Court filing
Indictment - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-07-05 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 280 · 2022-07-05 · Docket on CourtListener
Summary
Defendant's Proposed Jury Instructions filed by Daniel Eric Jay in United States of America v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia, on July 5, 2022 as Document 280. Through counsel L. Burton Finlayson, Jay submits proposed instructions numbered 1-26 and asks permission to submit more as the evidence proceeds, including a charge on the theory of defense. Request to Charge No. 1 sets out preliminary instructions on the jury's duty, what is and is not evidence, witness credibility, the presumption of innocence and juror conduct, including a bar on researching the case online. Requests No. 2 and No. 3 cover the duty to follow instructions and the presumption of innocence, with annotations citing cases such as In re Winship. The 53-page filing closes with a certificate of service on the Assistant United States Attorney.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
CASE NO. 1:20 CR 228-MHC
-vs-
DANIEL ERIC JAY
DEFENDANT’S PROPOSED JURY INSTRUCTIONS
COMES NOW DANIEL ERIC JAY, by and through the undersigned
counsel and submits the following proposed jury instructions, numbers 1-26.
The Defendant seek permission to submit additional requests as the evidence
proceeds and the need for additional, alternative, or modified instructions is
revealed, including, but not limited to the requested charge on the theory of
defense. United States v. Opdahl, 930 F.2d 1530 (11th Cir. 1991).
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DAN JAY’S REQUEST TOCHARGE NO. 1
P1 Preliminary Instructions – Criminal Cases
Members of the Jury: Now that you have been sworn, I need to explain some
basic principles about a criminal trial and your duty as jurors. These are
preliminary instructions. At the end of the trial, I will give you more detailed
instructions. Duty of jury: It will be your duty to decide what happened so
you can determine whether the defendant is guilty or not guilty of the crime
charged in the indictment. At the end of the trial, I will explain the law that
you must follow to reach your verdict. You must follow the law as I explain it
to you even if you do not agree with the law. What is evidence: You must
decide the case solely on the evidence presented here in the courtroom.
Evidence can come in many forms. It can be testimony about what someone
saw or heard or smelled. It can be an exhibit admitted into evidence. It can be
someone’s opinion. Some evidence proves a fact indirectly, such as a witness
who saw wet grass outside and people walking into the courthouse carrying
wet umbrellas. Indirect evidence, sometimes called circumstantial evidence, is
simply a chain of circumstances that proves a fact. As far as the law is
concerned, it makes no difference whether evidence is direct or indirect. You
may choose to believe or disbelieve either kind and should give every piece of
evidence whatever weight you think it deserves. What is not evidence: Certain
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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
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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 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
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• 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] [her] innocence or
to present any evidence, or to testify. Since the defendant has the right to
remain silent and may choose whether to testify, you cannot legally put any
weight on a defendant’s choice not to testify. It is not evidence. Third, the
government must prove the defendant’s guilt beyond a reasonable doubt. I will
give you further instructions on this point later, but bear in mind that the level
of proof required is high. Conduct of the jury: Our law requires jurors to
follow certain instructions regarding their personal conduct in order to help
assure a just and fair trial. I will now give you those instructions:
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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
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other means or source. In this age of instant electronic communication and
research, I want to emphasize that in addition to not talking face to face with
anyone about the case, you must not communicate with anyone about the case
by any other means, including by telephone, text messages, email, Internet
chat, chat rooms, blogs, or social-networking websites and apps such as
Facebook, Instagram, Snapchat, YouTube, or Twitter. You may not use any
similar technology of social media, even if I have not specifically mentioned it
here. You must not provide any information about the case to anyone by any
means whatsoever, and that includes posting information about the case, or
what you are doing in the case, on any device or Internet site, including blogs,
chat rooms, social websites, or any other means. You also must not use
Google or otherwise search for any information about the case, or the law that
applies to the case, or the people involved in the case, including the defendant,
the witnesses, the lawyers, or the judge. It is important that you understand
why these rules exist and why they are so important: Our law does not permit
jurors to talk with anyone else about the case, or to permit anyone to talk to
them about the case, because only jurors are 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,
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because premature discussions can lead to a premature final decision. Our law
also does not permit you to visit a place discussed in the testimony. First, you
can’t be sure that the place is in the same condition as it was on the day in
question. Second, even if it were in the same condition, once you go to a place
discussed in the testimony to evaluate the evidence in light of what you see,
you become a witness, not a juror. As a witness, you may now have a
mistaken view of the scene that neither party may have a chance to correct.
That is not fair.
Finally, our law requires that you not read or listen to any news accounts of
the case, and that you not attempt to research any fact, issue, or law related to
the case. Your decision must be based solely on the testimony and other
evidence presented in this courtroom. Also, the law often uses words and
phrases in special ways, so it’s important that any definitions you hear come
only from me, and not from any other source. It wouldn’t be fair to the parties
for you to base your decision on some reporter’s view or opinion, or upon
other information you acquire outside the courtroom. These rules are designed
to help guarantee a fair trial, and our law accordingly sets forth serious
consequences if the rules are not followed. I trust 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
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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 8
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. The government will
then present its witnesses, and counsel for the defendant may cross-examine
them. Following the government’s case, the defendant may, if [he] [she]
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wishes, present witnesses whom the government may cross-examine. After all
the evidence is in, the attorneys will present their closing arguments to
summarize and interpret the evidence for you, and I will instruct you on the
law. After that, you will go to the jury room to decide your verdict.
