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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA v. JOHN D. STANTON, III CASE NO. 8:12-Cr-343-T-33AEP

PROPOSED JURY INSTRUCTIONS The United States of America, by Robert E. O'Neill, United States Attorney for the Middle District of Florida, requests that the following jury instructions be given during the Court's charge at the end of the trial of the above-named indictment.

Respectfully submitted, ROBERT E. O'NEILL United States Attorney

By:

s/ Robert T. Monk ROBERT T. MONK Assistant United States Attorney United States Attorney No. 026 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: robert.monk@usdoj.gov

By:

s/ Matthew J. Mueller MATTHEW J. MUELLER Assistant United States Attorney Florida Bar No. 0047366 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: matthew.mueller@usdoj.gov

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U.S. v. JOHN D. STANTON, III

Case No. 8:12-Cr-343-T-33AEP

CERTIFICATE OF SERVICE I hereby certify that on November 23, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Paul DeCailly, Esquire

s/ Robert T. Monk ROBERT T. MONK Assistant United States Attorney United States Attorney No. 026 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: robert.monk@usdoj.gov

s/ Matthew J. Mueller MATTHEW J. MUELLER Assistant United States Attorney Florida Bar No. 0047366 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: matthew.mueller@usdoj.gov

L:\_Criminal Cases\S\stanton, john_2009R03065_rtm\TRIAL\p_jury instructions_COURT.wpd

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1 Preliminary Instructions

Members of the Jury:

Now that you have been sworn, I need to explain some basic principles about a criminal trial and your duty as jurors. These are preliminary instructions. At the end of the trial I will give you more detailed instructions. Duty of jury: It will be your duty to decide what happened so you can determine whether the defendant is guilty or not guilty of the crimes charged in the indictment. At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you even if you do not agree with the law. What is evidence: You must decide the case solely on the evidence presented here in the courtroom. Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someones opinion. Some evidence proves a fact indirectly, such as a witness who saw wet grass outside and people walking

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into the courthouse carrying wet umbrellas. Indirect evidence, sometimes called circumstantial evidence, is simply a chain of circumstances that proves a fact. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind and should give every piece of evidence whatever weight you think it deserves. What is not evidence: Certain things are not evidence and must not be considered. I will list them for you now: Statements and arguments of the lawyers. In their opening statements and closing arguments, the lawyers will discuss the case, but their remarks are not evidence; Questions and objections of the lawyers. The lawyers questions are not evidence. Only the witnesses answers are evidence. You should not think that something is true just because a lawyers question suggests that it is. For instance, if a lawyer asks a witness, you saw the defendant hit his sister, didnt you? that question is no evidence whatsoever of what the witness saw or what the defendant did, unless the witness agrees with it.

There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit 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, then the question may be answered or the exhibit received. If I sustain the objection, then the question

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cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and not try to guess what the answer would have been. Sometimes I may order that evidence be stricken and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider that evidence. Some evidence is admitted only for a limited purpose. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and no other. Credibility of witnesses: In reaching your verdict, you may have to decide what testimony to believe and what 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: The opportunity and ability of the witness to see or hear or know the things testified to; The witnesss memory; The witnesss manner while testifying; The witnesss interest in the outcome of the case and any bias or prejudice; Whether other evidence contradicted the witnesss testimony;

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The reasonableness of the witnesss testimony in light of all the evidence; and Any other factors that bear on believability.

I will give you additional guidelines for determining credibility of witnesses at the end of the case. Rules for criminal cases: As you know, this is a criminal case. There are three basic rules about a criminal case that you must keep in mind. First, the defendant is presumed innocent until proven guilty. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else. The defendant therefore starts out with a clean slate. Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove his innocence or to present any evidence, or to testify. Since the defendant has the right to remain silent and may choose whether to testify, you cannot legally put any weight on a defendants choice not to testify. It is not evidence. Third, the government must prove the defendants guilt beyond a reasonable doubt. I will give you further instructions on this point later, but bear in mind that the level of proof required is high.

