Court filing
Requests to Charge as to Carla Jackson, John Gaines, Jerry Baptiste — USA v. Thomas et al. (Dkt. 840, N.D. Ga.)
Filed January 23, 2024 in USA v. Thomas et al.; one of 81 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2024-01-23 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 840 · 2024-01-23 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
v.
TELDRIN FOSTER,
JOHN GAINES A/K/A MARTY GAINES,
JERRY BAPTISTE, AND
CARLA JACKSON
Criminal Action No.
1:20-CR-296-JPB
PARTIES’ CONSOLIDATED JURY INSTRUCTIONS
The Parties, by their undersigned counsel, jointly file these Proposed Jury
Instructions. The Parties respectfully request the opportunity to amend and revise
these charges as needed during the course of the trial.
The Table below specifies, for each proposed jury instruction, the Eleventh
Circuit Pattern Jury Instruction that the instruction is based on and whether the
proposed instruction is agreed or opposed.
Request
No.
Pattern
Instruction
Parties’ Positions
1
P1
Agreed
2
T3
Agreed
3
T1.1
Agreed
4
T2
Agreed
5
B1
Agreed
6A
B2.1
Agreed
6B
B2.2
Agreed
7
B3
Agreed
8
B4
Agreed
9
B5
Agreed
10
S2.2
Government objects
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 1 of 59
11
S3
Government objects
12A
B6.1
Agreed
12B
B6.2
Agreed
12C
B6.3
Agreed
12D
B6.5
Agreed
13
B6.7
Agreed
14
S12
Agreed
15
S1.2
Agreed
16
S4.1
Agreed
17
S5
Agreed
18
B7
Agreed
19
B8
Agreed
20
S7
Agreed
21
O52
Agreed
22
O51
Agreed
23
O54
Agreed
24
O13.2
Agreed
25
O39
Agreed
26
O74.2
Agreed; partial government objection
27
B8.1
Agreed
28
S17
Agreed
29
B9.1A
Agreed
30
S8
All defendants object
31
B10.4
Agreed
32
N/A
Defendant Foster objects
33
B11
Agreed
34
B12
Agreed
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 2 of 59
Dated: January 23, 2024
Respectfully submitted,
RYAN K. BUCHANAN
United States Attorney
/s/ _Tal Chaiken___________________
TAL C. CHAIKEN
Assistant United States Attorney
Georgia Bar No. 273949
Tal.Chaiken@usdoj.gov
SAMIR KAUSHAL
Assistant United States Attorney
Georgia Bar No. 935285
Samir.Kaushal@usdoj.gov
GLENN S. LEON
Chief, Fraud Section
U.S. Department of Justice
SIJI MOORE
Trial Attorney, Fraud Section
U.S. Department of Justice
Babasijibomi.Moore2@usdoj.gov
/s/ Leigh Ann Webster (with permission)
LEIGH ANN WEBSTER
Counsel for Teldrin Foster
Georgia Bar No. 968087
law@stricklandwebster.com
SARALIENE S. DURRETT
Counsel for Teldrin Foster
Georgia Bar No. 837897
ssd@defendingatl.com
/s/ Doug Gilfillan (with permission)
DOUGLAS W. GILFILLAN
Counsel for Jerry Baptiste
Georgia Bar No. 294713
DGilfillan@kilpatricktownsend.com
ADITYA SHRIVASTAVA
Counsel for Jerry Baptiste
Georgia Bar No. 897461
AShrivastava@ktslaw.com
/s/ David Marshall (with permission)__
DAVID D. MARSHALL
Counsel for Carla Jackson
Georgia Bar No. 471517
ddmarshall98@gmail.com
/s/ Deana Timberlake-Wiley (with permission)
DEANA TIMBERLAKE-WILEY
Counsel for John Gaines
Georgia Bar No. 868479
dwileylaw@outlook.com
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PRELIMINARY INSTRUCTION
REQUEST TO CHARGE NO. 1 (Agreed):
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 defendants areis guilty or not guilty of the crimes charged in the
indictment.1 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.
1 Modifications to the Eleventh Circuit Pattern Jury Instructions are
designated using Tracked Changes.
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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.
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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.
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 defendants areis presumed innocent until proven guilty. The
indictment against the defendants brought by the government is only an
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accusation, nothing more. It is not proof of guilt or anything else. The
defendants therefore starts out with a clean slate.
