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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED
STATES OF AMERICA )
) v. ) Criminal No. 13-CR-30028-MGM
) JOSEPH BUFFIS, )
) Defendant. )
GOVERNMENTS PROPOSED FINAL JURY INSTRUCTIONS
The United States of America, by Carmen M. Ortiz, United States
Attorney for the
District of Massachusetts, hereby submits its proposed final
jury instructions, in the above-
captioned case, pursuant to Rule 30 of the Federal Rules of
Criminal Procedure. The
Government respectfully reserves the right to supplement,
modify, or withdraw these instructions
in light of the defendant=s jury instructions, rulings on
motions in limine, or developments at
trial.
Respectfully submitted,
CARMEN M. ORTIZ United States Attorney /s/ Steven H. Breslow
STEVEN H. BRESLOW (NY2915247) DEEPIKA B. SHUKLA (NY4584009,
CT29229) Assistant United States Attorneys 300 State Street, Suite
230 Springfield, MA 01105 413-785-0237 [email protected]
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Certificate of Service
Dated: May 28, 2015
I hereby certify that this document filed through the ECF system
will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing and paper copies will
be sent to those indicated as non-registered participants.
By: /s/ Deepika B. Shukla DEEPIKA B. SHUKLA Assistant U.S.
Attorney
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TABLE OF CONTENTS
______________________________________________________________________________
INSTRUCTION TITLE PAGE
FINAL INSTRUCTIONS
General Instructions 1 Presumption of Innocence; Proof Beyond a
Reasonable Doubt ..................5 2 What Is Evidence; Inferences
......................................................................7
3 Kinds of Evidence: Direct and Circumstantial
............................................8 4 What Is Not
Evidence
..................................................................................9
5 Preparation of
Witnesses............................................................................11
6 Defendants Constitutional Right Not to Testify
.......................................12 7 Defendants Interest if
Defendant Testifies
...............................................13 8 Definition of
Knowingly
............................................................................14
9 Definition of Willfully
...............................................................................15
10 Inconsistencies
...........................................................................................16
11 Statement by Defendant
.............................................................................17
12 False Exculpatory Statements
....................................................................18
13 Cautionary and Limiting Instructions as to Particular Kinds of
Evidence.19 14 Cooperating Witness
..................................................................................20
15 Stipulations
................................................................................................21
16 Charts and Summaries
...............................................................................22
17 Use of Recordings and Transcripts
............................................................23 18
Sympathy
...................................................................................................24
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19 Punishment
.................................................................................................25
20 Variance-Dates
...........................................................................................26
21 All Available Evidence Need Not Be Produced
........................................27 Elements of the Crime 22
Extortion
....................................................................................................28
23 Wire Fraud
.................................................................................................30
24 Money Laundering
.....................................................................................33
Deliberations and Verdict 25 Foreperson=s Role; Unanimity
...................................................................36
26 Consideration of Evidence
.........................................................................37
27 Reaching Agreement
..................................................................................38
28 Return of Verdict Form
..............................................................................39
29 Communication with the Court
..................................................................40
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GOVERNMENT=S REQUESTED CHARGE NO. (1)
Presumption of Innocence; Proof Beyond a Reasonable Doubt
It is a cardinal principle of our system of justice that every
person accused of a crime is
presumed to be innocent unless and until his or her guilt is
established beyond a reasonable
doubt. The presumption is not a mere formality. It is a matter
of the most important substance.
The presumption of innocence alone may be sufficient to raise a
reasonable doubt and to
require the acquittal of a defendant. The defendant before you,
has the benefit of that
presumption throughout the trial, and you are not to convict him
of a particular charge unless you
are persuaded of his guilt of that charge beyond a reasonable
doubt.
The presumption of innocence until proven guilty means that the
burden of proof is
always on the government to satisfy you that the defendant is
guilty of the crime with which he is
charged beyond a reasonable doubt. The law does not require that
the government prove guilt
beyond all possible doubt; proof beyond a reasonable doubt is
sufficient to convict. This burden
never shifts to the defendant. It is always the governments
burden to prove each of the elements
of the crimes charged beyond a reasonable doubt by the evidence
and the reasonable inferences
to be drawn from that evidence. Joseph Buffis has the right to
rely upon the failure or inability of
the government to establish beyond a reasonable doubt any
essential element of a crime charged
against him.