ANNOTATIONS AND COMMENTS No annotations associated with this
instruction
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DAN JAY’S REQUEST TOCHARGE NO. 2
B2.1
The Duty to Follow Instructions And the Presumption of Innocence
Your decision must be based only on the evidence presented here. You must
not be influenced in any way by either sympathy for or prejudice against the
Defendant or the Government. You must follow the law as I explain it – even
if you do not agree with the law – and you must follow all of my instructions
as a whole. You must not single out or disregard any of the Court's
instructions on the law. The indictment or formal charge against a defendant
isn’t evidence of guilt. The law presumes every defendant is innocent. The
Defendant does not have to prove [his] [her] innocence or produce any
evidence at all. The Government must prove guilt beyond a reasonable doubt.
If it fails to do so, you must find the Defendant not guilty.
ANNOTATIONS AND COMMENTS In re Winship, 397 U.S. 358, 364, 90 S.
Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) (The due process clause protects all
criminal defendants “against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he
is charged.”); see also Harvell v. Nagle, 58 F.3d 1541, 1542 (11th Cir. 1995),
reh’g denied, 70 F.3d 1287 (11th Cir. 1995)
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DAN JAY’S REQUEST TOCHARGE NO. 3
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] [her] innocence or produce any evidence at all. A Defendant
does not have to testify, and if the Defendant chose not to testify, you cannot
consider that in any way while making your decision. The Government must
prove guilt beyond a reasonable doubt. If it fails to do so, you must find the
Defendant not guilty.
ANNOTATIONS AND COMMENTS
United States v. Teague, 953 F.2d 1525, 1539 (11th Cir. 1992), cert. denied, 506 U.S.
842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992), Defendant who does not testify is entitled
to instruction that no inference may be drawn from that election; see also United
States v. Veltman, 6 F.3d 1483, 1493 (11th Cir. 1993) (Court was “troubled” by
“absence of instruction on the presumption of innocence at the beginning of the trial…
Although the court charged the jury on the presumption before they retired to
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deliberate, we believe it extraordinary for a trial to progress to that stage with nary a
mention of this jurisprudential bedrock.”)
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DAN JAY’S REQUEST TOCHARGE NO. 4
B3
Definition of “Reasonable Doubt”
The Government's burden of proof is heavy, but it doesn’t have to prove
a Defendant's guilt beyond all possible doubt. The Government's proof only has
to exclude any “reasonable doubt” concerning the Defendant's guilt.
A “reasonable doubt” is a real doubt, based on your reason and common
sense after you’ve carefully and impartially considered all the evidence in the
case.
“Proof beyond a reasonable doubt” is proof so convincing that you would
be willing to rely and act on it without hesitation in the most important of your
own affairs. If you are convinced that the Defendant has been proved guilty
beyond a reasonable doubt, say so. If you are not convinced, say so.
ANNOTATIONS AND COMMENTS
United States v. Daniels, 986 F.2d 451 (11th Cir. 1993), opinion readopted on
rehearing, 5 F.3d 495 (11th Cir. 1993), cert. denied, 511 U.S. 1054, 114 S. Ct. 1615,
128 L. Ed. 2d 342 (1994) approves this definition and instruction concerning
reasonable doubt; see also United States v. Morris, 647 F.2d 568 (5th Cir. 1981);
Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (discussing
“reasonable doubt” definition and instruction).
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DAN JAY’S REQUEST TOCHARGE NO. 5
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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ANNOTATIONS AND COMMENTS
United States v. Clark, 506 F.2d 416 (5th Cir. 1975), cert. denied, 421 U.S. 967, 95 S.
Ct. 1957, 44 L. Ed. 2d 454 (1975) approves the substance of this instruction
concerning the lack of distinction between direct and circumstantial evidence; see also
United States v. Barnette, 800 F.2d 1558, 1566 (11th Cir. 1986), reh’g denied, 807
F.2d 999 (11th Cir. 1986), cert. denied, 480 U.S. 935, 107 S. Ct. 1578, 94 L. Ed. 2d
769 (1987) (noting that the “test for evaluating circumstantial evidence is the same as
in evaluating direct evidence”) (citing United States v. Henderson, 693 F.2d 1028,
1030 (11th Cir. 1982)).
United States v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983) (“A trial judge may
comment upon the evidence as long as he instructs the jury that it is the sole judge of
the facts and that it is not bound by his comments and as long as the comments are
not so highly prejudicial that an instruction to that effect cannot cure the error.”)
(citing United States v. Buchanan, 585 F.2d 100, 102 (5th Cir. 1978)). See also United
States v. Jenkins, 901 F.2d 1075 (11th Cir. 1990).
United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983) notes that the jury was
correctly instructed that the arguments of counsel should not be considered as
evidence (citing United States v. Phillips, 664 F.2d 971, 1031 (5th Cir. 1981)); see also
United States v. Siegel, 587 F.2d 721, 727 (5th Cir. 1979).
For an alternative description of evidence, see Preliminary Instruction, “what is
evidence.”
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DAN JAY’S REQUEST TOCHARGE NO. 6
B5
Credibility of Witnesses
When I say you must consider all the evidence, I don’t mean that you
must accept all the evidence as true or accurate. You should decide whether you
believe what each witness had to say, and how important that testimony was. In
making that decision you may believe or disbelieve any witness, in whole or in
part. The number of witnesses testifying concerning a particular point doesn’t
necessarily matter.
To decide whether you believe any witness I suggest that you ask yourself
a few questions:
• Did the witness impress you as one who was telling the truth?
• Did the witness have any particular reason not to tell the truth?
• Did the witness have a personal interest in the outcome of the
case?