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Conduct of the jury: Our law requires jurors to follow certain instructions regarding their personal conduct in order to help assure a just and fair trial. I will now give you those instructions: 1. Do not talk, either among yourselves or with anyone else, about anything related to the case. You may tell the people with whom you live and your employer that you are a juror and give them information about when you will be required to be in court, but you may not discuss with them or anyone else anything related to the case. Do not, at any time during the trial, request, accept, agree to accept, or discuss with any person, any type of payment or benefit in return for supplying any information about the trial. You must promptly tell me about any incident you know of involving an attempt by any person to improperly influence you or any member of the jury. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use Internet maps or Google Earth or any other program or device to search for a view of any location discussed in the testimony. Do not read, watch, or listen to any accounts or discussions related to the case which may be reported by newspapers, television, radio, the Internet, or any other news media.

2.

3.

4.

5.

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6.

Do not attempt to research any fact, issue, or law related to this case, whether by discussions with others, by library or Internet research, or by any other means or source.

In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites such as Facebook, My Space, or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes posting information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social websites, or any other means. You also must not use Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. It is important that you understand why these rules exist and why they are so important:

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Our law does not permit jurors to talk with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair no one else is so qualified. Our law also does not permit jurors to talk among themselves about the case until the court tells them to begin deliberations, because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you cant be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have a mistaken view of the scene that neither party may have a chance to correct. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely on the testimony and other evidence presented in this courtroom. Also, the law often uses words and phrases in special ways, so its important that any definitions you hear come only from me, and not from any other source. It wouldnt be fair

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to the parties for you to base your decision on some reporters view or opinion, or upon other information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and our law accordingly sets forth serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules, and in accord with your oath and promise, I know you will do so. Taking notes: Moving on now, if you wish, you may take notes to help you remember what witnesses said. 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 so that you do not hear other answers by witnesses. When you leave the courtroom, your notes should be left in the jury room. Whether or not you take notes, you should rely on your own memory of what was said. Notes are to assist your memory only. They are not entitled to any greater weight than your memory or impression about the testimony. Course of the trial: The trial will now begin. First, the government will make an opening statement, which is simply an outline to help you understand the evidence as it comes in. Next, the defendants attorney may, but does not

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have to, make an opening statement. evidence nor argument.

Opening statements are neither

The government will then present its witnesses, and counsel for the defendant may cross-examine them. Following the governments case, the defendant may, if he wishes, present witnesses whom the government may cross-examine. After all the evidence is in, the attorneys will present their closing arguments to summarize and interpret the evidence for you, and I will instruct you on the law. After that, you will go to the jury room to decide your verdict.

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA v. JOHN D. STANTON, III CASE NO. 8:12-Cr-343-T-33AEP

COURT'S INSTRUCTIONS TO THE JURY

Members of the Jury: Its my duty to instruct you on the rules of law that you must use in deciding this case. After Ive completed these instructions you will go to the jury room and begin your discussions what we call your deliberations. You must decide whether the Government has proved the specific facts necessary to find the Defendant guilty beyond a reasonable doubt.

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2.1 The Duty to Follow Instructions And the Presumption of Innocence

Your decision must be based only on the evidence presented here. You must not be influenced in any way by either sympathy for or prejudice against the Defendant or the Government. You must follow the law as I explain it even if you do not agree with the law and you must follow all of my instructions as a whole. You must not single out or disregard any of the Court's instructions on the law. The indictment or formal charge against a defendant isnt evidence of guilt. The law presumes every defendant is innocent. The Defendant does not have to prove his innocence or produce any evidence at all. The

Government must prove guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not guilty.

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2.2 The Duty to Follow Instructions and the Presumption Of Innocence When a Defendant Does Not Testify

Your decision must be based only on the evidence presented during the trial. You must not be influenced in any way by either sympathy for or prejudice against the Defendant or the Government. You must follow the law as I explain it even if you do not agree with the law and you must follow all of my instructions as a whole. You must not single out or disregard any of the Court's instructions on the law. The indictment or formal charge against a Defendant isnt evidence of guilt. The law presumes every Defendant is innocent. The Defendant does not have to prove his innocence or produce any evidence at all. A Defendant does not have to testify, and if the Defendant chose not to testify, you cannot consider that in any way while making your decision. The Government must prove guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not guilty.

