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162.

Sample Odometer Fraud Jury Instructions

COURT'S INSTRUCTIONS TO THE JURY AT CONCLUSION OF TRIAL

MEMBERS OF THE JURY:

IN ANY JURY TRIAL THERE ARE, IN EFFECT, TWO JUDGES. I AM ONE OF THE JUDGES; THE OTHER IS THE JURY. IT IS MY DUTY TO PRESIDE OVER THE TRIAL AND TO DECIDE WHAT EVIDENCE IS PROPER FOR YOUR CONSIDERATION. IT IS ALSO MY DUTY AT THE END OF THE TRIAL TO EXPLAIN TO YOU THE RULES OF LAW THAT YOU MUST FOLLOW AND APPLY IN ARRIVING AT YOUR VERDICT.

FIRST, I WILL GIVE YOU SOME GENERAL INSTRUCTIONS WHICH APPLY IN EVERY CASE, FOR EXAMPLE, INSTRUCTIONS ABOUT BURDEN OF PROOF AND HOW TO JUDGE THE BELIEVABILITY OF WITNESSES. THEN I WILL GIVE YOU SOME SPECIFIC RULES OF LAW ABOUT THIS PARTICULAR CASE, AND FINALLY I WILL EXPLAIN TO YOU THE PROCEDURES YOU SHOULD FOLLOW IN YOUR DELIBERATIONS.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

DUTY TO FOLLOW INSTRUCTIONS

YOU, AS JURORS, ARE THE JUDGES OF THE FACTS. BUT IN DETERMINING WHAT ACTUALLY HAPPENED--THAT IS, IN REACHING YOUR DECISION AS TO THE FACTS--IT IS YOUR SWORN DUTY TO FOLLOW ALL OF THE RULES OF LAW AS I EXPLAIN THEM TO YOU.

YOU HAVE NO RIGHT TO DISREGARD OR GIVE SPECIAL ATTENTION TO ANY ONE INSTRUCTION, OR TO QUESTION THE WISDOM OR CORRECTNESS OF ANY RULE I MAY STATE TO YOU. YOU MUST NOT SUBSTITUTE OR FOLLOW YOUR OWN NOTION OR OPINION AS TO WHAT THE LAW IS OR OUGHT TO BE. IT IS YOUR DUTY TO APPLY THE LAW AS I EXPLAIN IT TO YOU, REGARDLESS OF THE CONSEQUENCES.

IT IS ALSO YOUR DUTY TO BASE YOUR VERDICT SOLELY UPON THE EVIDENCE, WITHOUT PREJUDICE OR SYMPATHY. THAT WAS THE PROMISE YOU MADE AND THE OATH YOU TOOK BEFORE BEING ACCEPTED BY THE PARTIES AS JURORS, AND THEY HAVE THE RIGHT TO EXPECT NOTHING LESS.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

PRESUMPTION OF INNOCENCE BURDEN OF PROOF, REASONABLE DOUBT

THE INDICTMENT OR FORMAL CHARGE AGAINST A DEFENDANT IS NOT EVIDENCE OF GUILT. INDEED, THE DEFENDANT IS PRESUMED BY THE LAW TO BE INNOCENT. THE LAW DOES NOT REQUIRE A DEFENDANT TO PROVE HIS INNOCENCE OR PRODUCE ANY EVIDENCE AT ALL [AND NO INFERENCE WHATEVER MAY BE DRAWN FROM THE ELECTION OF A DEFENDANT NOT TO TESTIFY]. THE GOVERNMENT HAS THE BURDEN OF PROVING THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT, AND IF IT FAILS TO DO SO, YOU MUST ACQUIT THE DEFENDANT.

WHILE THE GOVERNMENT'S BURDEN OF PROOF IS A STRICT OR HEAVY BURDEN, IT IS NOT NECESSARY THAT THE DEFENDANT'S GUILT BE PROVED BEYOND ALL POSSIBLE DOUBT. IT IS ONLY REQUIRED THAT THE GOVERNMENT'S PROOF EXCLUDE ANY "REASONABLE DOUBT" CONCERNING THE DEFENDANT'S GUILT.

A "REASONABLE DOUBT" IS A DOUBT BASED UPON REASON AND COMMON SENSE AFTER CAREFUL AND IMPARTIAL CONSIDERATION OF ALL THE EVIDENCE IN THE CASE. PROOF BEYOND A REASONABLE DOUBT, THEREFORE, IS PROOF OF SUCH A CONVINCING CHARACTER THAT YOU WOULD BE WILLING TO RELY AND ACT UPON IT WITHOUT HESITATION IN THE MOST IMPORTANT OF YOUR OWN AFFAIRS. IF YOU ARE CONVINCED THAT THE ACCUSED HAS BEEN PROVED GUILTY BEYOND A REASONABLE DOUBT, SAY SO. IF YOU ARE NOT CONVINCED, SAY SO.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

EVIDENCE--EXCLUDING ARGUMENT OF COUNSEL AND COMMENT OF COURT

AS I TOLD YOU EARLIER, IT IS YOUR DUTY TO DETERMINE THE FACTS. IN DOING SO, YOU MUST CONSIDER ONLY THE EVIDENCE PRESENTED DURING THE TRIAL, INCLUDING THE SWORN TESTIMONY OF THE WITNESSES AND THE EXHIBITS. REMEMBER THAT ANY STATEMENTS, OBJECTIONS, OR ARGUMENTS MADE BY THE LAWYERS ARE NOT EVIDENCE. THE FUNCTION OF THE LAWYERS IS TO POINT OUT THOSE THINGS THAT ARE MOST SIGNIFICANT OR MOST HELPFUL TO THEIR SIDE OF THE CASE, AND IN SO DOING TO CALL YOUR ATTENTION TO CERTAIN FACTS OR INFERENCES THAT MIGHT OTHERWISE ESCAPE YOUR NOTICE. IN THE FINAL ANALYSIS, HOWEVER, IT IS YOUR OWN RECOLLECTION AND INTERPRETATION OF THE EVIDENCE THAT CONTROLS IN THE CASE. WHAT THE LAWYERS SAY IS NOT BINDING UPON YOU.