Second, the burden of proof is on the government until the very end of
the case. EachThe defendant has no burden to prove [his] or [her] innocence
or to present any evidence, or to testify. Since the defendants haves 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 eachthe 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:
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.
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.
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.
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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.
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.
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:
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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
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
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trust 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
defendants may cross-examine them. Following the government’s case,
eachthe defendant may, if [he] or [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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, P1.
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INSTRUCTIONS DURING TRIAL
REQUEST TO CHARGE NO. 2 (to be read if a Transcript is used)
(Agreed):
Explanatory Instruction
Transcript of Tape Recorded Conversation2
Members of the Jury: Exhibit _____ has been identified as a typewritten
transcript [and partial translation from Spanish into English] of the oral
conversation heard on the tape recording received in evidence as Exhibit
_____. [The transcript also purports to identify the speakers engaged in the
conversation.]
I’ve admitted the transcript for the limited and secondary purpose of
helping you follow the content of the conversation as you listen to the tape
recording [, particularly those portions spoken in Spanish,] [and also to help
you identify the speakers.]
But you are specifically instructed that whether the transcript correctly
reflects the content of the conversation [or the identity of the speakers] is
entirely for you to decide based on [your own evaluation of the testimony you
have heard about the preparation of the transcript, and from] your own
examination of the transcript in relation to hearing the tape recording itself as
the primary evidence of its own contents.
If you determine that the transcript is in any respect incorrect or
unreliable, you should disregard it to that extent.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, T3.
2 The Parties have included these bolded titles for the Court’s ease of
review, but their understanding is that the Court will not include these titles
in the jury instructions provided and read to the jury.
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REQUEST TO CHARGE NO. 3 (to be read if 404(b) evidence is admitted)
(Agreed):
Cautionary Instruction
Similar Acts Evidence
(Rule 404(b), Fed. R. Evid.)
You have just heard evidence of acts allegedly done by the Defendant
[insert name] 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 [insert name] engaged in the activity alleged in the
indictment. In addition, you must not consider this evidence to decide if
Defendants [insert names of other Defendants] engaged in the activity alleged
in the indictment. But you may consider this evidence to decide whether:
the Defendant [insert name] had the state of mind or intent
necessary to commit the crime charged in the indictment;
the Defendant [insert name] had a motive or the opportunity to
commit the acts charged in the indictment;
the Defendant [insert name] acted according to a plan or in
preparation to commit a crime; or
the Defendant [insert name] committed the acts charged in the
indictment by accident or mistake.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, T1.1.
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REQUEST TO CHARGE NO. 4 (to be read if any witness is questioned
about earlier statements or testimony) (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, T2.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 14 of 59
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INSTRUCTIONS AT CONCLUSION OF TRIAL
REQUEST TO CHARGE NO. 5 (Agreed):
Face Page – Introduction
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
CASE NO. 1:20-CR-296
-vs-
TELDRIN FOSTER,
JOHN GAINES A/K/A MARTY GAINES,
JERRY BAPTISTE, AND
CARLA JACKSON
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 eachthe Defendant guilty beyond a reasonable doubt.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B1.
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REQUEST TO CHARGE NO. 6A (to be read only if any Defendant testifies)
(Agreed):
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 any 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. EachThe Defendant
does not have to prove [his] or [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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B2.1.
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REQUEST TO CHARGE NO. 6B (to be read only if no Defendant testifies)
(Agreed):
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 any 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 Each Defendant
does not have to prove [his] or [her] innocence or produce any evidence at all.
A Defendant does not have to testify, and if anythe 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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B2.2.
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REQUEST TO CHARGE NO. 7 (Agreed):
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 eachthe 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 a Defendant has been proved
guilty beyond a reasonable doubt, say so. If you are not convinced, say so.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B3.
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REQUEST TO CHARGE NO. 8 (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B4.
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REQUEST TO CHARGE NO. 9 (Agreed):
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?
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B5.
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REQUEST TO CHARGE NO. 10 (Government Objection):
Confession or Statement of Multiple Defendants
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.
Any such statement is not evidence about any other Defendant.
Defendant Foster’s Authority: Eleventh Circuit Pattern Jury Instruction,
Criminal Cases, S2.2. Mr. Foster requests that the Court give the instruction
because, regardless of whether the statement was given after being arrested
or detained, the questions that the jury has to consider are the same: whether
Mr. Foster made the statement and how much weight to give to it.
