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Supplemental Joint Memorandum of Law in Support of Disputed Jury Instructions — United States v. Sissoko (Dkt. 168, C.D. Cal.)
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A supplemental joint memorandum of law in support of disputed jury instructions in United States of America v. Oumar Sissoko, No. CR 21-187-JFW, in the U.S. District Court for the Central District of California, filed April 11, 2022 for a trial date of April 13, 2022 before Hon. John F. Walter. It sets out, for each disputed instruction, the text of the proposed instruction and each side's position, beginning with Disputed Instruction No. 24 on wire fraud and citing Ninth Circuit and Third Circuit model instructions on the elements of 18 U.S.C. 1343. For one defense-proposed instruction the government asks the Court to defer a decision until it has reviewed the evidence admitted at trial.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Filed April 11, 2022 in Oumar Sissoko; one of 2 filings from this case.
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2022-04-11 |
Cite this document
“Supplemental Joint Memorandum of Law in Support of Disputed Jury Instructions — United States v. Sissoko (Dkt. 168, C.D. Cal.).”
U.S. District Court for the Central District of California, No. 2:21-cr-00187, Doc. 168, filed 2022-04-11. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-oumar-sissoko/2022-04-11-supplemental-joint-memorandum-of-law-in-support-of-disputed-dkt-168/
, SHA-256 181746767b1ec94bf9e11f6290711efdb88c5b95b697b723964099a6553fa3c5.Full text
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 1 of 23 Page ID #:2205
TRACY L. WILKISON
1 United States Attorney
SCOTT M. GARRINGER
2 Assistant United States Attorney
Chief, Criminal Division
3 CAROLYN S. SMALL (Cal. Bar No. 304938)
Assistant United States Attorney
4 Major Frauds Section
1100 United States Courthouse
5 312 North Spring Street
Los Angeles, California 90012
6 Telephone: (213) 894-2041
Facsimile: (213) 894-6269
7 Email: Carolyn.Small@usdoj.gov
8 JOSEPH S. BEEMSTERBOER
Acting Chief, Fraud Section
9 JASON COVERT (Ind. Bar. No. 29268-53)
Trial Attorney
10 Fraud Section, Criminal Division
United States Department of Justice
11 1400 New York Ave. NW
Washington, D.C. 20530
12 Telephone: (202) 307-0659
Email: Jason.Covert@usdoj.gov
13
Attorneys for Plaintiff
14 UNITED STATES OF AMERICA
15
UNITED STATES DISTRICT COURT
16
FOR THE CENTRAL DISTRICT OF CALIFORNIA
17
UNITED STATES OF AMERICA, No. CR 21-187-JFW
18
Plaintiff, SUPPLEMENTAL JOINT MEMORANDUM OF
19 LAW IN SUPPORT OF DISPUTED JURY
v. INSTRUCTIONS
20
OUMAR SISSOKO, Trial Date: April 13, 2022
21 Trial Time: 8:30
Defendant. Location: Courtroom of the Hon.
22 John F. Walter
23
24 Plaintiff United States of America, by and through its counsel
25 of record, Assistant United States Attorney Carolyn S. Small and
26 Trial Attorney Jason Covert, and defendant OUMAR SISSOKO, by and
27 through his counsel of record, Deputy Federal Public Defenders Elena
28 Sadowsky and Christy O’Connor, hereby submit this supplemental joint
1
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 2 of 23 Page ID #:2206
1 memorandum of law in support of each party’s disputed jury
2 instructions.
3 The parties respectfully request leave to make modifications or
4 to submit such other and additional instructions as may become
5 appropriate, and to withdraw any instructions which prove
6 inapplicable.
