Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cr-00103-REB THE UNITED STATES OF AMERICA, Plaintiff, v. NORMAN SCHMIDT, GEORGE ALAN WEED, CHARLES LEWIS, and MICHAEL SMITH, Defendants. _________________________________________________________________ DEFENDANT NORMAN SCHMIDT'S PROPOSED JURY INSTRUCTIONS _________________________________________________________________ Tendered herewith are Mr. Schmidt's proposed jury instructions in connection with the above-captioned case. Respectfully submitted, s/Peter Bornstein Peter R. Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2350 Denver, Colorado 80202 (303)861-2500 Fax: (303)861-0420 E-mail: [email protected] s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, PC 1544 Race Street Denver, Colorado 80206 (303)321-7902 fax: (303)329-5871 e-mail: [email protected]

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1 Introduction to the Final Charge--Province of the Court and of the Jury Members of the Jury: Now that you have heard all of the evidence to be received in this trial and each of the arguments of counsel it becomes my duty to give you the final instructions of the Court as the to law that is applicable to this case. You should use these instructions to guide your decisions. All of the instructions of law given to you by the Court -- those given to you at the beginning of the trial, those given to you during the trial, and these final instructions -must guide and govern your deliberations. It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them from the evidence received during the trial. Counsel have quite properly referred to some applicable rules of law in their closing arguments to you. If, however, any difference appears to you between the law as stated by counsel and that as stated by the Court in these instructions, you, of course, are to be governed by the instructions given to you by the Court. You are not to single out any one instruction alone as stating the law, but must consider the instructions as a whole in reaching your decisions. Neither are you to be concerned with the wisdom of any rule of law stated by the Court. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base any part of your verdict upon any other view or opinion of the law than that given in these instructions of the Court just as it would be a

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violation of your sworn duty, as the judges of the facts, to base your verdict upon anything but the evidence received in this case. You were chosen as jurors for this trial in order to evaluate all of the evidence received and to decide each of the factual questions presented by the allegations brought by the government in the indictment and the pleas of not guilty by the defendants. In resolving the issues presented to you for decision in this trial you must not be persuaded by bias, prejudice, or sympathy for or against any of the parties to this case or by any public opinion. Justice - through trial by jury - depends upon the willingness of each individual juror to seek the truth from the same evidence presented to all jurors here in the courtroom and to arrive at a verdict by applying the same rules of law as now being given to each of you in these instructions of the Court.

O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol 1A, § 12.01

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2 Judging the Evidence There is nothing particularly different in the way that a juror should consider the evidence in a trial from that in which any reasonable and careful person would deal with any very important question that must be resolved by examining facts, opinions, and evidence. You are expected to use your good sense in considering and evaluating the evidence in the case. Use the evidence only for those purposes for which it has been received and give the evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. If any defendant be proved guilty beyond a reasonable doubt, say so. If not proved guilty beyond a reasonable doubt, say so. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict upon anything other than the evidence received in the case and the instructions of the Court. Remember as well that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence because the burden of proving guilt beyond a reasonable doubt is always with the government.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.02

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3 Evidence Received in the Case -- Stipulations Judicial Notice, and Inference Permitted The evidence in this case consists of the sworn testimony of the witnesses regardless or who may have called them - all exhibits received in evidence - regardless of who may have produced them - all facts which may have been agreed to or stipulated; and all facts and events which may have been judicially noticed. A stipulation means simply that the government and the defendants accept the truth of a particular proposition or fact. When the attorneys on both sides stipulate or agree as to the existence of a fact, you may accept the stipulation as evidence and regard that fact as proved. You are not required to do so, however, since you are the sole judges of the facts. The Court has taken judicial notice of certain facts or events. When the Court declares that it has taken judicial notice of some fact or event, you may accept the Court's declaration as evidence and regard as proved the fact or event which has been judicially noticed. You are not required to do so, however, since you are the sole judges of the facts. Any proposed testimony or proposed exhibit to which an objection was sustained by the Court and any testimony or exhibit ordered stricken by the Court, must be entirely disregarded. Anything you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. Questions, objections, statements, and arguments of counsel are not evidence in the case, unless made as an admission or stipulation of fact.