If, after fair and impartial consideration of all the evidence,
you have a reasonable doubt
as to the defendants guilt of a particular crime, it is your
duty to acquit him of that crime. On the
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other hand, if, after fair and impartial consideration of all
the evidence, you are satisfied beyond
a reasonable doubt of the defendants guilt of a particular
crime, you should vote to convict him.
SOURCE Pattern Criminal Jury Instructions for the District
Courts of the First Circuit (Judge D. Brock Hornbys 2015
Revisions), Instruction No. 3.02.
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GOVERNMENT=S REQUESTED CHARGE NO. (2)
What Is Evidence; Inferences
The evidence from which you are to decide what the facts are
consists of sworn
testimony of witnesses, both on direct and cross-examination,
regardless of who called the
witness; the exhibits that have been received into evidence; and
any facts to which the lawyers
have agreed or stipulated. A stipulation means simply that the
government and Joseph Buffis
accept the truth of a particular proposition or fact. Since
there is no disagreement, there is no
need for evidence apart from the stipulation. You must accept
the stipulation as fact to be given
whatever weight you choose.
Although you may consider only the evidence presented in the
case, you are not limited
in considering that evidence to the bald statements made by the
witnesses or contained in the
documents. In other words, you are not limited solely to what
you see and hear as the witnesses
testify. You are permitted to draw from facts that you find to
have been proven such reasonable
inferences as you believe are justified in the light of common
sense and personal experience.
SOURCE Pattern Criminal Jury Instructions for the District
Courts of the First Circuit (Judge D. Brock Hornbys 2015
Revisions), Instruction No. 3.04.
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GOVERNMENT=S REQUESTED CHARGE NO. (3)
Kinds of Evidence: Direct and Circumstantial
There are two kinds of evidence: direct and circumstantial.
Direct evidence is direct proof
of a fact, such as testimony of an eyewitness that the witness
saw something. Circumstantial
evidence is indirect evidence that is proof of a fact or facts
from which you could draw the
inference, by reason and common sense, that another fact exists,
even though it has not been
proven directly. You are entitled to consider both kinds of
evidence. The law permits you to give
equal weight to both, but it is for you to decide how much
weight to give to any evidence.
SOURCE Pattern Criminal Jury Instructions for the District
Courts of the First Circuit (Judge D. Brock Hornbys 2015
Revisions), Instruction No. 3.05.
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GOVERNMENT=S REQUESTED CHARGE NO. (4)
What Is Not Evidence
Certain things are not evidence. I will list them for you:
(1) Arguments and statements by lawyers are not evidence. The
lawyers are not
witnesses. What they say 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 from the evidence differ from the way the lawyers have
stated them, your memory of them
controls.
(2) Questions and objections by lawyers are not evidence.
Lawyers have a duty to their
clients to object when they believe a question is improper under
the rules of evidence. You
should not be influenced by the objection or by my ruling on
it.
(3) Anything that I have excluded from evidence or ordered
stricken and instructed you to
disregard is not evidence. You must not consider such items.
(4) 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 trial.
(5) The indictment is not evidence. This case, like most
criminal cases, began with an
indictment. You will have that indictment before you in the
course of your deliberations in the
jury room. That indictment was returned by a grand jury, which
heard only the governments
side of the case. I caution you, as I have before, that the fact
that Joseph Buffis has had an
indictment filed against him is no evidence whatsoever of his
guilt. The indictment is simply an
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accusation. It is the means by which the allegations and charges
of the government are brought
before this court. The indictment proves nothing.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 3.08.
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GOVERNMENT=S REQUESTED CHARGE NO. (5)
Preparation of Witnesses
Some mention has been made of the preparation of witnesses to
testify by the Assistant
United States Attorneys. There is nothing wrong with a lawyer
preparing a witness to testify.
As a matter of fact, if the lawyers did not do some preparation,
this case would be much longer
than it has been. It is to be expected that when an attorney
puts a witness on the stand for direct
examination, he will have met with the witness and know what the
answers are going to be most
of the time, that is, assuming the witness is willing to talk to
the lawyer ahead of time.
The fact that a witness met with an attorney prior to that
witness testifying before you,
standing alone, should not usually cause you to discredit the
testimony of that witness. You
may, however, consider the fact that a witness was willing to
meet, or not meet, with one side or
the other, prior to this case, in evaluating the witness=
testimony. You may also consider whether
any such meeting did, in fact, influence the testimony of the
witness.