7 Dated: April 11, 2022 Respectfully submitted,
8 TRACY L. WILKISON
United States Attorney
9
SCOTT M. GARRINGER
10 Assistant United States Attorney
Chief, Criminal Division
11
12 /s/
CAROLYN S. SMALL
13 Assistant United States Attorney
14 JASON COVERT
Trial Attorney
15
Attorneys for Plaintiff
16 UNITED STATES OF AMERICA
17
18
Dated: April 11, 2022 /s/ (via email authorization)
19 ELENA SADOWSKY
CHRISTY O’CONNOR
20 Deputy Federal Public Defenders
21 Attorneys for Defendant
OUMAR SISSOKO
22
23
24
25
26
27
28
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Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 3 of 23 Page ID #:2207
1 INDEX OF DISPUTED JURY INSTRUCTIONS
2
Proposed Title Source Page
3 No.
4 INSTRUCTIONS AT END OF TRIAL
5
24 Wire Fraud 9th Cir. Model 1
6 Criminal
Instructions
7 15.35; Case law
8
41 Theory of Defense Model Crim. Jury 10
9 Instr. 9th Cir.
4.13 (Commentary);
10 Case Law
11
42 Definition of Model Crim. Jury 13
12 Omission and Half- Instr. 9th Cir.
Truth 15.35; Case Law
13
14 43 Definition of Black’s Law 18
Agreement Dictionary
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Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 4 of 23 Page ID #:2208
1 COURT’S INSTRUCTION NO. _____
2 Disputed Instruction No. 24
3 Re Wire Fraud
4 I. Text of Government’s Proposed Instruction
5 The defendant is charged in counts one through four of the
6 indictment with wire fraud in violation of Section 1343 of Title 18
7 of the United States Code. For the defendant to be found guilty of
8 wire fraud, the government must prove each of the following elements
9 beyond a reasonable doubt:
10 First, the defendant knowingly participated in or devised a
11 scheme or plan to defraud a victim of money or property, or a scheme
12 or plan for obtaining money or property by means of materially false
13 or fraudulent pretenses, representations, or promises. Deceitful
14 statements of half-truths may constitute false or fraudulent
15 representations;
16 Second, the defendant acted with the intent to defraud, that
17 is, the intent to deceive and cheat; and
18 Third, the defendant used, or caused to be used, an interstate
19 wire communication to carry out or attempt to carry out an essential
20 part of the scheme.
21 "Knowingly" is defined later in the Court's Instructions.
22 The concept of fraud includes the fraudulent appropriation to
23 one's own use of the money or goods entrusted to one's care by
24 another. In determining whether a scheme to defraud exists, you may
25 consider not only the defendant's words and statements, but also the
26 circumstances in which they are used as a whole.
27 A false or fraudulent pretense, representation, or promise is
28 “material” if it is capable of influencing the decision of the
1
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 5 of 23 Page ID #:2209
1 person or victim to whom it was addressed. It is not necessary that
2 the false or fraudulent pretense, representation, or promise
3 actually have that influence or be relied on by the alleged victim,
4 as long as it is capable of doing so.
5 A defendant acts with intent to deceive when he makes false
6 statements or utilizes other forms of deception. The deception need
7 not be premised upon spoken or written words alone. If there is
8 deception, the manner in which it is accomplished is immaterial.
9 A defendant acts with the intent to cheat when he engages in a
10 scheme or artifice to defraud or obtain money or property and
11 deprives a victim of money or property thereby cheating the victim
12 out of something valuable. The defendant must intend to obtain money
13 or property from the one who is deceived.
14 An intent to defraud may be demonstrated by the scheme itself.
15 Additionally, in considering whether the defendant acted with an
16 intent to defraud, you may consider, among other things, whether the
17 defendant acted with a desire or purpose to bring about some gain or
18 benefit to himself or someone else or with a desire or purpose to
19 cause some loss to someone.
20 A wiring is caused when one knows that a wire will be used in
21 the ordinary course of business or when one can reasonably foresee
22 such use.
23 It need not have been reasonably foreseeable to the defendant
24 that the wire communication would be interstate in nature. Rather,
25 it must have been reasonably foreseeable to the defendant that some
26 wire communication would occur in furtherance of the scheme, and an
27 interstate wire communication must have actually occurred in
28 furtherance of the scheme.
2
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 6 of 23 Page ID #:2210
1 You may convict defendant of the charges in the indictment only
2 if you find that he misappropriated funds that were disbursed
3 through the PPP loan program.