It is also critical to instruct the jury that any statement is not evidence as to
any other defendant.
Government’s Objection: The government objects to this instruction because
the instruction, by its terms, applies where “a Defendant made a statement or
admission to someone after being arrested or detained.” No defendant in this
case made a statement or admission to anyone after being arrested or
detained. Rather, all statements that the government will introduce at trial
were pre-arrest, voluntary statements to law enforcement.
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REQUEST TO CHARGE NO. 11 (Government Objection):
Identification Testimony
The Government must prove beyond a reasonable doubt that the
Defendant was the person who committed the crime.
If a witness identifies a Defendant as the person who committed the
crime, you must decide whether the witness is telling the truth. But even if
you believe the witness is telling the truth, you must still decide how accurate
the identification is.
I suggest that you ask yourself questions:
1. Did the witness have an adequate opportunity to observe the
person at the time the crime was committed?
2. How much time did the witness have to observe the person?
3. How close was the witness?
4. Did anything affect the witness’s ability to see?
5. Did the witness know or see the person at an earlier time?
You may also consider the circumstances of the identification of the
Defendant, such as the way the Defendant was presented to the witness for
identification and the length of time between the crime and the identification
of the Defendant.
After examining all the evidence, if you have a reasonable doubt that
the Defendant was the person who committed the crime, you must find the
Defendant not guilty.
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Defendant Foster’s Authority: Eleventh Circuit Pattern Jury Instruction,
Criminal Cases, S3. Mr. Foster requests that the instruction be given. Mr.
Foster believes that Darrell Thomas will identify him as a participant in this
offense, but believes that it is highly relevant for the jury to consider
“whether the witness is telling the truth. But even if you believe the witness
is telling the truth, you must still decide how accurate the identification is.”
Whether Mr. Foster was the person sending the e-mails and other messages
is a critical part of his defense. Mr. Foster is entitled to have the jury
instructed on this because it is his theory of defense, and there will be
evidence adduced at trial that is relevant to this defense. United States v.
Grady, 18 F.4th 1275, 1294 (11th Cir. 2021).
Mr. Foster believes that the instruction can be modified to alleviate the risk
of confusion, including by deleting the questions and the paragraph that
follows those questions. Therefore, Mr. Foster maintains that the instruction
could be given as follows:
The Government must prove beyond a reasonable doubt that the Defendant
was the person who committed the crime.
If a witness identifies a Defendant as the person who committed the crime,
you must decide whether the witness is telling the truth. But even if you
believe the witness is telling the truth, you must still decide how accurate
the identification is.
After examining all the evidence, if you have a reasonable doubt that the
Defendant was the person who committed the crime, you must find the
Defendant not guilty.
Government’s Objection: The government objects to this instruction because
it does not fit within the circumstances of this case. This instruction applies
in cases where a defendant is identified through a photographic line-up, live
lineup, or other pre-trial identification procedure. See United States v. King,
751 F.3d 1268, 1272–73, 1276 (11th Cir. 2014) (pattern instruction S3 given in
case where several witnesses identified the defendant in photo lineups);
United States v. Owens, 445 F. App’x 209, 217–18 (11th Cir. 2011) (pattern
instruction S3 given in case where the defendant was identified through a
photo lineup).
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This is not a case in which a discrete crime (like a robbery) was observed by
witnesses who later identified a defendant through an identification
procedure. Thus, the jury will be confused if instructed to consider whether
(1) “the witness ha[d] an adequate opportunity to observe the person at the
time the crime was committed”; (2) “how much time . . . the witness ha[d] to
observe the person”; (3) “how close . . . the witness” was; and (4) whether
“anything affect[ed] the witness’s ability to see.” Those concepts about a
witness’s observation of a crime have no application to the type of fraud crime
at issue in this trial. Instead, the Court’s instructions regarding credibility of
witnesses and reasonable doubt are sufficient. See United States v. Martinez,
763 F.2d 1297, 1304–05 (11th Cir. 1985) (finding no error in failure to give
instruction regarding identification because “the court’s jury instructions
concerning reasonable doubt and credibility of witnesses adequately covered
the matter of identification”).