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3 Definition of Reasonable Doubt

The Government's burden of proof is heavy, but it doesnt have to prove a Defendant's guilt beyond all possible doubt. The Government's proof only has to exclude any "reasonable doubt" concerning the Defendant's guilt. A "reasonable doubt" is a real doubt, based on your reason and common sense after youve carefully and impartially considered all the evidence in the case. Proof 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 own affairs. If you are convinced that the Defendant has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so.

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4 Consideration of Direct and Circumstantial Evidence; Argument of Counsel; Comments by the Court

As I said before, you must consider only the evidence that I have admitted in the case. Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the lawyers say is not evidence and isnt binding on you. You shouldnt assume from anything Ive said that I have any opinion about any factual issue in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own decision about the facts. Your own recollection and interpretation of the evidence is what matters. In considering the evidence you may use reasoning and common sense to make deductions and reach conclusions. You shouldnt be concerned about whether the evidence is direct or circumstantial. "Direct evidence" is the testimony of a person who asserts that he or she has actual knowledge of a fact, such as an eyewitness.

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"Circumstantial evidence" is proof of a chain of facts and circumstances that tend to prove or disprove a fact. Theres no legal difference in the weight you may give to either direct or circumstantial evidence.

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5 Credibility of Witnesses

When I say you must consider all the evidence, I dont mean that you must accept all the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. The number of witnesses testifying concerning a particular point doesnt necessarily matter. To decide whether you believe any witness I suggest that you ask yourself a few 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 testified about? Did the witness appear to understand the questions clearly and answer them directly?
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Did the witness's testimony differ from other testimony or other evidence?

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6.5 Impeachment of Witnesses Because of Inconsistent Statements or Felony Conviction (Defendant with No Felony Conviction Testifies)

You should also ask yourself whether there was evidence that a witness testified falsely about an important fact. And ask whether there was evidence that at some other time a witness said or did something, or didnt say or do something, that was different from the testimony the witness gave during this trial. To decide whether you believe a witness, you may consider the fact that the witness has been convicted of a felony or a crime involving dishonesty or a false statement. But keep in mind that a simple mistake doesnt mean a witness wasnt telling the truth as he or she remembers it. People naturally tend to forget some things or remember them inaccurately. So, if a witness misstated something, you must decide whether it was because of an innocent lapse in memory or an intentional deception. The significance of your decision may depend on whether the misstatement is about an important fact or about an unimportant detail.

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A defendant has a right not to testify. But since the Defendant did testify, you should decide whether you believe the Defendants testimony in the same way as that of any other witness.

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7 Expert Witness

When scientific, technical or other specialized knowledge might be helpful, a person who has special training or experience in that field is allowed to state an opinion about the matter. But that doesnt mean you must accept the witnesss opinion. As with any other witnesss testimony, you must decide for yourself whether to rely upon the opinion.

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Middle District of Florida Special False Exculpatory

You have heard testimony that the defendant made certain statements outside the courtroom to law enforcement authorities in which the defendant claimed that his conduct was consistent with innocence and not with guilt. The government claims that these statements in which he exonerated or exculpated himself are false. If you find that the defendant gave a false statement in order to divert suspicion from himself, you may, but are not required to infer that the defendant believed that he was guilty. You may not, however, infer on the basis of this alone, that the defendant is, in fact guilty of the crime for which he is charged. Whether or not the evidence as to a defendant's statements shows that the defendant believed that he was guilty, and the significance if any, to be attached to any such evidence, are matters for you, the jury, to decide.

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ANNOTATIONS AND COMMENTS

Modern Federal Jury Instruction G-11 (Consciousness of Guilt from False Exculpatory Statement). Proposed instruction in United States v. Walsh, et al., Case No. 94-155-CR-T-25B, prosecuted by AUSA Mark V. Jackowski.