• Did the witness seem to have a good memory?
• Did the witness have the opportunity and ability to accurately
observe the things he or she testified about?
• Did the witness appear to understand the questions clearly and
answer them directly?
• Did the witness's testimony differ from other testimony or other
evidence?
ANNOTATIONS AND COMMENTS No annotations associated with this
instruction.
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DAN JAY’S REQUEST TOCHARGE NO. 7
B6.1
Impeachment of Witnesses Because of Inconsistent Statements
You should also ask yourself whether there was evidence that a witness
testified falsely about an important fact. And ask whether there was evidence
that at some other time a witness said or did something, or didn’t say or do
something, that was different from the testimony the witness gave during this
trial.
But keep in mind that a simple mistake doesn’t mean a witness wasn’t
telling the truth as he or she remembers it. People naturally tend to forget some
things or remember them inaccurately. So, if a witness misstated something,
you must decide whether it was because of an innocent lapse in memory or an
intentional deception. The significance of your decision may depend on whether
the misstatement is about an important fact or about an unimportant detail.
ANNOTATIONS AND COMMENTS
See United States v. D’Antignac, 628 F.2d 428, 435-36 n.10 (5th Cir. 1980), cert.
denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981) (approving a previous
version of this instruction used in conjunction with Basic Instruction 5 and Special
Instruction 2.1 as befitted the facts of that case). See also United States v. McDonald,
620 F.2d 559, 565 (5th Cir. 1980), and United States v. Soloman, 856 F.2d 1572, 1578
(11th Cir. 1988), reh’g denied, 863 F.2d 890 (1988), cert. denied, 489 U.S. 1070, 109
S. Ct. 1352, 103 L. Ed. 2d 820 (1989).
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DAN JAY’S REQUEST TOCHARGE NO. 8
B6.2
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.
ANNOTATIONS AND COMMENTS
See United States v. Solomon, 856 F.2d 1572, 1578 (11th Cir. 1988), reh’g denied, 863
F.2d 890 (1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820
(1989).
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DAN JAY’S REQUEST TOCHARGE NO. 9
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.
ANNOTATIONS AND COMMENTS
Rule 608. [Fed. R. Evid.] Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. - - The credibility of a
witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence or otherwise.
See United States v. Watson, 669 F.2d 1374, 1381-1383 (11th Cir. 1982) distinguishing
between reputation witnesses and personal opinion witnesses, and finding error in the
exclusion of opinion testimony.
See also, Special Instruction 11, Character Evidence (relating to evidence of the
character of the accused offered under Rule 404(a)(1), Fed. R. Evid.), and the
Annotations and Comments following that instruction.
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DAN JAY’S REQUEST TOCHARGE NO. 10
B8
Introduction to Offense Instructions
The indictment charges ___ separate crimes, called “counts,” against the
Defendant. Each count has a number. You’ll be given a copy of the indictment
to refer to during your deliberations.
[Count [count number] charges that the Defendants knowingly and
willfully conspired to [describe alleged object(s) of the conspiracy].]
[Counts [count numbers] charge that Defendants committed what are
called “substantive offenses,” specifically [describe alleged substantive
offenses]. I will explain the law governing those substantive offenses in a
moment.]
[But first note that the Defendants are not charged in Count [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.]
ANNOTATIONS AND COMMENTS
No annotations associated with this instruction.
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DAN JAY’S REQUEST TOCHARGE NO. 11
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.
ANNOTATIONS AND COMMENTS
United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978), cert. denied, 440 U.S.
907, 99 S. Ct. 1214, 59 L. Ed. 2d 454 (1979).
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DAN JAY’S REQUEST TOCHARGE NO. 12
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] [her] conduct may be violating.]
ANNOTATIONS AND COMMENTS
The Definition of willfulness in this instruction can be used in most cases where
willfulness is an element. For crimes requiring a particularized knowledge of the law
being violated, such as tax and currency-structuring cases, use 9.1B’s definition of
willfulness.
The committee in its most recent revisions to the pattern instructions has changed the
approach to how “willfully” should be charged in the substantive offenses which
include it as an essential element of the offense. The previous editions of the pattern
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instructions included the following definition that historically has been used in most
cases:
The word “willfully,” as that term has been used from time to time in
these instructions, means that the act was committed voluntarily and
purposely, with the specific intent to do something the law forbids; that
is to say, with bad purpose either to disobey or disregard the law.
Although this definition has been useful as a general definition that encompasses
many different aspects of the legal concept of “willfulness” in a concise and
straightforward manner, the Committee has concluded, along with every other Circuit
Pattern Instruction Committee that has considered the issue, that the definition is not
accurate in every situation. A review of the case law reveals how the courts have
struggled with the meaning of “willfulness” as a mens rea requirement for substantive
criminal offenses. See Bryan v. United States, 524. U.S. 184, 189-92, 114 S. Ct. 1939,
1944-45 (1998) (“The word ‘willfully’ is sometimes said to be ‘a word of many
meanings’ whose construction is often dependent on the context in which it appears.”
(citing Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367 (1943))); see also
Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S. Ct. 655, 659 (1994); United
States v. Phillips, 19 F.3d 1565, 1576-84 (11th Cir. 1994) (noting the difficulty in
defining “willfully” and discussing the term in various contexts), amended to correct
clerical errors, 59 F.3d 1095 (11th Cir. 1995); United States v. Granda, 565 F.2d 922,
924 (5th Cir. 1978) (noting, inter alia, that “willfully” has defied any consistent
interpretation by the courts”); see generally United States v. Bailey, 444 U.S. 394,
403, 100 S. Ct. 624, 631 (1980) (“Few areas of criminal law pose more difficulty that
the proper definition of the mens rea requirement for any particular crime.”).
