or circumstantial. 
“Direct evidence” is the testimony of a person who asserts that he or she 
has actual knowledge of a fact, such as an eyewitness. 
“Circumstantial evidence” is proof of a chain of facts and circumstances 
that tend to prove or disprove a fact. There’s no legal difference in the weight 
you may give to either direct or circumstantial evidence. 
ANNOTATIONS AND COMMENTS 
 
United States v. Clark, 506 F.2d 416 (5th Cir. 1975), cert. denied, 421 U.S. 967, 
95 S. Ct. 1957, 44 L. Ed. 2d 454 (1975) approves the substance of this 
instruction concerning the lack of distinction between direct and circumstantial 
evidence; see also United States v. Barnette, 800 F.2d 1558, 1566 (11th Cir. 
1986), reh’g denied, 807 F.2d 999 (11th Cir. 1986), cert. denied, 480 U.S. 935, 
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107 S. Ct. 1578, 94 L. Ed. 2d 769 (1987) (noting that the “test for evaluating 
circumstantial evidence is the same as in evaluating direct evidence”) (citing 
United States v. Henderson, 693 F.2d 1028, 1030 (11th Cir. 1982)). 
 
United States v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983) (“A trial judge may 
comment upon the evidence as long as he instructs the jury that it is the sole 
judge of the facts and that it is not bound by his comments and as long as the 
comments are not so highly prejudicial that an instruction to that effect cannot 
cure the error.”) (citing United States v. Buchanan, 585 F.2d 100, 102 (5th Cir. 
1978)). See also United States v. Jenkins, 901 F.2d 1075 (11th Cir. 1990). 
 
United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983) notes that the 
jury was correctly instructed that the arguments of counsel should not be 
considered as evidence (citing United States v. Phillips, 664 F.2d 971, 1031 (5th 
Cir. 1981)); see also United States v. Siegel, 587 F.2d 721, 727 (5th Cir. 1979). 
 
For an alternative description of evidence, see Preliminary Instruction, “what is 
evidence.” 
 
 
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B5 
Credibility of Witnesses 
 
When I say you must consider all the evidence, I don’t mean that you 
must accept all the evidence as true or accurate. You should decide whether 
you believe what each witness had to say, and how important that testimony 
was. In making that decision you may believe or disbelieve any witness, in 
whole or in part. The number of witnesses testifying concerning a particular 
point doesn’t necessarily matter. 
To decide whether you believe any witness I suggest that you ask 
yourself a few questions: 
• Did the witness impress you as one who was telling the truth? 
 
• Did the witness have any particular reason not to tell the 
truth? 
 
• Did the witness have a personal interest in the outcome of the 
case? 
 
• Did the witness seem to have a good memory? 
 
• Did the witness have the opportunity and ability to accurately 
observe the things he or she testified about? 
 
• Did the witness appear to understand the questions clearly 
and answer them directly? 
 
• Did the witness's testimony differ from other testimony or 
other evidence? 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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B6.1 
Impeachment of Witnesses Because of Inconsistent Statements 
 
You should also ask yourself whether there was evidence that a witness 
testified falsely about an important fact. And ask whether there was evidence 
that at some other time a witness said or did something, or didn’t say or do 
something, that was different from the testimony the witness gave during this 
trial. 
But keep in mind that a simple mistake doesn’t mean a witness wasn’t 
telling the truth as he or she remembers it. People naturally tend to forget 
some things or remember them inaccurately. So, if a witness misstated 
something, you must decide whether it was because of an innocent lapse in 
memory or an intentional deception. The significance of your decision may 
depend on whether the misstatement is about an important fact or about an 
unimportant detail. 
ANNOTATIONS AND COMMENTS 
 
See United States v. D’Antignac, 628 F.2d 428, 435-36 n.10 (5th Cir. 1980), cert. 
denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981) (approving a 
previous version of this instruction used in conjunction with Basic Instruction 5 
and Special Instruction 2.1 as befitted the facts of that case). See also United 
States v. McDonald, 620 F.2d 559, 565 (5th Cir. 1980), and United States v. 
Soloman, 856 F.2d 1572, 1578 (11th Cir. 1988), reh’g denied, 863 F.2d 890 
(1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989). 
 
 
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B6.3 
Impeachment of Witnesses Because of Inconsistent 
Statements (Defendant with No Felony Conviction Testifies) 
 
You should also ask yourself whether there was evidence that a witness 
testified falsely about an important fact. And ask whether there was evidence 
that at some other time a witness said or did something, or didn’t say or do 
something, that was different from the testimony the witness gave during this 
trial. 
But keep in mind that a simple mistake doesn’t mean a witness wasn’t 
telling the truth as he or she remembers it. People naturally tend to forget 
some things or remember them inaccurately. So, if a witness misstated 
something, you must decide whether it was because of an innocent lapse in 
memory or an intentional deception. The significance of your decision may 
depend on whether the misstatement is about an important fact or about an 
unimportant detail. 
A defendant has a right not to testify. But since the Defendant did 
testify, you should decide whether you believe the Defendant’s testimony in the 
same way as that of any other witness. 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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B8 
Introduction to Offense Instructions 
 
