Indictment — United States v. Shibley (Dkt. 123, W.D. Wash. No. 2:20-cr-00174)

Record facts

U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 123 · 2021-11-18 · Docket on CourtListener

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THE HONORABLE JOHN C. COUGHENOUR 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
UNITED STATES OF AMERICA 
 
Plaintiff, 
 
v. 
ERIC SHIBLEY, 
 
Defendant. 
CASE NO. CR20-0174-JCC 
COURT’S INSTRUCTIONS TO 
THE JURY 
 
The clerk shall provide copies of this order to all counsel. 
DATED this 18th day of November 2021. 
A 
John C. Coughenour 
UNITED STATES DISTRICT JUDGE 
 
 
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DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW 
Members of the jury, now that you have heard all the evidence, it is my duty to instruct 
you on the law that applies to this case.  A copy of these instructions will be available in the jury 
room for you to consult. 
It is your duty to weigh and to evaluate all the evidence received in the case and, in that 
process, to decide the facts.  It is also your duty to apply the law as I give it to you to the facts as 
you find them, whether you agree with the law or not.  You must decide the case solely on the 
evidence and the law.  Do not allow personal likes or dislikes, sympathy, prejudice, fear, or 
public opinion to influence you.  You should also not be influenced by any person’s race, color, 
religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic 
circumstances.  Also, do not allow yourself to be influenced by personal likes or dislikes, 
sympathy, prejudice, fear, public opinion, or biases, including unconscious biases.  Unconscious 
biases are stereotypes, attitudes, or preferences that people may consciously reject but may be 
expressed without conscious awareness, control, or intention.  You will recall that you took an 
oath promising to do so at the beginning of the case. 
You must follow all these instructions and not single out some and ignore others; they are 
all important.  Please do not read into these instructions or into anything I may have said or done 
any suggestion as to what verdict you should return—that is a matter entirely up to you. 
 
 
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CHARGE AGAINST DEFENDANT NOT EVIDENCE—PRESUMPTION OF 
INNOCENCE—BURDEN OF PROOF 
The indictment is not evidence. The defendant has pleaded not guilty to the charges. The 
defendant is presumed to be innocent unless and until the government proves the defendant 
guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present 
any evidence. The defendant does not have to prove innocence; the government has the burden 
of proving every element of the charges beyond a reasonable doubt.  
 
 
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DEFENDANT’S DECISION TO TESTIFY 
The defendant has testified. You should treat this testimony just as you would the 
testimony of any other witness. 
 
 
 
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REASONABLE DOUBT DEFINED 
Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant 
is guilty. It is not required that the government prove guilt beyond all possible doubt.  
A reasonable doubt is a doubt based upon reason and common sense and is not based 
purely on speculation. It may arise from a careful and impartial consideration of all the evidence, 
or from lack of evidence.  
If after a careful and impartial consideration of all the evidence, you are not convinced 
beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not 
guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you 
are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the 
defendant guilty.  
 
 
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WHAT IS EVIDENCE 
The evidence you are to consider in deciding what the facts are consists of:  
(1) the sworn testimony of any witness; 
(2) the exhibits received in evidence; and 
(3) any facts to which the parties have agreed. 
 
 
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STIPULATIONS OF FACT 
The parties have agreed to certain facts that have been stated to you. Those facts are now 
conclusively established. 
 
 
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WHAT IS NOT EVIDENCE 
In reaching your verdict you may consider only the testimony and exhibits received in 
evidence. The following things are not evidence and you may not consider them in deciding what 
the facts are:  
1. Questions, statements, objections, and arguments by the lawyers are not evidence. The 
lawyers are not witnesses. Although you must consider a lawyer’s questions to understand the 
answers of a witness, the lawyer’s questions are not evidence. Similarly, what the lawyers have 
said in their opening statements, closing arguments, and at other times is intended to help you 
interpret the evidence, but it is not evidence. If the facts as you remember them differ from the 
way the lawyers state them, your memory of them controls. 
2. Any testimony that I have excluded, stricken, or instructed you to disregard is not 
evidence.  
3. Anything you may have seen or heard when the court was not in session is not 
evidence. You are to decide the case solely on the evidence received at the trial. 
 