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You are to base your verdict only on the evidence received in the case. In your consideration of the evidence received, however, you are not limited to the bald statements of the witnesses or to the bald assertions in the exhibits. In other words, you are not limited solely to what you see and hear as the witnesses testify or as the exhibits are admitted. You are permitted to draw from the facts which you find have been proved such reasonable inferences as you feel are justified in the light of your experience and common sense.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.03

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4 Direct and Circumstantial Evidence There are two types of evidence which are generally presented during a trial direct evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact. The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weigh all the evidence in the case. If, after weighing all the evidence, you are not convinced of the guilt of any defendant beyond a reasonable doubt, you must find him or her not guilty.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.04

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 5 Inferences From the Evidence Inferences are simply deductions or conclusions which reason and common sense lead the jury to draw from the evidence received in the case.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §12.05

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 6 Jury's Recollection Controls If any reference by the Court or by counsel to matters of testimony or exhibits does not coincide with your own recollection of that evidence, it is your recollection which should control during your deliberations and not the statements of the Court or of counsel. You are the sole judges of the evidence received in this case.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.07

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 7 Consider Only the Offenses Charged The defendants are not on trial for any act or any conduct not specifically charged in the indictment.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §12.09, as modified

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8 Presumption of Innocence, Burden of Proof, and Reasonable Doubt I instruct you that you must presume the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, to be innocent of the crimes charged. Thus the defendants, although accused of crimes in the indictment, begin the trial with a "clean slate" -- with no evidence against them. The indictment, as you already know, is not evidence of any kind. The defendants are, of course, not on trial for any act or crime not contained in the indictment. The law permits nothing but legal evidence presented before the jury in court to be considered in support of any charge against the defendants. The presumption of innocence alone therefore, is sufficient to acquit any defendant - Norman Schmidt, George Weed, Charles Lewis, or Michael Smith. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendants are not even obligated to produce any evidence by cross-examining the witnesses for the government. It is not required that the government prove guilt beyond all possible doubt, as there are very few things in this world that we know with absolute certainty. The test is one of reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. A "reasonable doubt" is a doubt based upon common sense after careful and impartial consideration of all the evidence in the case. It is the kind of proof that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character

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that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. Unless the government proves, beyond a reasonable doubt, that the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have committed each and every element of each and every offense charged in the indictment, you must find the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, not guilty of the offenses. If the jury views the evidence in the case as permitting either of two conclusions - one of innocence, the other of guilt the jury must, of course, adopt the conclusion of innocence

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §12.10

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8a Presumption of Innocence, Burden of Proof, and Reasonable Doubt I instruct you that you must presume the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, to be innocent of the crimes charged. Thus the defendants, although accused of crimes in the indictment, begin the trial with a "clean slate" -- with no evidence against them. The indictment, as you already know, is not evidence of any kind. The defendants are, of course, not on trial for any act or crime not contained in the indictment. The law permits nothing but legal evidence presented before the jury in court to be considered in support of any charge against the defendants. The presumption of innocence alone therefore, is sufficient to acquit any defendant - Norman Schmidt, George Weed, Charles Lewis, or Michael Smith. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendants are not even obligated to produce any evidence by cross-examining the witnesses for the government. It is not required that the government prove guilt beyond all possible doubt, as there are very few things in this world that we know with absolute certainty. The test is one of reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. A "reasonable doubt" is a doubt based upon common sense after careful and impartial consideration of all the evidence in the case. It is the kind of proof that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character

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that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. Unless the government proves, beyond a reasonable doubt, that the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have committed each and every element of each and every offense charged in the indictment, you must find the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, not guilty of the offenses. If the inference of guilt is stronger that the inference of innocence but not strong enough to be beyond a reasonable doubt, then the jury must acquit.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §12.10, as modified by Chief Judge Babcock (United States v. Jordan)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8b Presumption of Innocence, Burden of Proof, and Reasonable Doubt I instruct you that you must presume the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, to be innocent of the crimes charged. Thus the defendants, although accused of crimes in the indictment, begin the trial with a "clean slate" -- with no evidence against them. The indictment, as you already know, is not evidence of any kind. The defendants are, of course, not on trial for any act or crime not contained in the indictment. The law permits nothing but legal evidence presented before the jury in court to be considered in support of any charge against the defendants. The presumption of innocence alone therefore, is sufficient to acquit any defendant - Norman Schmidt, George Weed, Charles Lewis, or Michael Smith. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendants are not even obligated to produce any evidence by cross-examining the witnesses for the government. It is not required that the government prove guilt beyond all possible doubt, as there are very few things in this world that we know with absolute certainty. The test is one of reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. A "reasonable doubt" is a doubt based upon common sense after careful and impartial consideration of all the evidence in the case. It is the kind of proof that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character