The indictment charges three separate crimes, called “counts,” against 
the Defendant. Each count has a number. You’ll be given a copy of the 
indictment to refer to during your deliberations. 
Count One charges that the Defendant knowingly and willfully 
conspired to commit wire and bank fraud. 
Count Two charge that Defendant committed what is called a 
“substantive offense,” specifically wire fraud. I will explain the law governing 
that substantive offense in a moment. 
Count Three charges that the Defendant knowingly and willfully 
conspired to commit money laundering. 
But first note that the Defendant is not charged in Counts One and 
Three with committing a substantive offense – he is charged with conspiring to 
commit that offense. 
I will also give you specific instructions on conspiracy. 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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B9.1A 
On or About; Knowingly; Willfully – Generally 
 
You’ll see that the indictment charges that a crime was committed “on or 
about” a certain date. The Government doesn’t have to prove that the crime 
occurred on an exact date. The Government only has to prove beyond a 
reasonable doubt that the crime was committed on a date reasonably close to 
the date alleged. 
The word “knowingly” means that an act was done voluntarily and 
intentionally and not because of a mistake or by accident. 
The word “willfully” means that the act was committed voluntarily and 
purposely, with the intent to do something the law forbids; that is, with the bad 
purpose to disobey or disregard the law. While a person must have acted with 
the intent to do something the law forbids before you can find that the person 
acted “willfully,” the person need not be aware of the specific law or rule that 
his conduct may be violating. 
ANNOTATIONS AND COMMENTS 
 
The Definition of willfulness in this instruction can be used in most cases 
where willfulness is an element. For crimes requiring a particularized 
knowledge of the law being violated, such as tax and currency-structuring 
cases, use 9.1B’s definition of willfulness. 
 
The committee in its most recent revisions to the pattern instructions has 
changed the approach to how “willfully” should be charged in the substantive 
offenses which include it as an essential element of the offense. The previous 
editions of the pattern instructions included the following definition that 
historically has been used in most cases: 
 
The word “willfully,” as that term has been used from time to time 
in these instructions, means that the act was committed 
voluntarily and purposely, with the specific intent to do something 
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the law forbids; that is to say, with bad purpose either to disobey 
or disregard the law. 
 
Although this definition has been useful as a general definition that 
encompasses many different aspects of the legal concept of “willfulness” in a 
concise and straightforward manner, the Committee has concluded, along with 
every other Circuit Pattern Instruction Committee that has considered the 
issue, that the definition is not accurate in every situation. A review of the case 
law reveals how the courts have struggled with the meaning of “willfulness” as 
a mens rea requirement for substantive criminal offenses. See Bryan v. United 
States, 524. U.S. 184, 189-92, 114 S. Ct. 1939, 1944-45 (1998) (“The word 
‘willfully’ is sometimes said to be ‘a word of many meanings’ whose 
construction is often dependent on the context in which it appears.” (citing 
Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367 (1943))); see also 
Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S. Ct. 655, 659 (1994); 
United States v. Phillips, 19 F.3d 1565, 1576-84 (11th Cir. 1994) (noting the 
difficulty in defining “willfully” and discussing the term in various contexts), 
amended to correct clerical errors, 59 F.3d 1095 (11th Cir. 1995); United States 
v. Granda, 565 F.2d 922, 924 (5th Cir. 1978) (noting, inter alia, that “willfully” 
has defied any consistent interpretation by the courts”); see generally United 
States v. Bailey, 444 U.S. 394, 403, 100 S. Ct. 624, 631 (1980) (“Few areas of 
criminal law pose more difficulty that the proper definition of the mens rea 
requirement for any particular crime.”). 
 
Based on the case law, the Committee has concluded that the criminal offenses 
that expressly include “willfulness” as an essential element can be divided into 
two broad categories. For the first category (Instruction 9.1A, which 
encompasses most offenses) “willfully” is defined to require that the offense be 
committed voluntarily and purposely with the intent to do something unlawful. 
However, the person need not be aware of the specific law or rule that his or 
her conduct may be violating. This definition is narrower than the traditional 
definition that has been used in our pattern charges in the past, but the 
Committee believes that this narrower definition is required under the law. 
See, e.g. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939 (1998) (holding 
that the term “willfully” in 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) requires 
proof that the defendant knew that his conduct was generally unlawful, but 
does not require that the defendant knew of the specific licensing requirement 
that he was violating). 
 