ALSO, DO NOT ASSUME FROM ANYTHING I MAY HAVE DONE OR SAID DURING THE TRIAL THAT I HAVE ANY OPINION CONCERNING ANY OF THE ISSUES IN THIS CASE. EXCEPT FOR THE INSTRUCTIONS TO YOU ON THE LAW, YOU SHOULD DISREGARD ANYTHING I MAY HAVE SAID DURING THE TRIAL IN ARRIVING AT YOUR OWN FINDINGS AS TO THE FACTS.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

EVIDENCE--INFERENCES--DIRECT AND CIRCUMSTANTIAL

WHILE YOU SHOULD CONSIDER ONLY THE EVIDENCE, YOU ARE PERMITTED TO DRAW SUCH REASONABLE INFERENCES FROM THE TESTIMONY AND EXHIBITS AS YOU FEEL ARE JUSTIFIED IN THE LIGHT OF COMMON EXPERIENCE. IN OTHER WORDS, YOU MAY MAKE DEDUCTIONS AND REACH CONCLUSIONS THAT REASON AND COMMON SENSE LEAD YOU TO DRAW FROM THE FACTS WHICH HAVE BEEN ESTABLISHED BY THE EVIDENCE.

IN CONSIDERING THE EVIDENCE YOU MAY MAKE DEDUCTIONS AND REACH CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD YOU TO MAKE; AND YOU SHOULD NOT BE CONCERNED ABOUT WHETHER THE EVIDENCE IS DIRECT OR CIRCUMSTANTIAL. "DIRECT EVIDENCE" IS THE TESTIMONY OF ONE WHO ASSERTS ACTUAL KNOWLEDGE OF A FACT, SUCH AS AN EYE WITNESS. "CIRCUMSTANTIAL EVIDENCE" IS PROOF OF A CHAIN OF FACTS AND CIRCUMSTANCES INDICATING THAT THE DEFENDANT IS EITHER GUILTY OR NOT GUILTY. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT YOU MAY GIVE TO EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

CREDIBILITY OF WITNESSES

I REMIND YOU THAT IT IS YOUR JOB TO DECIDE WHETHER THE GOVERNMENT HAS PROVED THE GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT. IN DOING SO, YOU MUST CONSIDER ALL OF THE EVIDENCE. THIS DOES NOT MEAN, HOWEVER, THAT YOU MUST ACCEPT ALL OF THE EVIDENCE AS TRUE OR ACCURATE.

YOU ARE THE SOLE JUDGES OF THE CREDIBILITY OR "BELIEVABILITY" OF EACH WITNESS AND THE WEIGHT TO BE GIVEN THE WITNESS'S TESTIMONY. AN IMPORTANT PART OF YOUR JOB WILL BE MAKING JUDGMENTS ABOUT THE TESTIMONY OF THE WITNESSES [INCLUDING THE DEFENDANT] WHO TESTIFIED IN THIS CASE. YOU SHOULD DECIDE WHETHER YOU BELIEVE WHAT EACH PERSON HAD TO SAY, AND HOW IMPORTANT THAT TESTIMONY WAS. IN MAKING THAT DECISION I SUGGEST THAT YOU ASK YOURSELF A FEW QUESTIONS: DID THE PERSON IMPRESS YOU AS HONEST? DID THE WITNESS HAVE ANY PARTICULAR REASON NOT TO TELL THE TRUTH? DID THE WITNESS HAVE A PERSONAL INTEREST IN THE OUTCOME OF THE CASE? DID THE WITNESS HAVE ANY RELATIONSHIP WITH EITHER THE GOVERNMENT OR THE DEFENSE? DID THE WITNESS SEEM TO HAVE A GOOD MEMORY? DID THE WITNESS HAVE THE OPPORTUNITY AND ABILITY TO UNDERSTAND THE QUESTIONS CLEARLY AND ANSWER THEM DIRECTLY? DID THE WITNESS'S TESTIMONY DIFFER FROM THE TESTIMONY OF OTHER WITNESSES? THESE ARE A FEW OF THE CONSIDERATIONS THAT WILL HELP YOU DETERMINE THE ACCURACY OF WHAT EACH WITNESS SAID.

IN MAKING UP YOUR MIND AND REACHING A VERDICT, DO NOT MAKE ANY DECISIONS SIMPLY BECAUSE THERE WERE MORE WITNESSES ON ONE SIDE THAN ON THE OTHER. DO NOT REACH A CONCLUSION ON A PARTICULAR POINT JUST BECAUSE THERE WERE MORE WITNESSES TESTIFYING FOR ONE SIDE ON THAT POINT. YOUR JOB IS TO THINK ABOUT THE TESTIMONY OF EACH WITNESS YOU HAVE HEARD AND DECIDE HOW MUCH YOU BELIEVE OF WHAT EACH WITNESS HAD TO SAY.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

ACCOMPLICE--CO-DEFENDANT--PLEA AGREEMENT

IN THIS CASE THE GOVERNMENT CALLED AS ONE OF ITS WITNESSES AN ALLEGED ACCOMPLICE, NAMED AS A CO-DEFENDANT IN THE INDICTMENT, WITH WHOM THE GOVERNMENT HAS ENTERED INTO A PLEA AGREEMENT PROVIDING FOR THE DISMISSAL OF SOME CHARGES AND A LESSER SENTENCE THAN THE CO-DEFENDANT WOULD OTHERWISE BE EXPOSED TO FOR THE OFFENSE TO WHICH THE CO-DEFENDANT PLEAD GUILTY. SUCH PLEA BARGAINING, AS IT IS CALLED, HAS BEEN APPROVED AS LAWFUL AND PROPER, AND IS EXPRESSLY PROVIDED FOR IN THE RULES OF THIS COURT.

