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United States v. Dichiara

United States District Court, E.D. California

September 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN MICHAEL DICHIARA, et. al., Defendants.

          PROPOSED VOIR DIRE, INITIAL JURY INSTRUCTIONS, JURY INSTRUCTIONS DURING TRIAL, CLOSING JURY INSTRUCTIONS, AND VERDICT FORM

          GARLAND E. BURRELL, JR. Senior United States District Judge

         Attached are proposed voir dire questions, initial jury instructions, instructions that may be given during trial, closing jury instructions, and verdict form.

         The parties shall respond to the proposed voir dire questions, as soon as practicable, and shall request a bench conference, if one is necessary, before the commencement of voir dire to discuss any issue concerning the proposed voir dire. Failure to respond to the proposed voir dire shall be deemed acquiescence to the proposed voir dire.

         The bracketed optional language shall be clarified by a party or the parties as soon as feasible.

         Trial will commence at 9:00 a.m. on September 12, 2017.

         PROPOSED VOIR DIRE

         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 Clerk 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 as peremptory challenges.

         1. Parties, 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 given a large laminated card on which the number is placed showing the order in which the potential 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, the potential juror with the lowest number will respond first. If no laminated 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 interests, 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 9 court days, 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. If the trial is not completed within the nine days estimated, trial will resume on October 17, 2017.

         6. Each party may make any desired introduction; however, the United States shall name anticipated witnesses it may call so it can be determined whether any potential jury knows or has had contact with a person named.

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

         7. This is a criminal case brought by the United States. The United States charges all defendants in Count One with conspiracy to falsely make lending association writings and to commit bank fraud. The United States charges defendant John Michael DiChiara in Counts 2 through 16 with Falsely Making Bonds and Obligation of Certain Lending Agencies and in Counts 18 through 24, 26 through 31, and 33 through 39 with Bank Fraud. The United States charges defendant George Larsen in Counts 19, 20, 23, and 24, with Bank Fraud. The United States charges defendant Larry Todt in Count 31 with Bank Fraud. The charges against the defendants are contained in the indictment. The indictment simply describes the charges the United States brings against the defendants. The indictment is not evidence and does not prove anything. The defendants have pleaded not guilty to the charges and are presumed innocent unless and until the United States proves the defendants guilty beyond a reasonable doubt. In addition, the defendants have the right to remain silent and never have to prove innocence or to present any evidence.

         8. Has anyone read or seen anything about the charges in this case?

         a. If so, is there anything about what you may have read or seen which would affect your ability to consider only the evidence that you hear in court and to be fair and impartial to both sides?

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

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

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

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

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

         14. Do you have any bias in favor or against Catholicism?

         15. 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.

         16. Would you tend to believe the testimony of a witness just because of that witness's present or former status as a law enforcement officer?

         17. Would you tend to disbelieve the testimony of a witness just because of the witness's present or former status as a law enforcement officer?

         18. 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.

         19. 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?

         20. 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?

         21. Is there anything that we have not discussed that you believe could have a bearing on your ability to be a fair and impartial juror in this case, or that you suspect a trial participant would desire to know?

         22. The Courtroom Deputy Clerk will give the 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.

         Please state:

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

         PROPOSED INITIAL JURY INSTRUCTIONS

         INSTRUCTION NO. 1

         Jurors: You now are the jury in this case, and I want to tell you something about your duties as jurors and give you some initial instructions. At the end of the trial I will give you more detailed written instructions. 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 do 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 or a an unsworn statement of a party;
(2) questions and objections of the attorneys or a party;
(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 or a party asks a question or offers an exhibit in evidence and a lawyer or a party on the other side thinks that it is not permitted by the rules of evidence, that lawyer or party 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. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer would have been.

         Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

         INSTRUCTION NO. 6

         In 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 of it.

         In considering the testimony of any witness, you may take into account:

(1) the witness's opportunity and ability to see or hear or know the things testified to;
(2) the witness's memory;
(3) the witness's manner while testifying;
(4) the witness's interest in the outcome of the case, if any;
(5) the witness's bias or prejudice, if any;
(6) whether other evidence contradicted the witness's testimony;
(7) the reasonableness of the witness's testimony in light of all the evidence; and
(8) any other factors that bear on believability.

         The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

         INSTRUCTION NO. 7

         I will now say a few words about your conduct as jurors.

         First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case.

         Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise:

         Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature. This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, the media or press, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.

         Because you will receive all the evidence and legal instruction you properly may consider to return a verdict: do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.

         The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. If any juror is exposed to any outside information, please notify the court immediately.

         INSTRUCTION NO. 8

         At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given.

         INSTRUCTION NO. 9

         If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you from being attentive. When you leave court for recesses, your notes shall be left on the seat you now occupy. If you elect to take your notes, place your seat number outside the notebook you possess so that the Courtroom Deputy Clerk can give you your notebook after a recess.

         Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.

         INSTRUCTION NO. 10

         The next phase of the trial will now begin. First, each party may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.

         The United States will then present evidence and counsel for defendants John Michael DiChiara and George Larsen and defendant Larry Todt, proceeding without counsel, may cross-examine. Then, if the defendants choose to offer evidence, counsel for the United States may cross-examine.

         After the evidence has been presented, the parties will make closing arguments and I will instruct you on the law that applies to the case.

         After that, you will go to the jury room to deliberate on your verdict.

         PROPOSED JURY INSTRUCTION THAT MAY BE GIVEN DURING TRIAL, IF A PARTY MAKES THE REQUEST

         INSTRUCTION NO. 1

         You are about to hear evidence that the defendant John Michael DiChiara committed other acts not charged here. You may consider this evidence only for its bearing, if any, on the question of that defendant's intent, plan, knowledge, and absence of mistake and for no other purpose. You may not consider this evidence as evidence of guilt of the crime for which the defendants are now on trial.

         PROPOSED CLOSING JURY INSTRUCTIONS

         INSTRUCTION NO. 1

         Members 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. Each of you now possesses a copy of these instructions that you may take to the jury room to consult if you desire.

         It is 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 the case.

         You 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.

         INSTRUCTION NO. 2

         The indictment is not evidence. The defendants have pleaded not guilty to the charges. The defendants are presumed to be innocent unless and until the United States proves the defendants guilty beyond a reasonable doubt. In addition, the defendants do not have to testify or present any evidence to prove innocence. The United States has the burden of proving every element of the charges beyond a reasonable doubt.

         INSTRUCTION NO. 3

         A 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 any of the defendants did not testify.

         INSTRUCTION NO. 4

         Defendant [NAME] has testified. You should treat this testimony just as you would the testimony of any other witness.

         INSTRUCTION NO. 5

         Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the United States prove guilt beyond all possible doubt.

         A 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.

         If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendants are guilty, it is your duty to find the defendants 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 the defendants are guilty, it is your duty to find the defendants guilty.

         INSTRUCTION NO. 6

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

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

         INSTRUCTION NO. 7

         In 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 facts are:

         1. 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 and parties have said in their opening statements, 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.

         2. Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence. [In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.]

         3. 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.

         INSTRUCTION NO. 8

         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 ...


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