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that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. Unless the government proves, beyond a reasonable doubt, that the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have committed each and every element of each and every offense charged in the indictment, you must find the defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, not guilty of the offenses. If the jury views the evidence in the case as reasonable permitting one of two conclusions - one of innocence, the other of guilt - the jury must, of course, adopt the conclusion of innocence. If the inference of guilt is stronger that the inference of innocence but not strong enough to be beyond a reasonable doubt, then the jury must acquit.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §12.10, as modified by Judge Nottingham (United States v. Hunt)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 9 Verdict as to Defendant Only You are here to determine whether the government has proven the guilt of the defendants for the charges in the indictment beyond a reasonable doubt. You are not called upon to return a verdict as to the guilt or innocence of any other person or persons. So, if the evidence in the case convinces you beyond a reasonable doubt of the guilt of any defendant for the crimes charged in the indictment, you should so find, even though you may believe that one or more other unindicted persons are also guilty. But if any reasonable doubt remains in your minds after impartial consideration of all the evidence in the case, it is your duty to find the defendant or defendants not guilty.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.11 as modified

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 10 Consider Each Count Separately A separate crime is charged in each count of the indictment. Each charge, and the evidence pertaining to it, should be considered by the jury. The fact that you may find a defendant guilty or not guilty as to any of the counts should not control your verdict as to any other count.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 12.12 as modified

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 11 The Indictment Is Not Evidence An indictment is but a formal method used by the government to accuse a defendant of a crime. It is not evidence of any kind against the defendants. Each defendant is presumed to be innocent of the crime charged. Even though this indictment has been returned against the defendants, the defendants begin this trial with absolutely no evidence against them. Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have pleaded "Not Guilty" to this indictment and, therefore, deny that they are guilty of the charges.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 13.04, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 12 Unanimity - Explained Count One of the indictment charges Defendants Norman Schmidt, George Weed, Charles Lewis and Michael Smith with a violation of federal law concerning conspiracy to commit fraud against the United States. The indictment alleges a number of separate means or methods by which the Defendants are accused of violating this law. The government is not required to prove all of the means or methods alleged in Count One of the indictment. Each juror must agree with each of the other jurors, however, that the same means or methods alleged in Count one of the indictment was, in fact, engaged in or employed by the Defendants, Norman Schmidt, George Weed, Charles Lewis and Michael Smith in committing the crime charged in Count One of the indictment. The jury need not unanimously agree on each means or method, but, in order to convict, must unanimously agree upon at least one such means or method as engaged by the Defendants, Norman Schmidt, George Weed, Charles Lewis and Michael Smith. Unless the government has proven the same means or method to each of you, beyond a reasonable doubt, you must acquit the Defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith.

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 13.07, as modified

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DEFENDANTS PROPOSED INSTRUCTION NO. 13 Statement or conduct of a Defendant - Multiple Defendants on Trial Evidence relating to any alleged statement, confession, admission, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed, should always be considered with caution and weighed with great care. All such alleged statements, confessions, or admissions should be disregarded entirely unless the other evidence in the case convinces the jury beyond a reasonable doubt that this statement, confession, admission, or act or omission was made knowingly and voluntarily. In determining whether any alleged statement, confession, admission, or act or omission alleged to have been made by a defendant outside of court, and after a crime has been committed was knowingly and voluntarily made, the jury should consider the age, training, education, occupation, and physical and mental condition of the defendant, in his or her treatment while in custody or under interrogation as shown by the evidence in the case. Also consider all other circumstances and evidence surrounding the making of the alleged statement, confession, or admission. If after considering the evidence you determined that a statement, confession, admission, or act or omission was made knowingly and voluntarily, by Defendant ________ you may give it such weight as you feel it deserves under the circumstances in deciding the case against Defendant _________. You may not in any way, however, consider the alleged statement of Defendant _________ when evaluating the case against Defendant ________ and in determining whether the government has proven the charge(s) against Defendant _____________.

