Free Proposed Jury Instructions - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona STEPHEN W . LARAMORE Arizona State Bar No. 011990 [email protected] JOHN R. LOPEZ, IV Arizona State Bar No. 019182 [email protected] Assistant U.S. Attorneys Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 10 11 12 13 14 The United States of America, by and through its attorney, the United States Attorney for 15 the District of Arizona, respectfully submits the Government's Proposed Jury Instructions (Third 16 Submission) for those instructions that are specific to this case. These instructions are intended 17 to supplant prior instructions tendered. 18 Respectfully submitted this 11th day of April, 2006. 19 20 21 S/ Stephen W. Laramore 22 23 24 25 26 27 28 STEPHEN W. LARAMORE JOHN R. LOPEZ, IV Assistant U.S. Attorneys PAUL K. CHARLTON United States Attorney District of Arizona United States of America CR-03-1098-PHX-EHC Plaintiff, v. Jeanette B. Wilcher, Defendant. GOVERNMENT'S PROPOSED JURY INSTRUCTIONS (THIRD SUBMISSION)

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 1

You will note the Indictment charges that the offense was committed "on or about a certain date. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

AUTHORITY Devitt & Blackmar, Federal Jury Practice and Instructions § 14.02 (3d ed. 1977)

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 2 Wire Fraud - Statute

Section 1343 of Title 18 of the United States Code provides, in part, that: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire. . . communication in interstate. . . commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice. . . [shall be guilty of an offense against the United States.] AUTHORITY: 18 U.S.C. § 1341

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 3 Wire Fraud

The defendant is charged in Count 1 of the indictment with wire fraud, in violation of Section 1343 of Title 18 of the United States Code. In order for the defendant to be found guilty of wire fraud, the government must prove each of the following elements beyond a reasonable doubt. First, the defendant made up or knowingly devised a scheme and artifice or plan to obtain property or money by means of false pretenses and false representations, with all of you agreeing on at least one particular false promise or statement that was made. Second, the defendant knew that the promises or statements were false; Third, the promises or statements were material and of a kind that would reasonably influence a person to part with money or property. A fact is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the person to whom it is addressed. A false or fraudulent statement, representation or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false. Fourth, the defendant acted with the intent to defraud, which means to act knowingly with the intent to deceive or cheat someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self. Fifth, the defendant used or caused to be used a wire communication in interstate commerce to carry out an essential part of the scheme.

23 A wire communication in interstate commerce is caused when one knows or can reasonably 24 foresee, even though not actually intended, that in the ordinary course of business any writing, 25 26 27 28 sign, signal or sound communication will be sent from one state to another by means of wire for the purpose of executing the scheme or artifice. 4

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It does not matter whether the material sent by wire was itself false or deceptive so long as the wire was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.

AUTHORITY: 9 TH CIR. CRIM. JURY INSTRS. 8.101 & 8.103. United States v. Ciccone, 219 F.3d 1078, 1083 (9 th Cir. 2000) (government not required to prove the defendant devised a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension . The wire fraud statute protects the naive and gullible as well as the worldly-wise); in accord see Id.; United States v. Hanley, 190 F.3d 1017, 1023 (9 th Cir.1999); United States v. Andreadis, 366 F.2d 423, 431 (2d Cir. 1966) (The mail fraud statute focuses on the scheme to defraud rather than actual fraud. Accordingly, the United States is not required to prove that anyone was defrauded or sustained a loss. E.g. United States v. Rasheed, 663 F.2d 843, 850 (9 th Cir. 1981). In order words, the accused need not have succeeded in his scheme to be guilty of the crime. United States v. Utz, 886 F.2d 1148, 1150 (9 th Cir. 1989). The portion referring to foreseeing the use of the wire, "even though not actually intended," is taken from United States v. Grice, 319 F.3d 1174, 1178 (9 th Cir.), cert. denied, 539 U.S. 950 (2003).

