usa v. altomare doc 57 filed 26 feb 14

8/12/2019 USA v. Altomare Doc 57 Filed 26 Feb 14

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UNITED STATES DISTRJCT COURTSOUTIIERN DISTRICT OF FLORIDA

United States of Am erica,Plaintiff, CASE NO. 13-60240-CR-W PD

VS.

Richard Altom are,Defendant.

/

COURT'S INSTRUCTIONS TO THE JURY

M embers of the Jury:lt's my duty to instruct you on the rules of law that you must use in deciding

this case. After I've completed these instnlctions, you will go to the jury room andbegin your discussions - what we call your deliberations.

You must decide whether the Govenlment has proved the specific factsnecessary to tind the Defendant guilty beyond a reasonable doubt.

Case 0:13-cr-60240-WPD Document 57 Entered on FLSD Docket 02/26/2014 Page 1 of 20


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Your decision must be based only on the evidence presented here. You m ustnot be in:uenced in any way by either sympathy for or prejudice against theDefendant or the Government.

You m ust follow the 1aw as l explain it - even if you do not agree with the1aw - and you must follow a11 of my instm ctions as a whole. You must not singleout or disregard any of the Court's instructions on the law.

The indictment or formal charge against a defendant isn't evidence of guilt.The law presum esevery defendant is irmocent. The Defendant does not have toprove (hisj (herq innocence or produce any evidence at all. The Government mustprove guilt beyond a reasonableDefendant not guilty.

doubt. lf it fails to do so,yOu must find the



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The Government's burden of proof is heavy, but it doesn't have to prove aDefendant's guilt beyond al1 possible doubt. The Government's proof only has to

exclude any (reasonable doubt'' concerning the Defendant's guilt.A dsreasonable doubt'' is a real doubt,based on your reason and comm on

sense after you've carefully and impartially considered a11 the evidence in the case.Ssproof beyond a reasonable doubt'' is proof so convincing that you would be

willing to rely and act on it without hesitation in the most important of your ownaffairs. lf you are convinced that the Defendant has been proved guilty beyond areasonable doubt, say so. lf you are not convinced, say so.



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As l said before, you must consider only the evidence that I have admitted inthe case. Evidence includes the testimony of witnesses and the exhibits admitted.But, anything the lawyers say is not evidence and isn't binding on you.

You shouldn't assume from anything I've said that l have any opinion aboutany factual issue in this case. Except for my instructions to you on the law, youshould disregard anything 1 may have said during the trial in aniving at your owndecision about the facts.

Your own recollection and intep retation of the evidence is what matters.ln considering the evidence you may use reasoning and com mon sense to

make deductions and reach conclusions. You shouldn't be concerned aboutwhether the evidence is direct or circumstantial.

SsDirect evidence'' is the testimony of a person who asserts that he or she hasactual knowledge of a fact, such as an eyewitness.

dcircum stantial evidence'' is proof of a chain of facts and circumstances thattend to prove or disprove a fact. There's no legal difference in the weight you m aygive to either direct or circumstantial evidence.



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W hen l say you must consider a11 the evidence, I don't mean that you must

accept all the evidence as true or accurate. You should decide whether you believewhat each witness had to say, and how important that testimony was. In makingthat decision you may believe or disbelieve any witness, in whole or in part. Thenumber of w itnesses testifying concerning a particular point doesn't necessarilym atter.

To decide whether you believe any witness 1 suggest that you ask yourself afew questions:

* Did the witness impress you as one who was telling the truth?* 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 seem to have a good memory?* Did the witness have the opportunity and ability to accurately

observe the things he or she testitied about?Did the witness appear to understand the questions clearly andanswer them directly?

* D id the w itness's testim ony differ from other testim onyevidence?

or other



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You should also ask yourself whether there was evidence that a witnesstestified falsely about an important fact. And ask whether there was evidence thatat some other time a witness said or did something, or didn't say or do something,that was different from the testim ony the witness gave during this trial.

To decide whether you believe a witness, you m ay consider the fact that thewitness has been convicted of a felony or a crime involving dishonesty or a falsestatem ent.

But keep in mind that a simple mistake doesn't mean a witness wasn'ttelling the truth as he or she remem bers it. People naturally tend to forget som ethings or rem ember them inaccurately. So, if a witness misstated som ething, youmust decide whether it was because of an innocent lapse in naenaory or anintentional deception. Thesignificance of yourdecision m ay depend on whetherthe misstatement is about an important fact or about an unimportant detail.

A defendant has a Hght not to testify. Butsince the Defendant did testify,you should decide whether you believe the Defendant's testimony in the same way

as that of any other witness.



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You've been pennitted to take notes during the trial. M ost of you - perhapsal1 of you - have taken advantage of that opportunity.