4 Sources: Ninth Circuit Model Criminal Jury Instruction No.
5 15.35; 3rd Cir. Model Criminal Jury Instructions 6.18.1343 – Wire
6 Fraud – Elements of the Offense (18 U.S.C. 1343) (incorporating the
7 materiality requirement into the first element of wire fraud),
8 6.18.1341-1 – Mail, Wire, or Bank Fraud – “Scheme to defraud or to
9 Obtain Money or Property” Defined (deception need not be premised on
10 spoken or written words), and 6.18.1341-14– Mail, Wire, or Bank
11 Fraud – “Intent to Defraud” Defined; Fed. Crim. Jury Instr. 7th Cir.
12 1341 & 1343[4] (2020 ed.) (defining materiality)1; United States v.
13 Dees, 34 F.3d 838, 842-843 & n.1 (9th Cir. 1994) (jury instruction
14 “more than adequately reflect[ed] the definition of intent to
15 defraud” where court instructed that scheme itself may demonstrate
16 such intent and jury could consider evidence that defendant
17 converted money to own use in determining intent); United States v.
18 Jones, 472 F.3d 1136, 1139-1140 (9th Cir. 2007) (fraudulent
19 appropriation of money satisfies elements of wire fraud); United
20 States v. Olano, 62 F.3d 1180, 1194 n.6 (9th Cir. 1995) (noting that
21 even if the defendants could establish a variance any error would
22 have been “cured by the district court’s instruction to the jury
23 that it could convict a defendant only if it found that he was a
24 member of the conspiracy charged in the indictment, regardless of
25 whether the jury believed that the defendant was part of some other
26 conspiracy”).
27
28 1The cited Third and Seventh Circuit Pattern Jury Instructions
are included in the attached Appendix.
3
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 7 of 23 Page ID #:2211
1 II. Redline Showing Differences Between Government’s Proposed
2 Instruction and Wire-Fraud Instruction Given During First Trial
3 The defendant is charged in counts one through four of the
4 indictment with wire fraud in violation of Section 1343 of Title 18
5 of the United States Code. For the defendant to be found guilty of
6 wire fraud, the government must prove each of the following elements
7 beyond a reasonable doubt:
8 First, the defendant knowingly participated in or devised a
9 scheme or plan to defraud a victim of money or property, or a scheme
10 or plan for obtaining money or property by means of materially false
11 or fraudulent pretenses, representations, or promises. Deceitful
12 statements of half-truths may constitute false or fraudulent
13 representations;
14 Second, the statements made or facts omitted as part of the scheme
15 were material; that is, they had a natural tendency to influence, or
16 were capable of influencing, a person to part with money or
17 property;
18 ThirdSecond, the defendant acted with the intent to defraud,
19 that is, the intent to deceive and cheat; and
20 FourthThird, the defendant used, or caused to be used, an
21 interstate wire communication to carry out or attempt to carry out
22 an essential part of the scheme.
23 “Knowingly” is defined later in the Court's Instructions.
24 The concept of fraud includes the fraudulent appropriation to
25 one's own use of the money or goods entrusted to one's care by
26 another. In determining whether a scheme to defraud exists, you may
27 consider not only the defendant's words and statements, but also the
28 circumstances in which they are used as a whole.
4
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 8 of 23 Page ID #:2212
1 A false or fraudulent pretense, representation, or promise is
2 “material” if it is capable of influencing the decision of the
3 person or victim to whom it was addressed. It is not necessary that
4 the false or fraudulent pretense, representation, or promise
5 actually have that influence or be relied on by the alleged victim,
6 as long as it is capable of doing so.
7 A defendant acts with intent to deceive when he makes false
8 statements or utilizes other forms of deception. The deception need
9 not be premised upon spoken or written words alone. If there is
10 deception, the manner in which it is accomplished is immaterial.
11 A defendant acts with the intent to cheat when he engages in a
12 scheme or artifice to defraud or obtain money or property and
13 deprives a victim of money or property thereby cheating the victim
14 out of something valuable. The defendant must intend to obtain money
15 or property from the one who is deceived.
16 An intent to defraud may be demonstrated by the scheme itself.
17 Additionally, in considering whether the defendant acted with an
18 intent to defraud, you may consider, among other things, whether the
19 defendant acted with a desire or purpose to bring about some gain or
20 benefit to himself or someone else or with a desire or purpose to
21 cause some loss to someone.