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 24 of 59
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REQUEST TO CHARGE NO. 12A (to be read only if any witness is
impeached by inconsistent statements and no defendant testifies) (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B6.1.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 25 of 59
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REQUEST TO CHARGE NO. 12B (to be read only if any witness is
impeached by inconsistent statements or by a felony conviction and no
defendant testifies) (Agreed):
Impeachment of Witnesses Because of
Inconsistent Statements or Felony
Conviction
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.
To decide whether you believe a witness, you may consider the fact that
the witness has been convicted of a felony or a crime involving dishonesty or
a false statement.
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B6.2.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 26 of 59
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REQUEST TO CHARGE NO. 12C (to be read only if any witness is
impeached by inconsistent statements and a defendant testifies) (Agreed):
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 [insert
name] did testify, you should decide whether you believe the Defendant
[insert name]’s testimony in the same way as that of any other witness.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B6.3.
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REQUEST TO CHARGE NO. 12D (to be read only if any witness is
impeached by inconsistent statements or by a felony conviction and a
defendant testifies) (Agreed):
Impeachment of Witnesses Because of Inconsistent
Statements or Felony Conviction
(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.
To decide whether you believe a witness, you may consider the fact that
the witness has been convicted of a felony or a crime involving dishonesty or
a false statement.
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 [insert
name] did testify, you should decide whether you believe the Defendant
[insert name]’s testimony in the same way as that of any other witness.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B6.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 28 of 59
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REQUEST TO CHARGE NO. 13 (to be read only if any witness is
impeached by bad reputation for, or opinion about, truthfulness)
(Agreed):
Impeachment of Witness Because of Bad Reputation for
(or Opinion about) Truthfulness
There may also be evidence tending to show that a witness has a bad
reputation for truthfulness in the community where the witness resides, or
has recently resided; or that others have a bad opinion about the witness’s
truthfulness.
You may consider reputation and community opinion in deciding
whether to believe or disbelieve a witness.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B6.7.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 29 of 59
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REQUEST TO CHARGE NO. 14 (to be read only if character evidence is
presented as to any defendant) (Agreed):
Character Evidence
Evidence of a defendant’s character traits may create a reasonable
doubt.
You should consider testimony that a defendant is an honest and law-
abiding citizen along with all the other evidence to decide whether the
Government has proved beyond a reasonable doubt that the Defendant
committed the offense.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S12.
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REQUEST TO CHARGE NO. 15 (to be read only if co-defendant with plea
agreement testifies) (Agreed):
Testimony of Accomplice or Codefendant with Plea Agreement
You must consider some witnesses’ testimony with more caution than
others.
In this case, the Government has made a plea agreement with a
Codefendant in exchange for [his] or [her] testimony. Such “plea bargaining,”
as it’s called, provides for the possibility of a lesser sentence than the
Codefendant would normally face. Plea bargaining is lawful and proper, and
the rules of this court expressly provide for it.
But a witness who hopes to gain more favorable treatment may have a
reason to make a false statement in order to strike a good bargain with the
Government.
So while a witness of that kind may be entirely truthful when testifying,
you should consider that testimony with more caution than the testimony of
other witnesses.
And the fact that a witness has pleaded guilty to an offense isn’t
evidence of the guilt of any other person.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S1.2.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 31 of 59
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REQUEST TO CHARGE NO. 16 (to be read only if 404(b) evidence is
admitted) (Agreed):
Similar Acts Evidence
(Rule 404(b), Fed. R. Evid.)
During the trial, you heard evidence of acts allegedly done by the
Defendants [insert names] on other occasions that may be similar to acts with
which thosee Defendants areis 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].
You should not consider the evidence of acts allegedly done by any
Defendant against any other Defendant.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S4.1.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 32 of 59
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REQUEST TO CHARGE NO. 17 (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S5.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 33 of 59
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REQUEST TO CHARGE NO. 18:
Expert Witness
When scientific, technical or other specialized knowledge might be
helpful, a person who has special training or experience in that field is allowed
to state an opinion about the matter.
But that doesn’t mean you must accept the witness’s opinion. As with
any other witness’s testimony, you must decide for yourself whether to rely
upon the opinion.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B7.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 34 of 59
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REQUEST TO CHARGE NO. 19 (Agreed):
Introduction to Offense Instructions
The indictment charges 48___ separate crimes, called “counts,” against
some or all of the Defendants. Each count has a number. Specifically,
Defendant Foster is charged in counts 1 through 28, counts 30 through 41, and
count 59; Defendant Gaines is charged in counts 6 through 8, count 37, and
counts 44 through 47; Defendant Baptiste is charged in counts 9 through 11,
count 38, and counts 48 through 50; and Defendant Jackson is charged in
counts 46 and 47. You’ll be given a copy of the indictment to refer to during
your deliberations.