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O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 14.04, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 14 Number of Witnesses is not Controlling Your decision on the facts of this case should not be determined by the number of witnesses testifying for or against a party. You should consider all the facts and circumstances in evidence to determine which of the witnesses you choose to believe or not believe. You may find that the testimony of a smaller number of witnesses on one side is more credible than the testimony of a greater number of witnesses on the other side

O'Malley, Grenig & Lee Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 14.16

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 15 Credibility of Witnesses - Generally You, as jurors, are the sole and exclusive judges of the credibility of the witnesses called to testify in this case and only you determine the importance of the weight that their testimony deserves. After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness' testimony, only a portion of it, or none of it. In making your assessment of that witness you should carefully scrutinize all of the testimony given by that witness, the circumstances under which each witness has testified, and all of the other evidence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness' intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand. Consider the witness' ability to observe the matters as to which he or she has testified and consider whether he or she impresses you as having an accurate memory or recollection of these matters. Consider also any relation a witness may bear to either side of the case, the manner in which each witness might be affected by your verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or more persons witnessing an incident or a transaction may simply see or hear it differently. Innocent misrecollection, like failure of recollection, is not an uncommon human experience. In weighting the effect of a discrepancy,

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however, always consider whether it pertains to a matter of importance or an insignificant detail and consider whether the discrepancy results from innocent error or from intentional falsehood. After making your own judgment or assessment concerning the believability of a witness, you can then attach such importance or weight to that testimony, if any, that you feel it deserves. You will then be in a position to decide whether the government has proven the charge beyond a reasonable doubt.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 15.01

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 16 Credibility of Witnesses - Informant The statements of an informant, someone who provides evidence against someone else for money, or to escape punishment for his misdeeds or crimes, or for other personal reason or advantage, must be examined and weighed by the jury with greater care than the testimony of a witness who is not so motivated. Susan Veik may be considered to be an informant in this case. The jury must determine whether the informer's statements have been affected by self-interest, or by the agreement he or she had with the government, or his or her own self-interest in the outcome of this case, or by prejudice against a defendant.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §15.02, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 17 Effect of a Defendant's Failure to Testify The defendant in a criminal case has an absolute right under our Constitution not to testify. The fact that Defendant Norman Schmidt did not testify, must not be discussed or considered in any way when deliberating and in arriving at your verdict. No inference of any kind may be drawn from the fact that a defendant decided to exercise his or her privilege under the Constitution and did not testify. As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or of producing any evidence.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 15.14

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DEFENDANT'S PROPOSED INSTRUCTION NO. 18 "Willfully" - Defined (Non-Tax Cases) The term "willfully", as used in these instructions to described the alleged state of mind of Defendant Norman Schmidt, means that he knowingly performed an act, deliberately and intentionally as contrasted with accidentally, carelessly, or unintentionally.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §17.05 as modified

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 19 Proof of Knowledge or Intent The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other facts and circumstances received in evidence which may aid in your determination of that person's knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 17.07

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 20 The Nature of the Offense Charged Count One of the indictment charges that from about April, 1999, until about October, 2004, in the District of Colorado, Defendants Norman Schmidt, George Weed, Charles Lewis and Michael Smith, came to some type of agreement or understanding to commit fraud against the United States, specifically the Securities and Exchange Commission, and then acted to achieve the goals of the alleged conspiracy or agreement or understanding in that one of its members thereafter The

Defendants, Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have entered pleas of "not guilty" and have denied that they are guilty of the offenses charged in Count One of the indictment.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §31.01, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 21 The Statute Defining the Offense Charged Section 371 of Title 18 of United States Code, provides, in part, that: "If two or more persons conspire... to commit any offense against the United States, or to defraud the United States, or any agency thereof ... and one or more of such persons do any act to effect the object of the conspiracy, ... " an offense against the United States has been committed.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, §31.02