22 In determining whether a scheme to defraud exists, you may consider
23 not only the defendant's words and statements, but also the
24 circumstances in which they are used as a whole.
25 A wiring is caused when one knows that a wire will be used in
26 the ordinary course of business or when one can reasonably foresee
27 such use.
28 It need not have been reasonably foreseeable to the
5
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 9 of 23 Page ID #:2213
1 defendant that the wire communication would be interstate in nature.
2 Rather, it must have been reasonably foreseeable to the defendant
3 that some wire communication would occur in furtherance of the
4 scheme, and an interstate wire communication must have actually
5 occurred in furtherance of the scheme.
6 You may convict defendant of the charges in the indictment only
7 if you find that he misappropriated funds that were disbursed
8 through the PPP loan program.
9 III. Government’s Position
10 With the exception of the final sentence, which was added to
11 address defendant’s variance concerns, the government’s proposed
12 revisions to the wire-fraud instruction are taken entirely from the
13 pattern wire-fraud instructions from other circuits. The proposed
14 revisions accurately reflect the law and better fit the
15 misappropriation theory of wire fraud that the government is
16 presenting in this case.
17 The government proposes revising the materiality portion of the
18 instruction in particular because commentary to the Ninth Circuit
19 Model Criminal Jury Instructions make clear that the formulation of
20 materiality in the model wire-fraud instruction comes from the
21 common law test for materiality in the false statement statutes.
22 See No. 15.34 (Mail Fraud – Scheme to Defraud – Deprivation of
23 Intangible Right of Honest Services). As additional commentary to
24 Instruction No. 15.34 acknowledges, however, “[i]n the case of mail
25 or wire fraud, the government need not prove a specific false
26 statement was made.” Ninth Circuit Model Criminal Jury Instruction
27 No. 15.34, comment. (citing United States v. Woods, 335 F.3d 993,
28 999 (9th Cir. 2003)). “Rather, there are alternative routes to a
6
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 10 of 23 Page ID #:2214
1 mail [or wire] fraud conviction, one being proof of a scheme or
2 artifice to defraud, which may or may not involve any specific false
3 statements.” Id. Tying the materiality requirement to the scheme
4 to defraud, rather than to specific statements or omissions, is
5 proper as a legal matter and more consistent with the facts of this
6 case. See United States v. Omer, 395 F.3d 1087, 1089 (9th Cir.
7 2005) (“It is the materiality of the scheme or artifice that must be
8 alleged; the materiality of a specific statement need not be
9 pleaded.”). The government’s proposal to include the materiality
10 requirement as part of the first element of wire fraud is also
11 consistent with the Third Circuit’s model wire-fraud instruction.
12 See 3rd Cir. Model Criminal Jury Instructions 6.18.1343 – Wire Fraud
13 – Elements of the Offense (18 U.S.C. 1343).
14 IV. Defendant’s Position
15 The Court invited the parties to revise the wire fraud
16 instruction to address the concerns the defense raised in Dkt. 146.
17 The government instead has revised the wire fraud instruction based
18 on out-of-circuit instructions and only in ways that favor its case,
19 that risk confusing the jury, and in some cases lower its burden of
20 proof.
21 First, The government’s revisions to the materiality element
22 are problematic. By removing materiality from the list of elements
23 the government must prove, the government’s version insinuates that
24 materiality is not an element of the offense. It is an element that
25 the government has the burden to prove. United States v. Omer, 395
26 F.3d 1087 (9th Cir. 2005) (“[M]ateriality of falsehood is an element
27 of fraud.”). Additionally, the government proposes language beyond
28 the model instruction. The second sentence elaborating on the first
7
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 11 of 23 Page ID #:2215
1 simply restates the same definition. The needless repetition
2 complicates the instruction for the jury. The Court’s original
3 instruction was clear on the definition of materiality and
4 appropriately emphasized that it simply means “capable of
5 influencing a decision.” Materiality should remain as the Court
6 previously instructed.
7 The government’s addition of the language “The deception need
8 not be premised upon spoken or written words alone. If there is
9 deception, the manner in which it is accomplished is immaterial.” is
10 confusing and unnecessary. It’s confusing because the government is,
11 in fact, proceeding on a theory of written and spoken deceptions.