SOURCE
Adapted from Judge McNaught=s charge in United States v. Ronna,
Cr. No. 81-13-Mc. See also, Judge Zobel=s charge in United States
v. Kepreos, Cr. No. 83-12-Z.
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GOVERNMENT=S REQUESTED CHARGE NO. (6)
Defendants Constitutional Right Not to Testify
The Defendant has a constitutional right not to testify and no
inference of guilt, or of
anything else, may be drawn from the fact that Joseph Buffis did
not testify. For any of you to
draw such an inference would be wrong; indeed, it would be a
violation of your oath as a juror.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 3.03.
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GOVERNMENT=S REQUESTED CHARGE NO. (7)
Defendants Interest if Defendant Testifies (Requested only if
the defendant testifies)
In a criminal case, the defendant cannot be required to testify,
but, if he chooses to testify,
he is, of course, permitted to take the witness stand on his own
behalf. In this case, the defendant
decided to testify. You should examine and evaluate his
testimony just as you would the
testimony of any witness with an interest in the outcome of this
case.
SOURCE
Adapted from l L. Sand, et al, Modern Federal Jury Instructions:
Criminal, & 7.01, Instruction No. 7-4 (2013). See United States
v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006); United States v.
Dwyer, 843 F.2d 60, 62-63 (1st Cir. 1988); United States v.
Rollins, 784 F.2d 35, 36-38 (1st Cir. 1986).
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GOVERNMENT=S REQUESTED CHARGE NO. (8)
Definition of Knowingly
The word knowingly, as that 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.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.15.
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GOVERNMENT=S REQUESTED CHARGE NO. (9)
Definition of Willfully
To act willfully means to act voluntarily and intelligently and
with the specific intent
that the underlying crime be committedthat is to say, with bad
purpose, either to disobey or
disregard the lawnot to act by ignorance, accident or
mistake.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.17.
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GOVERNMENT=S REQUESTED CHARGE NO. (10)
Inconsistencies
Inconsistencies or discrepancies in the testimony of a witness
or between the testimony of
different witnesses may or may not cause you to disbelieve or
discredit such testimony. Innocent
misrecollection or inconsistent recollection, like failure of
recollection, is not an uncommon
experience. Also, two or more persons witnessing an incident or
a transaction may simply see or
hear it differently. In weighing the effect of a discrepancy,
always consider whether it pertains to
a matter of importance or an insignificant detail and consider
whether the discrepancy results
from innocent error or intentional falsehood.
SOURCE
Adapted from 1A OMalley, Grenig, and Lee, Federal Jury Practice
and Instructions, Criminal, 15.01 (6th ed.) (database updated
February 2014).
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GOVERNMENT=S REQUESTED CHARGE NO. (11)
Statements by Defendant
You have heard evidence that Joseph Buffis made statements in
which the government
claims he admitted certain facts.
It is for you to decide (1) whether Joseph Buffis made the
statement, and (2) if so, how
much weight to give it. In making those decisions, you should
consider all of the evidence about
the statement, including the circumstances under which the
statement may have been made and
any facts or circumstances tending to corroborate or contradict
the version of events described in
the statement.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.11.
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GOVERNMENT=S REQUESTED CHARGE NO. (12)
False Exculpatory Statements
When a Defendant voluntarily and intentionally offers an
explanation, or makes some
statement before trial tending to show his or her innocence, and
that explanation or statement is
later shown to be false, you may consider whether this evidence
points to a consciousness of
guilt. The significance to be attached to any such evidence is a
matter for you to determine.
SOURCE
Eight Circuit Model Criminal Jury Instructions, Instruction No.
4.15 (2009); see also United States v. Eley, 723 F.2d 1522, 1525
(11th Cir. 1984); United States v. Zang, 703 F.2d 1186, 1191 (10th
Cir. 1982); United States v. McDougald, 650 F.2d 523, 522 (4th Cir.
1981) (citing Wilson v. United States, 162 U.S. 613, 621 (1896));
United States v. Boekelman, 594 F.2d 1238, 1240-41 (9th Cir. 1979);
United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).
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GOVERNMENT=S REQUESTED CHARGE NO. (13)
Cautionary and Limiting Instructions as to Particular Kinds of
Evidence
A particular item of evidence is sometimes received for a
limited purpose only. That is, it
can be used by you only for one particular purpose, and not for
any other purpose. I have told
you when that occurred, and instructed you on the purposes for
which the item can and cannot be
used.