GIVEN: DENIED: MODIFIED:

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 4

A "false and fraudulent representation" may also be made by statements of half-truths or the concealment of material facts as well as by affirmative statements or acts. That is, if a person represents that a particular fact or set of facts exists but at the same time willfully, knowingly and intentionally and with intent to deceive fails to reveal other relevant and material facts concerning those representations which would place a different light on the matters represented, the failure to disclose such other material facts may make the matters represented false and fraudulent within the meaning of the statutes.

AUTHORITY: United States v. Allen, 554 F.2d 398, 410-11 (9 th Cir.), cert. denied, 434 U.S. 836 (1977) Lustiger v. United States, 386 F.2d 132, 138 (9 th Cir.), cert. denied, 390 U.S. 951 (1968) Cacy v. United States, 298 F.2d 227, 229 (9 th Cir. 1961)

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 5 Intent to Defraud ­ Generally

Intent to defraud is an intent to deceive or cheat. The intent of a person or the knowledge that a persons possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing or examining the workings of the human mind. So, in determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements or acts done by that person and all other facts or circumstances received in evidence that may aid in your determination of that person's knowledge or intent. An act is done knowingly if the defendant is aware of the act and does not act or fail to act through ignorance or mistake or accident. You may consider evidence of the defendant's words, acts, or omissions along with all other evidence in deciding whether a defendant acted knowingly.

AUTHORITY: United States v. Stapleton, 293 F.3d 1111, 1115 (9 th Cir. 2002); see also, United States v. King, 246 F.3d 1166, 1173 (9 th Cir. 2001), opinion amended and superseded, 257 F.3d 1013, cert. denied, 539 U.S. 908 (2003) (holding that "intent may be inferred from the defendant's statements and conduct, including the use of half-truths or concealment of material facts").

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO 6 Proof of a Scheme

It is not necessary that the government prove every detail alleged in the indictment concerning the precise nature, purpose or means of the scheme. What must be proved beyond a reasonable doubt is that the defendant knowingly participated in a scheme to defraud that is substantially the same as the one alleged in the indictment. Thus, the government need not prove that the defendant misrepresented any specific statement. The defendant, however, is responsible for misrepresentations and acts of others constructing the offense charged if she acted with knowledge that false statements followed in the ordinary course of business or where they could have reasonably been foreseen.

AUTHORITY: 11 th CIR. CRIM. JURY INSTR. 51.2 United States v. Goldblatt, 813 F.2d 619, 624 (3 rd Cir. 1987) United States v. Toney, 598 F.2d 1349, 1356-57 and n. 12 (5 th Cir. 1979), cert. denied, 444 U.S. 1033 (1980) United States v. Woods, 335 F.3d 993, 999 (9 th Cir. 2003) United States v. Ciccone, 219 F.3d 1078, 1084 (9 th Cir. 2000) United States v. Hanley, 190 F.3d 1017, 1022 (9 th Cir.1999)

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 7 Promotional Money Laundering

The defendant is charged in Counts 2 through 4 of the indictment with conducting a financial transaction to promote wire fraud, in violation of Section 1956(a)(1)(A)(i) of Title 18 of the United States Code. In order for the defendant to be found guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt. First, the defendant conducted a financial transaction involving property that represented the proceeds of wire fraud. Second, the defendant knew that the property represented the proceeds of wire fraud. Third, the defendant acted with the intent to promote the carrying on of the wire fraud. A "financial transaction" is a transaction involving the movement of funds by wire or other means which affect interstate commerce in any way. Counts 2 through 4 allege the following financial transactions. Count 2: On or about January 29, 1999, in the District of Arizona, a payment of $100,000 to Sansea. Count 3: On or about February 12, 1999, in the District of Arizona, a payment of $230,000 to Sansea.

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Count 4: On or about March 8, 1999, in the District of Arizona, a payment of $255,500 to Sansea.

AUTHORITY: 9 TH CIR. CRIM. JURY INSTRS. § 8.120.