12 The jury is already informed that it may consider circumstances, not
13 just words and statements, so it is unclear what this adds. The
14 government has not offered a specific rationale for this additional
15 language, which is taken from another Circuit’s instructions.
16 The government’s addition of the language “An intent to defraud
17 may be demonstrated by the scheme itself. Additionally, in
18 considering whether the defendant acted with an intent to defraud,
19 you may consider, among other things, whether the defendant acted
20 with a desire or purpose to bring about some gain or benefit to
21 himself or someone else or with a desire or purpose to cause some
22 loss to someone” is also confusing and, again, risks lowering the
23 government’s burden of proof. The government takes this language
24 from a pre-Miller case, United States v. Dees, 34 F.3d 838, 842 (9th
25 Cir. 1994). There, the Court allowed the language to modify the
26 then-standard of “intent to deceive or cheat.” Today, post-Miller,
27 the standard is intent to device and cheat. Thus, the language
28 “desire or purpose” conflicts with Miller, but also by using
8
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 12 of 23 Page ID #:2216
1 terminology different from deceive and cheat again risks confusing
2 the jury. Additionally, the language creates the impression that a
3 desire to bring about money changing hands is evidence in and of
4 itself of an intent to defraud, which it is not. Whether the
5 government is proceeding on a theory of false statements/half-
6 truths, or a scheme to defraud,2 deception and cheating are
7 necessary. This paragraph creates the misimpression that they are
8 not.
9 Next, the final sentence of the government’s proposed
10 instruction does not address the defense’s concerns. The sentence
11 lowers the government’s burden because it does not mention intent.
12 It will confuse and invite the jury to convict simply if they find
13 that Mr. Sissoko misused the money, which the defense concedes in
14 most instances. The defense’s theory has always been that Mr.
15 Sissoko was operating mistakenly, but in good faith.
16 Finally, given that the government is no longer proceeding
17 under the “false pretenses” prong of the wire fraud statute, and
18 instead is proceeding under the “scheme to defraud” prong3, the first
19 element should be tailored to avoid jury confusion or the
20 possibility of a conviction not based upon information presented to
21 the grand jury. The first element should read, only:
22 First, the defendant knowingly participated in or devised a
23 scheme or plan to defraud a victim of money or property;
24
Again, the government seems to be waffling on its theory. Mr.
2
25 Sissoko has the right to prepare for trial having been on notice of
what actions of his are alleged to constitute wire fraud. Mr.
26 Sissoko reassert the requests contained in dkt. nos. 95 and 146.
27 3See the parties’ proposed supplemental jury instruction, which was
28 agreed upon in order to minimize the possibility of a fatal variance
and/or constructive amendment.
9
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 13 of 23 Page ID #:2217
1 The following language should be removed: “. . .or a scheme or plan
2 for obtaining money or property by means of false or fraudulent
3 pretenses, representations, or promises. Deceitful statements of
4 half-truths may constitute false or fraudulent representations.”
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Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 14 of 23 Page ID #:2218
1 COURT’S INSTRUCTION NO. _____
2 Disputed Instruction No. 41
3 Re Theory Of Defense
4 I. Text of Defendant’s Proposed Instruction
5 Oumar Sissoko has raised as a defense that he did not
6 intentionally defraud Chase Bank as required to be guilty of wire
7 fraud. Mr. Sissoko held mistaken beliefs about the PPP loan rules
8 and regulations-- namely, that PPP loan proceeds could be used as
9 start-up funds with a goal of creating 450 US jobs -- and Mr.
10 Sissoko believed in the truth of the statements he made to Chase
11 Bank.
12 You may determine whether a defendant had an honest, good faith
13 belief in the truth of the specific misrepresentations alleged by
14 the government in determining whether or not the defendant acted
15 with intent to defraud.
16 It is the government’s burden to prove beyond a reasonable
17 doubt that Mr. Sissoko had the intent to defraud, and not a good
18 faith mistaken belief about the PPP loan program and the truth of
19 the misstatements alleged by the government.
20
21 Source: Model Crim. Jury Instr. 9th Cir. 4.13 (Intent to Defraud)
22 (Comment); United States v. Molinaro, 11 F.3d 853, 863 (9th Cir.
23 1993) (example of court giving a good faith instruction).