AN ALLEGED ACCOMPLICE, INCLUDING ONE WHO HAS ENTERED INTO A PLEA AGREEMENT WITH THE GOVERNMENT, IS NOT PROHIBITED FROM TESTIFYING. ON THE CONTRARY, THE TESTIMONY OF SUCH A WITNESS MAY ALONE BE OF SUFFICIENT WEIGHT TO SUSTAIN A VERDICT OF GUILTY. YOU SHOULD KEEP IN MIND THAT SUCH TESTIMONY IS ALWAYS TO BE RECEIVED WITH CAUTION AND WEIGHED WITH GREAT CARE. YOU SHOULD NEVER CONVICT A DEFENDANT UPON THE UNSUPPORTED TESTIMONY OF AN ALLEGED ACCOMPLICE UNLESS YOU BELIEVE THAT TESTIMONY BEYOND A REASONABLE DOUBT. THE FACT THAT AN ACCOMPLICE HAS ENTERED A PLEA OF GUILTY TO THE OFFENSE CHARGED IS NOT EVIDENCE, IN AND OF ITSELF, OF THE GUILT OF ANY OTHER PERSON.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

CAUTION-CONSIDER ONLY CRIME CHARGED

YOU ARE HERE TO DECIDE WHETHER THE GOVERNMENT HAS PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE CRIME CHARGED. THE DEFENDANT IS NOT ON TRIAL FOR ANY ACT, CONDUCT, OR OFFENSE NOT ALLEGED IN THE INDICTMENT. NEITHER ARE YOU CONCERNED WITH THE GUILT OF ANY OTHER PERSON OR PERSONS NOT ON TRIAL AS A DEFENDANT IN THIS CASE.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

CAUTION--PUNISHMENT

IF A DEFENDANT IS FOUND GUILTY, IT WILL BE MY DUTY TO DECIDE WHAT THE PUNISHMENT WILL BE. YOU SHOULD NOT BE CONCERNED WITH PUNISHMENT IN ANY WAY. IT SHOULD NOT ENTER YOUR CONSIDERATION OR DISCUSSION.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

SINGLE DEFENDANT--MULTIPLE COUNTS

A SEPARATE CRIME IS CHARGED IN EACH COUNT OF THE INDICTMENT. EACH COUNT AND THE EVIDENCE PERTAINING TO IT SHOULD BE CONSIDERED SEPARATELY. THE FACT THAT YOU MAY FIND THE DEFENDANT GUILTY OR NOT GUILTY AS TO ONE OF THE CRIMES CHARGED SHOULD NOT CONTROL YOUR VERDICT AS TO ANY OTHER.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

DUTY TO DELIBERATE-VERDICT FORM

TO REACH A VERDICT, ALL OF YOU MUST AGREE. YOUR VERDICT MUST BE UNANIMOUS ON EACH COUNT OF THE INDICTMENT. YOUR DELIBERATIONS WILL BE SECRET. YOU WILL NEVER HAVE TO EXPLAIN YOUR VERDICT TO ANYONE.

IT IS YOUR DUTY TO CONSULT WITH ONE ANOTHER AND TO DELIBERATE IN AN EFFORT TO REACH AGREEMENT IF YOU CAN DO SO. EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER AN IMPARTIAL CONSIDERATION OF THE EVIDENCE WITH YOUR FELLOW JURORS. DURING YOUR DELIBERATIONS, DO NOT HESITATE TO REEXAMINE YOUR OWN OPINIONS AND CHANGE YOUR MIND IF CONVINCED THAT YOU WERE WRONG. BUT DO NOT GIVE UP YOUR HONEST BELIEFS AS TO THE WEIGHT OR EFFECT OF THE EVIDENCE SOLELY BECAUSE OF THE OPINION OF YOUR FELLOW JURORS, OR FOR THE MERE PURPOSE OF RETURNING A VERDICT.

REMEMBER AT ALL TIMES, YOU ARE JUDGES--JUDGES OF THE FACTS. YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE IN THE CASE, TO DECIDE WHETHER THE GOVERNMENT HAS PROVED THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.

WHEN YOU GO TO THE JURY ROOM, THE FIRST THING THAT YOU SHOULD DO IS SELECT ONE OF YOUR NUMBER AS YOUR FOREPERSON, WHO WILL HELP TO GUIDE YOUR DELIBERATIONS AND WILL SPEAK FOR YOU HERE IN THE COURTROOM.

A FORM OF VERDICT HAS BEEN PREPARED FOR YOUR CONVENIENCE. [EXPLAIN VERDICT FORM.]

THE FOREPERSON WILL WRITE THE UNANIMOUS ANSWER OF THE JURY IN THE SPACE PROVIDED FOR IN EACH COUNT OF THE INDICTMENT, EITHER GUILTY OR NOT GUILTY. AT THE CONCLUSION OF YOUR DELIBERATIONS, THE FOREPERSON SHOULD DATE AND SIGN THE VERDICT.

IF YOU NEED TO COMMUNICATE WITH ME DURING YOUR DELIBERATIONS, THE FOREPERSON SHOULD WRITE THE MESSAGE AND GIVE IT TO THE MARSHAL. I WILL EITHER REPLY IN WRITING OR BRING YOU BACK INTO THE COURT TO ANSWER YOUR MESSAGE.