The second category of criminal offenses that have “willfulness” as an essential 
element have a heightened mens rea requirement. For this limited class of 
offenses, the Government must prove more than the defendant knew that his 
conduct was done with a bad purpose to disobey the law in general. The 
Government must prove that the defendant had an intent to violate a known 
legal duty, that is with the specific intent to do something the law forbids. For 
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these offenses, the Committee recommends that the definition of “willfully” in 
Instruction 9.1B be given to the jury. These offenses include currency 
structuring statutes and certain tax laws, which tend to involve “highly 
technical statutes that present the danger of ensnaring individuals engaged in 
apparently innocent conduct.” Bryan, 118 S. Ct. at 1946 – 47. For example, see 
Ratzlaf v. United States, 114 S. Ct. 655 (1994) (holding that with respect to 31 
U.S.C. § 5322(a) and the monetary transaction provisions that it controls, the 
Government must prove that the defendant acted willfully, i.e., with specific 
knowledge that the structuring of currency transactions in which he was 
engaged was unlawful); see also Cheek v. United States, 111 S. Ct. 604, 609-10 
(1991) (explaining that due to the complexity of tax laws, there is an exception 
to the general rule that “ignorance of the law or a mistake of law is no defense 
to criminal prosecution,” and “[t]he term ‘willfully’ [as used in certain federal 
criminal tax offenses] connot[es] a ‘voluntary, intentional violation of a known 
legal duty’” (citing United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23 
(1976) and United States v. Bishop, 412, U.S. 346, 360-61, 93 S. Ct. 2008, 2017 
(1973))). In Cheek, the Supreme Court found error in the trial court’s 
instruction to the jury that in order for the defendant’s belief that he was not 
violating the law to be a defense, his good-faith belief must have been 
objectively reasonable. The Court further explained, however, that “a 
defendant’s views about the validity of the tax statutes are irrelevant to the 
issue of willfulness and need not be heard by the jury, and, if they are, an 
instruction to disregard them would be proper.” Cheek, 498 U.S. at 206, 111 S. 
Ct. at 613. 
 
The Committee observes that the required mental state may be different even 
for different elements of the same crime. This possibility should be considered 
when determining what definition of mens rea should be charged. See Liparota 
v. United States, 471 U.S. 419, 423, 105 S. Ct. 2084, 2087 n.5 (1985). 
 
Note: If the Defendant raises a good faith defense, it may be appropriate to give 
Special Instruction 9 [Good Faith Defense to Willfulness (as under the Internal 
Revenue Code)], Special Instruction 18 [Good Faith Reliance Upon Advice of 
Counsel]. 
 
 
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B10.2 
Caution: Punishment 
(Single Defendant, Multiple Counts) 
 
Each count of the indictment charges a separate crime. You must 
consider each crime and the evidence relating to it separately. If you find the 
Defendant guilty or not guilty of one crime, that must not affect your verdict 
for any other crime. 
I caution you that the Defendant is on trial only for the specific crimes 
charged in the indictment. You’re here to determine from the evidence in this 
case whether the Defendant is guilty or not guilty of those specific crimes. 
You must never consider punishment in any way to decide whether the 
Defendant is guilty. If you find the Defendant guilty, the punishment is for the 
Judge alone to decide later. 
ANNOTATIONS AND COMMENTS 
 
There may be cases in which the last sentence of the first paragraph of this 
instruction is inappropriate and should be deleted. This may occur, for 
example, in prosecutions under 18 U.S.C. § 1962 (RICO offenses) or 21 U.S.C. § 
848 (Continuing Criminal Enterprise offenses) where the indictment is 
structured so that a conviction of one count or counts (sometimes called 
“predicate offenses”) is necessary to a conviction of another count or counts. 
 
 
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B11 
Duty to Deliberate 
 
Your verdict, whether guilty or not guilty, must be unanimous – in other 
words, you must all agree. Your deliberations are secret, and you’ll never have 
to explain your verdict to anyone. 
Each of you must decide the case for yourself, but only after fully 
considering the evidence with the other jurors. So you must discuss the case 
with one another and try to reach an agreement. While you’re discussing the 
case, don’t hesitate to reexamine your own opinion and change your mind if you 
become convinced that you were wrong. But don’t give up your honest beliefs 
just because others think differently or because you simply want to get the case 
over with. 
Remember that, in a very real way, you’re judges – judges of the facts. 
Your only interest is to seek the truth from the evidence in the case. 
ANNOTATIONS AND COMMENTS 
 
See United States v. Brokemond, 959 F.2d 206, 209 (11th Cir. 1992). See also 
United States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied, 589 F.2d 1114 
(1979), cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); 
United States v. Dunbar, 590 F.2d 1340 (5th Cir. 1979). 
 
 
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B12 
Verdict 
 
When you get to the jury room, choose one of your members to act as 
foreperson. The foreperson will direct your deliberations and will speak for you 
in court. 
A verdict form has been prepared for your convenience. 
[Explain verdict] 
Take the verdict form with you to the jury room. When you’ve all agreed 
on the verdict, your foreperson must fill in the form, sign it, date it, and carry 
it. Then you’ll return it to the courtroom. 
If you wish to communicate with me at any time, please write down your 
message or question and give it to the marshal. The marshal will bring it to me 
and I’ll respond as promptly as possible – either in writing or by talking to you 
in the courtroom. But I caution you not to tell me how many jurors have voted 
one way or the other at that time. 
ANNOTATIONS AND COMMENTS 
 
United States v. Norton, 867 F.2d 1354, 1365-66 (11th Cir. 1989), cert. denied, 
491 U.S. 907, 109 S. Ct. 3192, 105 L. Ed. 2d 701 (1989) and 493 U.S. 871, 110 
S. Ct. 200, 107 L. Ed. 2d 154 (1989) notes that the Court should not inquire 
about, or disclose, numerical division of the jury during deliberations but states 
that “[r]eversal may not be necessary even where the trial judge undertakes 
the inquiry and thereafter follows it with an Allen charge, absent a showing 
that either incident or a combination of the two was inherently coercive.” See 
United States v. Brokemond, 959 F.2d 206, 209 (11th Cir. 1992). See also United 
States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied, 589 F.2d 1114 (1979), 
cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979). 
 
