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United States v. Kabiljagic

United States District Court, E.D. California

March 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR KABILJAGIC, Defendant.

          PROPOSED VOIR DIRE, INITIAL JURY INSTRUCTIONS, DURING TRIAL JURY INSTRUCTIONS IF APPLICABLE, AND CLOSING JURY INSTRUCTIONS

          GARLAND E. B'JRRELL, JR. Senior United States District Judge.

         Attached are the proposed Voir Dire, Initial Jury Instructions, During Trial Jury Instructions if Applicable, and Closing Jury Instructions. Dated: March 23, 2017

         VOIR DIRE

         Good morning and welcome to the United States District Court. Thank you for both your presence and your anticipated cooperation in the questioning process we are about to begin. You are performing an important function in our legal system.

         The court personnel who will assist me in this trial are on the platform below me. The Courtroom Deputy is Shani Furstenau. Next to her is the Certified Court Reporter. Ms. Furstenau please administer the oath to the prospective jurors.

         We are about to begin what is known as voir dire. Voir dire consists of questions designed to provide the court and the parties with information about each potential juror. After questioning is complete, the parties will exercise what is known peremptory challenges.

         Senior United States District Judge

         1. Counsel, the Jury Administrator has already randomly selected potential jurors and their names are on the sheet you have been given in the order of the random selection. Each potential juror has been placed in his or her randomly-selected seat, and has given each juror a large laminated card on which the number is placed that depicts the order in which the juror was randomly selected.

         2. I will ask the potential jurors questions as a group. If a potential juror has a response, he or she shall raise the laminated card. Generally, you will be given an opportunity to respond in accordance with the numerical order in which you are seated, meaning the juror in the lowest numbered seat will respond first. If no card is raised, I will simply state “no response” and then ask the next question. If you know it is your turn to respond to a question, you may respond before I call your seat number by stating your seat number, then your response. That could expedite the process.

         3. If a potential juror concludes a question unduly pries into a private matter, the potential juror may request to respond out of the earshot of other potential jurors. I'm authorized to try to protect legitimate privacy interest, but may ask questions in the area that you indicate a desire to discuss in private to determine whether it, or any aspect of the matter, should be responded to as indicated. This approach is taken because the trial should be open unless I have a legitimate reason to close an aspect of it.

         4. The presentation of evidence and closing argument portions of the trial are expected to be completed in approximately three weeks, after which the case will be submitted to the jury for jury deliberation. Trial will be conducted on Tuesdays, Wednesdays, and Thursdays, from 9:00 a.m. to about 4:30 p.m. However, once you commence jury deliberations, you will be expected to deliberate every day except weekends until you complete your deliberations. Does the schedule pose a special problem for any prospective jury?

         5. Counsel may make any desired introductions and the government shall name anticipated witnesses it may call so it can be determined whether any potential jury knows or has contact with a person named.

         a. Do you know and/or have you had contact with a person just named?

         6. This is a criminal case in which the United States alleges that on or about June 25, 2009, defendant Omar Kabiljagic submitted to the United States two individual income tax returns, one for tax year 2007 and one for tax year 2008, that contained false information, which the defendant knew to be false, and that the tax returns were submitted for payment of fraudulent tax refunds. The defendant has pleaded not guilty to these allegations.

         7. In light of the allegations, does any potential juror prefer not being a juror on this case?

         8. Is there any reason why you would not be able to be a juror and or to or give your full attention to this case?

         9. Did you know about the allegations being tried before you came into this courtroom?

         10. Is there anything about the allegations which causes you to feel that you might not be a fair juror in this case?

         11. Have you, any member of your family, or any close friend been arrested for a crime or been the defendant in a criminal case?

         12. Have you, any member of your family, or any close friend worked for the Internal Revenue Service, California State Franchise Tax Board, or Department of Treasury?

         13. Do you have any religious or moral objection to sitting in judgment of another's conduct in a court of law?

         14. Have you ever served as a juror in the past, in any capacity?

a. State whether it was a civil or criminal case, and whether the jury reached a verdict, but do not state the actual verdict reached.

         15. Would you tend to believe the testimony of a witness just because that witness is law enforcement officer?

         16. Would you tend to disbelieve the testimony of a witness just because that witness is law enforcement officer?

         17. You are required to apply the law I will give you even if you believe a different law should apply. If you cannot agree to what I just said, please raise your hand.

         18. Do you have any difficulty with the rule of law that a person charged with a crime is presumed innocent and need not present any evidence, and the government at all times bears the burden of proving guilt beyond a reasonable doubt?

         19. Do you have any problem with the rule of law that a defendant need not testify on his own behalf, and that if a defendant chooses not to testify, that factor may not be considered by you in your deliberations?

         20. Please provide information that has not been discussed which you think a trial participant would desire to know?

         21. The Courtroom Deputy Clerk will give juror in seat number one a sheet on which there is information we seek. Please pass the sheet to a potential juror near you after you respond.

a. your name and educational background;
b. the educational background of any person residing with you;
c. your present and former occupations;
d. the present and former occupations of any person residing with you.

         INITIAL JURY INSTRUCTIONS

         INSTRUCTION NO. 1

         Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some initial instructions. At the end of the trial I will give you more detailed instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. Please to not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be--that is entirely up to you.

         INSTRUCTION NO. 2

         The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;
(2) the exhibits which are received in evidence; and
(3) any facts to which the parties agree.

         INSTRUCTION NO. 3

         The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

(1) statements and arguments of the attorneys;
(2) questions and objections of the attorneys;
(3) testimony that I instruct you to disregard; and
(4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

         INSTRUCTION NO. 4

         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 one can find another fact.

         You are 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.

         INSTRUCTION NO. 5

         There are rules of evidence that control what can be received in evidence. When a lawyer asks a question or offers an exhibit in evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, or the exhibit cannot be received. ...


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