BEAR IN MIND THAT YOU ARE NEVER TO REVEAL TO ANY PERSON, NOT EVEN TO THE COURT, HOW THE JURY STANDS, NUMERICALLY OR OTHERWISE, ON ANY COUNT OF THE INDICTMENT, UNTIL AFTER YOU HAVE REACHED A UNANIMOUS VERDICT.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

INSTRUCTION DURING TRIAL--TRANSCRIPT OF TAPE RECORDED CONVERSATION EXHIBIT ___ HAS BEEN IDENTIFIED AS A TYPEWRITTEN TRANSCRIPT [AND PARTIAL TRANSLATION FROM SPANISH INTO ENGLISH] OF THE ORAL CONVERSATION WHICH CAN BE HEARD ON THE TAPE RECORDING RECEIVED IN EVIDENCE AS EXHIBIT ___. THE TRANSCRIPT ALSO PURPORTS TO IDENTIFY THE SPEAKERS ENGAGED IN SUCH CONVERSATION.

I HAVE ADMITTED THE TRANSCRIPT FOR THE LIMITED AND SECONDARY PURPOSE OF AIDING YOU IN FOLLOWING THE CONTENT OF THE CONVERSATION AS YOU LISTEN TO THE TAPE RECORDING, [PARTICULARLY THOSE PORTIONS SPOKEN IN SPANISH], AND ALSO TO AID YOU IN IDENTIFYING THE SPEAKERS.

HOWEVER, YOU ARE SPECIFICALLY INSTRUCTED THAT WHETHER THE TRANSCRIPT CORRECTLY OR INCORRECTLY REFLECTS THE CONTENT OF THE CONVERSATION OR THE IDENTITY OF THE SPEAKERS IS ENTIRELY FOR YOU TO DETERMINE BASED UPON YOUR OWN EVALUATION OF THE TESTIMONY YOU HAVE HEARD CONCERNING THE PREPARATION OF THE TRANSCRIPT, AND FROM YOUR OWN EXAMINATION OF THE TRANSCRIPT IN RELATION TO YOUR HEARING OF THE TAPE RECORDING ITSELF AS THE PRIMARY EVIDENCE OF ITS OWN CONTENTS; AND, IF YOU SHOULD DETERMINE THAT THE TRANSCRIPT IS IN ANY RESPECT INCORRECT OR UNRELIABLE, YOU SHOULD DISREGARD IT TO THAT EXTENT.

Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit,

District Judges Association (1990).

ON OR ABOUT

YOU WILL NOTE THAT THE INDICTMENT CHARGES THAT THE OFFENSES WERE COMMITTED ON OR ABOUT SPECIFIED DATES. THE GOVERNMENT DOES NOT HAVE TO PROVE THAT THE CRIMES WERE COMMITTED ON THOSE EXACT DATES, SO LONG AS THE GOVERNMENT PROVES BEYOND A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED THE CRIMES ON DATES REASONABLY NEAR THE DATES STATED IN THE INDICTMENT.

Fifth Circuit Pattern Jury Instructions (Criminal) § 1.19 (1990).

WILLFULLY

THE WORD "WILLFULLY," AS THAT TERM HAS BEEN USED FROM TIME TO TIME IN THESE INSTRUCTIONS, MEANS THAT THE ACT WAS COMMITTED VOLUNTARILY AND PURPOSEFULLY, WITH THE SPECIFIC INTENT TO DO SOMETHING THE LAW FORBIDS; THAT IS, WITH BAD PURPOSE EITHER TO DISOBEY OR DISREGARD THE LAW.

Fifth Circuit Pattern Jury Instructions (Criminal) § 1.36 (1990).

KNOWINGLY

THE WORD "KNOWINGLY," AS THE TERM HAS BEEN USED FROM TIME TO TIME IN THESE INSTRUCTIONS, MEANS THAT THE ACT WAS DONE VOLUNTARILY AND INTENTIONALLY AND NOT BECAUSE OF MISTAKE OR ACCIDENT.

Fifth Circuit Pattern Jury Instructions (Criminal) § 1.35 (1990)

PROOF OF KNOWLEDGE OR INTENT

THE INTENT OF A PERSON OR THE KNOWLEDGE THAT A PERSON POSSESSES AT ANY GIVEN TIME MAY NOT ORDINARILY BE PROVED DIRECTLY BECAUSE THERE IS NO WAY OF DIRECTLY SCRUTINIZING THE WORKINGS OF THE HUMAN MIND. IN DETERMINING THE ISSUE OF WHAT A PERSON KNEW OR WHAT A PERSON INTENDED AT A PARTICULAR TIME, YOU MAY CONSIDER ANY STATEMENTS MADE OR ACTS DONE OR OMITTED BY THAT PERSON, AND ALL OTHER FACTS AND CIRCUMSTANCES RECEIVED IN EVIDENCE WHICH MAY AID IN YOUR DETERMINATION OF THAT PERSON'S KNOWLEDGE OR INTENT.

YOU MAY INFER, BUT YOU ARE CERTAINLY NOT REQUIRED TO INFER, THAT A PERSON INTENDS THE NATURAL AND PROBABLE CONSEQUENCES OF ACTS KNOWINGLY DONE OR KNOWINGLY OMITTED. IT IS ENTIRELY UP TO YOU, HOWEVER, TO DECIDE WHAT FACTS TO FIND FROM THE EVIDENCE RECEIVED DURING THIS TRIAL.

Devitt, Blackmar, & O'Malley, Federal Jury Practice and Instructions § 17.07 (4th ed. 1992).

