United States District Court, E.D. California
CLOSING JURY INSTRUCTIONS AND VERDICT FORM
GARLAND E. BURRELL, JR. SENIOR UNITED STATES DISTRICT JUDGE
Minute Order issued on March 30, 2018, requiring each party
to propose desired jury instructions or modifications to
previously transmitted instructions, if any, and directed the
United States to submit another proposed verdict form. ECF
No. 112. Attached are updated closing jury instructions and
verdict form, created after reviewing each party's
proposed changes. The verdict form also reflects the judgment
of acquittal on count 28 by excluding it from the form.
government proposes changes to Instruction Nos. 16 and 22 in
light of it having dropped some of the charges against
Defendant. Those changes are incorporated in the attached
instructions, and Instruction No. 13 has been modified to
effect the same changes.
requests additional language be included in Instruction No.
12, which the Ninth Circuit Model Criminal Jury Instructions
(“Model Instructions”) includes as optional
language in brackets. Specifically, Defendant requests the
You have heard evidence that the defendant committed other
acts not charged here. You may consider this evidence only
for its bearing, if any, on the question of the
defendant's intent, plan, knowledge, identity, absence of
mistake, or absence of accident, and for no other purpose.
You may not consider this evidence as evidence of guilt of
the crime for which the defendant is now on trial.
Proposed Closing Jury Instructions at 3:2-6, ECF No. 114. The
last sentence of what Defendant proposes need not be included
since the “instruction [without the bracketed
language], considered as a whole, accurately and clearly
state[s] the law.” United States v. Lloyd, 807
F.3d 1128, 1167 (9th Cir. 2015). The instruction as written
adequately prescribes that the jury may consider the
referenced evidence only for its bearing, if any, on
specified propositions. However, the language of the
instruction will be changed to omit that the other acts
evidence may be used to show a plan, in light of how this
word could be construed and the present trial record evincing
that a “scheme” is not involved in the charges.
This exclusion is in light of the Webster's II New
College Dictionary definition of the word “plan,
” which includes the following: “A detailed
scheme, program, or method worked out beforehand for the
accomplishment of an object.” Plan, Webster's II
New College Dictionary (1995).
also includes as a replacement for Instruction No. 15 what
appears to be a good faith instruction as to facts and law.
Defendant proposes the jury be instructed:
In order to prove that the defendant acted “willfully,
” the government must prove beyond a reasonable doubt
that the defendant knew federal tax law imposed a duty on
him, and the defendant intentionally and voluntarily violated
that duty. To act willfully in this context is not to merely
act ignorantly, but to act with a bad purpose or evil motive.
The defendant may not be convicted if you find he merely
acted with recklessness, negligence, carelessness, or
mistake, nor if he acted innocently, nor even if he acted
with gross negligence or gross carelessness. Rather, to be
convicted, the defendant must have acted with criminal or
A defendant who acts on a good faith misunderstanding as to
the existence or nonexistence of facts does not act
willfully, even if his understanding is wrong or
unreasonable. Thus, in order to prove that the defendant
acted willfully, the government must prove beyond a
reasonable doubt that the defendant knew the return he
advised or procured the preparation of included a false
A defendant who acts on a good faith misunderstanding as to
the requirements of the law also does not act willfully, even
if his understanding of the law is wrong or unreasonable.
Nevertheless, merely disagreeing with the law does not
constitute a good faith misunderstanding of the law because
all persons have a duty to obey the law whether or not they
agree with it. Thus, in order to prove that the defendant
acted willfully, the government must also prove beyond a
reasonable doubt that the defendant did not have a good faith
belief that he was complying with the law.
In short, good faith is an absolute defense to the charges in
this case. A defendant is under no burden to prove his good
faith; rather the prosecution must prove that the defendant
knew the expenses or deductions were false or fraudulent. The
defendant cannot be convicted unless he knew the expenses or
deductions he is found to have inputted were false or
Proposed Closing Jury Instructions at 5:2-26.
proposed Instruction No. 15 contains unexplained legal terms
and includes good faith instructions that need not be given
here. The Comment to Ninth Circuit Model Instruction 9.42, on
which the Court's Instruction No. 13 is based, cites
United States v. Hickey, in which the Ninth Circuit states:
“[O]ur case law is well settled that a criminal
defendant has no right to any good faith instruction when the
jury has been adequately instructed with regard to the intent
required to be found guilty of the crime charged . . .
.” 580 F.3d 922, 931 (9th Cir. 2009) (quoting
United States v. Shipsey, 363 F.3d 962, 967 (9th
Cir. 2004)). This is true “notwithstanding the normal
rules governing ‘theory of defense'
requests.” Shipsey, 363 F.3d at 967. Since the
instruction adequately instructs with regard to the intent
required to be found guilty of the charged crimes,
Defendant's proposed changes are rejected.
also proposes including in Instruction No. 19
“profession, occupation, or economic
circumstances” to the list of attributes contained in
the final sentence of the provided instruction. This change
has been made. Following those words, Defendant proposes
adding two sentences the subject matter of which is already
adequately captured by the instruction; therefore, this
proposal is rejected.
urges the inclusion of his Instruction No. 24 regarding
Generally, the Ninth Circuit has not required a cautionary
instruction regarding eyewitness testimony. See People of
the Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261
(9th Cir. 1981); United States v. Cassasa, 588 F.2d
282, 285 (9th Cir. 1978). Since 1989, the Committee has
recommended against the giving of an eyewitness
identification instruction because it believes that the
general witness credibility instruction is sufficient.
Model Instruction 4.11. Therefore, Defendant's proposed
instruction will not be given.
Defendant proposes inclusion of his Instruction No. 25,
admonishing the jury not to be exposed to outside
information. An initial jury instruction adequately instructs
the jury on this matter. Therefore, Defendant's proposed
Instruction No. 25 will not be given.
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 with you into the jury room to consult if you
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
must decide the case solely on the evidence and the law. Do
not allow personal likes or dislikes, sympathy, prejudice,
fear, or public opinion to influence you. 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.
indictment is not evidence. The defendant has pleaded not
guilty to the charges. The defendant is presumed to be
innocent unless and until the government proves the defendant
guilty beyond a reasonable doubt. In addition, the defendant
does 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.
defendant in a criminal case has a constitutional right not
to testify. In arriving at your verdict, the law prohibits
you from considering in any manner that the defendant did not
defendant has testified. You should treat this testimony just
as you would the testimony of any other witness.]
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 the 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 the defendant is
guilty, it is your duty to find the defendant guilty.
evidence you are to consider in deciding what the facts are
• the sworn testimony of any witness;
• the exhibits received in evidence; and
• any facts to which the parties have agreed.
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, 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
• 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.
• 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.
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 ...