SOURCE Pattern Criminal Jury Instructions for the District
Courts of the First Circuit (Judge D. Brock Hornbys 2015
Revisions), Instruction No. 3.07.
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GOVERNMENT=S REQUESTED CHARGE NO. (14)
Cooperating Witness
You have heard the testimony of Tara Viola and Fusco. They:
1. provided evidence under agreements with the government;
and
2. testified under a grant of immunity.
Immunity means that Tara Viola and Thomas Fuscos testimony may
not be used
against them in any subsequent criminal proceeding. However, if
they testified untruthfully, they
could be prosecuted for perjury or making a false statement,
even though they were testifying
under a grant of immunity.
Some people in this position are entirely truthful when
testifying. Still, you should
consider the testimony of Tara Viola and Thomas Fusco with
particular caution. They may have
had reason to make up stories or exaggerate what others did
because they wanted to help
themselves. You must determine whether the testimony of such a
witness has been affected by
any interest in the outcome of this case, any prejudice for or
against the defendant, or by any of
the benefits he has received from the government.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.08.
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GOVERNMENT=S REQUESTED CHARGE NO. (15)
Stipulations
The evidence in this case includes facts to which the lawyers
have agreed or stipulated. A
stipulation means simply that the government and the defendant
accept the truth of a particular
proposition or fact. Since there is no disagreement, there is no
need for evidence apart from the
stipulation. You must accept the stipulation as fact to be given
whatever weight you choose.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.01.
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GOVERNMENT=S REQUESTED CHARGE NO. (16)
Charts and Summaries
The government has presented exhibits in the form of charts and
summaries. These
charts and summaries were either admitted in place of the
underlying documents or in addition to
the underlying documents that they represent. These charts and
summaries were prepared in
order to save you time and avoid unnecessary inconvenience. You
should consider these charts
and summaries as you would any other evidence.
SOURCE
Adapted from 1 L. Sand, et al., Modern Federal Jury
Instructions: Criminal, & 5.05, Instruction No. 5-12 (2007) and
Fed. R. Evid. 1006.
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GOVERNMENT=S REQUESTED CHARGE NO. (17)
Use of Recordings and Transcripts
At this time you are going to hear conversations that were
recorded. This is proper
evidence for you to consider. In order to help you, I am going
to allow you to have a transcript
to read along as the recording is played. The transcript is
merely to help you understand what is
said on the recording. If you believe at any point that the
transcript says something different from
what you hear on the recording, remember it is the recording
that is the evidence, not the
transcript. Any time there is a variation between the recording
and the transcript, you must be
guided solely by what you hear on the recording and not by what
you see in the transcript.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 2.09.
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GOVERNMENT=S REQUESTED CHARGE NO. (18)
Sympathy
Under your oath as jurors you are not to be swayed by sympathy.
You are to be guided
solely by the evidence in this case, and the crucial, hard-core
question that you must ask
yourselves as you sift through the evidence is: Has the
government proven the guilt of the
defendant beyond a reasonable doubt?
It is for you alone to decide whether the government has proven
that the defendant is
guilty of the crimes charged solely on the basis of the evidence
and subject to the law as I charge
you. It must be clear to you that once you let fear or
prejudice, or bias or sympathy interfere with
your thinking there is a risk that you will not arrive at a true
and just verdict.
If you have a reasonable doubt as to the defendant=s guilt, you
should not hesitate for any
reason to find a verdict of acquittal. But on the other hand, if
you should find that the government
has met its burden of proving the defendant=s guilt beyond a
reasonable doubt, you should not
hesitate because of sympathy or any other reason to render a
verdict of guilty.
SOURCE
1 L. Sand, et al, Modern Federal Jury Instructions: Criminal,
& 2.01, Instruction No. 2-12 (2013); see also United States v.
Levy-Cordero, 67 F.3d 1002, 1009 (1st Cir. 1995).
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GOVERNMENT=S REQUESTED CHARGE NO. (19)
Punishment
The question of possible punishment of the defendant is of no
concern to the jury and
should not, in any sense, enter into or influence your
deliberations. The duty of imposing
sentence rests exclusively upon the court. Your function is to
weigh the evidence in the case and
to determine whether or not the defendant is guilty beyond a
reasonable doubt, solely upon the
basis of the evidence. Under your oath as jurors, you cannot
allow a consideration of the
punishment which may be imposed upon the defendant, if he is
convicted, to influence your
verdict in any way, or, in any sense, enter into your
deliberations.