CONSPIRACY

TITLE 18, UNITED STATES CODE, SECTION 371, MAKES IT A CRIME FOR ANYONE TO CONSPIRE WITH SOMEONE ELSE TO COMMIT AN OFFENSE AGAINST THE LAWS OF THE UNITED STATES. IN THIS CASE, THE DEFENDANT IS CHARGED WITH CONSPIRING TO ALTER ODOMETERS OF MOTOR VEHICLES SO THAT THE OWNER WOULD RECEIVE A HIGHER PRICE IN SELLING THE VEHICLES THAN HE WOULD HAVE RECEIVED IF THE TRUE MILEAGE OF THE VEHICLES WERE KNOWN.

A "CONSPIRACY" IS AN AGREEMENT BETWEEN TWO OR MORE PERSONS TO JOIN TOGETHER TO ACCOMPLISH SOME UNLAWFUL PURPOSE. IT IS A KIND OF "PARTNERSHIP IN CRIME" IN WHICH EACH MEMBER BECOMES THE AGENT OF EVERY OTHER MEMBER.

FOR YOU TO FIND THE DEFENDANT GUILTY OF THIS CRIME, YOU MUST BE CONVINCED THAT THE GOVERNMENT HAS PROVED EACH OF THE FOLLOWING BEYOND A REASONABLE DOUBT:

FIRST, THAT TWO OR MORE PERSONS MADE AN AGREEMENT TO COMMIT THE CRIME OF ODOMETER TAMPERING OR MAIL FRAUD AS CHARGED IN THE INDICTMENT;

SECOND, THAT THE DEFENDANT KNEW THE UNLAWFUL PURPOSE OF THE AGREEMENT AND JOINED IN IT WILLFULLY, THAT IS, WITH THE INTENT TO FURTHER THE UNLAWFUL PURPOSE;

THIRD, THAT ONE OF THE CONSPIRATORS DURING THE EXISTENCE OF THE CONSPIRACY KNOWINGLY COMMITTED AT LEAST ONE OF THE OVERT ACTS DESCRIBED IN THE INDICTMENT, IN ORDER TO ACCOMPLISH SOME OBJECT OR PURPOSE OF THE CONSPIRACY.

ONE MAY BECOME A MEMBER OF A CONSPIRACY WITHOUT KNOWING ALL THE DETAILS OF THE UNLAWFUL SCHEME OR THE IDENTITIES OF ALL THE OTHER ALLEGED CONSPIRATORS. IF A DEFENDANT UNDERSTANDS THE UNLAWFUL NATURE OF A PLAN OR SCHEME AND KNOWINGLY AND INTENTIONALLY JOINS IN THAT PLAN OR SCHEME ON ONE OCCASION, THAT IS SUFFICIENT TO CONVICT HIM FOR CONSPIRACY EVEN THOUGH THE DEFENDANT HAD NOT PARTICIPATED BEFORE AND EVEN THOUGH THE DEFENDANT PLAYED ONLY A MINOR PART.

THE GOVERNMENT NEED NOT PROVE THAT THE ALLEGED CONSPIRATORS ENTERED INTO ANY FORMAL AGREEMENT, NOR THAT THEY DIRECTLY STATED BETWEEN THEMSELVES ALL THE DETAILS OF THE SCHEME. SIMILARLY, THE GOVERNMENT NEED NOT PROVE THAT ALL OF THE DETAILS OF THE SCHEME ALLEGED IN THE INDICTMENT WERE ACTUALLY AGREED UPON OR CARRIED OUT. NOR MUST IT PROVE THAT ALL OF THE PERSONS ALLEGED TO HAVE BEEN MEMBERS OF THE CONSPIRACY WERE SUCH, OR THAT THE ALLEGED CONSPIRATORS ACTUALLY SUCCEEDED IN ACCOMPLISHING THEIR UNLAWFUL OBJECTIVES.

MERE PRESENCE AT THE SCENE OF AN EVENT, EVEN WITH KNOWLEDGE THAT A CRIME IS BEING COMMITTED, OR THE MERE FACT THAT CERTAIN PERSONS MAY HAVE ASSOCIATED WITH EACH OTHER, AND MAY HAVE ASSEMBLED TOGETHER AND DISCUSSED COMMON AIMS AND INTERESTS, DOES NOT NECESSARILY ESTABLISH PROOF OF THE EXISTENCE OF A CONSPIRACY. ALSO, A PERSON WHO HAS NO KNOWLEDGE OF A CONSPIRACY, BUT WHO HAPPENS TO ACT IN A WAY WHICH ADVANCES SOME PURPOSE OF A CONSPIRACY, DOES NOT THEREBY BECOME A CONSPIRATOR.

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.21 (1990).

ACTS AND DECLARATIONS OF COCONSPIRATORS

EVIDENCE HAS BEEN RECEIVED IN THIS CASE THAT CERTAIN PERSONS, WHO ARE ALLEGED IN COUNT ONE OF THE INDICTMENT TO BE COCONSPIRATORS OF THE DEFENDANT, HAVE DONE OR SAID THINGS DURING THE EXISTENCE OR LIFE OF THE ALLEGED CONSPIRACY IN ORDER TO FURTHER OR ADVANCE ITS GOALS.

SUCH ACTS AND STATEMENTS OF THESE OTHER INDIVIDUALS MAY BE CONSIDERED BY YOU IN DETERMINING WHETHER OR NOT THE GOVERNMENT HAS PROVEN THE CHARGES IN COUNT ONE OF THE INDICTMENT AGAINST THE DEFENDANT.

SINCE THESE ACTS MAY HAVE BEEN PERFORMED AND THESE STATEMENTS MAY HAVE BEEN MADE OUTSIDE THE PRESENCE OF THE DEFENDANT AND EVEN DONE OR SAID WITHOUT THE DEFENDANT'S KNOWLEDGE, THESE ACTS OR STATEMENTS SHOULD BE EXAMINED WITH PARTICULAR CARE BY YOU BEFORE CONSIDERING THEM AGAINST THE DEFENDANT WHO DID NOT DO THE PARTICULAR ACT OR MAKE THE PARTICULAR STATEMENT.

