Court filing
Proposed Jury Instructions by Eric Dean Sheppard — USA v. SHEPPARD (Dkt. 99)
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2023-09-19 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 99 · 2023-09-19 · Docket on CourtListener
Summary
A 34-page set of proposed jury instructions filed by the defendant in USA v. Sheppard, Case No. 22-20290-CR-BLOOM(s), in the U.S. District Court for the Southern District of Florida, entered on the docket September 19, 2023 as Document 99. The covering request is made under Rule 30(a) of the Federal Rules of Criminal Procedure and reserves the right to propose further instructions based on the trial testimony and evidence. The instructions cover the jury’s duty to follow the law, the presumption of innocence, the position of a defendant who does not testify, the weighing and impeachment of witness testimony, and the requirement of a separate decision on each count. They state that Counts 1 through 9 charge wire fraud and Counts 10 through 14 charge aggravated identity theft, and end with supplemental instructions for forfeiture deliberations.
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Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-20290-CR-BLOOM(s)
UNITED STATES OF AMERICA
vs.
ERIC DEAN SHEPPARD,
Defendant.
_____________________________________/
DEFENDANT’S PROPOSED JURY INSTRUCTIONS
Defendant Eric Dean Sheppard, pursuant to Rule 30(a) of the Federal Rules of Criminal
Procedure, respectfully submits the following proposed jury instructions and requests that they be
given at the trial in the above-captioned case. The Defendant respectfully requests that it be
permitted to propose additional instructions should they become appropriate based on the trial
testimony and evidence. Pursuant to Rule 30(b) of the Federal Rules of Criminal Procedure, the
Defendant requests that it be informed prior to closing arguments which instructions the Court will
accept and which it will reject.
Dated: September 19, 2023
Respectfully submitted,
NELSON MULLINS
One Biscayne Tower, 21st Floor
2 S. Biscayne Boulevard
Miami, FL 33131
Telephone: 305.373.9400
By: /s/ Jayne C. Weintraub
Jayne C. Weintraub
Florida Bar No. 320382
Jonathan Etra
Florida Bar No. 686905
Christopher Cavallo
Florida Bar No. 0092305
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 1 of 34
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 19, 2023 the foregoing document was filed via
the Court’s CM/ECF system to all counsel of record.
/s/ Jayne C. Weintraub
Jayne C. Weintraub
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 2 of 34
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-20290-CR-BLOOM(s)
UNITED STATES OF AMERICA
vs.
ERIC DEAN SHEPPARD,
Defendant.
_____________________________________/
JURY INSTRUCTIONS
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
each Defendant guilty beyond a reasonable doubt.
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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 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.
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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.\
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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.
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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.
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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?
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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.
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B6.5
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 did testify, you should
decide whether you believe the Defendant’s testimony in the same way as that of any other
witness.
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B6.7
Impeachment of Witness Because of Bad Reputation for
(or Opinion about) Truthfulness
(May Be Used With 6.1- 6.6)
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.
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B7
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.
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B8
Introduction to Offense Instructions
The Superseding Indictment charges 14 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.
Counts 1 through 14 charge that Defendants committed what are called "substantive
offenses," specifically, Counts 1 through 9 charge the Defendant with Wire Fraud and Counts
10 through 14 charge the Defendant with Aggravated Identity Theft.
I will explain the law governing those substantive offenses in a moment.
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Bl0.2
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.
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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.
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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.
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Defendant’s Special Requested Instruction on
Aggravated Identity Theft
18 U.S.C. § 1028A(a)(l)
040.3 Modified
It's a Federal crime to commit aggravated identity theft.
The Defendant can be found guilty of aggravated identity theft only if all the following
facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly transferred, possessed, or used another person's means
of identification;
(2) without lawful authority; and
(3) during and in relation to wire fraud, as charged in Counts 2, 3, 6, 8 and 9 of the
Superseding Indictment, meaning the unauthorized use of the identity was at the
“crux” of that wire fraud crime.1
A "means of identification" is any name or number used, alone or together with any
other information, to identify a specific person, including a name, social security number,
date of birth, officially issued driver's license or identification number, alien registration
number, passport number, employer or taxpayer identification number, or electronic
identification number or routing code. It can also include a fingerprint, voice print or
other biometric data.