[Some of the Ccounts [count number] charges that the Defendants
Gaines, Baptiste, and/or Foster knowingly and willfully conspired to commit
bank fraud and/or wire fraud. [describe alleged object(s) of the conspiracy].]
Other [Ccounts [count numbers] charge that Defendants Jackson,
Gaines, Baptiste, and/or Foster committed what are called “substantive
offenses,” specifically bank fraud, wire fraud, making false statements to a
federally insured financial institution, and/or money laundering [describe
alleged substantive offenses]. I will explain the law governing those
substantive offenses in a moment.]
[But first note that the Defendants who are charged in conspiracy
counts are not charged in those cCounts [conspiracy count number] with
committing a substantive offense – they are charged with conspiring to
commit that offense.]
[I will also give you specific instructions on conspiracy.]
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B8.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 35 of 59
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REQUEST TO CHARGE NO. 20 (Agreed):
Aiding and Abetting; Agency
18 U.S.C. § 2
It’s possible to prove the a Defendant guilty of a crime even without
evidence that the Defendant personally performed every act charged.
Ordinarily, any act a person can do may be done by directing another
person, or “agent.” Or it may be done by acting with or under the direction of
others.
A Defendant “aids and abets” a person if the Defendant intentionally
joins with the person to commit a crime.
A Defendant is criminally responsible for the acts of another person if
the Defendant aids and abets the other person. A Defendant is also
responsible if the Defendant willfully directs or authorizes the acts of an
agent, employee, or other associate.
But finding that a Defendant is criminally responsible for the acts of
another person requires proof that the Defendant intentionally associated
with or participated in the crime – not just proof that the Defendant was
simply present at the scene of a crime or knew about it.
In other words, you must find beyond a reasonable doubt that the
Defendant was a willful participant and not merely a knowing spectator.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S7.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 36 of 59
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REQUEST TO CHARGE NO. 21 (Agreed):
Bank Fraud
18 U.S.C. § 1344
It’s a Federal crime to carry out or attempt to carry out a scheme to
defraud a financial institution, or to get money or property owned or
controlled by a financial institution by using false pretenses, representations,
or promises.
EachThe Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
the Defendant knowingly carried out or attempted to carry
out a scheme [to defraud a financial institution] or [to get
money, assets, or other property from a financial
institution] by using false or fraudulent pretenses,
representations, or promises about a material fact;
the false or fraudulent pretenses, representations, or
promises were material;
the Defendant intended to defraud [the financial
institution] [someone]; and
the
financial
institution
was
federally
[insured]
[chartered].
A “scheme to defraud” includes 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 relating to a material fact.
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 as to the truth and makes with intent to defraud. A statement or
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 37 of 59
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representation may be “false” or “fraudulent” when it’s 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 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 doesn’t 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 alleged scheme actually succeeded in defrauding
anyone. What must be proved beyond a reasonable doubt is that the
Defendant knowingly attempted or carried out a scheme substantially similar
to the one alleged in the indictment.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O52.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 38 of 59
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REQUEST TO CHARGE NO. 22 (Agreed):
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 Each Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
the Defendant knowingly devised or participated in a
scheme to defraud someone by using false or fraudulent
pretenses, representations, or promises;
the false pretenses, representations, or promises were
about a material fact;
the Defendant acted with the intent to defraud; and
the Defendant transmitted or caused to be transmitted by
[wire] [radio] [television] 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.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 39 of 59
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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 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] [radio]
[television] was itself false or fraudulent; or that using the [wire] [radio]
[television] 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] [radio] [television]. And it doesn’t have to prove that the
alleged scheme actually succeeded in defrauding anyone.
To “use” interstate [wire] [radio] [television] 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] [radio] [television]
communications as part of the scheme to defraud is a separate crime.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O51.
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REQUEST TO CHARGE NO. 23 (Agreed):
Conspiracy to Commit Bank Fraud and/or Wire[Mail] 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 mail bank fraud or wire 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 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.