Devitt, Blackmar, & O'Malley, Federal Jury Practice and Instructions § 28.06 (4th ed. 1992).

DEFINITION OF "OVERT ACT"

IN ORDER TO SUSTAIN ITS BURDEN OF PROOF ON COUNT ONE OF THE INDICTMENT, THE GOVERNMENT MUST PROVE BEYOND A REASONABLE DOUBT THAT ONE OF THE MEMBERS TO THE AGREEMENT KNOWINGLY PERFORMED AT LEAST ONE OVERT ACT AND THAT THIS OVERT ACT WAS PERFORMED DURING THE EXISTENCE OR LIFE OF THE CONSPIRACY AND WAS DONE TO SOMEHOW FURTHER THE GOALS OF THE CONSPIRACY OR AGREEMENT.

THE TERM "OVERT ACT" MEANS SOME TYPE OF OUTWARD, OBJECTIVE ACTION PERFORMED BY ONE OF THE PARTIES TO OR ONE OF THE MEMBERS OF THE AGREEMENT OR CONSPIRACY WHICH EVIDENCES THAT AGREEMENT.

ALTHOUGH YOU MUST UNANIMOUSLY AGREE THAT THE SAME OVERT ACT WAS COMMITTED, THE GOVERNMENT IS NOT REQUIRED TO PROVE MORE THAN ONE OF THE OVERT ACTS CHARGED.

THE OVERT ACT MAY, BUT FOR ALLEGED ILLEGAL AGREEMENT, APPEAR TOTALLY INNOCENT AND LEGAL.

Devitt, Blackmar, & O'Malley, Federal Jury Practice and Instructions § 28.07 (4th ed. 1992).

ODOMETER TAMPERING--STATUTE DEFINING OFFENSE

COUNTS 2 THROUGH 13 OF THE INDICTMENT CHARGE THE DEFENDANT WITH VIOLATIONS OF TITLE 15 UNITED STATES CODE, SECTIONS 1984 AND 1990c. SECTION 1984 PROVIDES IN PART THAT:

NO PERSON SHALL DISCONNECT, RESET, OR ALTER OR CAUSE TO BE DISCONNECTED, RESET, OR ALTERED, THE ODOMETER OF ANY MOTOR VEHICLE WITH INTENT TO CHANGE THE NUMBER OF MILES INDICATED THEREON.
SECTION 1990c, PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY COMMITS ANY ACT OR CAUSES TO BE DONE ANY ACT THAT VIOLATES SECTION 1984, SHALL BE GUILTY OF AN OFFENSE AGAINST THE UNITED STATES.

15 U.S.C. § 1984

15 U.S.C. § 1990c

ODOMETER TAMPERING--COUNTS

COUNTS 2 THROUGH 13 OF THE INDICTMENT CHARGE THAT THE DEFENDANT KNOWINGLY AND WILLFULLY RESET OR ALTERED, OR CAUSED TO BE RESET OR ALTERED, THE ODOMETERS OF SPECIFIED MOTOR VEHICLES, AND THAT THE DEFENDANT DID SO WITH THE INTENT TO CHANGE THE MILEAGE READINGS ON THE VEHICLES' ODOMETERS, EACH SUCH INSTANCE BEING A SEPARATE COUNT OF THE INDICTMENT.

Indictment

ODOMETER TAMPERING--ESSENTIAL ELEMENTS

THERE ARE THREE ESSENTIAL ELEMENTS WHICH MUST BE PROVED IN ORDER TO ESTABLISH THE OFFENSE CHARGED IN EACH OF COUNTS 2 THROUGH 13:

FIRST, THAT THE DEFENDANT ALTERED OR RESET, OR CAUSED TO BE ALTERED OR RESET, THE ODOMETER OF THE MOTOR VEHICLE DESCRIBED IN THE COUNT;

SECOND, THAT THE DEFENDANT ACTED WITH THE INTENT TO CHANGE THE MILEAGE INDICATED ON THE ODOMETER; AND

THIRD, THAT THE DEFENDANT ACTED KNOWINGLY AND WILLFULLY.

15 U.S.C. § 1984

15 U.S.C. § 1990c

See United States v. Cina, 699 F.2d 853 (7th Cir.), cert. denied, 464 U.S. 991 (1983).

ODOMETER TAMPERING--PROOF OF OFFENSE

IF FROM YOUR CONSIDERATION OF ALL THE EVIDENCE, YOU FIND THAT THE DEFENDANT EITHER KNOWINGLY AND WILLFULLY RESET OR ALTERED THE ODOMETER OF A MOTOR VEHICLE, OR KNOWINGLY AND WILLFULLY CAUSED THE ODOMETER OF A MOTOR VEHICLE TO BE RESET OR ALTERED, AND THAT THE DEFENDANT DID SO WITH THE INTENT TO CHANGE THE MILEAGE READING ON THE VEHICLE'S ODOMETER, YOU SHOULD FIND THAT DEFENDANT GUILTY OF THE OFFENSE CHARGED. IF, ON THE OTHER HAND, YOU FIND FROM YOUR CONSIDERATION OF THE EVIDENCE THAT ANY OF THESE PROPOSITIONS HAVE NOT BEEN PROVED BEYOND A REASONABLE DOUBT, THEN YOU SHOULD FIND THAT DEFENDANT NOT GUILTY OF THAT OFFENSE.

15 U.S.C. §§ 1984, 1990c.

United States v. Ellis, 739 F.2d 1250 (7th Cir. 1984).

United States v. Studna, 713 F.2d 416 (8th Cir. 1983).