24 II. Defendant’s Position
25 “A defendant is entitled to have the judge instruct the jury on
26 h[er] theory of defense, provided that it is supported by law and
27 has some foundation in the evidence.” United States v. Mason, 902
28 F.2d 1434, 1438 (9th Cir. 1990). No current jury instruction,
11
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 15 of 23 Page ID #:2219
1 including the instruction on wire fraud, adequately covers the
2 theory of defense, which is that Mr. Sissoko had a mistaken, but
3 good faith, belief that he was entitled to use the PPP loan funds as
4 he did. This good faith instruction, which comes in part from the
5 commentary to the Model Instruction on Wire Fraud, is based properly
6 in the law as applied to the facts of this case. As the Court is
7 aware, at least four jurors voted to acquit Mr. Sissoko at the first
8 trial in which the defense advanced the same good faith mistake
9 defense. The defense has learned that several jurors who voted to
10 convict Mr. Sissoko believed that Mr. Sissoko’s intent or state of
11 mind was irrelevant. That is, of course, not correct under the law
12 and this jury instruction is necessary to clarify that
13 misunderstanding about the intent to defraud. Additionally, although
14 Mr. Sissoko does not waive the arguments advanced in docket number
15 146, this instruction is a step towards addressing the concerns
16 raised therein.
17 III. Government’s Position
18 Defendant’s proposed jury instruction is unnecessary because
19 the jury is already being adequately instructed regarding the intent
20 required to be found guilty of wire fraud; a separate good-faith
21 instruction is not warranted. United States v. Hickey, 580 F.3d
22 922, 931 (9th Cir. 2009) (holding that the defendant was not
23 entitled to “a separate ‘good faith’ instruction, in addition to the
24 district court’s other instructions on specific intent”); United
25 States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (“Our case law
26 is well settled that a criminal defendant has no right to any good
27 faith instruction when the jury has been adequately instructed with
28 regard to the intent required to be found guilty of the crime
12
Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 16 of 23 Page ID #:2220
1 charged, notwithstanding the normal rules governing ‘theory of
2 defense’ requests.”). The first paragraph of defendant’s proposed
3 good-faith instruction is particularly problematic because it makes
4 it sound as though the Court is endorsing the defense’s position
5 that defendant held mistaken beliefs about the Paycheck Protection
6 Program rules and regulations and that defendant believed in the
7 truth of the statements defendant made to Chase Bank. The jury
8 should not be affirmatively instructed about defendant’s beliefs.
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Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 17 of 23 Page ID #:2221
1 COURT’S INSTRUCTION NO. _____
2 Disputed Instruction No. 42
3 Re Definition of Omission and Half-Truth
4 I. Text of Defendant’s Proposed Instruction
5 Wire fraud by omission of a material fact occurs when the
6 defendant fails to disclose information despite the existence of an
7 independent duty requiring him to disclose information. The duty to
8 disclose arises when the defendant is in a formal fiduciary
9 relationship or an informal trusting relationship in which one party
10 acts for the benefit of another and induces the trusting part to
11 relax the care and vigilance that it would ordinarily exercise.
12 Wire fraud by half-truth occurs when the defendant fails to
13 correct speech. The duty to correct arises when the speech without
14 the correction is misleading. For example, a real estate agent
15 advertises that a plot of land is 5 miles from a lake, but does not
16 include a second statement that, by road, the land is actually 15
17 miles from the lake. Even though it is literally true that the lake
18 is 5 miles away as the crow flies, the 5-mile statement is a half-
19 truth because it is misleading when not modified by the second
20 statement.
21
22 Source: Model Crim. Jury Instr. 9th Cir. 15.35 Wire Fraud (as to
23 omission); United States v. Shields, 844 F.3d 819 (9th Cir. 2016)
24 (it was error to fail to instruct jury on duty to disclose in an
25 omission case); United States v. Laurienti, 611 F.3d 530, 543 (9th
26 Cir. 2010) (it was error to fail to instruct jury on trust
27 relationship requirement in omission case); United States v. Benny,
28 786 F.2d 1410, 1418 (9th Cir. 1986) (omission requires independent
14
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1 duty to disclose); United States v. Lustiger, 386 F.2d 132, 136 (9th
2 Cir. 1967) (half-truth example)
3 II. Defense Position
4 The defense offers the instruction, in part, to address the
5 concerns raised in Dkt No. 146 as part of the wire fraud instruction
6 or to immediately follow it.
