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Government’s Proposed Jury Instructions — United States v. Philossaint (Dkt. 90, S.D. Fla.)

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The Government's Proposed Jury Instructions in United States of America v. Joff Stenn Wroy Philossaint, Mariel Tollinchi, Regine Marie Rene, Brianna Monique Gayle, and Maurice Shazier, Case No. 22-80144-CR-Smith/Maynard(s), in the U.S. District Court for the Southern District of Florida, filed November 12, 2022. The government asks that the instructions be given at trial under Rule 30 of the Federal Rules of Criminal Procedure. The proposed set covers the presumption of innocence, reasonable doubt, the testimony of an accomplice or codefendant with a plea agreement, and the offense instructions. The introduction to the offenses states that Count 1 charges a conspiracy, Counts 2 and 3 charge conspiracy to launder money, and Count 4 charges Philossaint with procuring citizenship contrary to law, and the wire fraud instruction cites 18 U.S.C. § 1343.

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Filed November 12, 2022 in Joff Stenn Wroy Philossaint; one of 115 filings from this case.

Record facts

Court	U.S. District Court for the Southern District of Florida
Filed	2022-11-12

Cite this document

“Government’s Proposed Jury Instructions — United States v. Philossaint (Dkt. 90, S.D. Fla.).” U.S. District Court for the Southern District of Florida, No. 9:22-cr-80144, Doc. 90, filed 2022-11-12. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-joff-stenn-wroy-philossaint-flsd-619841/2022-11-12-gov-uscourts-flsd-619841-90-0-doc-90/, SHA-256 f372a405d5b7097e344ab33a40ddec465167d61fb9648a8bbfdcab8a08bcf56c.

Full text

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 1 of 21

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-80144-CR-Smith/Maynard(s)

UNITED STATES OF AMERICA

JOFF STENN WROY PHILOSSAINT,
MARIEL TOLLINCHI,
REGINE MARIE RENE,
BRIANNA MONIQUE GAYLE,
and MAURICE SHAZIER,

Defendants.

GOVERNMENT'S PROPOSED JURY INSTRUCTIONS

The United States respectfully requests that the following jury instructions be given at

trial in this case pursuant to Rule 30 of the Federal Rules of Criminal Procedure. The

government respectfully requests that it be allowed to propose such additional instructions as

become appropriate based upon the testimony and evidence at trial, and that it be informed

prior to closing arguments which instructions the Court will accept.

Respectfully submitted,

JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY

By: s/ Marc Osborne
Assistant United States Attorney
Court ID# A5500796
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9198
Fax: (305) 530-7976
marc.osborne@usdoj.gov

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 2 of 21

B1 1
Face Page—Introduction

Members of the Jury:

It’s my duty to instruct you on the rules of law that you must use in deciding this case.

After I’ve completed these instructions, you will go to the jury room and begin your

discussions—what we call your deliberations.

You must decide whether the Government has proved the specific facts necessary to

find the Defendants guilty beyond a reasonable doubt.

1
Modified for multiple defendants.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 3 of 21

B2.1/B2.2 2
The Duty to Follow Instructions and the Presumption of Innocence

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 a 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. A Defendant does not have to prove his or her

innocence or produce any evidence at all. A Defendant does not have to testify, and if a

Defendant chose not to testify, you cannot consider that in any way while making your

decision. 3 The Government must prove guilt beyond a reasonable doubt. If it fails to do so,

you must find the Defendant not guilty.

2
Modified for multiple defendants.
3
If all defendants testify, the Court should omit this sentence.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 4 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 5 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 6 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 7 of 21

Uncalled Witnesses—Equally Available to Both Sides 4
(If Applicable) 5

There are people whose names you heard during the course of the trial but did not

testify. One or more of the attorneys has referred to their absence from the trial. I instruct you

that each party had an equal opportunity or lack of opportunity to call any of these witnesses.

Therefore, you should not draw any inferences or reach any conclusions as to what they would

have testified to had they been called.