 
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S2.1 
Confession or Statement of a Single Defendant 
 
If the Government offers evidence that a Defendant made a statement or 
admission to someone after being arrested or detained, you must consider that 
evidence with caution and great care. 
You must decide for yourself (1) whether the Defendant made the 
statement, and (2) if so, how much weight to give to it. To make these 
decisions, you must consider all the evidence about the statement – including 
the circumstances under which it was made. 
ANNOTATIONS AND COMMENTS 
 
See United States v. Clemons, 32 F.3d 1504, 1510 (11th Cir. 1994), cert. denied, 
115 S. Ct. 1801, 131 L. Ed. 2d 728 (1995). 
 
 
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S4.1 
Similar Acts Evidence 
(Rule 404(b), Fed. R. Evid.) 
 
During the trial, you heard evidence of acts allegedly done by the 
Defendant on other occasions that may be similar to acts with which the 
Defendant is currently charged.  You must not consider any of this evidence to 
decide whether the Defendant engaged in the activity alleged in the 
indictment.  This evidence is admitted and may be considered by you for the 
limited purpose of assisting you in determining whether [the Defendant had 
the state of mind or intent necessary to commit the crime charged in the 
indictment] [the Defendant had a motive or the opportunity to commit the acts 
charged in the indictment] [the Defendant acted according to a plan or in 
preparation to commit a crime] [the Defendant committed the acts charged in 
the indictment by accident or mistake]. 
ANNOTATIONS AND COMMENTS 
 
Rule 404. [Fed. R. Evid.]  Character Evidence; Crimes or Other Acts 
 
*  *  *  *  * 
(b) Crimes, Wrongs, or Other Acts. 
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 
not admissible to prove a person’s character in order to show that 
on a particular occasion the person acted in accordance with the 
character. 
(2) Permitted Uses; Notice in a Criminal Case. This evidence 
may be admissible for another purpose, such as proving motive, 
opportunity, intent, preparation, plan, knowledge, identity, 
absence of mistake, or lack of accident. On request by a defendant 
in a criminal case, the prosecutor must: 
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(A) provide reasonable notice of the general nature of any such 
evidence that the prosecutor intends to offer at trial; and 
(B) do so before trial — or during trial if the court, for good 
cause, excuses lack of pretrial notice. 
 
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 
440 U.S. 920 (1979), discusses at length the tests to be applied in admitting or 
excluding evidence under Rule 404(b); and, more specifically, the different 
standards that apply depending upon the purpose of the evidence, i.e., to show 
intent versus identity, for example.  See id. at 911 n.15. 
Both the Supreme Court and the Eleventh Circuit have expressly endorsed the 
Beechum test. Huddleston v. United States, 485 U.S. 681 (1988); United States 
v. Miller, 959 F.2d 1535 (11th Cir. 1992) (en banc), cert. denied, 506 U.S. 942 
(1992). 
 
 
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S5 
Note-taking 
 
You’ve been permitted to take notes during the trial. Most of you – 
perhaps all of you – have taken advantage of that opportunity. 
You must use your notes only as a memory aid during deliberations. You 
must not give your notes priority over your independent recollection of the 
evidence. And you must not allow yourself to be unduly influenced by the notes 
of other jurors. 
I emphasize that notes are not entitled to any greater weight than your 
memories or impressions about the testimony. 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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S8 
Deliberate Ignorance as Proof of Knowledge 
 
If a conspirator’s knowledge of a fact is an essential part of a crime, it’s 
enough that the conspirator was aware of a high probability that the fact 
existed – unless the conspirator actually believed the fact didn’t exist. 
“Deliberate avoidance of positive knowledge” – which is the equivalent of 
knowledge – occurs, for example, if an individual possesses a package and 
believes it contains a controlled substance but deliberately avoids learning that 
it contains the controlled substance so he or she can deny knowledge of the 
package’s contents. 
So you may find that a conspirator knew about the unlawful purpose of a 
plan if you determine beyond a reasonable doubt that the conspirator (1) 
actually knew about the unlawful purpose of the plan, or (2) had every reason 
to know but deliberately closed his eyes. 
But I must emphasize that negligence, carelessness, or foolishness isn’t 
enough to prove that the conspirator knew about the unlawful purpose of the 
plan. 
ANNOTATIONS AND COMMENTS 
 
United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993), cert. denied, 513 U.S. 
833, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994), “deliberate ignorance” instruction 
appropriate only when evidence in the record shows that the Defendant 
purposely contrived to avoid learning the truth. 
 
United States v. Aleman, 728 F.2d 492, 494 (11th Cir. 1984), this instruction 
should be given only if there are facts that suggest the Defendant consciously 
avoided knowledge, not when the Defendant has actual knowledge; see also 
United States v. Rivera, 944 F.2d 1563, 1570-72 (11th Cir. 1991) (describing 
circumstances in which deliberate ignorance instruction is appropriate) and 
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United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (approving a similar 
instruction). 
 
See also Basic Instruction 9.1. 
 
