Court filing
Indictment - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-06-16 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 267 · 2022-06-16 · Docket on CourtListener
Summary
The government's proposed jury instructions in United States v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia, filed June 16, 2022 as Document 267. The general instructions cover the presumption of innocence, reasonable doubt, direct and circumstantial evidence, credibility of witnesses and the duty to deliberate. Others address testimony of a codefendant with a plea agreement, aiding and abetting under 18 U.S.C. § 2, deliberate ignorance as proof of knowledge and the good-faith defense. The offense instructions include conspiracy to commit wire fraud under 18 U.S.C. § 1349 and definitions of material fact and intent to defraud. The 20-page filing is signed by Assistant United States Attorneys John Russell Phillips and Bernita B. Malloy.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA v. DANIEL ERIC JAY CRIMINAL INDICTMENT 1:20-CR-228-MHC-JKL SECOND SUPERSEDING Government’s Proposed Jury Instructions The United States of America hereby submits its proposed jury instructions. Respectfully submitted, RYAN K. BUCHANAN United States Attorney /s/ John Russell Phillips JOHN RUSSELL PHILLIPS Assistant United States Attorney Georgia Bar Number 576335 /s/ Bernita B. Malloy BERNITA B. MALLOY Assistant United States Attorney Georgia Bar Number 718905 600 U.S. Courthouse 75 Ted Turner Drive, SW Atlanta, GA 30303 (404) 581-6000 Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 1 of 20 Page 2 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 2 of 20 Page 3 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 3 of 20 Page 4 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 4 of 20 Page 5 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 5 of 20 Page 6 of 20 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? Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 6 of 20 Page 7 of 20 B9.1A On or About; Knowingly; Willfully—Generally You’ll see that the indictment charges that a crime was committed “on or about” a certain date. The Government doesn’t have to prove that the crime occurred on an exact date. The Government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged. The word “knowingly” means that an act was done voluntarily and intentionally and not because of a mistake or by accident. The word “willfully” means that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law. While a person must have acted with the intent to do something the law forbids before you can find that the person acted “willfully,” the person need not be aware of the specific law or rule that his conduct may be violating. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 7 of 20 Page 8 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 8 of 20 Page 9 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 9 of 20 Page 10 of 20 S1.2 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 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 10 of 20 Page 11 of 20 S7 Aiding and Abetting; Agency 18 U.S.C. § 2 It’s possible to prove the 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 11 of 20 Page 12 of 20 Deliberate Ignorance as Proof of Knowledge Now, I want to charge you on something called deliberate ignorance. 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 did not exist. So, with respect to the issue of the defendant’s knowledge in this case, if you find beyond a reasonable doubt that the defendant was presented with facts that put the defendant on notice that criminal activity was occurring, but he deliberately and consciously tried to avoid learning the facts to show that his representations were false or fraudulent in order to be able to say, if apprehended, that he did not know of the fraud, you may treat such deliberate avoidance of positive knowledge as the equivalent of knowledge. I must emphasize, however, that the requisite proof of knowledge on the part of the defendant cannot be established by merely demonstrating that he was negligent, careless, or foolish.1 1 United States v. Hardwick, 1:16-cr-00065-ELR (Doc. 311 at 3443-3444) (J. Ross), aff’d sub nom. United States v. Maurya, 25 F.4th 829, 842 (11th Cir. 2022) (“District courts should not instruct the jury on deliberate ignorance when the relevant evidence points only to actual knowledge, rather than deliberate avoidance. But instructing the jury on deliberate ignorance is harmless error where the jury was also instructed and could have convicted on an alternative, sufficiently supported theory of actual knowledge.”) (citations and quotation marks omitted); see also United States v. Jensen, 573 F. App’x 863, 874-75 (11th Cir. 2014) (“A district court should only instruct a jury on deliberate ignorance when the facts support 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.”) (citations, quotation marks, and brackets omitted). Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 12 of 20 Page 13 of 20 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 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 13 of 20 Page 14 of 20 O54 Conspiracy to Commit Wire 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 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. The 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 fraud, as charged in the indictment; and the Defendant knew the unlawful purpose of the plan and willfully joined in it. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 14 of 20 Page 15 of 20 A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities all of the other alleged conspirators. If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan—and willfully joined in the plan on at least one occasion—that’s sufficient for you to find the Defendant guilty. But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. Also, a person who doesn’t know about a conspiracy but happens to act in a way that advances some purpose of one doesn’t automatically become a conspirator. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 15 of 20 Page 16 of 20 O51 Wire Fraud 18 U.S.C. § 1343 It’s a Federal crime to use interstate wire, radio, or television communications to carry out a scheme to defraud someone else. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: 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 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-00228-MHC-JKL Document 267 Filed 06/16/22 Page 16 of 20 Page 17 of 20 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 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 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 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 17 of 20 Page 18 of 20 O52 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. The 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 to get money 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; and the financial institution was federally insured. 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 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 18 of 20 Page 19 of 20 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. Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 19 of 20 Page 20 of 20 CERTIFICATE OF SERVICE I hereby certify that, on June 16, 2022, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system. JOHN RUSSELL PHILLIPS ASSISTANT UNITED STATES ATTORNEY GEORGIA BAR NO. 576335 600 U.S. Courthouse 75 Ted Turner Drive, SW Atlanta, GA 30303 (404) 581-6000 Case 1:20-cr-00228-MHC-JKL Document 267 Filed 06/16/22 Page 20 of 20
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