4
Adapted from 1 L. Sand, et al., Modern Federal Jury Instructions, Instruction 6-7 (2000). See
United States v. Esle, 743 F.2d 1465, 1477-78 (11th Cir. 1984) (after defense argued that jury
could draw a negative inference from prosecution’s failure to call a certain witness, court
properly instructed jury that “subpoena power is available to defendants, . . . but you must bear
in mind that the defendant has no burden of proof. The Government has the entire burden
of proof.”); United States v. Vincent, 648 F.2d 1046, 1051 (5th Cir. 1981) (after defense argued
that jury could draw a negative inference from prosecution’s failure to call a certain witness,
court properly “told the jury that the witness could have been called by either side, but that the
defendant was not obliged to call any witness, as he could rely on his presumption of innocence
should he choose to do so”; court also notes, “Generally, no unfavorable presumption may be
drawn from the failure to call a witness that is equally available to both sides.”); United States v.
Chapman, 435 F.2d 1245, 1247 (5th Cir. 1971) (court properly “told the jury that if there were
any witnesses in the courtroom either the Government or the Defendant had the right to call
them”; court also notes, “The long-standing rule in this circuit is that any inference from a
party’s failure to call a certain witness equally available to both parties is impermissible.”);
United States v. Bahna, 68 F.3d 19, 21-22 (2d Cir. 1995) (approving of the following instruction:
“‘There are several other persons whose names you have heard during [the] course of this trial
and one or more of the attorneys have referred to their absence from this trial. Neither the
defendant nor the government could benefit from the absence of such witnesses . . . because
each side has an equal opportunity, or lack of opportunity, to have them testify. If either side
had wanted any of them here, so far as the record shows, they had equal opportunity to get
them and absence should not affect your judgment in passing on this case or in determining
the guilt or innocence of the defendant. Bear in mind, of course, that the law never imposes
upon the defendant in a criminal case the burden of producing or calling any witnesses or
producing any evidence.’”). Courts in this district have given this instruction in United States v.
Maceira, Case No. 06-20218-CR-Seitz(s), United States v. Fernandez, Case No. 06-20322-CR-
Altonaga(s), and United States v. Pearson, Case No. 17-80080-CR-Bloom.
5
The government recommends that the Court give this instruction only if the defense makes
an argument at trial to which the instruction applies.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 8 of 21

B8 6
Introduction to Offense Instructions

The indictment charges four 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 1 charges that the Defendants knowingly and willfully conspired to defraud the

United States. Counts 2 and 3 charge that the Defendants knowingly conspired to launder

money.

Count 4 charges that Defendant Philossaint committed what is called a “substantive

offense,” specifically, procuring citizenship contrary to law. I will explain the law governing

that substantive offense in a moment.

But first note that the Defendants are not charged in Counts 1 through 3 with

committing a substantive offense—they are charged with conspiring to commit such an7

offense.

I will also give you specific instructions on conspiracy.

6
Modified based on the facts of this case.
7
The pattern instruction states that the defendant is charged with “conspiring to commit that
offense.” The government has replaced “that” with “such an.” In this case, the substantive
offense charged in count 4 is not the object of any of the charged conspiracies.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 9 of 21

Count 1
Conspiracy to Commit Wire Fraud 8
18 U.S.C. § 1349

It’s a Federal crime to knowingly and willfully conspire or agree with someone to do

something that, if actually carried out, would result in the crime of wire 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.

A Defendant can be found guilty of this conspiracy offense only if all the following

facts are proved beyond a reasonable doubt:

(1) two or more persons, in some way or manner, agreed to try to
accomplish a common and unlawful plan to commit wire fraud, as
charged in the indictment; and

(2) the Defendant knew the unlawful purpose of the plan and willfully
joined in it;

A person may be a conspirator even without knowing all the details of the unlawful

plan or the names and identities 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

8
The pattern instruction is for conspiracy to commit mail fraud. The government has modified
the instruction to reflect wire fraud. The instruction has also been modified for multiple
defendants.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 10 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 11 of 21

O51 9
Wire Fraud
18 U.S.C. § 1343

As I told you, Count 1 charges that the defendants conspired to commit wire fraud.

It’s a Federal crime to use interstate wire communications to carry out a scheme to defraud

someone else.

A Defendant could be found guilty of this crime only if all the following facts were

proved beyond a reasonable doubt:

(1) the Defendant knowingly devised or participated in a scheme to
defraud someone by using false or fraudulent pretenses,
representations, or promises;

(2) the false pretenses, representations, or promises were about a material
fact;

(3) the Defendant acted with the intent to defraud; and

(4) the Defendant transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out the scheme to
defraud.

A “scheme to defraud” means any plan or course of action intended to deceive or cheat

someone out of money or property by using false or fraudulent pretenses, representations, or

promises.

A statement or representation is “false” or “fraudulent” if it is about a material fact that

the speaker knows is untrue or makes with reckless indifference to the truth, and makes with

the intent to defraud. A statement or representation may be “false” or “fraudulent” when it is

a half-truth, or effectively conceals a material fact, and is made with the intent to defraud.

