Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 3 Telephone: 602-382-2747 4 DEBORAH L. EULER-AJAYI State Bar No. 010537 5 Asst. Federal Public Defender Attorney for Defendant 6 [email protected] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Deborah Euler-Ajayi DEBORAH EULER-AJAYI Asst. Federal Public Defender vs. Jeanette Wilcher, Defendant. Jeanette Wilcher, through undersigned counsel, requests the following jury instructions in accordance with Rule 46 of the Rules of Practice of the United States District Court for the District of Arizona. The defense also requests the stock instructions no. 1.1, 1.2, 1.3, 1.4, 1.5, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12. Ms. Wilcher expressly reserves the right to offer additional jury instructions before the case goes to the jury. Respectfully submitted this 3d day of April, 2006. JON M. SANDS Federal Public Defender IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, No. CR03-1098-PHX-EHC DEFENDANT'S REQUESTED JURY INSTRUCTIONS

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 1 The defendant is charged in Count 1 of the indictment with wire fraud in

4 violation of Section 1343 of Title 18 of the United States Code. In order for the 5 defendant to be found guilty of that charge, the government must prove each of the 6 following elements beyond a reasonable doubt: 7 First, the defendant made up a scheme or plan for obtaining money or property 8 from Connie Gillaspie by making false promises or statements to her, with all of you 9 agreeing on at least one particular false promise or statement that was made; 10 11 13 14 16 17 18 19 20 21 22 23 24 / / / 25 / / / 26 / / / 27 28 2 Second, the defendant knew that the promises or statements were false; Third, the promises or statements were material, that is they would reasonably Fourth, the defendant acted with the intent to defraud Connie Gillaspie; and Fifth, the defendant used, or caused to be used, a wire communication in

12 influence a person to part with money or property;

15 interstate commerce to carry out an essential part of the scheme or plan.

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A wire communication in interstate commerce is caused when one knows that

2 the communication will be used in the ordinary course of business or when one can 3 reasonably foresee such use. It does not matter whether the communication was 4 itself false or deceptive so long as the communication was used as a part of the 5 scheme or plan, nor does it matter whether the scheme or plan was successful or that 6 any money or property was obtained. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 GIVEN 23 REFUSED 24 REFUSED AS COVERED 25 26 27 28 3 Source: Ninth Circuit Model Instruction 8.101, as modified per 8.103 (2003 ed.)

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 2 A matter is material if a reasonable person would attach importance to its

4 existence or nonexistence in determining his choice of action or if the maker of the representation knows or has reason to know that its recipient regards or is likely to

7 regard the matter as important. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 4 GIVEN 23 REFUSED REFUSED AS COVERED alternative meanings of materiality are permissible). Source: Neder v. United States, 527 U.S. 1, 22 n. 5 (1999), see United States v. Johnson, 297 F.3d 845 (9th Cir. 2000) (Neder stands for the proposition that

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 3 All deceptive or misleading statements, false statements and half-truths, which

4 are generally referred to as statements, and concealed, omitted and undisclosed facts, must be material to form the basis of wire fraud charges. The statements or a

7 statement or omitted fact is material if it is of a kind that would reasonably influence 8 a person to part with money or property. 9 Source: United States v. Woods, 335 F.3d 993 (9th Cir. 2003). 10 11 12 13 14 15 16 17 18 19 20 21 22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 5

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 4 The phrases "scheme to defraud" and "scheme to obtain money or funds"

4 mean a deliberate plan of action or course of conduct by which someone intends to deceive or to cheat another or by which someone intends to deprive another of

7 something of value. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 6 Source: United States v. Stapleton, 293 F.3d 1111 (9th Cir. 2002).

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 5 An intent to defraud is an intent to deceive or cheat.

Source: United States v. Stapleton, 293 F.3d 1111 (9th Cir. 2002).

GIVEN

24 REFUSED 25 REFUSED AS COVERED 26 27 28 7

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 6 Wire fraud is a specific intent crime. This means the government must prove

4 beyond a reasonable doubt that Ms. Wilcher specifically intended to defraud Connie Gillaspie.

22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 8

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 7 An act is done "willfully" if it is done voluntarily and intentionally with

4 the purpose of violating a known legal duty.

Source: United States v. Sehnal, 930 F.2d 1420, 1427 (9th Cir. 1991); Cheek v. United States, 498 U.S. 129, 199 (1991).

22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 9

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 8 The defendant is on trial only for the crime[s] charged in the indictment, not

4 for any other activities.

Source: Ninth Circuit Model Instruction 3.11 (2003 ed.)

22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 10

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 9 A separate crime is charged against the defendant in each count. You must

4 decide each count separately. In this case must first consider the evidence presented on Count 1 before

7 proceeding to Counts 2-7. If you find the defendant not guilty on Count 1, you must 8 return a verdict of not guilty on Counts 2-7. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 GIVEN 23 REFUSED 24 25 REFUSED AS COVERED 26 27 28 11 Source: Ninth Circuit Model Instruction 3.12 (2003 ed.), as modified.

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Respectfully submitted this 3d day of April, 2006. JON M. SANDS Federal Public Defender

s/Deborah Euler-Ajayi DEBORAH L. EULER-AJAYI Asst. Federal Public Defender

9 Copy of the foregoing Jury Instructions transmitted by CM/ECF for filing 10 this 3d day of April, 2006, to: 11 CLERK'S OFFICE 12 United States District Court 13 Sandra Day O'Connor Courthouse 14 401 W. Washington Phoenix, Arizona 85003 15 16 Copy of the foregoing delivered this 3d day of April, 2006, to: 17 18 AUSA John Lopez/Stephen Laramore 19 Assistant U.S. Attorney U.S. Attorney's Office 20 44 W. Washington St., Suite 1201 21 Phoenix, AZ 22 Copy of the foregoing mailed to: 23 JEANETTE WILCHER 24 Defendant 25 26 s/Deborah Euler-Ajayi Deborah L. Euler-Ajayi 27 28 12

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