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DEFENDANT'S PROPOSED INSTRUCTION NO. 22 The Essential Elements of the Offense Charged In order to sustain its burden of proof of the crime of conspiracy to defraud the United States is charged in Count One of the indictment, the government must prove the following four (4) essential elements beyond a reasonable doubt: One: The conspiracy, agreement or understanding to defraud the United States, as described in the indictment, was formed, reached, or entered into by two or more persons; Two: At some time during the existence or life of the conspiracy, agreement, or understanding, Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith knew of the purpose of the agreement, and, with that knowledge, then deliberately join the conspiracy, agreement, or understanding; Three: At some time during the existence or life of the conspiracy, agreement, or understanding, one of its alleged members knowingly performed one of the overt acts charged in the indictment and did so in order to further or advance the purpose of the agreement; Four: Each Defendant, Norman Schmidt, George Weed, Charles Lewis and Michael Smith knowingly and voluntarily participated in the charged conspiracy; and Four: There was interdependence among the members of the charged conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the charged conspiracy.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.03, as modified. Tenth Circuit Criminal Pattern Jury Instructions 2.19

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DEFENDANT'S PROPOSED INSTRUCTION NO. 23 Conspiracy - Existence of an Agreement A criminal conspiracy is an agreement or a mutual understanding and knowingly made or knowingly entered into by at least two people to violate the law by some joint or common plan or course of action. A conspiracy is, in a very true sense, a partnership in crime. A conspiracy or agreement to violate the law, like any other kind of agreement or understanding, need not be formal, written, or even expressed directly in every detail. The government must prove that Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith knowingly and deliberately arrived at an agreement or understanding that they, and perhaps others, would defraud the United States by means of some common plan or course of action as alleged in Count One of the indictment. It is proof of this conscious understanding and delivered agreement by the alleged members that should be central to your consideration of the charge of conspiracy. Unless the government proves beyond a reasonable doubt that a conspiracy, as just explained, actually existed, then you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.04

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DEFENDANT'S PROPOSED INSTRUCTION NO. 24 Conspiracy - Membership in an Agreement Before the jury may find that Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, became members of the conspiracy charged in Count One of the indictment, the evidence in the case must show beyond a reasonable doubt that Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, knew the purpose or goal of the agreement or understanding and deliberately entered into the agreement intending, in some way, to accomplish the goal or purpose by this common plan or joint action. Merely associating with others in discussing common goals, mere similarity of conduct between or among such persons, merely being present at the place where crime takes place or is discussed, or even knowing about criminal conduct does not, of itself, make someone a member of the conspiracy or a conspirator.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2 , §31.05, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 25 Acts and Declarations of Co-Conspirators Evidence has been received in this case, that certain persons, who are alleged in the Count One of the indictment to be co-conspirators of Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, have done or said things during the existence or life of the alleged conspiracy in order to further or advance its goals. Such acts and statements of these other individuals may be considered by you in determining whether or not, the government has proven the charges in Count One of the indictment against Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith. Since these acts may have been performed in these statements may have been made outside the presence of Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith and even done or said without the defendants' knowledge, these acts or statements should be examined with particular care by you before considering them against the defendant, who did not do the particular act or make the particular statement.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.06, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 26 "Overt Act" - Defined In order to sustain its burden of proof under Count One of the indictment, the government must prove beyond a reasonable doubt that one of the members of the alleged conspiracy or agreement and knowingly performed at least one overt act and that this overt act was performed during the existence or life of the conspiracy and was done to somehow further the goals of the conspiracy or agreement. The term "overt act" means some type of outward, objective action performed by one of the parties to or one of the members of the agreement or conspiracy which evidences that agreement. Although you must unanimously agree that the same overt act was committed, the government is not required to prove more than one of the overt acts charged. The overt act may, but for the alleged illegal agreement, appear totally innocent and legal.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.07

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DEFENDANT'S PROPOSED INSTRUCTION NO. 27 Success of Conspiracy Immaterial The government is not required to prove that the parties to or members of the alleged agreement or conspiracy were successful in achieving any or all of the objects of the agreement or conspiracy.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.08