United States v. Townsend, 796 F.2d 158 (6th Cir. 1986).

See Schmuck v. United States, 489 U.S. 705 (1989).

EFFECT OF CONSPIRACY FINDING--GUILT OF SUBSTANTIVE OFFENSE

A CONSPIRATOR IS RESPONSIBLE FOR OFFENSES COMMITTED BY OTHER CONSPIRATORS IF THE CONSPIRATOR WAS A MEMBER OF THE CONSPIRACY WHEN THE OFFENSE WAS COMMITTED AND IF THE OFFENSE WAS COMMITTED IN FURTHERANCE OF, OR AS A FORESEEABLE CONSEQUENCE OF, THE CONSPIRACY.

THEREFORE, IF YOU HAVE FIRST FOUND THE DEFENDANT GUILTY OF THE CONSPIRACY CHARGED IN COUNT ONE AND IF YOU FIND BEYOND A REASONABLE DOUBT THAT DURING THE TIME THE DEFENDANT WAS A MEMBER OF THAT CONSPIRACY, OTHER CONSPIRATORS COMMITTED THE OFFENSES IN ANY OR ALL OF COUNTS 2 THROUGH 13 IN FURTHERANCE OF OR AS A FORESEEABLE CONSEQUENCE OF THAT CONSPIRACY, THEN YOU MAY FIND THE DEFENDANT GUILTY OF THOSE COUNTS, EVEN THOUGH THE DEFENDANT MAY NOT HAVE PARTICIPATED IN ANY OF THE ACTS WHICH CONSTITUTE THE OFFENSES DESCRIBED IN COUNTS 2 THROUGH 13.

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.23 (1990)

Pinkerton v. United States, 328 U.S. 640 (1946)

United States v. Basey, 816 F.2d 980, 998-99 nn. 35-36 (5th Cir. 1987)

MAIL FRAUD--ESSENTIAL ELEMENTS AND PROOF

COUNTS 14 THROUGH 18 OF THE INDICTMENT CHARGE THE DEFENDANT WITH FIVE SEPARATE VIOLATIONS OF TITLE 18, UNITED STATES CODE, SECTION 1341, WHICH MAKES IT A CRIME FOR ANYONE TO USE THE UNITED STATES MAILS IN CARRYING OUT A SCHEME TO DEFRAUD.

FOR YOU TO FIND THE DEFENDANT GUILTY OF THIS CRIME, YOU MUST BE CONVINCED THAT THE GOVERNMENT HAS PROVED EACH OF THE FOLLOWING BEYOND A REASONABLE DOUBT:

FIRST, THAT THE DEFENDANT KNOWINGLY CREATED A SCHEME TO DEFRAUD, THAT IS, A SCHEME WHICH INVOLVED ALTERING ODOMETERS OF MOTOR VEHICLES SO THAT THE OWNER WOULD RECEIVE A HIGHER PRICE IN SELLING THE VEHICLES THAN HE WOULD HAVE RECEIVED IF THE TRUE MILEAGE OF THE VEHICLES WERE KNOWN;

SECOND, THAT THE DEFENDANT ACTED WITH A SPECIFIC INTENT TO COMMIT FRAUD;

THIRD, THAT THE DEFENDANT MAILED SOMETHING OR CAUSED ANOTHER PERSON TO MAIL SOMETHING FOR THE PURPOSE OF CARRYING OUT THE SCHEME.

A "SCHEME TO DEFRAUD" INCLUDES ANY SCHEME TO DEPRIVE ANOTHER OF MONEY, PROPERTY, OR OF THE INTANGIBLE RIGHT TO HONEST SERVICES BY MEANS OF FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES.

A REPRESENTATION MAY BE "FALSE" WHEN IT CONSTITUTES A HALF TRUTH, OR EFFECTIVELY CONCEALS A MATERIAL FACT, PROVIDED IT IS MADE WITH INTENT TO DEFRAUD.

IT IS NOT NECESSARY THAT THE GOVERNMENT PROVE ALL OF THE DETAILS ALLEGED IN THE INDICTMENT CONCERNING THE PRECISE NATURE AND PURPOSE OF THE SCHEME, OR THAT THE MATERIAL MAILED WAS ITSELF FALSE OR FRAUDULENT, OR THAT THE ALLEGED SCHEME ACTUALLY SUCCEEDED IN DEFRAUDING ANYONE, OR THAT THE USE OF THE MAILS WAS INTENDED AS THE SPECIFIC OR EXCLUSIVE MEANS OF ACCOMPLISHING THE ALLEGED FRAUD.

WHAT MUST BE PROVED BEYOND A REASONABLE DOUBT IS THAT THE DEFENDANT KNOWINGLY DEVISED OR INTENDED TO DEVISE A SCHEME TO DEFRAUD THAT WAS SUBSTANTIALLY THE SAME AS THE ONE ALLEGED IN THE INDICTMENT; AND THAT THE USE OF THE U.S. MAILS WAS CLOSELY RELATED TO THE SCHEME, IN THAT THE DEFENDANT EITHER MAILED SOMETHING OR CAUSED IT TO BE MAILED IN AN ATTEMPT TO EXECUTE OR CARRY OUT THE SCHEME. TO "CAUSE" THE MAILS TO BE USED IS TO DO AN ACT WITH KNOWLEDGE THAT THE USE OF THE MAILS WILL FOLLOW IN THE ORDINARY COURSE OF BUSINESS OR WHERE SUCH USE CAN REASONABLY BE FORESEEN. EACH SEPARATE USE OF THE MAILS IN FURTHERANCE OF A SCHEME TO DEFRAUD CONSTITUTES A SEPARATE OFFENSE.