EachThe Defendant can be found guilty of this conspiracy offense only
if all the following facts are proved beyond a reasonable doubt:
two or more persons, in some way or manner, agreed to try
to accomplish a common and unlawful plan to commit
mail bank fraud or wire fraud, as charged in the
indictment; and
the Defendant knew the unlawful purpose of the plan and
willfully 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 of the other alleged
conspirators.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 41 of 59
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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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O54.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 42 of 59
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REQUEST TO CHARGE NO. 24 (Agreed):
Multiple Objects of a Conspiracy –
for use with General Conspiracy Charge 13.1
In this case, some of the conspiracy counts in the indictment allege
that a Defendantregarding the alleged conspiracy, the indictment charges
that the Defendants conspired to commit bank fraud[first crime] and to
commit wire fraud[second crime]. In other words, in some counts, the
Defendants are charged with conspiring to commit two separate substantive
crimes.
The Government does not have to prove that athe Defendant willfully
conspired to commit both crimes. It is sufficient if the Government proves
beyond a reasonable doubt that athe Defendant willfully conspired to
commit one of those crimes. But to return a verdict of guilty, you must all
agree on which of the two crimes the Defendant conspired to commit.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O13.2.
Although this instruction refers to the general conspiracy charge, 18 U.S.C.
§ 371, the same principle applies to conspiracies charged under 18 U.S.C.
§ 1349. See also Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B8.1.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 43 of 59
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REQUEST TO CHARGE NO. 25 (Agreed):
False Statement to a Federally Insured Institution
18 U.S.C. § 1014
It’s a Federal crime to knowingly make a false statement or report to a
federally insured financial institution.
The Each Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
the Defendant made a false statement or report;
– or –
(when the alleged wrongdoing is overstating the value of an
asset or income)
[
the Defendant willfully overvalued land property or
security;]
the Defendant did so knowingly and with intent to
influence an action of the institution described in the
indictment
regarding
an
application,
advance,
commitment, or loan, or a change or extension to any of
those; and
the deposits of the institution were insured by the Federal
Deposit Insurance Corporation.
A statement or report is “false” if it is untrue when made and the person
making it knows it is untrue.
The heart of the crime is the attempt to influence the action of the
institution by [knowingly] [willfully] making a false statement or report. The
Government does not have to prove that the institution was actually
influenced or misled.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O39.
The word “willfully” was deleted because Defendants have been charged
with “knowingly mak[ing] any false statement or report,” not with “willfully
overvalu[ing] any land, property or security.” See 18 U.S.C. § 1014.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 44 of 59
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REQUEST TO CHARGE NO. 26 (Agreed with Partial Government
Objection):
Money Laundering: Concealing Proceeds
of Specified Unlawful Activity
or
Avoiding Transaction Reporting Requirement
18 U.S.C. § 1956(B)and
It’s a Federal crime to knowingly engage in certain kinds of financial
transactions commonly known as money laundering.
EachThe Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
the Defendant knowingly conducted or tried to conduct a
financial transactions;
the Defendant knew that the money or property involved
in the transaction were the proceeds of some kind of
unlawful activity;
money or property did come from a specifiedn unlawful
activity, specifically wire fraud[describe the specified
unlawful activity alleged in the indictment]; and
[
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
[
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.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 45 of 59
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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.]
or
[a transaction that in any way or to any degree affects interstate or foreign
commerce by involving the transfer of title to any real property, vehicle,
vessel or aircraft.]
or
[a transaction involving the use of a financial institution that is involved
in interstate or foreign commerce, or whose activities affect, interstate or
foreign commerce in any way or degree. The phrase “financial institution”
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 46 of 59
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includes a bank insured by the Federal Deposit Insurance Corporation[give
appropriate reference from 31 U.S.C. § 5312or the regulations thereunder]].
“Interstate or foreign commerce” means trade and other business
activity between people or businesses in at least two states or between people
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 wire fraud[describe the
specified unlawful activity listed in subsection of the statute and alleged in
the indictment].
To prove the element of concealment, the government must prove that
the purpose, not merely the effect, was to conceal or disguise the nature,
location, source, ownership, or control of the proceeds. Evidence of
concealment must be substantial. Merely conducting a transaction with
money whose nature has been concealed is not in and of itself a crime.
[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.]
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[A “transaction-reporting requirement” means a legal requirement that
a person who causes or attempts to cause the transportation, mailing, or
shipment of currency [or [description of other reportable instruments from
the indictment]] totaling more than $10,000 at one time from a place inside the
United States to a place outside the United States or from a place outside the
United States to a place inside the United States.]