 
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O51 
Wire Fraud 
18 U.S.C. § 1343 
It’s a Federal crime to use interstate wire, radio, or television 
communications to carry out a scheme to defraud someone else. 
The Defendant can be found guilty of this crime only if all the following 
facts are proved beyond a reasonable doubt: 
(1) the Defendant knowingly devised or participated in a scheme 
to defraud someone by using false or fraudulent pretenses, 
representations, or promises; 
(2) the false pretenses, representations, or promises were about a 
material fact; 
(3) the Defendant acted with the intent to defraud; and 
(4) the Defendant transmitted or caused to be transmitted by wire 
some communication in interstate commerce to help carry out 
the scheme to defraud. 
A “scheme to defraud” means any plan or course of action intended to 
deceive or cheat someone out of money or property by using false or fraudulent 
pretenses, representations, or promises. 
A statement or representation is “false” or “fraudulent” if it is about a 
material fact that the speaker knows is untrue or makes with reckless 
indifference to the truth, and makes with the intent to defraud. A statement or 
representation may be “false” or “fraudulent” when it is a half-truth, or 
effectively conceals a material fact, and is made with the intent to defraud. 
A “material fact” is an important fact that a reasonable person would use 
to decide whether to do or not do something. A fact is “material” if it has the 
capacity or natural tendency to influence a person’s decision. It doesn’t matter 
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whether the decision-maker actually relied on the statement or knew or should 
have known that the statement was false. 
To act with “intent to defraud” means to act knowingly and with the 
specific intent to use false or fraudulent pretenses, representations, or 
promises to cause loss or injury.  Proving intent to deceive alone, without the 
intent to cause loss or injury, is not sufficient to prove intent to defraud. 
The Government does not have to prove all the details alleged in the 
indictment about the precise nature and purpose of the scheme. It also doesn’t 
have to prove that the material transmitted by interstate wire was itself false 
or fraudulent; or that using the wire was intended as the specific or exclusive 
means of carrying out the alleged fraud; or that the Defendant personally made 
the transmission over the wire. And it doesn’t have to prove that the alleged 
scheme actually succeeded in defrauding anyone. 
To “use” interstate wire communications is to act so that something 
would normally be sent through wire, radio, or television communications in 
the normal course of business. 
Each separate use of the interstate wire communications as part of the 
scheme to defraud is a separate crime. 
 
ANNOTATIONS AND COMMENTS 
18 U.S.C. § 1343 provides: 
Whoever, having devised or intending to devise any scheme or artifice to 
defraud, or for obtaining money or property by means of false or 
fraudulent pretenses, representations, or promises, transmits or causes 
to be transmitted by means of wire, radio, or television communication 
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35 
in interstate or foreign commerce, any writings, signs, signals, pictures, 
or sounds for the purpose of executing such scheme or artifice [shall be 
guilty of an offense against the laws of the United States]. 
Maximum Penalty: Twenty (20) years’ imprisonment and applicable fine. (If 
the violation affects a financial institution, or is in relation to or in connection 
with a presidentially declared major disaster or emergency, thirty (30) years’ 
imprisonment and $1 million fine.) 
If the offense involved telemarketing, 18 U.S.C. § 2326 requires enhanced 
imprisonment penalties: 
A person who is convicted of an offense under section 1028, 1029, 1341, 
1342, 1343, or 1344, or a conspiracy to commit such an offense, in 
connection with the conduct of telemarketing - - 
(1) shall be imprisoned for a term of up to 5 years in addition to 
any term of imprisonment imposed under any of those sections, 
respectively; and 
(2) in the case of an offense under any of those sections that - - 
(A) victimized ten or more persons over the age of 55; or 
(B) targeted persons over the age of 55, 
shall be imprisoned for a term of up to 10 years in addition to any term 
of imprisonment imposed under any of those sections, respectively. 
An additional element is required under the Apprendi doctrine when the 
indictment alleges any facts that would result in enhanced penalties under 18 
U.S.C. § 1343 or § 2326. If the alleged offense involved telemarketing, or 
involved telemarketing and victimized 10 or more persons over age 55 or 
targeted persons over age 55, or the scheme affected a financial institution, or 
is in relation to or in connection with a presidentially declared major disaster 
or emergency, the Court should consider including a fourth element for that 
part of the offense and giving a lesser included offense instruction for just the 
Section 1341 offense. Alternatively, an instruction (to be used with a special 
interrogatory on the verdict form) can address those statutory variations of the 
scheme: 
If you find beyond a reasonable doubt that the 
defendant is guilty of using interstate [wire] [radio] 
[television] communications facilities in carrying out 
a scheme to defraud, then you must also determine 
whether the Government has proven beyond a 
reasonable doubt that [the scheme was in connection 
with the conduct of telemarketing] [the scheme was 
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36 
in connection with the conduct of telemarketing and 
(a) victimized ten or more persons over the age of 55, 
or (b) targeted persons over the age of 55] [the 
scheme affected a financial institution] [the scheme 
was in relation to, or in connection with, a 
presidentially declared major disaster or emergency]. 
Wire fraud requires showing (1) that the Defendant knowingly devised or 
participated in a scheme to defraud; (2) that the Defendant did so willfully and 
with an intent to defraud; and (3) that the Defendant used interstate wires for 
the purpose of executing the scheme. Langford v. Rite Aid of Ala., Inc., 231 
F.3d 1308, 1312 (11th Cir. 2000). Materiality is an essential element of the 
crimes of mail fraud, wire fraud, and bank fraud and must be decided by the 
jury. Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 
(1999). The definition of materiality used here comes from that decision and 
the Eleventh Circuit’s decision in the case upon remand. United States v. 
Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999), cert. denied 530 U.S. 1261 
(2000). 
The instruction makes clear that deception alone does not constitute a scheme 
to defraud; a defendant must intend to cause injury or loss.  See United States 
v. Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016), altered in part on denial of 
rehearing by United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016) (“A jury 
cannot convict a defendant of wire fraud, then, based on misrepresentations 
amounting only to a deceit.” (internal quotation marks and citation omitted)). 
In wire fraud cases involving property rights, “the Government must establish 
that the defendant intended to defraud a victim of money or property of some 
value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and 
municipal licenses in general are not “property” for the purposes of this statute. 
Cleveland v. United States, 531 U.S. 12, 15, 121 S. Ct. 365, 369, 148 L. Ed. 2d 
221 (2000) (addressing “property” for purposes of mail fraud statute). 
The mail fraud and wire fraud statutes are “given a similar construction and 
are subject to the same substantive analysis.” Belt v. United States, 868 F.3d 
1208, 1211 (11th Cir. 1989). 
See also United States v. Svete, 556 F.3d 1157, (11th Cir. 2009) and discussion 
supra Offense Instruction 50.1. 
 