9
Modified to reflect the fact that the defendants are not charged with substantive counts of
wire fraud, only with conspiracy to commit wire fraud.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 12 of 21

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, radio, or television communications in the normal course of business. 10

10
The government has omitted the following sentence from the end of the instruction: “Each
separate use of the interstate wire communications as part of the scheme to defraud is a
separate crime.” The defendants in this case are not charged with separate crimes of wire fraud.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 13 of 21

O109.1
Counts 2 and 3
Money Laundering Conspiracy
18 U.S.C. § 1956(h)

It’s a Federal crime to conspire to engage in money laundering or transactions involving

the proceeds of specified unlawful activity that violates Title 18, United States Code, Section

1956 or 1957.

Count 2 charges the defendants with conspiring to violate Title 18, United States

Code, Section 1956(a)(1)(B)(i). A Defendant could be found guilty of this crime only if all the

following facts were proved beyond a reasonable doubt: 11

(1) the Defendant knowingly conducted or tried to conduct financial
transactions;

(2) the Defendant knew that the money or property involved in the
transaction were the proceeds of some kind of unlawful activity;

(3) money or property did come from an unlawful activity, specifically wire
fraud; and

(4) the Defendant knew that the transaction was designed, in whole or in
part, to conceal or disguise the nature, location, source, ownership, or
the control of the proceeds.

Count 3 charges that Defendants Philossaint and Tollinchi conspired to violate two

provisions of law. The first is Title 18, United States Code, Section 1956(a)(2)(B)(i). A

Defendant could be found guilty of this crime only if all the following facts were proved beyond

a reasonable doubt: 12

11
The elements of this offense are taken from instruction O74.2, modified because the
defendants are not charged with money laundering, only with conspiracy to launder money.
12
The first element of this offense is taken from instruction O74.3. The rest of the elements
are taken from instruction O74.2.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 14 of 21

(1) the Defendant knowingly transmitted or transferred money from a
place in the United States to or through a place outside the United
States;

(2) the Defendant knew that the money or property involved in the
transaction were the proceeds of some kind of unlawful activity;

(3) money or property did come from an unlawful activity, specifically wire
fraud; and

(4) the Defendant knew that the transaction was designed, in whole or in
part, to conceal or disguise the nature, location, source, ownership, or
the control of the proceeds.

Count 3 also charges that Defendants Philossaint and Tollinchi conspired to violate

Title 18, United States Code, Section 1957. A Defendant could be found guilty of this crime

only if all the following facts were proved beyond a reasonable doubt: 13

(1) the Defendant knowingly engaged or attempted to engage in a
monetary transaction;

(2) the Defendant knew the transaction involved property or funds that
were the proceeds of some criminal activity;

(3) the property had a value of more than $10,000;

(4) the property was in fact proceeds of wire fraud; and

(5) the transaction took place in the United States.

I have already explained to you the law regarding conspiracies generally. 14 A Defendant

can be found guilty of conspiring to launder money 15 only if all the following facts are proved

beyond a reasonable doubt:

(1) two or more people agreed to try to accomplish a common and unlawful
plan to violate 18 U.S.C. Section 1956 or 1957; and

13
The first element of this offense is taken from instruction O74.3. The rest of the elements
are taken from instruction O74.2.
14
The pattern instruction includes language that is also found in instruction O51.
15
The pattern instruction refers to ‘this crime’.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 15 of 21

(2) the Defendant knew about the plan’s unlawful purpose and voluntarily
joined in it.

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 16 of 21

O120
Procurement of Citizenship or Naturalization Unlawfully
18 U.S.C. § 1425

It’s a Federal crime for any person to knowingly procure or attempt to procure, contrary

to law, the naturalization of any person.

The Defendant can be found guilty of this offense, only if all the following facts are

proved beyond a reasonable doubt:

(1) the Defendant knowingly procured

(2) contrary to law

(3) the naturalization of any person.

A defendant acts “contrary to law” if the defendant knowingly makes a false statement

under oath in a proceeding or matter relating to naturalization. 16

16
18 U.S.C. § 1015

Case 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 17 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 18 of 21

B9.2
On or About a Particular Date; 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 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.

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 19 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 20 of 21

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 9:22-cr-80144-RS Document 90 Entered on FLSD Docket 11/12/2022 Page 21 of 21

B10.4
Caution: Punishment
(Multiple Defendants, Multiple Counts)

Each count of the indictment charges a separate crime against one or more of the

Defendants. You must consider each crime and the evidence relating to it separately. And you

must consider the case of each Defendant separately and individually. If you find a Defendant

guilty of one crime, that must not affect your verdict for any other crime or any other

Defendant.

I caution you that each Defendant is on trial only for the specific crimes charged in the

indictment. You’re here to determine from the evidence in this case whether each Defendant

is guilty or not guilty of those specific crimes.

You must never consider punishment in any way to decide whether a Defendant is

guilty. If you find a Defendant guilty, the punishment is for the Judge alone to decide later.

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