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Special Intentional Flight

Intentional flight by a person after a crime has been committed is not, of course, sufficient in itself to establish the guilt of that person, but intentional flight under those circumstances is a fact which, if proved, may be considered by the jury in light of all the other evidence in the case in determining the guilt or innocence of that person. Whether or not the defendants conduct constituted flight is exclusively for you, as the jury, to determine. And if you do so determine that flight showed a consciousness of guilt on the defendants part, the significance to be attached to that evidence is also a matter exclusively for you as a jury to determine. I do remind you that in your consideration of any evidence of flight, if you should find that there was flight, you should consider that there may be reasons for this which are fully consistent with innocence. And, may I suggest to you that a feeling of guilt does not necessarily reflect actual guilt of a crime which you may be considering.

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ANNOTATIONS AND COMMENTS See United States v. Borders, 693 F.2d 1318, 1327-28 (11th Cir. 1982) (using this instruction, with immediately after language). Relying on Borders, the Eleventh Circuit has consistently approved of the inclusion of a jury instruction on flight. United States v. Blackburn, 165 Fed. Appx. 721 (11th Cir. 2006) (the court has the duty to instruct the jury on all issues raised during the trial and because the government presented evidence of flight as a theory of guilt, the court properly issued the instruction, even in the absence of the governments request) and United States v. Simmerer, 156 Fed. Appx 124 (11th Cir. 2005) (jury should be cautioned that it is up to it to determine whether the evidence proves flight or what weight should be accorded to such a determination.)

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4 Similar Acts Evidence (Rule 404(b), Fed. R. Evid.)

During the trial, you heard evidence of acts done by the Defendant on other occasions that may be similar to acts the Defendant is currently charged with. You must not consider any of this evidence to decide whether the Defendant committed the acts charged now. But you may consider this evidence for other very limited purposes. If other evidence leads you to decide beyond a reasonable doubt that the Defendant committed the charged acts, you may consider evidence of similar acts done on other occasions to decide whether the Defendant had the state of mind or intent necessary for the crime charged, acted according to a plan or to prepare to commit a crime, or committed the charged acts by accident or mistake.

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5 Note-taking

Youve been permitted to take notes during the trial. Most of you perhaps all of you have taken advantage of that opportunity. You must use your notes only as a memory aid during deliberations. You must not give your notes priority over your independent recollection of the evidence. And you must not allow yourself to be unduly influenced by the notes of other jurors. I emphasize that notes are not entitled to any greater weight than your memories or impressions about the testimony.

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7 Aiding and Abetting; Agency 18 U.S.C. 2

Its possible to prove the Defendant guilty of a crime even without evidence that the Defendant personally performed every act charged. Ordinarily, any act a person can do may be done by directing another person, or agent. Or it may be done by acting with or under the direction of others. A Defendant aids and abets a person if the Defendant intentionally joins with the person to commit a crime. A Defendant is criminally responsible for the acts of another person if the Defendant aids and abets the other person. A Defendant is also responsible if the Defendant willfully directs or authorizes the acts of an agent, employee, or other associate. But finding that a Defendant is criminally responsible for the acts of another person requires proof that the Defendant intentionally associated with or participated in the crime not just proof that the Defendant was simply present at the scene of a crime or knew about it. In other words, you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator.
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Middle District of Florida Special 8 Deliberate Ignorance (As Proof of Knowledge)

When knowledge of the existence of a particular fact is an essential part of an offense, such knowledge may be established if the defendant was aware of a high probability of its existence, unless he actually believed that it did not exist. So, with respect to the issue of the defendants knowledge in this case, if you find from all the evidence beyond a reasonable doubt that the defendant committed these offenses, and deliberately and consciously avoided knowledge that the tax return at issue was required to be filed, in order to be able to say if he should be apprehended, that he did not know that a tax return was required to be filed, you may treat such deliberate avoidance of positive knowledge as the equivalent of knowledge. In other words, you may find that the defendant acted "with knowledge" if you find beyond a reasonable doubt either: First: That the defendant actually knew that a tax return was required to be filed; or That he deliberately closed his eyes to what he had every reason to believe were the facts.