Based on the case law, the Committee has concluded that the criminal offenses that
expressly include “willfulness” as an essential element can be divided into two broad
categories. For the first category (Instruction 9.1A, which encompasses most
offenses) “willfully” is defined to require that the offense be committed voluntarily
and purposely with the intent to do something unlawful. However, the person need
not be aware of the specific law or rule that his or her conduct may be violating. This
definition is narrower than the traditional definition that has been used in our pattern
charges in the past, but the Committee believes that this narrower definition is
required under the law. See, e.g. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939
(1998) (holding that the term “willfully” in 18 U.S.C. §§ 922(a)(1)(A) and
924(a)(1)(D) requires proof that the defendant knew that his conduct was generally
unlawful, but does not require that the defendant knew of the specific licensing
requirement that he was violating).
The second category of criminal offenses that have “willfulness” as an essential
element have a heightened mens rea requirement. For this limited class of offenses,
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the Government must prove more than the defendant knew that his conduct was done
with a bad purpose to disobey the law in general. The Government must prove that
the defendant had an intent to violate a known legal duty, that is with the specific
intent to do something the law forbids. For these offenses, the Committee
recommends that the definition of “willfully” in Instruction 9.1B be given to the jury.
These offenses include currency structuring statutes and certain tax laws, which tend
to involve “highly technical statutes that present the danger of ensnaring individuals
engaged in apparently innocent conduct.” Bryan, 118 S. Ct. at 1946 – 47. For example,
see Ratzlaf v. United States, 114 S. Ct. 655 (1994) (holding that with respect to 31
U.S.C. § 5322(a) and the monetary transaction provisions that it controls, the
Government must prove that the defendant acted willfully, i.e., with specific
knowledge that the structuring of currency transactions in which he was engaged was
unlawful); see also Cheek v. United States, 111 S. Ct. 604, 609-10 (1991) (explaining
that due to the complexity of tax laws, there is an exception to the general rule that
“ignorance of the law or a mistake of law is no defense to criminal prosecution,” and
“[t]he term ‘willfully’ [as used in certain federal criminal tax offenses] connot[es] a
‘voluntary, intentional violation of a known legal duty’” (citing United States v.
Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23 (1976) and United States v. Bishop, 412,
U.S. 346, 360-61, 93 S. Ct. 2008, 2017 (1973))). In Cheek, the Supreme Court found
error in the trial court’s instruction to the jury that in order for the defendant’s belief
that he was not violating the law to be a defense, his good-faith belief must have been
objectively reasonable. The Court further explained, however, that “a defendant’s
views about the validity of the tax statutes are irrelevant to the issue of willfulness and
need not be heard by the jury, and, if they are, an instruction to disregard them would
be proper.” Cheek, 498 U.S. at 206, 111 S. Ct. at 613.
The Committee observes that the required mental state may be different even for
different elements of the same crime. This possibility should be considered when
determining what definition of mens rea should be charged. See Liparota v. United
States, 471 U.S. 419, 423, 105 S. Ct. 2084, 2087 n.5 (1985).
Note: If the Defendant raises a good faith defense, it may be appropriate to give
Special Instruction 9 [Good Faith Defense to Willfulness (as under the Internal
Revenue Code)], Special Instruction 18 [Good Faith Reliance Upon Advice of
Counsel].
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DAN JAY’S REQUEST TOCHARGE NO. 13
B9.1B
On or About; Knowingly; Willfully – Intentional
Violation of a Known Legal Duty
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 done voluntarily and
purposely with the specific intent to violate a known legal duty, that is, with the
intent to do something the law forbids. Disagreement with the law or a belief
that the law is wrong does not excuse willful conduct.
ANNOTATIONS AND COMMENTS
For crimes requiring a particularized knowledge of the law being violated, such as tax
and currency-structuring cases, use this definition of willfulness.
Note: Please refer to the Annotations and Comments following Instruction 9.1A for a
detailed commentary regarding the selection of the applicable “willfully” definition.
Additionally, there may be instances where a case presents one substantive offense
charging a crime subject to the general willfulness mens rea requirement and a
separate offense charging a crime subject to the more rigorous mens rea standard set
forth above. In such a situation, the Committee recommends providing the applicable
definition within the offense instruction itself.
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DAN JAY’S REQUEST TOCHARGE NO. 14
B9.2
On or About a Particular Date; Knowingly
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 offense
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.
ANNOTATIONS AND COMMENTS
United States v. Creamer, 721 F.2d 342, 343 (11th Cir. 1983), “on or about” language
upheld in case in which alibi defense was used by the defendant; the court “rejected
the contention that time becomes a material element of a criminal offense merely
because the defense of alibi is advanced.” See also United States v. Reed, 887 F.2d
1398 (11th Cir. 1989), reh’g denied, 891 F.2d 907 (1989), cert. denied, 493 U.S. 1080,
110 S. Ct. 1136, 107 L. Ed. 2d 1041 (1990).
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DAN JAY’S REQUEST TOCHARGE NO. 15
S1.1
Testimony of Accomplice, Informer, or Witness with Immunity
You must consider some witnesses’ testimony with more caution than
others. For example, paid informants, witnesses who have been promised
immunity from prosecution, or witnesses who hope to gain more favorable
treatment in their own cases, 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.