Y0t1 must use your notes Only aSa m emory aid during deliberations. Youyour independent recollection of theust nOt give your notes priority Over

evidence. And you must not allow yourself to be unduly influenced by the notes ofther jurors.

I emphasize thatnotes are not entitled to any greater weight than yourm emories or impressions about the testimony.



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You must consider some witnesses' testimony with m ore caution thanothers.

For example, paid informants, witnesses who have been promised immunityfrom prosecution, or witnesses who hope to gain more favorable treatment in theirown cases, may have a reason to make a falsestatement in order to strike a goodbargain with the Governm ent.

So while a witness of that kind may be entirely truthful when testifying, youshould consider that testimony with more caution than the testimony of otherwitnesses.



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During the trial, you heard evidence of acts done by the Defendant on otheroccasions that may be similar to acts the Defendant is currently charged with. Youmust not consider any of this evidence to decide whether the Defendant committedthe acts charged now. But you m ay consider this evidence for other very limitedPUT OSCS.

lf other evidence leads you to decide beyond a reasonable doubt that theDefendant committed the charged acts, you may consider evidence of similar actsdone on other occasions to decide whether the Defendant had the state of mind orintent necessary for the crime charged, acted according to a plan or to prepare tocommit a crime, or committed the charged acts by accident or mistake.



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If the Government offers evidence that a Defendant made a statement oradmission to someone after being arrested or detained, you must consider thatevidence with caution and great care.

You must decide for yourself (1) whether the Defendant made the statement,and (2) if so, how much weight to give toit. To make these decisions, you mustconsider a1l the evidence about the statem ent - including the circum stances underwhich it was m ade.



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(lntroduction to Offense Instruction)The indictment charges four separate crimes, called ''countsy'' against the Defendant.

Each count has a number. You will be given a copy of the indic ent to refer to during yourdelibrations.

Countl One alleges that the Defendant engaged in a scheme and artifice to commit mailfraud, in violation of Title 18, United States Code, Section 1341 . Counts Two thzough Fourallege that the Defendant engaged in a scheme and artifice to commit securities gaud, in violationof Title l 5, United States Code, Section 78j(b) and 78ff(a) and Title 17, Code of FederalRegulations, Section 240.10b-5. 13



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M ail FraudU.S.C. 5 1341

lt is a Federal crime to transmit something by private or commercial interstate carrier incanying out a scheme to defraud someone. 'I'he Defendant can be fotmd guilty of this crime only ifall the following facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly devised or participated in a scheme to defraud someone, orobtain money or property, using false or fraudulent pretenses, representations, or promises;

(2) the false or fraudulent pretenses, representations, or promises were about a materialfad'

(3) the Defendant intended to defraud someone; and(4) the Defendant used a private or commercial interstate carrier by depositing or causing

to be deposited with the canier something meant to help carry out the scheme to defraud.A ''private or commercial interstate carrier'' includes any business that transmits, carries, or

delivers items from one state to another. lt does not matter whether the message or item actuallymoves from one state to another as long as the message or item is delivered to tiie canier.

A 'lschem e to defraud'' includes any plan or course of action intended to deceive or cheatsom eone out of money or property using false or fraudulent pretenses, representations, orpromises.

A statement or representation is ''false'' or 'dfraudulent'' if it is about a material fact, it ismade with intent to defraud, ahd the speaker either knows it is untrue or makes it with recklessindifference to the truth. lt may be false or fraudulent if it is m ade with the intent to defraud and isa half-truth or effectively conceals a material fact.



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A 'dmaterial fact'' is an important fact that a reasonable person would use to decide whetherto do or not do som ething. A fact is smaterial'' if it has the capacity or natural tendency to intluencea person's decision. It does not m atter whether the decision-maker actually relied on the statementor knew or should have known that the statement was false.

To act with ''intent to defraud'' means to act knowingly and with the specific intent todeceive or cheat som eone, usually for personal fmancial gain or to cause financial loss to someoneelse.

The Govemm ent does not have to prove all the details about the precise nature and puposeof th scheme or that the material deposited with an interstate carrier was itself false or fraudulent.It also does not have to prove that the use of the interstate carrier was intended as the specific orexclusive means carrying out the fraud, or that the Defendant did the actual depositing. lt does noteven have to prove that anyone was actually defrauded.

To ''cause'' an interstate canier to be used is to do an act knowing that the use of the carrierwill usually follow in the ordinary course of business or where that use can reasonably be foreseen.

Each separate use of an interstate carrier as part of the scheme to defraud is a separateCnm e.