Second:

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I must emphasize, however, that the requisite proof of knowledge on the part of the defendant cannot be established by merely demonstrating that he was negligent, careless or foolish.

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ANNOTATIONS AND COMMENTS

Judge Bucklew gave this instruction in United States v. Dabbs, et al., Case No. 94-152CR-T-24B, prosecuted by AUSA Terry A. Zitek.

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8 Introduction to Offense Instructions

The indictment charges eight separate crimes, called counts, against the Defendant. Each count has a number. Youll be given a copy of the indictment to refer to during your deliberations. Count One charges that the Defendant aided and abetted by other persons known, did corruptly endeavor to obstruct and impede the due administration of the internal revenue laws of the United States with respect to the ascertainment, computation, assessment, and collection of federal taxes. Counts Two through Eight charge that Defendant committed what are called substantive offenses, specifically, Defendant willfully failed to make an income tax return at the time required by law. I will explain the law governing those substantive offenses in a moment.

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9.1 B On or About; Knowingly; Willfully - Intentional Violation of a Known Legal Duty

Youll see that the indictment charges that a crime was committed "on or about" a certain date. The Government doesnt have to prove that the crime occurred on an exact date. The Government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged. The word knowingly means that an act was done voluntarily and intentionally and not because of a mistake or by accident. The word willfully means that the act was done voluntarily and purposely with the specific intent to violate a known legal duty, that is, with the intent to do something the law forbids. Disagreement with the law or a belief that the law is wrong does not excuse willful conduct.

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10.2 Caution: Punishment (Single Defendant, Multiple Counts)

Each count of the indictment charges a separate crime. You must consider each crime and the evidence relating to it separately. If you find the Defendant guilty or not guilty of one crime, that must not affect your verdict for any other crime. I caution you that the Defendant is on trial only for the specific crimes charged in the indictment. Youre here to determine from the evidence in this case whether the Defendant is guilty or not guilty of those specific crimes. You must never consider punishment in any way to decide whether the Defendant is guilty. If you find the Defendant guilty, the punishment is for the Judge alone to decide later.

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111 Attempting to Interfere with Administration of Internal Revenue Laws 26 U.S.C. 7212(a)

Its a federal crime to corruptly try to intimidate or impede any officer or employee of the United States acting in an official capacity under the Internal Revenue laws or try to obstruct or impede the proper administration of the Internal Revenue laws. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant knowingly tried to obstruct or impede the due administration of the Internal Revenue laws; and the Defendant did so corruptly.

(2)

To act corruptly means to act knowingly and dishonestly for a wrongful purpose. To try to obstruct or impede is to consciously attempt to act, or to take some step to hinder, prevent, delay, or make more difficult the proper administration of the Internal Revenue laws.

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The Government does not have to prove that the administration of the Internal Revenue laws was actually obstructed or impeded. It only has to prove that the Defendant corruptly tried to do so. The indictment alleges multiple methods in which the crime can be committed but the Government doesnt have to prove all of them. The Government only has to prove beyond a reasonable doubt that the Defendant used any one of those methods with the corrupt intent to obstruct and impede the proper administration of the Internal Revenue laws. But you must all agree on which method the Defendant corruptly used.

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ANNOTATIONS AND COMMENTS 26 U.S.C. 7212(a) provides: Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, [shall be guilty of an offense against the United States]. Maximum Penalty: Three (3) years imprisonment and applicable fine. Note: The Eleventh Circuit Pattern Instruction has been tailored to the allegations in the case.

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Legal Authority for IRS to Conduct an Examination (Audit)

The law authorizes the Internal Revenue Service to examine any books, papers, records, or other data that may be relevant or material to ascertaining the correctness of any return, making a return where none has been made, or determining the tax liability of any person. The Internal Revenue Service may also summon the person liable for tax or an officer or employee of such person, for testimony or to produce books and records relevant or material to the examination. The Internal Revenue Service is also authorized to establish the time and place for the examination, as are reasonable under the circumstances.