GIVEN: 24 MODIFIED: 25 26 27 28 10 DENIED:

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 8 "Financial Transaction" and "Transaction" - Defined Section 1956(c)(4) of Title 18 of the United States Code defines a "financial transaction"

4 as follows: 5 6 7 8 9 Section 1956(c)(3) of Title 18 of the United States Code defines a "transaction" as follows: 10 11 12 13 14 AUTHORITY: 15 18 U.S.C. § 1956(c)(4) 16 18 U.S.C. § 1956(c)(3) 17 18 19 20 21 22 23 GIVEN: 24 MODIFIED: 25 DENIED: 26 27 28 11 the term "transaction" includes a purchase, sale, loan, pledge, gift transfer, delivery or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safe deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected. the term "financial transaction" means (A) a transaction which in any way or degree affects interstate or foreign commerce (i) involving the movement of funds by wire or other means of (ii) involving one or more monetary instruments, or (iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 9 "Promote" - Defined

To "promote the carrying on of specified unlawful activity" the government is not required to prove that the funds received from Wire Fraud were "plowed back" into the specified unlawful activity. It would be promotion if the defendant made or caused to be made payments to Sansea to avoid detection of the fraudulent nature of the scheme.

AUTHORITY: United States v. Barragan, 263 F.3d 919, 923-25 (9 th Cir. 2001) United States v. Manarite, 44 F.3d 1407, 1416-17 (9 th Cir. 1995) United States v. Montoya, 945 F.2d 1068, 1076 (9 th Cir. 1991) United States v. Estacie, 64 F.3D 477 (9 th Cir. 1995) United States v. Godwin, 272 F.3d 659, 669 (4 th Cir. 2001) United States v. Allen 76 F.3d 1348, 1363 (5 th Cir. 1996)

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REFUSED: __________ MODIFIED: __________ 12

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GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 10 Transactional Money Laundering

The defendant is charged in Counts 5 through 7 of the indictment with laundering money in violation of Section 1957 of Title 18 of the United States Code. In order for the defendant to be found guilty of this 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 of greater than $10,000. Fourth, the property was, in fact, derived from the wire fraud involving the investment made by Connie Gillaspie. Fifth, the transaction occurred in the United States. The term "monetary transaction" means the deposit, withdrawal or transfer in or affecting interstate commerce of funds or a monetary instrument by, through or to a financial institution. The term "financial institution" means a bank. 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 that the property involved in the transaction represented the proceeds of fraud by wire. Counts 5 through 7 allege the following monetary transactions. Count 5: On or about March 9, 1999, in the District of Arizona, a withdrawal in U. S. funds of $25,000 for the purchase of a cashier's check payable to First American Title. . 13

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Count 6: On or about March 26, 1999, in the District of Arizona, a withdrawal in U. S. funds of $490,000 for the purchase of a Cashier's Check payable to First American Title. Count 7: On or about March 26, 1999, in the District of Arizona, a withdrawal in U. S. funds of $185,214,82 for the purchase of a Cashier's Check payable to First American Title.

AUTHORITY: 9 TH CIR. CRIM. JURY INSTRUCT. § 8.123A United States v. Rogers, 321 F.3d 1226, 1229 (9 th Cir. 2003)

GIVEN: MODIFIED: DENIED:

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GOVERNMENT'S PROPOSED INSTRUCTION NO. 11 "Monetary Instruments" - Defined

The term "monetary instrument" means "coin or currency of the United States or of any other country, travelers' checks, personal checks, bank checks, and money orders."

AUTHORITY: 18 U.S.C. § 1956(c)(5)

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REFUSED: __________ MODIFIED: __________

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GOVERNMENT'S PROPOSED INSTRUCTION NO. 12 Charts and Summaries in Evidence

Certain charts and summaries have been received into evidence to illustrate facts brought out in the testimony of some witnesses. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

AUTHORITY: Manual of Model Jury Instructions for the Ninth Circuit § 4.19

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REFUSED: __________ MODIFIED: __________

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GOVERNMENT'S PROPOSED INSTRUCTION NO. 11 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.

AUTHORITY: Manual of Model Jury Instructions for the Ninth Circuit § 7.4

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REFUSED: __________ MODIFIED: __________ 17

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Respectfully submitted this 11 th day of April, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona S/ Stephen W. Laramore STEPHEN W. LARAMORE Assistant U.S. Attorney

I hereby certify that on April 11, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Deborah Euler-Ajayi AFPD

S/ Stephen W . Laramore

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