SOURCE
1 L. Sand, et al, Modern Federal Jury Instructions: Criminal,
& 9.01, Instruction No. 9-1 (2013); Shannon v. United States,
512 U.S. 573 (1994).
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GOVERNMENT=S REQUESTED CHARGE NO. (20)
Variance - Dates
I should draw your attention to the fact that it does not matter
if the indictment charges
that a specific act occurred on or about a certain date, and the
evidence indicates that, in fact, it
was on another date. The law only requires a substantial
similarity, between the dates alleged in
the indictment and the date established by testimony or
exhibits.
SOURCE
1 L. Sand, et al, Modern Federal Jury Instructions: Criminal,
& 3.01, Instruction No. 3-12 (2013); see United States v.
Morris, 700 F.2d 427 (1st Cir. 1983).
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GOVERNMENT=S REQUESTED CHARGE NO. (21)
All Available Evidence Need Not Be Produced
Although the government is required to prove a defendant guilty
beyond a reasonable
doubt, the government is not required to present all possible
evidence related to the case or to
produce all possible witnesses who might have some knowledge
about the facts of the case. In
addition, as I have explained, the defendant is not required to
present any evidence or produce any
witnesses.
SOURCE Committee on Model Criminal Jury Instructions Within the
Third Circuit, Modern Criminal Jury Instructions ' 3.05.
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GOVERNMENT=S REQUESTED CHARGE NO. (22)
Extortion 18 U.S.C. 1951(a)
Count One charges Joseph Buffis with extortion by wrongful use
of fear or under color of
official right on February 21, 2012. Joseph Buffis is accused of
obstructing, delaying, or affecting
commerce by committing extortion. It is against federal law to
engage in such conduct. For you
to find Joseph Buffis guilty of this crime, you must be
convinced that the government has proven
each of the following things beyond a reasonable doubt:
First, that Joseph Buffis knowingly and willfully obtained
property from Tara Viola and
Thomas Fusco;
Second, that he did so by means of extortion; and
Third, that the extortion affected interstate commerce.
The term interstate commerce means commerce between any point in
a state and any
point outside the state. It is only necessary that the
government prove beyond a reasonable doubt
that there is a realistic probability that the acts committed by
Joseph Buffis as charged in the
indictment had some slight or minimal effect on interstate
commerce. It is not necessary for you
to find that Joseph Buffis knew or intended that his actions
would affect interstate commerce.
Extortion means obtaining property from another with his or her
consent, but where that
consent is obtained by the wrongful use of fear or under color
of official right.
To prove extortion by fear, the government must show: (1) that
at least one of the alleged
victims believed that economic loss would result from failing to
comply with Joseph Buffiss
demands and (2) that the circumstances made the fear reasonable.
Economic loss may include the
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possibility of lost business opportunities. But the loss feared
must be a particular economic loss,
not merely the loss of a potential benefit.
To prove extortion under color of official right, the government
must show that Joseph
Buffis obtained property to which he was not entitled and knew
at the time that he was obtaining
it in return for official acts. The government need not show
that Joseph Buffis initiated the
transfer, nor does the government need to show that Joseph
Buffis actually had the ultimate
authority to achieve the desired result.
To act willfully means to act voluntarily and intelligently and
with the specific intent
that the underlying crime be committedthat is to say, with bad
purpose, either to disobey or
disregard the lawnot to act by ignorance, accident or
mistake.
Joseph Buffis is charged with extortion by wrongful use of fear
and under color of official
right. If you find that Joseph Buffis extorted at least one of
his alleged victims either by use of
fear or under color of official right, you should find him
guilty of extortion by wrongful use of
fear and under color of official right. Therefore, when
evaluating the charges against the
defendant, you can treat and as or.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 4.18.1951; United States v. Garcia-Torres, 341 F.3d
61, 66 (1st Cir. 2003) (quoting United States v. Simpson, 228 F.3d
1294, 1300 (11th Cir.2000)) (Quite simply, the law is well
established that where an indictment charges in the conjunctive
several means of violating a statute, a conviction may be obtained
on proof of only one of the means, and accordingly the jury
instruction may properly be framed in the disjunctive.).