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Securities Fraud15 U.S.C. 78j(b) and 78ff(a);17 C.F.R. 240.10b-5

It is a Federal crime use means and instnlmentalities of interstate commerce, the mails, orthe facilities of national securities exchanges, directly or indirectly, in carrying out a scheme todefzaud in connection with the purchase or sale of securities. The Defendant can be found guiltyof this crime only if al1 the following facts are proved beyond a reasonable doubt:

(1) the Defendant used a device or scheme to defraud someone, made an untrue statementof a material fact, or failed to disclose a m aterial fact which resulted in m aking the Defendant'sstatements misleading;

(2) the Defendant's acts were or the failure to disclose was in connection with the purchaseoFa security;

(3) the Defendant used the means and instrumentalities of interstate commerce, the mails,or the facilities of national securities exchanges in connection with these acts or this failure todisclose; and

(4) the Defendant acted for the purpose of defrauding buyers or sellers of securities.The term 'tsecurity'' includes' a note, stock certificate, treasury stock certificate, bond,

treasury bond, debenture, certificate of deposit, interest coupon, bill, check, draft, warrant, debitinstrument, money order, travelr's check, letter of credit, warehouse receipt, negotiable bill oflading, evidence of indebtedness, certificate of interest in or participation in any profit-sharingagreement, collateral-trust certificate, certificate of interest in tangible or intangible pro' perty,instrument evidencing ownership of goods, wares, merchandise, and blank forms for any of theitems meeting this definitipn.



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t'lnterstate commerce'' is trade and other business activity be> een people and entitieslocated in different states.e



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tdEntrapm ent'' occurs when law-enforcem ent officers or others under theirdirection persuade a defendant to commit a crime the defendant had no previous

intent to com mit.The Defendant has claimed to be a victim of entrapm ent regarding the

charged offense,The law forbids convicting an entrapped defendant.But there is no entrapment when a D efendant is willing to break the law and

the Government merely provides what appears to be a favorable opportunity forthe Defendant to commit a crim e.

For example, it's not entrapmentfor a Governm ent agent to pretend to besomeone else and offer - directly or through another Person - to engage in anunlaw ful transaction.

You must not evaluate the conduct of Government officers or others undertheir direction to decide whether you approve of the conduct or think it was moral.

So a defendant isn't a victim of entrapment if you find beyond a reasonablet that the Government only offered the defendant an opportunity to commit aou

crim e the Defendant was already willing to com mit.Bu' t if there is a reasonable doubt about whether the Defendant was willing

to commit the crime without the persuasion of a Government oftlcer or a personunder the Govelnm ent's direction, then you must tind the Defendant not guilty.



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You'll see that the indictment charges that a crime was com mitted ton orabout'' a certain date. The Government doesn't have to prove that the crimeoccurred on an exact date. The Government only has to prove beyond a reasonabledoubt that the crime was committed on a date reasonably close to the date alleged.

The word tknowingly'' means that an act was done voluntmily andintentionally and not because of a mistake or by accident.

(The word ttwillfully'' means that the act was committed voluntarily andpurposely, with the intent to do som ething thelaw forbids' that is, with the badpupose to disobey or disregard the law. W hile a person must have acted with theintent to do som ething the law forbids before you can 5nd that the person acted(iwillfully,'' the person need not be aware of the specifc law or rule that (his) (herqconduct may be violating.)



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Each count of the indictment charges a separate crime. You m ust considereach crime and the evidence relating to it separately. If you find the Defendantguilty or not guilty of one crime, that must notaffect your verdict for any otherCr1m C.

l caution you that the Defendant is on trialonlv for the specific crimescharged in the indictm ent. You're here to determine from the evidence in this casewhether the Defendant is guilty or not guilty of those specific crimes.

Arou nnust never considerpunishment in any way to decide whether theDefendant is guilty. lf you tsnd the Defendantguilty, the punishment is for theJudge alone to decide later.



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Your verdict, whether guilty or notguilty, must be unanimous - in otherwords, you m ust a11 agree. Your deliberations are secret, and you'll never have toexplain your verdict to anyone.

Each of you must decide the case for yourseltl but only after fullyconsidering the evidence with the other jurors.So you must discuss the case withone another and try to reach an agreement. W hile you're discussing the case, don'thesitate to reexamine your own opinion and change your mind if you becom econvinced that you were wrong. But don't give up your honest beliefs just becauseothers think differently or because you simply w ant to get the case over with.

Remember that, in a very real way, you're judges - judges of the facts. Youronly interest is to seek the truth 9om the evidence in the case.



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When you get to the jury room, choose oneof your members to act asforeperson. The foreperson will direct your deliberations and will speak for you incourt.

A verdict form has been prepared for your convenience.(Explain verdict)

Take the verdict form with you to the jury room. When you've al1 agreed onthe verdict, your foreperson must fill in the form, sign it, date it, and carry it. Thenyou'll return it to the courtroom .

lf you wish to communicate with me at any time, please write down yourmessage or question and give it to the marshal. The marshal will bring it to m e and1'11 respond as prom ptly as possible - either in writing or by talking to you in thecourtroom. But 1 caution you not to tell me how many jurors have voted one wayor the other at that time.

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usa v. altomare doc 57 filed 26 feb 14

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