 
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DIRECT AND CIRCUMSTANTIAL EVIDENCE 
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such 
as testimony by a witness about what that witness personally saw or heard or did. Circumstantial 
evidence is indirect evidence, that is, it is proof of one or more facts from which you can find 
another fact. 
You are to consider both direct and circumstantial evidence. Either can be used to prove 
any fact. The law makes no distinction between the weight to be given to either direct or 
circumstantial evidence. It is for you to decide how much weight to give to any evidence. 
 
 
 
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CREDIBILITY OF WITNESSES 
In deciding the facts in this case, you may have to decide which testimony to believe and 
which 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:  
(1) the opportunity and ability of the witness to see or hear or know the things testified 
to;  
(2) the witness’s memory;  
(3) the witness’s manner while testifying;  
(4) the witness’s interest in the outcome of the case, if any;  
(5) the witness’s bias or prejudice, if any;  
(6) whether other evidence contradicted the witness’s testimony;  
(7) the reasonableness of the witness’s testimony in light of all the evidence; and  
(8) any other factors that bear on believability.  
Sometimes a witness may say something that is not consistent with something else he or 
she said. Sometimes different witnesses will give different versions of what happened. People 
often forget things or make mistakes in what they remember. Also, two people may see the same 
event but remember it differently. You may consider these differences, but do not decide that 
testimony is untrue just because it differs from other testimony.  
However, if you decide that a witness has deliberately testified untruthfully about 
something important, you may choose not to believe anything that witness said. On the other 
hand, if you think the witness testified untruthfully about some things but told the truth about 
others, you may accept the part you think is true and ignore the rest.  
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The weight of the evidence as to a fact does not necessarily depend on the number of 
witnesses who testify. What is important is how believable the witnesses were, and how much 
weight you think their testimony deserves. 
 
 
 
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ACTIVITIES NOT CHARGED 
You are here only to determine whether the defendant is guilty or not guilty of the 
charges in the indictment. The defendant is not on trial for any conduct or offense not charged in 
the indictment. 
 
 
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SEPARATE CONSIDERATION OF MULTIPLE COUNTS—SINGLE DEFENDANT 
A separate crime is charged against the defendant in each count. You must decide each 
count separately. Your verdict on one count should not control your verdict on any other count.   
 
 
 
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STATEMENTS BY DEFENDANT 
You have heard testimony that the defendant made a statement. It is for you to decide (1) 
whether the defendant made the statement, and (2) if so, how much weight to give to it. In 
making those decisions, you should consider all the evidence about the statement, including the 
circumstances under which the defendant may have made it. 
 
 
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GOVERNMENT’S USE OF UNDERCOVER AGENTS 
You have heard testimony about an undercover agent who was involved in the 
government’s investigation in this case. Law enforcement officials may engage in stealth and 
deception, such as the use of undercover agents, in order to investigate criminal activities. 
Undercover agents may use false names and appearances.  
 
 
 
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CHARTS AND SUMMARIES ADMITTED INTO EVIDENCE 
Certain charts and summaries have been admitted into evidence. Charts and summaries 
are only as good as the underlying supporting material. You should, therefore, give them only 
such weight as you think the underlying material deserves.  
 