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ANNOTATIONS AND COMMENTS 26 U.S.C. 7602, 7605.

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Middle District of Florida Special Officer Liability - Limitations Thereof

A person is responsible under the criminal law for acts he or she performs or causes to be performed on behalf of a corporation just as though the acts were performed on his or her own behalf. A defendant who is an officer, director, employee, or agent of a corporation is not criminally responsible for the illegal acts of another officer, director, employee, or agent performed on behalf of that corporation merely because of his or her status as an officer, director, employee, or agent of the corporation.

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ANNOTATIONS AND COMMENTS

Devitt, Blackmar, Wolff and O'Malley, Federal Jury Practice and Instructions, 1804 (1992) (modified). This instruction was given in the environmental case in United States v. William Recht Co., Inc., d/b/a Durex Industries, Case No. 94-70-CR-T-17B, successfully prosecuted by AUSA Dennis Moore.

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108 Failure to File a Tax Return 26 U.S.C. 7203

Its a Federal crime to willfully fail to file a federal income-tax return when required to do so by the Internal Revenue laws or regulations. The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant was required by law or regulation to file an income-tax return for the taxable year charged; the Defendant failed to file a return when required by law; and At the time the Defendant failed to file the return, he knew he was required by law to file a return.

(2)

(3)

A person who was married and under the age of sixty-five years old was required to make a federal income-tax return for any tax year in which the person had gross income of more than $16,400 for tax year 2005; and $17,500 for tax year 2007.

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"Gross income" includes the following: Compensation for services including fees, commissions and similar items; Gross income from business; Gains from dealing in property; Interest; Rents; Royalties; Dividends; Alimony and separate maintenance payments; Annuities; Income from life insurance and endowment contracts; Pensions; Income from discharge of indebtedness; Distributive share of partnership gross income; Income in respect of a decedent; and Income from an interest in an estate or trust.

The Defendant is a person required to file a return if the Defendant's gross income for any calendar year is more than $16,400 in 2005 or $17,500 for 2007, even though the Defendant may be entitled to
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deductions from that income and ultimately owe no taxes. So the Government is not required to prove that taxes were due and unpaid, or that the Defendant intended to evade or defeat paying taxes. The Government only has to prove that the Defendant willfully failed to file the tax return.

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ANNOTATIONS AND COMMENTS 26 U.S.C. 7203 provides: Any person required [by law or regulation] to . . . make a return . . . who willfully fails to . . . make such return . . . at the time . . . required by law or regulations [shall be guilty of an offense against the United States]. Maximum Penalty: One (1) year imprisonment and $100,000 fine (or $200,000 in the case of a corporation), plus costs of prosecution. See 26 U.S.C. 7203 and 18 U.S.C. 3571. Section 7203 requires willfulness. A willful violation of 7203 has been defined as the voluntary, intentional violation of a known legal duty. Since this instruction incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense. See U.S. v. Dean, 487 F.3d 840, 850 (11th Cir.2007)([t]he term willfulness presupposes the existence of a legal duty and knowledge of that duty. See also U.S. v. Ware, 2008 WL 4173845 (11th Cir.2008) (defining willfully as a voluntary and intentional violation of a known legal duty.). When a defendant asserts a "good-faith" defense, the defendant is entitled to the following charge: Good-faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with the charge of tax evasion and the elements of this crime. The Government must establish beyond a reasonable doubt each and every element of the offense. Therefore, if a defendant believes in good faith that he is acting within the law, he cannot be found guilty of the offense charged in the indictment. This is so even if the defendants belief was not objectively reasonable as long as he held the belief in good faith. Nevertheless, you may consider whether the defendants belief about the tax statutes was actually reasonable as a factor in deciding whether he held that belief in good faith. United States v. Dean, 487 F.3d 840 (11th Cir.2007). Note: The Eleventh Circuit Pattern Instruction has been modified slightly, to include the gross income threshold amounts for the relevant years charged in the indictment.

