United States v. Lee

          ORDER RE: JURY INSTRUCTIONS

          SUSAN ILLSTON United States District Judge.

         The parties have each filed proposed jury instructions. Docket Nos. 96, 100, 106. Pursuant to the Court's final pretrial scheduling order, the parties have also filed joint preliminary jury instructions and objections to each other's proposed jury instructions. Docket Nos. 107, 110, 111. The Court hereby rules as follows as to the instructions:

No.	9th Cir. Model No.	Title	Agreed/ Disputed By	Given/ Not Given
PRELIMINARY INSTRUCTIONS
Joint 1	1.1	Duty of Jury	Parties agree	Given
Joint 2	1.2 (with modifications)	The Charge - Presumption of Innocence	Parties agree	Given
Joint 3	1.3	What is Evidence	Parties agree	Given
Joint 4	1.4	What is Not Evidence	Parties agree	Given
Joint 5	1.5	Direct and Circumstantial Evidence	Parties agree	Given
Joint 6	1.6	Ruling on Objections	Parties agree	Given
Joint 7	1.7	Credibility of Witnesses	Parties agree	Given
Joint 8	1.8	Conduct of the Jury	Parties agree	Given
Joint 9	1.9	No Transcript Available to Jury	Parties agree	Given
Joint 10	1.10	Taking Notes	Parties agree	Given
Joint 11	1.11 (with modifications)	Outline of Trial	Parties agree	Given
Joint 12	1.12 (with modifications)	Jury to Be Guided by Official English Translation	Parties agree	Given
Joint 13	N/A	Federal Agent's Testimony	Govt objects	Not Given
INSTRUCTIONS IN THE COURSE OF TRIAL
Joint 14	2.1	Cautionary Instruction - First Recess	Parties agree	Given
Joint 15	2.2	Bench Conferences and Recesses	Parties agree	Given
Joint 16	2.4	Stipulations of Fact	Parties agree	Given
Joint 17	2.9	Foreign Language Testimony (if necessary)	Parties agree	Given, if necessary
INSTRUCTIONS AT END OF CASE
Govt 15, Def 18[1]	3.1	Duties of Jury to Find Facts and Follow Law	Parties agree	Given
Govt 16, Def 19	3.2 (with modifications)	Charge Against Defendant Not Evidence - Presumption of Innocence - Burden of Proof	Parties agree	Given
Govt 17, Def 20	3.3	Defendant's Decision Not to Testify (if necessary)	Parties agree	Given, if necessary
Govt 18, Def 21	3.4	Defendant's Decision to Testify (if necessary)	Parties agree	Given, if necessary
Govt 19, Def 22	3.5	Reasonable Doubt - Defined	Parties agree	Given
Gov 20, Def 23	3.6	What is Evidence	Parties agree	Given
Govt 21, Def 24	3.7	What is Not Evidence	Parties agree	Given
Govt 22, Def 25	3.8	Direct and Circumstantial Evidence	Parties agree	Given
Govt 23, Def 26	3.9	Credibility of Witnesses	Parties agree	Given
Def 27	N/A	Federal Agent Testimony	Govt objects	Not Given
Govt 24, Def 28	3.10 (with modifications)	Activities Not Charged	Parties agree	Given
Govt 25, Def 29	3.11	Separate Consideration of Multiple Counts - Single Defendant	Parties agree	Given
Def 30	3.19	Jury to Be Guided by Official English Translation (if necessary)	Parties agree	Given, if necessary
CONSIDERATION OF PARTICULAR EVIDENCE
Govt 26, Def 31	4.1	Statements by Defendant	Parties agree	Given
Govt 27	4.6	Impeachment, Prior Conviction of Defendant (if necessary)	Govt requested	Given, if necessary
Govt 28	4.8	Impeachment Evidence - Witness (if necessary)	Govt requested	Given, if necessary
Govt 29	4.15	Summaries Not Received in Evidence (if necessary)	Govt requested	Given, if necessary
Govt 30	4.16	Charts and Summaries in Evidence (if necessary)	Govt requested	Given, if necessary
SPECIFIC DEFENSES
Def 32	N/A	Good Faith Defense	Govt objects	Not Given
JURY DELIBERATIONS
Govt 34, Def 33	7.1	Duty to Deliberate	Parties agree	Given
Govt 35, Def 34	7.2	Consideration of Evidence	Parties agree	Given
Govt 36, Def 35	7.3	Use of Notes	Parties agree	Given
Govt 37	7.4	Jury Consideration of Punishment	Govt requested	Given
Govt 38, Def 36	7.5	Verdict Form	Parties agree	Given
Govt 39, Def 37	7.6	Communication with Court	Parties agree	Given
OFFENSES UNDER TITLE 18
Govt 31	8.73 (with modifications)	False Statement to Government Agency	Def objects	See Court Instruction, infra
Def 38	8.73 (with modifications)	Making a False Statement to Government Agency - Count 1	Govt objects	See Court Instruction, infra
Def 39	8.73 (with modifications)	Making a False Statement to Government Agency - Count 2	Govt objects	See Court Instruction, infra
Govt 32	3.20	On or About - Defined	Govt requested	Given
Govt 33	5.6	Knowingly - Defined	Govt requested	Given
MISCELLANEOUS
Def 40	N/A	Power of the Jury	Govt objects	Not Given

         Jury instructions as to the offense of Making a False Statement to a Government Agency shall read as follows:

         FALSE STATEMENT TO GOVERNMENT AGENCY (18 U.S.C. § 1001) - Count One

         Mr. Lee is charged in Count One with knowingly and willfully making a false statement on or about August 26, 2009, in a matter within the jurisdiction of a governmental agency or department, the Department of Homeland Security, in violation of Section 1001 of Title 18 of the United States Code. In order for Mr. Lee to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

         First, Mr. Lee made a false statement in a matter within the jurisdiction of the Department of Homeland Security;

         Second, Mr. Lee acted willfully; that is, Mr. Lee acted deliberately and with knowledge both that the statement was untrue and that his conduct was unlawful; and

         Third, the statement was material to the activities or decisions of the Department of Homeland Security; that is, it had a natural tendency to influence, or was capable of influencing, the agency's decisions or activities.

         The statement charged in Count One is that Mr. Lee stated:

         [LIST STATEMENTS INTRODUCED AT TRIAL]

         FALSE STATEMENT TO GOVERNMENT AGENCY (18 U.S.C. § 1001) - Count Two

         Mr. Lee is charged in Count Two with knowingly and willfully making a false statement on or about October 10, 2013, in a matter within the jurisdiction of a governmental agency or department, the Department of Homeland Security, in violation of Section 1001 of Title 18 of the United States Code. In order for Mr. Lee to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

         First, Mr. Lee made a false statement in a matter within the jurisdiction of ...