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GOVERNMENT=S REQUESTED CHARGE NO. (23)
Wire Fraud 18 U.S.C. 1343
Counts Five through Seven charge Joseph Buffis with wire fraud
on the following dates:
Count 5 November 16, 2009; Count 6 November 28, 2010; and Count
7 December 2, 2011.
Joseph Buffis is charged with violating the federal statute
making wire fraud illegal.
For you to find Joseph Buffis guilty of wire fraud, you must be
convinced that the
government has proven each of the following things beyond a
reasonable doubt:
First, that there was a scheme to defraud or to obtain money or
property by means of false
or fraudulent pretenses;
Second, that the scheme to defraud involved the
misrepresentation or concealment of a
material fact or matter or the scheme to obtain money or
property by means of false or fraudulent
pretenses involved a false statement, assertion, half-truth or
knowing concealment concerning a
material fact or matter;
Third, that Joseph Buffis knowingly and willfully participated
in this scheme with the
intent to defraud; and
Fourth, that for the purpose of executing the scheme or in
furtherance of the scheme,
Joseph Buffis caused an interstate wire communication to be
used, or it was reasonably
foreseeable that for the purpose of executing the scheme or in
furtherance of the scheme, an
interstate wire communication would be used, on or about the
date alleged.
A scheme includes any plan, pattern or course of action. It is
not necessary that the
government prove all details concerning the precise nature and
purpose of the scheme or that the
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alleged scheme actually succeeded in defrauding anyone. But the
government must prove beyond
a reasonable doubt that the scheme was substantially as
charged.
The term defraud means to deceive another in order to obtain
money or property.
The term false or fraudulent pretenses means any false
statements or assertions that
were either known to be untrue when made or were made with
reckless indifference to their truth
and that were made with the intent to defraud. The term includes
actual, direct false statements as
well as half-truths and the knowing concealment of facts.
A material fact or matter is one that has a natural tendency to
influence or be capable of
influencing the decision of the decisionmaker to whom it was
addressed.
Joseph Buffis acted knowingly if he was conscious and aware of
his actions, realized
what he was doing or what was happening around him and did not
act because of ignorance,
mistake or accident.
An act or failure to act is willful if done voluntarily and
intentionally, and with the
specific intent to do something the law forbids, or with
specific intent to fail to do something the
law requires to be done; that is to say, with bad purpose either
to disobey or to disregard the law.
Thus, if Joseph Buffis acted in good faith, he cannot be guilty
of the crime. The burden to
prove intent, as with all other elements of the crime, rests
with the government.
Intent or knowledge may not ordinarily be proven directly
because there is no way of
directly scrutinizing the workings of the human mind. In
determining what Joseph Buffis knew or
intended at a particular time, you may consider any statements
made or acts done or omitted by
Joseph Buffis and all other facts and circumstances received in
evidence that may aid in your
determination of Joseph Buffiss knowledge or intent. You may
infer, but you certainly are not
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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 are proven by
the evidence received during this trial.
The Internet is a means of interstate communication. An
intrastate communication that
results in an interstate communication will suffice to satisfy
the interstate nexus so long as the
interstate communication was reasonably foreseeable, and the
content of reasonable foreseeability
must inevitably keep pace with advances in technology and the
general awareness of such
advances.
The wire communication does not itself have to be essential to
the scheme, but it must
have been made for the purpose of carrying it out. There is no
requirement that Joseph Buffis
himself was responsible for the wire communication, that the
wire communication itself was
fraudulent or that the use of wire communications facilities in
interstate commerce was intended
as the specific or exclusive means of accomplishing the alleged
fraud. But the government must
prove beyond a reasonable doubt that Joseph Buffis knew, or
could reasonably have foreseen, that
use of a wire communication would follow in the course of the
scheme.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 4.18.1343.; United States v. Dwinells, 508 F.3d 63,
65 (1st Cir. 2007); United States v. DeBiasi, 712 F.2d 785, 791 (2d
Cir. 1983); United States v. Muni, 668 F.2d 87, 89-90 (2d Cir.
1981); Eisenberger v. Spectex Industries, Inc., 644 F. Supp. 48, 51
(E.D.N.Y. 1986) (following DeBiasi); BCCI Holdings (Luxembourg)
Societe Anonyme v. Khalil, 56 F. Supp. 2d. 14, 52 (D.D.C. 1999)
(following DeBiasi).