 
 
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WIRE FRAUD 
The defendant is charged in Counts One through Seven of the indictment with wire fraud 
in violation of Section 1343 of Title 18 of the United States Code. For the defendant to be found 
guilty of that charge, the government must prove each of the following elements beyond a 
reasonable doubt: 
First, the defendant knowingly devised a scheme or plan to defraud, or a scheme or plan 
for obtaining money or property by means of false or fraudulent pretenses, representations, or 
promises. Deceitful statements of half-truths may constitute false or fraudulent representations; 
Second, the statements made or facts omitted as part of the scheme were material; that is, 
they had a natural tendency to influence, or were capable of influencing, a person to part with 
money or property; 
Third, the defendant acted with the intent to defraud, that is, the intent to deceive and 
cheat; and 
Fourth, the defendant used, or caused to be used, an interstate wire communication to 
carry out or attempt to carry out an essential part of the scheme. 
In determining whether a scheme to defraud exists, you may consider not only the 
defendant’s words and statements, but also the circumstances in which they are used as a whole. 
A wiring is caused when one knows that a wire will be used in the ordinary course of 
business or when one can reasonably foresee such use. 
It need not have been reasonably foreseeable to the defendant that the wire 
communication would be interstate in nature. Rather, it must have been reasonably foreseeable to 
the defendant that some wire communication would occur in furtherance of the scheme, and an 
interstate wire communication must have actually occurred in furtherance of the scheme. 
 
 
 
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BANK FRAUD 
The defendant is charged in Counts Eight through Ten of the indictment with bank fraud 
in violation of Section 1344(2) of Title 18 of the United States Code. For the defendant to be 
found guilty of that charge, the government must prove each of the following elements beyond a 
reasonable doubt: 
First, the defendant knowingly carried out a scheme or plan to obtain money or property 
from the financial institution by making false statements or promises; 
Second, the defendant knew that the statements or promises were false; 
Third, the statements or promises were material; that is, they had a natural tendency to 
influence, or were capable of influencing, a financial institution to part with money or property; 
Fourth, the defendant acted with the intent to defraud; and 
Fifth, the financial institution was federally insured. 
 
 
 
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MONEY LAUNDERING 
The defendant is charged in Counts Eleven through Fifteen of the indictment with money 
laundering in violation of Section 1957 of Title 18 of the United States Code. For the defendant 
to be found guilty of that charge, the government must prove each of the following elements 
beyond a reasonable doubt:  
First, the defendant knowingly engaged or attempted to engage in a monetary transaction; 
Second, the defendant knew the transaction involved criminally derived property; 
Third, the property had a value greater than $10,000; 
Fourth, the property was, in fact, derived from wire fraud or bank fraud, as alleged in 
Counts One through Ten of the indictment; and 
Fifth, the transaction occurred in the United States. 
The term “monetary transaction” means the deposit, withdrawal, transfer, or exchange, in 
or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial 
institution. 
The term “financial institution” means a federally insured bank or any credit union as 
alleged in the indictment. 
The term “criminally derived property” means any property constituting, or derived from, 
the proceeds of a criminal offense. The government must prove that the defendant knew that the 
property involved in the monetary transaction constituted, or was derived from, proceeds 
obtained by some criminal offense. The government does not have to prove that the defendant 
knew the precise nature of that criminal offense, or knew the property involved in the transaction 
represented the proceeds of wire fraud or bank fraud, as alleged in Counts One through Ten of 
the indictment. 
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Although the government must prove that, of the property at issue more than $10,000 was 
criminally derived, the government does not have to prove that all the property at issue was 
criminally derived. 
 
 
 
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KNOWINGLY—DEFINED 
An act is done knowingly if the defendant is aware of the act and does not act through 
ignorance, mistake, or accident. The government is not required to prove that the defendant knew 
that his acts or omissions were unlawful. You may consider evidence of the defendant’s words, 
acts, or omissions, along with all the other evidence, in deciding whether the defendant acted 
knowingly. 
 
 
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INTENT TO DEFRAUD 
An intent to defraud is an intent to deceive and cheat. 
 