The Government must prove that the Defendant knew that the means of identification,
in fact, belonged to another actual person, and not a fictitious person.
The Government must prove that the Defendant knowingly transferred, possessed,
or used another person's identity "without lawful authority." The Government does not have
1 See United States v. Dubin, 143. S. Ct. 1557 (2023).
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to prove that the Defendant stole the means of identification. The Government is required
to prove the Defendant transferred, possessed, or used the other person's means of
identification for an unlawful or illegitimate purpose.
The Government also must prove that the means of identification was possessed
and “used” "during and in relation to" the [the eligible felony alleged in the indictment],
meaning that the misuse of another’s means of identification was at the crux of what makes
[the eligible felony alleged in the indictment] criminal, rather than merely an ancillary
feature of [that crime].2 This requires more than a finding the [the eligible felony alleged
in the indictment] could not have been committed without the misuse of the means of the
means of identification.3 It means that that the unauthorized use of the means of identity
must also be the “key mover4 in commission of [the eligible felony alleged in the indictment]
and central to its success.5
2 Dubin, 143 S.Ct. at 1563 (“The text and context of the statute do not support [the Government’s]
boundless interpretation. Instead, § 1028A(a)(1) is violated when the defendant's misuse of another
person's means of identification is at the crux of what makes the underlying offense criminal, rather
than merely an ancillary feature of a billing method”.)
3 Dubin, 143 S.Ct. at 1573 (“To be clear, being at the crux of the criminality requires more than a
causal relationship, such as “ ‘facilitation’ ” of the offense or being a but-for cause of its “success.”
Post, at 1575, 1576 – 1577 (GORSUCH, J., concurring in judgment)).
4 Dubin, 143 S.Ct. at 1568 (quoted in United States v. Gladden, ___ F.4th ___, 2023 WL 5281836
(11th Cir. Aug. 17, 2023).
5 United States v. Gladden, ___ F.4th ___, 2023 WL 5281836 (11th Cir. Aug. 17, 2023).
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Defendant’s Special Requested Instruction on
Wire Fraud
18 U.S.C. § 1343
O51 Modified
It's a Federal crime to use interstate wire 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 “scheme to defraud” is not a scheme that is intended to
deceive someone only of information needed to make discretionary decisions about the
use of money or property.6 Rather, a scheme to defraud is a scheme that is intended to
6 Ciminelli v. United States, 598 U.S. 306, 308 (2023) (Because “potentially valuable economic
information” “necessary to make discretionary economic decisions” is not a traditional property
interest, we now hold that the right-to-control theory is not a valid basis for liability under §
1343.”). Id. at 316 (“In sum, the wire fraud statute reaches only traditional property interests. The
right to valuable economic information needed to make discretionary economic decisions is not a
traditional property interest. Accordingly, the right-to-control theory cannot form the basis for a
conviction under the federal fraud statutes.”)
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cause an economic injury or loss on the alleged victim.7
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 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
7 United States v. Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016), as revised (Oct. 3, 2016),
opinion modified on denial of reh'g, 838 F.3d 1168 (11th Cir. 2016) (“to defraud, one must intend
to use deception to cause some injury”); United States v. Kachkar, 19-12685, 2022 WL 2704358,
at *4 (11th Cir. July 12, 2022) (In Takhalov, “[w]e also stated that one can ‘scheme to defraud’
under Section 1343 only if he ‘intend[s] to harm the victim.’ And we reasoned that a defendant
displays such intent if he ‘lies about the nature of the bargain itself,’ usually by misrepresenting
‘the price’ or ‘characteristics of the good,’ so that the victim does not receive ‘what he bargained
for.’”).