7 In United States v. Shields, the Ninth Circuit explained “it was
8 error to not instruct the jury that it must find a relationship
9 creating a duty to disclose before it could conclude that a material
10 non-disclosure supports a wire fraud charge.” 844 F.3d 819, 823 (9th
11 Cir. 2016); see also United States v. Laurienti, 611 F.3d 530, 543
12 (9th Cir. 2010) (it was error to fail to instruct jury on trust
13 relationship requirement in omission case). Shields did not
14 distinguish between fraud cases predicated solely on omissions as
15 opposed to cases involving both misrepresentations and omissions.
16 Interpreting Shields, a later panel of the Ninth Circuit has
17 explained the duty to disclose “rule is not limited to ‘pure
18 omissions’ cases, where the allegations of fraud are only based on
19 non-disclosures.” United States v. Spanier, 744 Fed. Appx. 351, 353
20 (9th Cir. 2018) (unpublished) (citing Shields, 844 F.3d at 823).
21 Indeed, in Spanier the Ninth Circuit found it was error to not give
22 a jury instruction concerning an omissions theory when “the
23 indictment, the district court’s summary of the case to the jury,
24 the jury instructions, and the evidence presented at trial show that
25 the government’s fraud case was based on affirmative
26 misrepresentations, halftruths, and omissions.” 744 Fed. Appx. at
27 353-54. Thus, even if the government is not proceeding on a pure
28 omissions case, the instruction is appropriate because the
15
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1 government intends to argue that Mr. Sissoko omitted material
2 information to the UC.
3 Moreover, further explanation of the terms “omissions” and “half-
4 truths” is necessary because neither term is obvious and the average
5 juror would not understand how to apply these legal terms to the
6 facts of this case. Cf. United States v. Chambers, 918 F.2d 1455,
7 1460 (9th Cir. 1990) (holding there was no need to define
8 “knowingly” because the definition was obvious and the average juror
9 could have applied the word to the facts of the case without
10 difficulty). While some jurors may be familiar with the terms, the
11 words need definition because the jurors, based on their law
12 experiences, could have ascribed different meanings or incomplete
13 meanings. In particular, most, if not all, jurors without legal
14 training would not understand when the duty arises to disclose or
15 correct information. Therefore, without the explanation, the jury
16 instructions as a whole are “inadequate to guide the jury’s
17 deliberation.” United States v. Dixon, 201 F.3d 1223, 1230 (9th
18 Cir.2000).
19 III. Government Position
20 This is not an omissions case. The fraud charges in this case are
21 not based on material omissions, either in part or in whole. Cf.
22 United States v. Spanier, 744 F. App’x 351, 353-54 (9th Cir. July
23 30, 2018) (concluding the district court erred in failing to
24 instruct the jury on the omissions theory of fraud and the duty to
25 disclose when the government bases a fraud charge on material non-
26 disclosures”). Defendant continues to attempt to contort the
27 government’s use of the evidence to prove the elements of wire fraud
28 to mean that the government is advancing a new theory of fraud. But
16
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1 as the government has repeatedly explained, the government’s
2 evidence about what defendant did and did not say to the undercover
3 agent is relevant to show that defendant’s responses were deceptive
4 and misleading. This in turn is relevant to prove that defendant
5 knew he had misused the PPP money. For instance, if defendant truly
6 believed that the $90,000 payment to his wife was a legitimate
7 salary payment, one would expect him to have mentioned that
8 expenditure when asked how he had been spending the PPP money,
9 particularly given that it was one of his largest expenditures. The
10 fact that defendant failed to mention the $90,000 payment to the
11 undercover agent is relevant to prove that defendant knew the
12 transfers were not authorized uses of PPP funds. It also rebuts the
13 idea that the payments truly were intended as salary payments, given
14 that the first time they are being characterized that way is at
15 trial.