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DEFENDANT'S PROPOSED INSTRUCTION NO. 28 Single or Multiple Conspiracies Count One of the indictment charges that Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith knowingly and deliberately entered into a conspiracy to defraud the United States. In order to sustain its burden of proof for this charge, the government must show that the single overall conspiracy alleged in Count One of the indictment existed. Proof of separate or independent conspiracies is not sufficient. In determining whether or not any single conspiracy has been shown by the evidence in the case you must decide whether common, master, or overall goals or objectives existed which served as the focal point for the efforts and actions of any members to the agreement. In arriving at this decision, you may consider the length of time the alleged conspiracy existed, the mutual dependence or assistance between various persons alleged to have been its members, and the complexity of the goals or objectives shown. A single conspiracy may involve various people at differing levels and may involve numerous transactions which are conducted over some period of time and at various places. In order to establish a single conspiracy, however, the government need not prove that an alleged co-conspirator knew each of the other alleged members of the conspiracy nor need it establish that an alleged co-conspirator was aware of each of the transactions alleged in the indictment. Even if the evidence in the case shows that Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith were members of some conspiracy,

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but that this conspiracy is not the single conspiracy charged in the indictment, you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith of this charge. Unless the government proves the existence of the single overall conspiracy described in the indictment beyond a reasonable doubt, you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith of this charge.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2, §31.09

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DEFENDANT'S PROPOSED INSTRUCTION NO. 29 The Good Faith Defense The good faith of Defendant Norman Schmidt is a complete defense all of the charges contained in the indictment because good faith on the part of the defendant is, simply, inconsistent with the intent to defraud alleged in that charge. A person who acts, or causes another person to act, on a belief or opinion honestly held is not punishable under this statute merely because the belief or opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or an error in management does not rise to the level of intent to defraud. A defendant does act in "good faith" if, even though he or she honestly hold a certain opinion or belief, that defendant also knowingly makes false or fraudulent pretenses, representations, or promises to others. The securities, mail, and wire fraud statutes are written to subject criminal punishment only to people who knowing defraud or attempt to defraud. While the term "good faith" has no precise definition, it means, among other things, a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid taking unfair advantage of another. In determining whether or not the government has proven that the defendant has acted with an intent to defraud or whether the defendant acted in good faith, the jury must consider all of the evidence in the case bearing on the defendant's state of mind. The burden of proving good faith does not rest with the defendant because the defendant does not have any obligation to prove anything in the case. It is the government's burden to prove to you, beyond a reasonable doubt, that Defendant

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Norman Schmidt acted with intent to defraud. If the evidence in the case leaves the jury with a reasonable doubt as to whether the defendant acted with an intent to defraud or in good faith, the jury must acquit Defendant Norman Schmidt.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol.2A, §47.16, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 30 Unanimity - Explained Counts ____ of indictment, charging Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith with a violation of the wire fraud statute, allege a number of separate schemes or plans to defraud. The government is not required to prove all of the schemes or plans to defraud that are alleged in Counts ______ of the indictment. Each of the jurors must agree with each of the other jurors, however, that the same scheme or plan to defraud alleged in Counts _____ was, in fact, employed by the defendant. The jury need not unanimously agree on each scheme or plan, but, in order to convict, must unanimously agree upon at least one such scheme or plan as a scheme or plan that was knowingly used by the Defendants. Unless the government has proven the same scheme or plan to defraud to each of you, beyond a reasonable doubt, you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith of the wire fraud charge in Counts _______.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol.2A, §47.17

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 31 "Willfully" - Defined A person acts "willfully," as that term is used in these instructions, when that person acts deliberately, voluntarily, and intentionally.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2A, §40.14

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 32 "Knowingly" - Defined The term "knowingly," as used in these instructions to describe the state of mind of Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith, means that they were conscious and aware of their actions, realized what they were doing or what was happening around them, and did not act because of ignorance, mistake, or accident.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2A, § 39.21

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 33 Proof of Knowledge or Intent The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other facts and circumstances received in evidence which may aid in your determination of that person's knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, § 17.07