ANNOTATIONS AND COMMENTS See United States v. Shearer, 794 F.2d
1545, 1551 (11th Cir. 1986). See also United States v. Solomon, 856 F.2d
1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L.
Ed. 2d 820 (1989) (holding that, as a general rule, a cautionary instruction
regarding the credibility of accomplices should be given).
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DAN JAY’S REQUEST TOCHARGE NO. 16
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] [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.
ANNOTATIONS AND COMMENTS
United States v. Solomon, 856 F.2d 1572, 1578-79 (11th Cir. 1988), cert. denied, 489
U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989).
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DAN JAY’S REQUEST TOCHARGE NO. 17
S1.3
Testimony of Accomplice, Witness Using Addictive Drugs,
or Witness With Immunity
You must consider some witnesses’ testimony with more caution than
others.
For example, a witness may testify about events that occurred during a
time when the witness was using addictive drugs, and so the witness may have
an impaired memory of those events. And a witness who has been promised
immunity from prosecution or witnesses who hope to gain more favorable
treatment in [his] [or] [her] own case 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.
ANNOTATIONS AND COMMENTS
See United States v. Fajardo, 787 F.2d 1523, 1527 (11th Cir. 1986). See also United
States v. Solomon, 856 F.2d 1572 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109
S. Ct. 1352, 103 L. Ed. 2d 820 (1989) (holding that, as a general rule, a cautionary
instruction regarding the credibility of accomplices should be given).
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DAN JAY’S REQUEST TOCHARGE NO. 18
S9
Good-Faith Defense to Willfulness
Good-Faith is a complete defense [to the charge(s) in the indictment]
since good-faith on the part of the Defendant is inconsistent with willfulness,
and willfulness is an essential part of the charge(s). If the Defendant acted in
good faith, sincerely believing [himself] [herself] to be exempt by the law [from
the withholding of income taxes], then the Defendant did not intentionally
violate a known legal duty – that is, the Defendant did not act “willfully.” The
burden of proof is not on the Defendant to prove good-faith intent because the
Defendant does not need to prove anything. The Government must establish
beyond a reasonable doubt that the Defendant acted willfully as charged.
Intent and motive must not be confused. “Motive” is what prompts a
person to act. It is why the person acts.
“Intent” refers to the state of mind with which the act is done.
If you find beyond a reasonable doubt that the Defendant specifically
intended to do something that is against the law and voluntarily committed the
acts that make up the crime, then the element of “willfulness” is satisfied, even
if the Defendant believed that violating the law was [religiously, politically, or
morally] required or that ultimate good would result.
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ANNOTATIONS AND COMMENTS
This instruction has been updated and now more closely resembles the language of
other good faith defenses.
See United States v. Anderson, 872 F.2d 1508, 1517-18 (11th Cir. 1989), cert. denied,
493 U.S. 1004 (1989). However, in United States v. Paradies, 98 F.3d 1266 (11th Cir.
1996), cert. denied, 521 U.S. 1106 and 522 U.S. 1014 (1997), the Eleventh Circuit
noted that although the jury instructions given in the case were legally sufficient as a
whole, a portion of the former Special Instruction 9 “might potentially be deemed
confusing.” Id. at 1285. The updated instruction eliminates the confusion. It may be
given when appropriate as a supplement to Basic Instruction 9.1B.
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DAN JAY’S REQUEST TOCHARGE NO. 19
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.
ANNOTATIONS AND COMMENTS
United States v. Goss, 650 F.2d 1336 (5th Cir. 1981), failure to give this instruction as
a theory-of-defense charge, when requested to do so, is error if there is any evidentiary
foundation to support the Defendant’s claim. Note, however, that there must be some
evidentiary basis for the request. If the usual instructions are given defining
willfulness and intent to defraud, that will ordinarily suffice in the absence of evidence
of good faith. United States v. Boswell, 565 F.2d 1338 (5th Cir. 1978), reh’g denied,
568 F.2d 1367 (11th Cir. 1978), cert. denied, 439 U.S. 819, 99 S. Ct. 81, 58 L. Ed. 2d
110 (1978); United States v. England, 480 F.2d 1266 (5th Cir. 1973), cert. denied, 414
U.S. 1041, 94 S. Ct. 543, 38 L. Ed. 2d 332 (1973); United States v. Williams, 728 F.2d
1402 (11th Cir. 1984).
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DAN JAY’S REQUEST TOCHARGE NO. 20
S3
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
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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.
ANNOTATIONS AND COMMENTS See United States v. Martinez, 763
F.2d 1297, 1304 (11th Cir. 1985).
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DAN JAY’S REQUEST TOCHARGE NO. 21
S16
Duress and Coercion (Justification or Necessity)
The Defendant claims that if he committed the acts charged in the indictment,
he did so only because he was forced to commit the crime. If you conclude
that the Government has proved beyond a reasonable doubt that the Defendant
committed the crime as charged, you must then consider whether the
Defendant should nevertheless be found “not guilty” because his actions were
justified by duress or coercion. To excuse a criminal act, the Defendant must
prove by a preponderance of the evidence: First: That there was an unlawful
and present, immediate, and impending threat of death or serious bodily harm
to the Defendant or another; Second: That the Defendant’s own negligent or
reckless conduct did not create a situation where the Defendant would be
forced to engage in a crime; Third: That the Defendant had no reasonable
legal alternative to violating the law; and Fourth: That avoiding the threatened
harm caused the criminal action. A “preponderance of the evidence” is enough
evidence to persuade you that the Defendant’s claim is more likely true than
not true. If you find that the Defendant has proven each of these elements by a
preponderance of the evidence, you must find the Defendant not guilty.