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 20 of 34
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.
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 21 of 34
Pl
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.
What is not evidence:
Certain things are not evidence and must not be considered. I will list them for you
now:
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• 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.
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
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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.
Second, the burden of proof is on the government until the very end of the case. The
defendant has no burden to prove his 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:
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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.
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
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 25 of 34
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 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
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 26 of 34
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 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.
Course of the trial:
The trial will now begin. First, the government will make an openmg 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.
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 wishes,
present witnesses whom the government may cross-examine. After all the evidence is in,
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 27 of 34
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.
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 28 of 34
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.
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 29 of 34
S17
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.
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 30 of 34
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.
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 31 of 34
T6
Forfeiture Proceedings
(To be given before supplemental
evidentiary proceedings or supplemental
arguments of counsel)
Members Of The Jury: Your verdict in this case doesn't complete your jury service as it
would in most cases because there is another matter you must now consider.
You must decide whether the Defendant should forfeit certain money or property to the
United States as a part of the penalty for the crime charged in Count ______ of the indictment.
In a portion of the indictment not previously discussed or disclosed to you, it is alleged that
the Defendant got certain money or property from committing the offense charged in Count _____
. In view of your verdict finding the Defendant guilty of that offense, you must also decide whether
the money or property should be forfeited to the United States. To "forfeit" a thing is to be divested
or deprived of the ownership of it as a part of the punishment allowed by the law for certain
criminal offenses.
To decide whether money or property should be forfeited, you should consider all the
evidence you have already heard plus any additional evidence that will be presented to you after
these instructions.
A copy of the forfeiture allegations of the indictment will be given to you to consider
during your supplemental deliberations. It describes in particular the money or property
allegedly subject to forfeiture to the United States.
[List or summarize the items subject to forfeiture]
To be entitled to the forfeiture of any of those items, the Government must have proved
[beyond a reasonable doubt] [by a preponderance of the evidence]:
Option No. 1
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 32 of 34
(Forfeitures under 18 USC§ 982)
First: That the [money or] property to be forfeited constitutes the proceeds
the Defendant obtained directly or indirectly as the
result of the crime charged in Count
of the indictment;
OR
Second: That the money or property to be forfeited [was derived from]
[traceable to] the proceeds the Defendant obtained directly or
indirectly as the result of the crime charged in Count
of the
indictment. [Before you can find that the Defendant must forfeit any
property under either of those standards, you must unanimously agree
upon which of the two standards should be applied in forfeiting a
particular asset.]
Proof "beyond a reasonable doubt" has the same meaning that I explained to you in
my instructions at the end of the trial.
OR
A "preponderance of the evidence" simply means an amount of evidence that is
enough to persuade you that a claim or contention is more likely true than not true.
To be "derived" from something means that the money or property under
consideration must have been formed or developed out of the original source so as to be
directly descended from that source.
To be "traceable" to something means that the money or property under
consideration must have followed an ascertainable course or trail in successive stages of
development or progress from the original source.
To "facilitate" the commission of an offense means to aid, promote, advance, or
make easier, the commission of the act or acts constituting the offense. There must be more
than an incidental connection between the property and the offense for you to find that the
Case 1:22-cr-20290-BB Document 99 Entered on FLSD Docket 09/19/2023 Page 33 of 34
property facilitated, or was intended to facilitate, committing the offense. But the property
doesn't have to be essential to committing the offense, nor does the property have to have
been used exclusively to commit the offense or as the exclusive means of committing the
offense. Property used to facilitate an offense can be in virtually any form.
While deliberating concerning the issue of forfeiture you must not reexamine your
previous determination regarding the Defendant's guilt. But all the instructions previously
given to you concerning your consideration of the evidence, the credibility of the witnesses,
your duty to deliberate together, your duty to base your verdict solely on the evidence
without prejudice, bias, or sympathy, and the necessity of a unanimous verdict, will
continue to apply during these supplemental deliberations.
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