 
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O54 
Conspiracy to Commit Wire and Bank Fraud 
18 U.S.C. § 1349 
 
It’s a Federal crime to knowingly and willfully conspire or agree with 
someone to do something that, if actually carried out, would result in the crime 
of wire or bank fraud. 
A “conspiracy” is an agreement by two or more persons to commit an 
unlawful act. In other words, it is a kind of partnership for criminal purposes. 
Every member of the conspiracy becomes the agent or partner of every other 
member. 
The Government does not have to prove that all the people named in the 
indictment were members of the plan, or that those who were members made 
any kind of formal agreement. The Government does not have to prove that the 
members planned together all the details of the plan.  The heart of a conspiracy 
is the making of the unlawful plan itself, so the Government does not have to 
prove that the conspirators succeeded in carrying out the plan. 
The Defendant can be found guilty of this conspiracy offense only if all 
the following facts are proved beyond a reasonable doubt: 
(1) two or more persons, in some way or manner, agreed to try to 
accomplish a common and unlawful plan to commit wire and 
bank fraud, as charged in the indictment; and 
 
(2) the Defendant knew the unlawful purpose of the plan and 
willfully joined in it. 
 
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A person may be a conspirator even without knowing all the details of 
the unlawful plan or the names and identities all of the other alleged 
conspirators. 
If the Defendant played only a minor part in the plan but had a general 
understanding of the unlawful purpose of the plan – and willfully joined in the 
plan on at least one occasion – that’s sufficient for you to find the Defendant 
guilty. 
But simply being present at the scene of an event or merely associating 
with certain people and discussing common goals and interests doesn’t 
establish proof of a conspiracy. Also, a person who doesn’t know about a 
conspiracy but happens to act in a way that advances some purpose of one 
doesn’t automatically become a conspirator. 
ANNOTATIONS AND COMMENTS 
 
18 U.S.C. § 1349 provides: 
 
Any person who attempts or conspires to commit any offense under 
this chapter shall be subject to the same penalties as those prescribed for 
the offense, the commission of which was the object of the attempt or 
conspiracy. 
 
Maximum penalty: As stated above. 
 
Section 1349 applies to all fraud offenses in Chapter 63, i.e., Sections 1341 
through 1348, So, a conspiracy could be charged with any of those substantive 
offenses as the underlying count. This instruction is thus intended to be 
modified to fit the specific underlying fraud alleged in the indictment, and it is 
in the same general form as the controlled substances conspiracy instruction 
for 21 U.S.C. § 846 and the money laundering conspiracy instruction for 18 
U.S.C. 1956(h). No overt act is required by Section 1349, and Congress’ 
omission of that requirement (which is specifically included in 18 U.S.C. § 371) 
has been held by both the Supreme Court and the Eleventh Circuit to mean 
that it has dispensed with such a requirement. Cf. United States v. Shabani, 
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513 U.S. 10, 12, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994); United States v. 
Pistone, 177 F.3d 957, 959-60 (11th Cir. 1999). 
 
For a case involving conspiracy to defraud the United States arising under 18 
U.S.C. § 371, see United States v. Mendez, 528 F.3d 811 (11th Cir. 2008). 
 
 
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O74.5 
Money Laundering Conspiracy 
18 U.S.C. § 1956(h) 
 
It’s  a  Federal  crime  to  conspire  to  engage  in  money  laundering  
or transactions involving the proceeds of specified unlawful activity that 
violates Title 18, United States Code, Section 1956 or 1957. 
While it is not necessary for you to find the defendant conspired to 
commit all three of the offenses alleged to be objects of the conspiracy, it is 
necessary that your vote be unanimous that at least one of such intended 
offenses was the object of the conspiracy. 
 