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ANNOTATIONS AND COMMENTS The substantive elements of this instruction
are taken from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), cert. denied,
530 U.S. 1264, 120 S. Ct. 2724 (2000). The Court of Appeals reiterated the requirements of
the defense in United States v. Harmon, 213 Fed. Appx. 914, 916 (11th Cir. 2007)
(unpublished) (citing Deleveaux, 205 F.3d at 1297). The instruction also is based in part on
Modern Federal Jury Instructions – Criminal § 8.06 (2008), which was revised following
the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1, 126 S. Ct. 2437
(2006). Dixon resolved a split among the circuits regarding which party bears the burden of
persuasion for a duress defense. In Dixon, the defendant was charged with receiving a
firearm while under indictment in violation of 18 U.S.C. § 922(n) and with making false
statements in connection with the acquisition of a firearm in violation of § 922(a)(6). The
Supreme Court held that (1) the jury instructions given “did not run afoul of the Due
Process Clause when they placed the burden on petitioner to establish the existence of
duress by a preponderance of the evidence,” and (2) under modern law, in the context of the
firearms offenses at issue, duress is an affirmative defense that does not require the
government to bear the burden of disproving the defendant’s defense beyond a reasonable
doubt. See Dixon, 548 U.S. at 6-8, 15-17, 126 S. Ct. at 2442, 2447-48. Accordingly, the
above instruction clearly reflects that the Government bears the burden of proving beyond a
reasonable doubt each element of the offense, and if the jury finds that the Government has
met its burden, then a defendant who seeks to use the justification defense must prove the
affirmative defense by a preponderance of the evidence. In Deleveaux the Court of Appeals
cautioned that this defense is available in only “extraordinary circumstances” (205 F.3d at
1297), and the holding was expressly limited to prosecutions under 18 U.S.C. § 922(g)(1) -
- felon in possession of a firearm. See Offense Instruction 34.6, infra. In Harmon, the Court
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of Appeals noted that “[t]he imminency prong ‘requires nothing less than an immediate
emergency.’” 213 Fed. Appx. at 916 (citing United States v. Bell, 214 F.3d 1299, 1300
(11th Cir. 2000)); see also United States v. Rice, 214 F.3d 1295 (11th Cir. 2000) (affirming
the defendant’s conviction on the ground that the facts proffered were insufficient to
establish a justification defense, as the defendant did not face an immediate emergency).
The defense of duress or necessity “does not negate a defendant’s criminal state of mind
when the applicable offense requires a defendant to have acted knowingly or willfully;
instead, it allows the defendant to ‘avoid liability… because coercive conditions or
necessity negates a conclusion of guilt even though the necessary mens rea was present.”
Dixon, 548 U.S., 1, 7, 126 S. Ct. at 2442 (citing United States v. Bailey, 444 U.S. 394, 402
100 S. Ct. 624, 631 (1980)). Further, the Dixon Court noted that “there may be crimes
[such as common-law crimes requiring ‘malice’] where the nature of the mens rea would
require the Government to disprove the existence of duress beyond a reasonable 3 doubt.
Id. at 2442 n.4. Bailey discusses the common law distinction between coercion/duress and
necessity/justification, observing: “While the defense of duress covered the situation where
the coercion had its source in the actions of other human beings, the defense of necessity, or
choice of evils, traditionally covered the situation where physical forces beyond the actor’s
control rendered illegal conduct the lesser of two evils.” Bailey, 444 U.S. at 409, 100 S. Ct.
at 634. However, the Supreme Court noted that, [m]odern cases have tended to blur the
distinction…” Id.
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DAN JAY’S REQUEST TOCHARGE NO. 22
O51
Wire Fraud
18 U.S.C. § 1343
It’s a Federal crime to use interstate wire, radio, or television
communications to carry out a scheme to defraud someone else.
The Defendant can be found guilty of this crime only if all the following
facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly devised or participated in a scheme
to defraud someone by using false or fraudulent pretenses,
representations, or promises;
(2) the false pretenses, representations, or promises were about a
material fact;
(3) the Defendant acted with the intent to defraud; and
(4) the Defendant transmitted or caused to be transmitted by [wire]
[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.
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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.
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Each separate use of the interstate [wire] [radio] [television]
communications as part of the scheme to defraud is a separate crime.
ANNOTATIONS AND COMMENTS
18 U.S.C. § 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, transmits or causes to be
transmitted by means of wire, radio, or television communication in
interstate or foreign commerce, any writings, signs, signals, pictures, or
sounds for the purpose of executing such scheme or artifice [shall be guilty of
an offense against the laws of the United States].
Maximum Penalty: Twenty (20) years’ imprisonment and applicable fine. (If the
violation affects a financial institution, or is in relation to or in connection with a
presidentially declared major disaster or emergency, thirty (30) years’ imprisonment
and $1 million fine.)
If the offense involved telemarketing, 18 U.S.C. § 2326 requires enhanced
imprisonment penalties:
A person who is convicted of an offense under section 1028, 1029, 1341,
1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection
with the conduct of telemarketing - -
(1) shall be imprisoned for a term of up to 5 years in addition to any
term of imprisonment imposed under any of those sections,
respectively; and
(2) in the case of an offense under any of those sections that - -
(A) victimized ten or more persons over the age of 55; or
(B) targeted persons over the age of 55,
shall be imprisoned for a term of up to 10 years in addition to any term of
imprisonment imposed under any of those sections, respectively.