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 34 Upon retiring to your jury room to begin your deliberations, you must elect one of your members to act as your foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court. Your verdict must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other words, must be unanimous. It is your duty as jurors to consult with one another and to deliberate with one another with a view toward reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself and herself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinion if convinced it is erroneous. Do not surrender your honest conviction, however, solely because of the opinion of your fellow jurors or for the mere purpose of thereby being able to return a unanimous verdict. Remember at all times that you are not partisans. You are judges - judges of the facts of this case. Your sole interest is to seek the truth from the evidence during the trial. Your verdict must be based solely upon the evidence received in the case. Nothing you have seen or read outside of court can be considered. Nothing I have said or done during the course of this trial is intended in any way, to somehow suggest to you what I think your verdict should be. Nothing said in these instructions and nothing in any form of verdict, which has been prepared for your convenience, is to suggest or

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convey to you in any way or manner any intimation as to what verdict I think you should return. What the verdict shall be is the exclusive duty and responsibility of the jury. As I have told you many times, you are the sole judges of the facts. A form of jury verdict has been prepared for your convenience. You will take this form to the jury room and, when you have reached unanimous agreement as to your verdict, you will have your foreperson write your verdict, date and sign the form, and then return with your verdict to the courtroom. Other than a checkmark by your decision, the date, and the signature of the foreperson, the form should contain no other markings. If it becomes necessary during your deliberations to communicate with the Court, you may send a note, signed by your foreperson or my one or more members of the jury, through the bailiff. No member of the jury should ever attempt to communicate with the Court by any means other that a signed writing and the Court will never communicate with any member of the jury concerning the evidence, your opinions, or the deliberations other than in writing or orally here in open court. You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person - not even to the Court - how the jury stands, numerically or otherwise, on the question of whether or not the government has sustained its burden of proof until after you have reached a unanimous verdict.

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DEFENDANT'S PROPOSED INSTRUCTION NO. 35 Unanimity - Explained Counts ____ of indictment, charging Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith with a violation of the mail fraud statute, allege a number of separate schemes or plans to defraud. The government is not required to prove all of the schemes or plans to defraud that are alleged in Counts ______ of the indictment. Each of the jurors must agree with each of the other jurors, however, that the same scheme or plan to defraud alleged in Counts _____ was, in fact, employed by the defendant. The jury need not unanimously agree on each scheme or plan, but, in order to convict, must unanimously agree upon at least one such scheme or plan as a scheme or plan that was knowingly used by the Defendants. Unless the government has proven the same scheme or plan to defraud to each of you, beyond a reasonable doubt, you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith of the mail fraud charge in Counts _______.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol.2A, §47.17, as modified

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DEFENDANT'S PROPOSED INSTRUCTION NO. 36 Unanimity - Explained Counts ____ of indictment, charging Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith with a violation of the securities fraud statute, allege a number of separate untrue statements of a material fact or omissions to state a material fact. The government is not required to prove all of the untrue statements of a material fact or omissions to state a material fact alleged in Counts ______ of the indictment. Each of the jurors must agree with each of the other jurors, however, that the same untrue statement of a material fact or omission to state a material fact alleged in Counts _____ was, in fact, employed by the Defendants. The jury need not unanimously agree on each untrue statement or omission, but, in order to convict, must unanimously agree upon at least one such untrue statement or omission by the Defendants. Unless the government has proven the same untrue statement or omission to defraud to each of you, beyond a reasonable doubt, you must acquit Defendants Norman Schmidt, George Weed, Charles Lewis, and Michael Smith of the securities fraud charge in Counts _______.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol.2A, §47.17, as modified

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 23, 2007, I electronically filed the foregoing DEFENDANT NORMAN SCHMIDT'S PROPOSED JURY INSTRUCTIONS with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following e-mail address: Wyatt Angelo, Esq. [email protected], Matthew Kirsch, Esq. [email protected] Peter Bornstein, Esq. [email protected] Thomas Goodreid, Esq.. [email protected] Ronald Gainor, Esq. [email protected] Richard Stuckey, Esq. [email protected] Declan O'Donnell, Esq. [email protected]

s/ Thomas J. Hammond Thomas J. Hammond