It’s a Federal crime to knowingly engage in certain kinds of financial 
transactions commonly known as money laundering under 18 U.S.C. § 1956, as 
follows: 
The Defendant can be found guilty of this crime only if all the following 
facts are proved beyond a reasonable doubt: 
(1) the Defendant knowingly conducted or tried to conduct 
financial transactions; 
 
(2) the Defendant knew that the money or property involved in the 
transaction were the proceeds of some kind of unlawful 
activity; 
 
(3) money or property did come from an unlawful activity, 
specifically the wire and bank fraud schemes charged in 
Counts One and Two of the Indictment; and 
 
(4) the Defendant knew that the transaction was designed, in 
whole or in part, to conceal or disguise the nature, location, 
source, ownership, or the control of the proceeds. 
 
or 
 
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(4) the Defendant participated in the transaction to avoid a 
transaction-reporting requirement under state or Federal 
law. 
 
To “conduct a transaction” means to start or finish a transaction, or to 
participate in a transaction at any point. 
A “transaction” means a purchase, sale, loan, promise, gift, transfer, 
delivery, or other disposition of money or property. A transaction with a 
financial institution also includes a deposit, withdrawal, transfer between 
accounts, exchange of currency, loan, extension of credit, use of a safe deposit 
box, or purchase or sale of any stock, bond, certificate of deposit, or other 
monetary instrument. 
A “financial transaction” means – 
a transaction that in any way or to any degree affects interstate or 
foreign commerce by sending or moving money by wire or other means. 
or 
a transaction that in any way or to any degree affects interstate or 
foreign commerce by involving one or more “monetary instruments.” The 
phrase “monetary instruments” includes coins or currency of any country, 
travelers or personal checks, bank checks or money orders, or investment 
securities or negotiable instruments in a form that allows ownership to 
transfer on delivery. 
“Interstate or foreign commerce” means trade and other business 
activity between people or businesses in at least two states or between people 
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or businesses in the United States and people or businesses outside the United 
States. 
To know “that the money or property involved in the transaction came 
from some kind of unlawful activity” is to know that the money or property 
came from an activity that’s a felony under state, Federal, or foreign law. 
The term “proceeds” means any property derived from or obtained or 
retained, directly or indirectly, through some form of unlawful activity, 
including the gross receipts of the activity. 
The phrase “specified unlawful activity” means the wire and bank fraud 
schemes charged in Counts One and Two of the Indictment. 
A “transaction-reporting requirement” means a legal requirement that a 
domestic financial institution must report any transaction involving a 
payment, receipt, or transfer of United States coins or currency totaling more 
than $10,000. But personal or cashier’s checks, wire transfers, or transactions 
involving other monetary instruments do not have to be reported. 
It’s also a Federal crime for anyone to engage in certain kinds of 
financial transactions commonly known as money laundering under 18 U.S.C. § 
1957, as follows: 
The Defendant can be found guilty of this offense only if all the following 
are proved beyond a reasonable doubt; 
(1) the Defendant knowingly engaged or attempted to engage in a 
monetary transaction; 
 
(2) the Defendant knew the transaction involved property or funds 
that were the proceeds of some criminal activity; 
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(3) the property had a value of more than $10,000; 
 
(4) the property was in fact proceeds of fraud schemes involving 
COVID-19 stimulus funds, including EIDL funds and PPP 
funds; and 
 
(5) the transaction took place in the United States. 
 
The term “monetary transaction” means the deposit, withdrawal, 
transfer, or exchange of funds or a monetary instrument by, through, or to a 
financial institution in a way that affects interstate commerce.  
The term “proceeds” means any property derived from or obtained or 
retained, directly or indirectly, through some form of unlawful activity, 
including the gross receipts of the activity. 
It doesn’t matter whether the Defendant knew the precise nature of the 
crime or that the property came from committing fraud schemes involving 
COVID-19 stimulus funds, including EIDL funds and PPP funds. But the 
Government must prove that the Defendant knew that the property involved in 
the monetary transaction was obtained or derived from committing some 
crime. 
Also it doesn’t matter whether all the property involved was derived 
from a crime. The Government only has to prove that $10,000 worth of the 
property was obtained or derived from committing a crime. 
A “conspiracy” is an agreement by two or more persons to commit an 
unlawful act. In other words, it is a kind of partnership for criminal 
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purposes. Every member of the conspiracy becomes the agent or partner of 
every other member. 
The Government does not have to prove that all the people named in the 
indictment were members of the plan, or that those who were members made 
any kind of formal agreement. The Government does not have to prove that the 
members planned together all the details of the plan. The heart of a conspiracy 
is the making of the unlawful plan itself, so the Government does not have to 
prove that the conspirators succeeded in carrying out the plan. 
The Defendant can be found guilty of this crime only if all the 
following facts are proved beyond a reasonable doubt: 
 
(1) two  or  more  people  agreed  to  try  to  accomplish  a 
common and unlawful plan to violate 18 U.S.C. Section 1956 
and 1957; and 
  
(2) the Defendant knew about the plan’s unlawful purpose and 
voluntarily joined in it. 
 