An additional element is required under the Apprendi doctrine when the indictment
alleges any facts that would result in enhanced penalties under 18 U.S.C. § 1343 or
§ 2326. If the alleged offense involved telemarketing, or involved telemarketing and
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victimized 10 or more persons over age 55 or targeted persons over age 55, or the
scheme affected a financial institution, or is in relation to or in connection with a
presidentially declared major disaster or emergency, the Court should consider
including a fourth element for that part of the offense and giving a lesser included
offense instruction for just the Section 1341 offense. Alternatively, an instruction (to
be used with a special interrogatory on the verdict form) can address those statutory
variations of the scheme:
If you find beyond a reasonable doubt that the defendant
is guilty of using interstate [wire] [radio] [television]
communications facilities in carrying out a scheme to
defraud, then you must also determine whether the
Government has proven beyond a reasonable doubt that
[the scheme was in connection with the conduct of
telemarketing] [the scheme was in connection with the
conduct of telemarketing and (a) victimized ten or more
persons over the age of 55, or (b) targeted persons over
the age of 55] [the scheme affected a financial
institution] [the scheme was in relation to, or in
connection with, a presidentially declared major disaster
or emergency].
Wire fraud requires showing (1) that the Defendant knowingly devised or
participated in a scheme to defraud; (2) that the Defendant did so willfully and with
an intent to defraud; and (3) that the Defendant used interstate wires for the
purpose of executing the scheme. Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308,
1312 (11th Cir. 2000). Materiality is an essential element of the crimes of mail fraud,
wire fraud, and bank fraud and must be decided by the jury. Neder v. United States,
527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The definition of materiality
used here comes from that decision and the Eleventh Circuit’s decision in the case
upon remand. United States v. Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999), cert.
denied 530 U.S. 1261 (2000).
The instruction makes clear that deception alone does not constitute a scheme to
defraud; a defendant must intend to cause injury or loss. See United States v.
Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016), altered in part on denial of rehearing
by United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016) (“A jury cannot convict
a defendant of wire fraud, then, based on misrepresentations amounting only to a
deceit.” (internal quotation marks and citation omitted)).
In wire fraud cases involving property rights, “the Government must establish that
the defendant intended to defraud a victim of money or property of some value.”
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United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal
licenses in general are not “property” for the purposes of this statute. Cleveland v.
United States, 531 U.S. 12, 15, 121 S. Ct. 365, 369, 148 L. Ed. 2d 221 (2000)
(addressing “property” for purposes of mail fraud statute).
The mail fraud and wire fraud statutes are “given a similar construction and are
subject to the same substantive analysis.” Belt v. United States, 868 F.3d 1208, 1211
(11th Cir. 1989).
See also United States v. Svete, 556 F.3d 1157, (11th Cir. 2009) and discussion supra
Offense Instruction 50.1.
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44
DAN JAY’S REQUEST TOCHARGE NO. 23
O54
Conspiracy to Commit [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 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:
(1) 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
(2) the Defendant knew the unlawful purpose of the plan and
willfully joined in it;
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A person may be a conspirator even without knowing all the details of
the unlawful plan or the names and identities all of the other alleged
conspirators.
If the Defendant played only a minor part in the plan but had a general
understanding of the unlawful purpose of the plan – and willfully joined in the
plan on at least one occasion – that’s sufficient for you to find the Defendant
guilty.
But simply being present at the scene of an event or merely associating
with certain people and discussing common goals and interests doesn’t establish
proof of a conspiracy. Also, a person who doesn’t know about a conspiracy but
happens to act in a way that advances some purpose of one doesn’t
automatically become a conspirator.
ANNOTATIONS AND COMMENTS
18 U.S.C. § 1349 provides:
Any person who attempts or conspires to commit any offense under this
chapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or conspiracy.
Maximum penalty: As stated above.
Section 1349 applies to all fraud offenses in Chapter 63, i.e., Sections 1341 through
1348, So, a conspiracy could be charged with any of those substantive offenses as the
underlying count. This instruction is thus intended to be modified to fit the specific
underlying fraud alleged in the indictment, and it is in the same general form as the
controlled substances conspiracy instruction for 21 U.S.C. § 846 and the money
laundering conspiracy instruction for 18 U.S.C. 1956(h). No overt act is required by
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Section 1349, and Congress’ omission of that requirement (which is specifically
included in 18 U.S.C. § 371) has been held by both the Supreme Court and the
Eleventh Circuit to mean that it has dispensed with such a requirement. Cf. United
States v. Shabani, 513 U.S. 10, 12, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994); United
States v. Pistone, 177 F.3d 957, 959-60 (11th Cir. 1999).
For a case involving conspiracy to defraud the United States arising under 18 U.S.C.
§ 371, see United States v. Mendez, 528 F.3d 811 (11th Cir. 2008).
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47
DAN JAY’S REQUEST TOCHARGE NO. 24
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:
(1) the Defendant knowingly carried out or attempted to carry out
a scheme [to defraud a financial institution] [to get money,
assets, or other property from a financial institution] by using
false or fraudulent pretenses, representations, or promises
about a material fact;
(2) the false or fraudulent pretenses, representations, or promises
were material;
(3) the Defendant intended to defraud [the financial institution]
[someone]; and
(4) 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
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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.
ANNOTATIONS AND COMMENTS
18 U.S.C. § 1344 provides:
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Whoever knowingly executes, or attempts to execute, a scheme or artifice
- -
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or
other property owned by, or under the custody or control of, a
financial institution, by means of false or fraudulent pretenses,
representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than (30)
years or both.