[A “transaction reporting requirement” means a legal requirement that
a person engaged in a trade or business who in the course of that trade or
business receives currency totaling more than $10,000 in a single transaction
or in two or more related transactions must file a report with the Internal
Revenue Service.]
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, O74.2.
The government objects to the language highlighted in yellow.
Defendant Foster’s Authority: This language is from: Cuellar v. United States,
553 U.S. 550, 567, 128 S.Ct. 1994, 2005 (2008), and United States v. Johnson, 440
F.3d 1286, 1291 (11th Cir. 2006).
Government’s Objection: The Eleventh Circuit’s Pattern Jury Instruction as
to concealment money laundering sufficiently advises the jury as to that
charge. The cases that Foster relies on are more than 15 years old, and Foster
cites no Eleventh Circuit authority holding that Pattern Instruction O74.2 is
insufficient or inaccurate.
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REQUEST TO CHARGE NO. 27 (Agreed):
Conjunctively Charged Counts
Where a statute specifies multiple alternative ways in which an offense
may be committed, the indictment may allege the multiple ways in the
conjunctive, that is, by using the word “and.” If only one of the alternatives
is proved beyond a reasonable doubt, that is sufficient for conviction, so long
as you agree unanimously as to that alternative.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B8.1.
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REQUEST TO CHARGE NO. 28 (Agreed):
Good-Faith Defense
“Good faith” is a complete defense to a charge that requires intent to
defraud. A defendant isn’t required to prove good faith. The Government
must prove intent to defraud beyond a reasonable doubt.
An honestly held opinion or an honestly formed belief cannot be
fraudulent intent – even if the opinion or belief is mistaken. Similarly,
evidence of a mistake in judgment, an error in management, or carelessness
can’t establish fraudulent intent.
But an honest belief that a business venture would ultimately succeed
doesn’t constitute good faith if the Defendant intended to deceive others by
making representations the Defendant knew to be false or fraudulent.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, S17.
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REQUEST TO CHARGE NO. 29 (Agreed):
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] or [her] conduct may be violating.]
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B9.1A.
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REQUEST TO CHARGE NO. 30 (Objection by all Defendants):
Deliberate Ignorance as Proof of Knowledge
If a Defendant’s knowledge of a fact is an essential part of a crime, it’s
enough that the Defendant was aware of a high probability that the fact
existed – unless the Defendant actually believed the fact didn’t exist.
“Deliberate avoidance of positive knowledge” – which is the equivalent
of knowledge – occurs, for example, if a defendant 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 defendant knew about the possession of a
controlled substance if you determine beyond a reasonable doubt that the
defendant actually knew about the controlled substance, or had every reason
to know but deliberately closed [his] or [her] eyes.
But I must emphasize that negligence, carelessness, or foolishness isn’t
enough to prove that the Defendant knew about the possession of the
controlled substance.
Government’s Authority: Eleventh Circuit Pattern Jury Instruction,
Criminal Cases, S8. This instruction is appropriate “when there are facts
supporting the ‘inference that the defendant was aware of a high probability
of the existence of the fact in question and purposely contrived to avoid
learning all of the facts in order to have a defense in the event of a
subsequent prosecution.’” United States v. Maitre, 898 F.3d 1151, 1157 (11th
Cir. 2018) (citation omitted). Thus, for example, the Eleventh Circuit
affirmed the district court’s deliberate ignorance instruction where “the
record contain[ed] evidence that would have allowed the jury to conclude
that [the defendant] deliberately put his head in the sand” and “the jury
could have chosen not to credit the evidence supporting the notion that [the
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defendant] had actual knowledge.” United States v. Verdeza, 69 F.4th 780,
792–93 (11th Cir. 2023). It is appropriate to give the deliberate ignorance
instruction “when the evidence could support both actual knowledge or
deliberate ignorance.” Maitre, 898 F.3d at 1157 (emphases added); Verdeza,
69 F.4th at 793 (same).
In addition, given that the defendants have asked the Court to give a good
faith instruction, the evidence relevant to good faith almost certainly would
likewise justify issuance of the deliberate ignorance instruction.
All Defendants’ Objection: All defendants object to the giving of a
deliberate ignorance instruction. If it is applicable to other defendants, then
the instructions should specify which defendants it applies to.