A person may be a conspirator even without knowing all the details of 
the unlawful plan or the names and identities of all the other alleged 
conspirators. 
If the Defendant played only a minor part in the plan but had a general 
understanding of the unlawful purpose of the plan – and voluntarily joined in 
the plan on at least one occasion – that’s sufficient for you to find the 
Defendant guilty. 
But simply being present at the scene of an event or merely associating 
with certain people and discussing common goals and interests doesn't 
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establish proof of a conspiracy.  Also a person who doesn’t know about a 
conspiracy but happens to act in a way that advances some purpose of one 
doesn’t automatically become a conspirator. 
 
 
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G3 
Separately Tried Coconspirators 
 
The evidence may show that some of the persons involved in the alleged 
conspiracy are not on trial. This does not matter. There is no requirement that 
all members of a conspiracy be charged or tried together in one proceeding. 
 
Sixth Circuit Pattern Instruction 3.06 UNINDICTED, UNNAMED OR 
SEPARATELY TRIED CO-CONSPIRATORS 
 
 
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T1.1 
Cautionary Instruction 
Similar Acts Evidence 
(Rule 404(b), Fed. R. Evid.) 
 
You have just heard evidence of acts allegedly done by the Defendant 
that may be similar to those charged in the indictment, but were committed on 
other occasions. You must not consider this evidence to decide if the Defendant 
engaged in the activity alleged in the indictment.  But you may consider this 
evidence to decide whether:   
• the Defendant had the state of mind or intent necessary to commit 
the crime charged in the indictment; 
 
• the Defendant had a motive or the opportunity to commit the acts 
charged in the indictment; 
 
• the Defendant acted according to a plan or in preparation to 
commit a crime; or 
 
• the Defendant committed the acts charged in the indictment by 
accident or mistake. 
ANNOTATIONS AND COMMENTS 
 
Rule  404.  [FRE]  Character  Evidence; Crimes or Other Acts 
 
*  *  *  *  * 
(b) Crimes, Wrongs, or Other Acts. 
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 
not admissible to prove a person’s character in order to show that 
on a particular occasion the person acted in accordance with the 
character. 
(2) Permitted Uses; Notice in a Criminal Case. This evidence 
may be admissible for another purpose, such as proving motive, 
opportunity, intent, preparation, plan, knowledge, identity, 
absence of mistake, or lack of accident. On request by a defendant 
in a criminal case, the prosecutor must: 
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(A) provide reasonable notice of the general nature of any such 
evidence that the prosecutor intends to offer at trial; and 
(B) do so before trial — or during trial if the court, for good 
cause, excuses lack of pretrial notice. 
 
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 
440 U.S. 920 (1979), discusses at length the tests to be applied in admitting or 
excluding evidence under Rule 404(b); and, more specifically, the different 
standards that apply depending upon the purpose of the evidence, i.e., to show 
intent versus identity, for example.  See id. at 911-12 n.15.  
 
 
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T2 
Witness’s Prior Statement or Testimony 
Explanatory Instruction 
 
Members of the Jury: If a witness is questioned about earlier statements or 
testimony the witness made, the questioning is permitted to aid you in 
evaluating the truth or accuracy of the witness's testimony at this trial. 
A witness’s earlier testimony or statements are not ordinarily offered or 
received as evidence of their truth or accuracy. They are pointed out to give you 
a comparison and to help you decide whether you believe the witness's 
testimony. 
Whether those prior statements are consistent or inconsistent with the 
witness’s trial testimony is entirely up to you. 
I’ll give you additional instructions at the end of the trial about a 
number of things you may consider to determine the credibility or believability 
of the witnesses and the weight to give their testimony. 
ANNOTATIONS AND COMMENTS 
 
No annotations associated with this instruction. 
 
 
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Respectfully submitted this 7th day of March, 2023. 
JILL E. STEINBERG 
UNITED STATES ATTORNEY 
 
s/ Matthew A. Josephson 
Matthew A. Josephson 
Assistant United States Attorney 
Georgia Bar No. 367216 
United States Attorney’s Office 
Southern District of Georgia 
P.O. Box 8970 
Savannah GA 31412 
T: (912) 652-4422 
matthew.josephson@usdoj.gov 
 
s/ Jennifer A. Stanley  
 
 
Jennifer A. Stanley 
Assistant United States Attorney 
Alabama Bar No. 8400E77T 
United States Attorney’s Office 
Southern District of Georgia 
Post Office Box 2017 
Augusta, Georgia 30903 
T: (706) 826-4525 
jennifer.stanley@usdoj.gov 
 
 
 
 
 
 
 
 
 
 
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CERTIFICATE OF SERVICE 
This is to certify that I have on this day filed this motion under seal and 
service will be made on all parties in this case in accordance with the notice of 
electronic filing (“NEF”), which will be generated as a result of electronic filing 
in this Court. 
 
This 7th day of March, 2023. 
 
 
 
 
 
 
 
 
 
 
 
 
JILL E. STEINBERG 
UNITED STATES ATTORNEY 
 
 
 
 
 
 
 
 
 
 
 
 
  s/ Jennifer A. Stanley  
 
 
Jennifer A. Stanley 
Assistant United States Attorney 
 
 
 
 
 
 
 
 
 
 
Case 4:22-cr-00084-LGW-BWC     Document 85     Filed 03/07/23     Page 51 of 51

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