See 18 U.S.C. § 20 for an enumeration of the financial institutions covered by § 1344.
An additional element is required under the Apprendi doctrine when the indictment
alleges any facts that would result in enhanced penalties under 18 U.S.C. § 2326. See
Pattern Instruction 50.1.
Proof that the financial institution is federally chartered or insured is an essential
element of the crime, as well as necessary to establish federal jurisdiction. United
States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998). Materiality is an essential element
of the crime of bank fraud. Neder v. United States, 527 U.S. 1, 25 (1999).
There are two separate offenses possible under Section 1344: (1) defrauding a
financial institution; or (2) obtaining money or funds from the financial institution by
means of material false or fraudulent pretenses, representations, or promises.
United States v. Dennis, 237 F.3d 1295, 1303 (11th Cir. 2001) (discussing elements of
bank fraud under section 1344); United States v. Mueller, 74 F.3d 1152, 1159 (11th
Cir. 1996). In the case of defrauding a financial institution, the Government must
establish “that the defendant (1) intentionally participated in a scheme or artifice to
defraud another of money or property; and (2) that the victim of the scheme or
artifice was an insured financial institution.” United States v. Goldsmith, 109 F.3d
714, 715 (11th Cir. 1997). Under the alternative theory, the Government must prove
“(1) that a scheme existed in order to obtain money, funds, or credit in the custody
of the federally insured institution; (2) that the defendant participated in the scheme
by means of false pretenses, representations or promises, which were material; and
(3) that the defendant acted knowingly.” Id. As the Supreme Court explained in
Loughrin v. United States, 134 S. Ct. 2384 (2014), to prove a violation under Section
1344(s), the Government need not prove that the defendant intended to defraud a
bank.
The instruction makes clear that deception alone does not constitute a scheme to
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50
defraud; a defendant must intend to cause injury or loss. See United States v.
Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016), altered in part on denial of rehearing
by United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016) (“A jury cannot convict
a defendant of wire fraud, then, based on misrepresentations amounting only to a
deceit.” (internal quotation marks and citation omitted)).
While materiality is an element of the bank fraud offense under Neder, see also
United States v. Williams, 390 F.3d 1319, 1324 (11th Cir. 2004) (same), the Supreme
Court has held (pre-Neder) that materiality is not an element of the offense in a
prosecution under 18 U.S.C. § 1014, a similar statute which prohibits making a false
statement to a federally insured bank or designated financial institution. United
States v. Wells, 519 U.S. 482 (1997).
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51
DAN JAY’S REQUEST TOCHARGE NO. 25
B11
Duty to Deliberate
Your verdict, whether guilty or not guilty, must be unanimous – in other
words, you must all agree. Your deliberations are secret, and you’ll never have
to explain your verdict to anyone.
Each of you must decide the case for yourself, but only after fully
considering the evidence with the other jurors. So you must discuss the case
with one another and try to reach an agreement. While you’re discussing the
case, don’t hesitate to reexamine your own opinion and change your mind if
you become convinced that you were wrong. But don’t give up your honest
beliefs just because others think differently or because you simply want to get
the case over with.
Remember that, in a very real way, you’re judges – judges of the facts.
Your only interest is to seek the truth from the evidence in the case.
ANNOTATIONS AND COMMENTS
See United States v. Brokemond, 959 F.2d 206, 209 (11th Cir. 1992). See also United
States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied, 589 F.2d 1114 (1979), cert.
denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); United States v.
Dunbar, 590 F.2d 1340 (5th Cir. 1979).
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52
DAN JAY’S REQUEST TOCHARGE NO. 26
B12
Verdict
When you get to the jury room, choose one of your members to act as
foreperson. The foreperson will direct your deliberations and will speak for you
in court. A verdict form has been prepared for your convenience.
[Explain verdict]
Take the verdict form with you to the jury room. When you’ve all agreed
on the verdict, your foreperson must fill in the form, sign it, date it, and carry it.
Then you’ll return it to the courtroom.
If you wish to communicate with me at any time, please write down your
message or question and give it to the marshal. The marshal will bring it to me
and I’ll respond as promptly as possible – either in writing or by talking to you
in the courtroom. But I caution you not to tell me how many jurors have voted
one way or the other at that time.
ANNOTATIONS AND COMMENTS
United States v. Norton, 867 F.2d 1354, 1365-66 (11th Cir. 1989), cert. denied, 491
U.S. 907, 109 S. Ct. 3192, 105 L. Ed. 2d 701 (1989) and 493 U.S. 871, 110 S. Ct. 200,
107 L. Ed. 2d 154 (1989) notes that the Court should not inquire about, or disclose,
numerical division of the jury during deliberations but states that “[r]eversal may not
be necessary even where the trial judge undertakes the inquiry and thereafter follows
it with an Allen charge, absent a showing that either incident or a combination of the
two was inherently coercive.” See United States v. Brokemond, 959 F.2d 206, 209
(11th Cir. 1992). See also United States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g
denied, 589 F.2d 1114 (1979), cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed.
2d 274 (1979).
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CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing
Proposed Jury Instructions, 1-26, with the Clerk of Court using the CM/ECF
system which will automatically send email notifications of such filing to the
following:
Mr. Russell Phillips
Assistant United States Attorney
600 U.S. Courthouse
75 Ted Turner Drive, S. W.
Atlanta, Georgia 30303.
DATED: This 5th day of July, 2022.
s/ L. Burton Finlayson
____________________________
L. BURTON FINLAYSON
ATTORNEY FOR DAN JAY
State Bar Number: 261460
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