“A district court should not instruct a jury regarding deliberate ignorance
‘when the evidence only points to either actual knowledge or no knowledge
on the part of the defendant.’”. United States v. Schlei, 122 F.3d 944, 973 (11th
Cir. 1997) (quoting 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)).
Defendant Foster’s Additional Objection: Regarding Mr. Foster, to our
knowledge, the government is claiming that Mr. Foster directly prepared
some of the fraudulent documents submitted in support of the PPP loans.
That does not support an instruction for deliberate ignorance. To be clear,
we have not requested the good-faith instruction, but do not oppose its
being given as to the other defendants.
Defendant Jackson’s Additional Objection: Defendant Carla Jackson
objects to the use of this instruction in her case. In United States v. Rivera, 944
F.2d 1563, 1570–1571 (11th Cir. 1991), the Court noted that “[other] courts
which have adopted deliberate ignorance instructions have properly
cautioned that such a charge should not be given in every case in which a
defendant claims lack of knowledge, ‘but only in those comparatively rare
cases where . . . there are facts that point in the direction of deliberate
ignorance.” The Rivera Court also noted that “a district court should not
instruct the jury on ‘deliberate ignorance’ when the relevant evidence only
points to actual knowledge, rather than deliberate avoidance.” Id. Defendant
additionally objects to the use of this instruction as it would apply to the
facts of this case.
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Defendant Baptiste’s Additional Objection: Defendant Baptiste also
objects for all the reasons set forth above.
Defendant Gaines’s Additional Objection: Defendant John Gaines also
objects for the same reasons.
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REQUEST TO CHARGE NO. 31 (Agreed):
Caution: Punishment
(Multiple Defendants, Multiple Counts)
Each count of the indictment charges a separate crime against one or
more of the Defendants. You must consider each crime and the evidence
relating to it separately. And you must consider the case of each Defendant
separately and individually. If you find a Defendant guilty of one crime, that
must not affect your verdict for any other crime or any other Defendant.
I caution you that each 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 each Defendant is guilty or not guilty of those specific crimes.
You must never consider punishment in any way to decide whether a
Defendant is guilty. If you find a Defendant guilty, the punishment is for the
Judge alone to decide later.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B10.4.
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REQUEST TO CHARGE NO. 32:
Anonymized Indictment
The indictment identifies various financial institutions, banks, and
other entities using anonymized terms such as Financial Institution 1, Bank 1,
etc. The anonymized terms correspond to the following entities:
Designation in Indictment
Entity
Financial Institution 1
Cross River Bank
Financial Institution 2
Celtic Bank
Financial Institution 3
Customers Bank
Financial Institution 4
Harvest Small Business Finance
Financial Institution 5
CDC Small Business Finance
Company 1
Bluevine Inc.
Bank 1
JPMorgan Chase Bank
Bank 3
PNC Bank
Bank 4
Bank of America
Bank 5
Wells Fargo Bank
Government’s Authority: The jury must be informed which entities
correspond to the anonymized entities listed in the indictment so that it can
decide whether the government has proven the conduct charged in the
indictment. For example, count 46 charges Defendants Gaines and Jackson
with a money laundering transaction based on a wire transfer from “Bank 1
account ending in 6500” to “Bank 5 account ending in 1207.” The jury needs
to know the identities of Bank 1 and Bank 5 to determine whether the
evidence at trial proved that Gaines and Jackson are guilty of money
laundering as to that transaction.
Defendant Foster’s Objection: Mr. Foster objects to any instruction that
amounts to instructing the jury on facts that it has to find in order to convict
the defendants. Roe v. United States, 287 F.2d 435, 440-41 (5th Cir. 1961)
(“[N]o fact, not even an undisputed fact, may be determined by the Judge.
The plea of not guilty puts all in issue, even the most patent truths. In our
federal system, the Trial Court may never instruct a verdict either in whole
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or in part.”); United States v. Goetz, 746 F.2d 705, 708 (11th Cir. 1984) (the
district court “may not decide a disputed fact and instruct a verdict in whole
or in part.”). This issue is one of the government’s own making, and it can
address it through the presentation of evidence.
Case 1:20-cr-00296-JPB-CMS Document 840 Filed 01/23/24 Page 57 of 59
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REQUEST TO CHARGE NO. 33 (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B11.
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REQUEST TO CHARGE NO. 34 (Agreed):
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.
Authority: Eleventh Circuit Pattern Jury Instruction, Criminal Cases, B12.
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