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.54 (1990)

EFFECT OF CONSPIRACY FINDING--GUILT OF SUBSTANTIVE OFFENSE

AS PREVIOUSLY NOTED WITH REGARD TO COUNTS 2 THROUGH 13, A CONSPIRATOR IS RESPONSIBLE FOR OFFENSES COMMITTED BY OTHER CONSPIRATORS IF THE CONSPIRATOR WAS A MEMBER OF THE CONSPIRACY WHEN THE OFFENSE WAS COMMITTED AND IF THE OFFENSE WAS COMMITTED IN FURTHERANCE OF, OR AS A FORESEEABLE CONSEQUENCE OF, THE CONSPIRACY.

THEREFORE, IF YOU HAVE FIRST FOUND THE DEFENDANT GUILTY OF THE CONSPIRACY CHARGED IN COUNT ONE AND IF YOU FIND BEYOND A REASONABLE DOUBT THAT DURING THE TIME THE DEFENDANT WAS A MEMBER OF THAT CONSPIRACY, OTHER CONSPIRATORS COMMITTED THE OFFENSES IN ANY OR ALL OF COUNTS 14 THROUGH 18 IN FURTHERANCE OF OR AS A FORESEEABLE CONSEQUENCE OF THAT CONSPIRACY, THEN YOU MAY FIND THE DEFENDANT GUILTY OF THOSE COUNTS, EVEN THOUGH THE DEFENDANT MAY NOT HAVE PARTICIPATED IN ANY OF THE ACTS WHICH CONSTITUTE THE OFFENSES DESCRIBED IN COUNTS 14 THROUGH 18.

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.23 (1990)

Pinkerton v. United States, 328 U.S. 640 (1946)

United States v. Basey, 816 F.2d 980, 998-99 nn. 35-36 (5th Cir. 1987)

AIDING AND ABETTING/CAUSING--DEFINING STATUTE

ALL OF THE COUNTS IN THE INDICTMENT OTHER THAN COUNT ONE ALSO ALLEGE VIOLATIONS OF TITLE 18, UNITED STATES CODE, SECTION 2, THE AIDING AND ABETTING STATUTE. THUS, THE STATUTE APPLIES TO THE ODOMETER ROLLBACK CHARGES, COUNTS 2 THROUGH 13, AND THE MAIL FRAUD CHARGES, COUNTS 14 THROUGH 18.

SECTION 2 OF TITLE 18 OF THE UNITED STATES CODE PROVIDES:

(A) WHOEVER COMMITS AN OFFENSE AGAINST THE UNITED STATES OR AIDS, ABETS, COUNSELS, INDUCES OR PROCURES ITS COMMISSION IS PUNISHABLE AS A PRINCIPAL.
(B) WHOEVER WILLFULLY CAUSES AN ACT TO BE DONE WHICH IF DIRECTLY PERFORMED BY HIM OR ANOTHER WOULD BE AN OFFENSE AGAINST THE UNITED STATES, IS PUNISHABLE AS A PRINCIPAL.
18 U.S.C. § 2.

AIDING AND ABETTING/CAUSING--EXPLANATION

THE GUILT OF A DEFENDANT IN A CRIMINAL CASE MAY BE ESTABLISHED WITHOUT PROOF THAT THE DEFENDANT PERSONALLY DID EVERY ACT CONSTITUTING THE OFFENSE ALLEGED. THE LAW RECOGNIZES THAT, ORDINARILY, ANYTHING A PERSON CAN DO FOR HIMSELF MAY ALSO BE ACCOMPLISHED BY THAT PERSON THROUGH DIRECTION OF ANOTHER PERSON AS HIS OR HER AGENT, OR BY ACTING IN CONCERT WITH, OR UNDER THE DIRECTION OF, ANOTHER PERSON OR PERSONS IN A JOINT EFFORT OR ENTERPRISE.

SO, IF ANOTHER PERSON IS ACTING UNDER THE DIRECTION OF THE DEFENDANT OR IF THE DEFENDANT JOINS ANOTHER PERSON AND PERFORMS ACTS WITH THE INTENT TO COMMIT A CRIME, THEN THE LAW HOLDS THE DEFENDANT RESPONSIBLE FOR THE ACTS AND CONDUCT OF SUCH OTHER PERSONS JUST AS THOUGH THE DEFENDANT HAD COMMITTED THE ACTS OR ENGAGED IN SUCH CONDUCT.

NOTICE, HOWEVER, THAT BEFORE ANY DEFENDANT MAY BE HELD CRIMINALLY RESPONSIBLE FOR THE ACTS OF OTHERS IT IS NECESSARY THAT THE ACCUSED DELIBERATELY ASSOCIATE HIMSELF IN SOME WAY WITH THE CRIME AND PARTICIPATE IN IT WITH THE INTENT TO BRING ABOUT THE CRIME.

OF COURSE, MERE PRESENCE AT THE SCENE OF A CRIME AND KNOWLEDGE THAT A CRIME IS BEING COMMITTED ARE NOT SUFFICIENT TO ESTABLISH THAT A DEFENDANT EITHER DIRECTED OR AIDED AND ABETTED THE CRIME UNLESS YOU FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS A PARTICIPANT AND NOT MERELY A KNOWING SPECTATOR.

IN OTHER WORDS, YOU MAY NOT FIND ANY DEFENDANT GUILTY UNLESS YOU FIND BEYOND A REASONABLE DOUBT THAT EVERY ELEMENT OF THE OFFENSE AS DEFINED IN THESE INSTRUCTIONS WAS COMMITTED BY SOME PERSON OR PERSONS, AND THAT THE DEFENDANT VOLUNTARILY PARTICIPATED IN ITS COMMISSION WITH THE INTENT TO VIOLATE THE LAW.

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.06 (1990).

[cited in USAM 4-8.310]