 
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AIDING AND ABETTING 
A defendant may be found guilty of the crimes charged even if the defendant did not 
personally commit the acts constituting the crime if the defendant willfully caused an act to be 
done that if directly performed by him would be an offense against the United States. 
A defendant who puts in motion or causes the commission of an indispensable element of 
the offense may be found guilty as if he had committed this element himself. 
 
 
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WILLFULLY—DEFINED 
With regard to Instruction Number 20, an act is done willfully if it is undertaken with bad 
purpose and with knowledge that the conduct is unlawful. 
 
 
 
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ON OR ABOUT—DEFINED 
The indictment charges that the offenses alleged in Counts One through Fifteen were 
committed “on or about” a certain date.  
Although it is necessary for the government to prove beyond a reasonable doubt that the 
offense was committed on a date reasonably near the date alleged in Counts One through Fifteen 
of the indictment, it is not necessary for the government to prove that the offense was committed 
precisely on the date charged. 
 
 
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DUTY TO DELIBERATE 
When you begin your deliberations, elect one member of the jury as your foreperson who 
will preside over the deliberations and speak for you here in court. 
You will then discuss the case with your fellow jurors to reach agreement if you can do 
so. Your verdict, whether guilty or not guilty, must be unanimous. 
Each of you must decide the case for yourself, but you should do so only after you have 
considered all the evidence, discussed it fully with the other jurors, and listened to the views of 
your fellow jurors. 
Do not be afraid to change your opinion if the discussion persuades you that you should. 
But do not come to a decision simply because other jurors think it is right. 
It is important that you attempt to reach a unanimous verdict but, of course, only if each 
of you can do so after having made your own conscientious decision. Do not change an honest 
belief about the weight and effect of the evidence simply to reach a verdict. 
Perform these duties fairly and impartially. Do not allow personal likes or dislikes, 
sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced 
by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender 
identity, gender, or economic circumstances. Also, do not allow yourself to be influenced by 
personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases, including 
unconscious biases.  Unconscious biases are stereotypes, attitudes, or preferences that people 
may consciously reject but may be expressed without conscious awareness, control, or intention. 
It is your duty as jurors to consult with one another and to deliberate with one another 
with a view towards reaching an agreement if you can do so. During your deliberations, you 
should not hesitate to reexamine your own views and change your opinion if you become 
persuaded that it is wrong. 
 
 
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USE OF NOTES 
Some of you have taken notes during the trial. Whether or not you took notes, you should 
rely on your own memory of what was said. Notes are only to assist your memory. You should 
not be overly influenced by your notes or those of your fellow jurors. 
 
 
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JURY CONSIDERATION OF PUNISHMENT 
The punishment provided by law for this crime is for the court to decide. You may not 
consider punishment in deciding whether the government has proved its case against the 
defendant beyond a reasonable doubt. 
 
 
 
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VERDICT FORM 
A verdict form has been prepared for you. After you have reached unanimous agreement 
on a verdict, your foreperson should complete the verdict form according to your deliberations, 
sign and date it, and advise the Court that you are ready to return to the courtroom. 
 
 
Case 2:20-cr-00174-JCC     Document 123     Filed 11/18/21     Page 29 of 30

 
COURT’S INSTRUCTIONS TO THE JURY 
CR20-0174-JCC 
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COMMUNICATIONS WITH COURT 
If it becomes necessary during your deliberations to communicate with me, you may send 
a note through the clerk, signed by any one or more of you. No member of the jury should ever 
attempt to communicate with me except by a signed writing, and I will respond to the jury 
concerning the case only in writing or here in open court. If you send out a question, I will 
consult with the lawyers before answering it, which may take some time. You may continue your 
deliberations while waiting for the answer to any question. Remember that you are not to tell 
anyone—including me—how the jury stands, numerically or otherwise, on any question 
submitted to you, including the question of the guilt of the defendant, until after you have 
reached a unanimous verdict or have been discharged 
 
 
Case 2:20-cr-00174-JCC     Document 123     Filed 11/18/21     Page 30 of 30

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