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Corporate Obligation to File Tax Returns

Federal law requires all corporations subject to taxation to make an income tax return without respect to any minimum threshold amount of income. Corporate returns must be filed even if a corporation has no taxable income. The person required to make an income tax return on behalf of a corporation includes the president, vice-president, or any other officer authorized so to act. The fact that an individuals name is signed on the return is prima facie evidence that such individual is authorized to act on behalf of the corporation.

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ANNOTATION AND COMMENTS 26 U.S.C. 11(a), 6012(a)(2), 6062, 7343. See United States v. Neal, 93 F.3d 219, 223 (6th Cir. 1996) (corporate officers liable under Section 7203 for failure to file employers quarterly tax return (Form 941)).

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Middle District of Florida Basic Conjunctive Charge

In these charges, the Court has reviewed the pertinent parts of federal and state statutes (or laws) which are alleged to have been violated. Where a statute specifies several alternative ways in which an offense may be committed, the indictment may allege the several ways in the conjunctive, that is, by using the word "and;" therefore, if only one of the alternatives is proved beyond a reasonable doubt, that is sufficient for conviction, so long as the jury agrees unanimously as to at least one of the alternatives.

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ANNOTATIONS AND COMMENTS

United States v. Griffin, 705 F.2d 434, 436 (11th Cir. 1983); United States v. Haymes, 610 F.2d 309, 310-11 (5th Cir. 1980); United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976), cert. denied, 430 U.S. 947 (1977). This instruction was provided by AUSA Kunz. This instruction is routinely given by judges in Jacksonville.

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Middle District of Florida Basic Witnesses

The law does not require the prosecution to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require the prosecution to produce as exhibits all papers and things mentioned in the evidence.

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ANNOTATIONS AND COMMENTS

Authority: 17.18, All Available Evidence Need Not Be Produced, Federal Jury Practice and Instructions, Devitt and Blackmar, Vol. I (1977). This instruction was proposed by the government in United States v. Pacheco, Case No. 89-82-Cr-T-13(B), prosecuted by AUSA Roberta Bahnsen.

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Middle District of Florida Trial Charts and Summaries

Certain exhibits in the form of charts, summaries, calculations and the like have been received in evidence. Such exhibits are received in evidence where voluminous writings, documents and records are involved. These exhibits are available for your assistance and convenience in considering the evidence.

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ANNOTATIONS AND COMMENTS

United States v. Gold, 743, F.2d 800, 816 (11th Cir. 1984); United States v. Atchley, 699 F.2d 1055 (11th Cir. 1983); United States v. Conover, Case Number 83-70-CR-J-8, Middle District of Florida (Senior Judge Krentzman).

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11 Duty to Deliberate

Your verdict, whether guilty or not guilty, must be unanimous in other words, you must all agree. Your deliberations are secret, and youll never have to explain your verdict to anyone. Each of you must decide the case for yourself, but only after fully considering the evidence with the other jurors. So you must discuss the case with one another and try to reach an agreement. While youre discussing the case, dont hesitate to reexamine your own opinion and change your mind if you become convinced that you were wrong. But dont give up your honest beliefs just because others think differently or because you simply want to get the case over with. Remember that, in a very real way, youre judges judges of the facts. Your only interest is to seek the truth from the evidence in the case.

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12 Verdict

When you get to the jury room, choose one of your members to act as foreperson. The foreperson will direct your deliberations and will speak for you in court. A verdict form has been prepared for your convenience.

[Explain verdict]

Take the verdict form with you to the jury room. When youve all agreed on the verdict, your foreperson must fill in the form, sign it, date it, and carry it. Then youll return it to the courtroom. If you wish to communicate with me at any time, please write down your message or question and give it to the marshal. The marshal will bring it to me and Ill respond as promptly as possible either in writing or by talking to you in the courtroom. But I caution you not to tell me how many jurors have voted one way or the other at that time.

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