United States District Court, N.D. California
COUNSEL: In order to make the set of instructions clearer,
the instructions on “aiding and abetting, ”
“on or about” and “knowingly” were
moved to the end of the substantive instructions; the
instruction defining “intent to defraud” was
eliminated, since it is given already in the wire fraud
instruction (“the defendant acted with the intent to
defraud, that is, the intent to deceive or cheat”); and
the instruction on special witness considerations (immunity,
etc.) was moved up to follow the general instruction about
the credibility of witnesses. The instructions have been
OF JURY TO FIND FACTS AND FOLLOW LAW
of the jury, now that you have heard all the evidence, it is
my duty to instruct you on the law that applies to this case.
A copy of these instructions will be available in the jury
room for you to consult.
your duty to weigh and to evaluate all the evidence received
in the case and, in that process, to decide the facts. It is
also your duty to apply the law as I give it to you to the
facts as you find them, whether you agree with the law or
not. You must decide the case solely on the evidence and the
law and must not be influenced by any personal likes or
dislikes, opinions, prejudices, or sympathy. You will recall
that you took an oath promising to do so at the beginning of
must follow all these instructions and not single out some
and ignore others; they are all important. Please do not read
into these instructions or into anything I may have said or
done any suggestion as to what verdict you should return-that
is a matter entirely up to you.
AGAINST DEFENDANT NOT EVIDENCE-PRESUMPTION OF
INNOCENCE-BURDEN OF PROOF
indictment is not evidence. The defendants have pleaded not
guilty to the charges. Each defendant is presumed to be
innocent unless and until the government proves the defendant
guilty beyond a reasonable doubt. In addition, the defendants
do not have to testify or present any evidence to prove
innocence. The government has the burden of proving every
element of the charges beyond a reasonable doubt.
DECISION NOT TO TESTIFY
defendant in a criminal case has a constitutional right not
to testify. You may not draw any inference of any kind from
the fact that the defendant did not testify.
beyond a reasonable doubt is proof that leaves you firmly
convinced the defendant is guilty. It is not required that
the government prove guilt beyond all possible doubt.
reasonable doubt is a doubt based upon reason and common
sense and is not based purely on speculation. It may arise
from a careful and impartial consideration of all the
evidence, or from lack of evidence.
after a careful and impartial consideration of all the
evidence, you are not convinced beyond a reasonable doubt
that a defendant is guilty, it is your duty to find the
defendant not guilty. On the other hand, if after a careful
and impartial consideration of all the evidence, you are
convinced beyond a reasonable doubt that a defendant is
guilty, it is your duty to find the defendant guilty.
evidence you are to consider in deciding what the facts are
sworn testimony of any witness;
exhibits received in evidence; and
facts to which the parties have agreed.
IS NOT EVIDENCE
reaching your verdict you may consider only the testimony and
exhibits received in evidence. The following things are not
evidence and you may not consider them in deciding what the
Questions, statements, objections, and arguments by the
lawyers are not evidence. The lawyers are not witnesses.
Although you must consider a lawyer's questions to
understand the answers of a witness, the lawyer's
questions are not evidence. Similarly, what the lawyers have
said in their opening statements, will say in their closing
arguments and at other times is intended to help you
interpret the evidence, but it is not evidence. If the facts
as you remember them differ from the way the lawyers state
them, your memory of them controls.
testimony that I have excluded, stricken, or instructed you
to disregard is not evidence.
Anything you may have seen or heard when the court was not in
session is not evidence. You are to decide the case solely on
the evidence received at the trial.
AND CIRCUMSTANTIAL EVIDENCE
may be direct or circumstantial. Direct evidence is direct
proof of a fact, such as testimony by a witness about what
that witness personally saw or heard or did. Circumstantial
evidence is indirect evidence, that is, it is proof of one or
more facts from which you can find another fact.
to consider both direct and circumstantial evidence. Either
can be used to prove any fact. The law makes no distinction
between the weight to be given to either direct or
circumstantial evidence. It is for you to decide how much
weight to give to any evidence.
deciding the facts in this case, you may have to decide which
testimony to believe and which testimony not to believe. You
may believe everything a witness says, or part of it, or none
considering the testimony of any witness, you may take into
witness's opportunity and ability to see or hear or know
the things testified to;
witness's manner while testifying;
witness's interest in the outcome of the case, if any;
witness's bias or prejudice, if any;
whether other evidence contradicted the witness's
reasonableness of the witness's testimony in light of all
the evidence; and
other factors that bear on believability.
weight of the evidence as to a fact does not necessarily
depend on the number of witnesses who testify. What is
important is how believable the witnesses were, and how much
weight you think their testimony deserves.
OF WITNESSES INVOLVING SPECIAL CIRCUMSTANCES
have heard testimony from Marion Magat and Ha Nguyen,
witnesses who received immunity. That testimony was given in
exchange for a promise by the government that the witness
will not be prosecuted.
also have heard testimony from Matthew Betti and Melissa
Gilroy, witnesses who received immunity. That testimony was
given subject to an order that the ...