16 Defendant’s proposed instruction regarding “half-truths” is
17 inaccurate and not helpful. As the model jury instructions already
18 make clear, a half-truth is simply another form of a false
19 statement. Ninth Circuit Model Criminal Jury Instruction No. 15.35
20 (Wire Fraud) (“Deceitful statements of half-truths may constitute
21 false or fraudulent representations.”). No further instruction on
22 this point is necessary. Moreover, defendant cites no support for
23 the proposition that a half-truth occurs only when a defendant
24 “fails to correct speech.” And indeed, the Supreme Court has
25 defined a “half-truth” as a statement that “state the truth only so
26 far as it goes, while omitting critical qualifying information.”
27 Universal Health Servs., Inc. v. United States ex rel. Escobar, 579
28 U.S. 176, 188 (2016). Courts have also held that half-truths
17
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1 support a conviction without any independent fiduciary duty: “the
2 duty to disclose ... arises from the telling of a half-truth,
3 independent of any responsibilities arising from a truth
4 relationship.” United States v. Lloyd, 807 F.3d 1128, 1153 (9th
5 Cir. 2015) (emphasis added) (citation and quotation omitted).
6 Accordingly, defendant’s requested instruction is not only
7 unhelpful, it is inaccurate and potentially confusing.
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Case 2:21-cr-00187-JFW Document 168 Filed 04/11/22 Page 22 of 23 Page ID #:2226
1 COURT’S INSTRUCTION NO. _____
2 Disputed Instruction No. 43
3 Re Definition of Agreement
4 I. Text of Defendant’s Proposed Instruction
5 The term “agreement” is broader than the term “contract.” The
6 term “agreement” means a mutual understanding between two or more
7 persons about their relative rights and duties regarding past or
8 future performances. For example, an accepted invitation to dinner
9 would be an agreement in this sense; but it would not be a contract
10 because it would neither be intended to create, nor would it in fact
11 create, any legal obligation between the parties to it.
12
13 Source: AGREEMENT, Black’s Law Dictionary (11th ed. 2019)
14 II. Defense Position
15 The government intends to ask the jury to rest this conviction
16 on the fact that Mr. Sissoko did not, as represented, have an
17 “agreement” with John Deere to provide equipment for his African
18 ventures. They intend to introduce, as evidence that his statements
19 are lies, that: (1) he had no contracts with RDO Equipment Company,
20 a dealer for John Deere equipment whose territory is Minnesota,
21 North Dakota, Oregon and California; (2) he had not purchased new
22 equipment from Deere & CO and its affiliates; (3) he had not
23 purchased warranties for Deere equipment; and (4) only one
24 dealership in the California region had provided a price quote to
25 Mr. Sissoko in 2017 but did not have contact after that. However,
26 the term “agreement” is much broader than what the government’s
27 evidence implies. Without the definition of “agreement,” the jury
28
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1 would be invited to convict Mr. Sissoko simply because he does not
2 have or has not had a contract.
3 The definition of agreement is also part of the theory of the
4 defense, i.e. that Mr. Sissoko believed in the truth in the
5 statements he made to Chase Bank, including that he had an
6 “agreement” with John Deere. The defense theory is supported by
7 adequate evidence. See Dkt. 95-96 (Declaration filed in camera). And
8 the proposed definition comes straight from Black’s Law Dictionary,
9 a widely accepted source for legal definitions.
10 III. Government’s Position
11 The government intends to prove that defendant possessed an
12 intent to deceive by, among other things, demonstrating that
13 defendant falsely claimed to have an agreement with John Deere.
14 However, the falsity of this statement does not rest on some hyper-
15 technical difference in the definition of the terms contract and
16 agreement. Thus, this instruction is unnecessary and confusing.
17 Defendant also claims that the definition is part of the theory
18 of the defense and should be given because this is “supported by
19 adequate evidence,” as demonstrated by the in-camera declaration
20 filed at Dkt. 95-96. The government is unaware of what is contained
21 in the declaration filed at Dkt. 95-96, and is not in a position to
22 respond on this issue. Thus to the extent defendant believes this
23 instruction is warranted based on evidence that will be admitted at
24 trial, the government requests that the Court hold in abeyance a
25 decision on this instruction so that the parties and the court may
26 evaluate whether it is warranted after reviewing the evidence that
27 is admitted at trial.
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