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GOVERNMENT=S REQUESTED CHARGE NO. (24)
Money Laundering 18 U.S.C. 1956(a)(1)(B)(i)
Counts Two through Four and Eight through Eleven charge Joseph
Buffis with money
laundering on the following dates: Count 2 February 23, 2012;
Count 3 February 27, 2012;
Count 4 March 20, 2013; Count 8 December 16, 2011; Count 9
January 4, 2012; Count 10
January 5, 2012, and Count 11 January 11, 2012.
Joseph Buffis is charged with violating that portion of the
federal money laundering
statute that prohibits concealment of the proceeds of certain
unlawful activities. It is against
federal law to engage in such concealment. For Joseph Buffis to
be convicted of this crime, you
must be convinced that the government has proven each of the
following things beyond a
reasonable doubt:
First, that Joseph Buffis entered into a financial transaction
or transactions, on or about the
date alleged, with a financial institution engaged in interstate
commerce;
Second, that the transaction involved the use of proceeds of
unlawful activities,
specifically, proceeds of the extortion or wire fraud;
Third, that Joseph Buffis knew that these were the proceeds of
some kind of crime that
amounts to a state or federal felony; and
Fourth, that Joseph Buffis knew that the transaction or
transactions were designed in
whole or in part to conceal or disguise the nature, location,
source, ownership, or control of the
proceeds of that specified unlawful activity.
A withdrawal, deposit, or transfer of funds from a bank is a
financial transaction.
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Proceeds means any profits that someone acquires or retains as a
result of the
commission of the unlawful activity.
Knowledge may not ordinarily be proven directly because there is
no way of directly
scrutinizing the workings of the human mind. In determining what
Joseph Buffis knew or
intended at a particular time, you may consider any statements
made or acts done or omitted by
Joseph Buffis and all other facts and circumstances received in
evidence that may aid in your
determination of Joseph Buffiss 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 are proven by
the evidence received during this trial.
Concealment means that at least one purpose for the transaction
was to conceal or
disguise the assets. The government may prove concealment
through direct evidence, like the
defendants own statements, or by circumstantial evidence, like
the steps a defendant has taken to
disguise a transaction. The government need not show that the
defendant concealed his own
identity during the transaction. Concealment may be found if a
transaction that is not concealed is
part of a larger money laundering scheme. Commingling proceeds
of extortion or fraud with
other money for the purpose of concealing the nature of source
of the extortion or fraud proceeds
constitutes concealment.
Where proceeds of extortion or fraud are commingled with other
money, the government
need not trace the funds constituting the criminal proceeds.
Therefore, the government does not
need to show that funds withdrawn from the defendant's account
could not possibly have come
from any source other than the extortion or fraud.
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SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 4.18.1956(a)(1)(B)(i); United States v. Hall, 434
F.3d 42, 50 (1st Cir. 2005); United States v. Burns, 162 F.3d 840,
848-49 (5th Cir. 1998); United States v. Iacaboni, 221 F. Supp. 2d
104, 117 (D. Mass. 2002) (citing United States v. McGauley, 279
F.3d 62, 76 (1st Cir. 2002)); United States v. Sokolow, 91 F.3d
396, 409 (3rd Cir. 1996); United States v. Johnson, 971 F.2d 562,
570 (10th Cir. 1992).
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GOVERNMENT=S REQUESTED CHARGE NO. (25)
Foreperson=s Role; Unanimity
I come now to the last part of the instructions, the rules for
your deliberations.
When you retire you will discuss the case with the other jurors
to reach agreement if you
can do so. You shall permit your foreperson to preside over your
deliberations, and your
foreperson will speak for you here in court. Your verdict must
be unanimous.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 6.01.
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GOVERNMENT=S REQUESTED CHARGE NO. (26)
Consideration of Evidence
Your verdict must be based solely on the evidence and on the law
as I have given it to you
in these instructions. However, nothing that I have said or done
is intended to suggest what your
verdict should beCthat is entirely for you to decide.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 6.02.
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GOVERNMENT=S REQUESTED CHARGE NO. (27)
Reaching Agreement
Each of you must decide the case for yourself, but you should do
so only after considering
all the evidence, discussing it fully with the other jurors, and
listening to the views of the other
jurors.
Do not be afraid to change your opinion if you think you are
wrong. But do not come to a
decision simply because other jurors think it is right.
This case has taken time and effort to prepare and try. There is
no reason to think it could
be better tried or that another jury is better qualified to
decide it. It is important therefore that you
reach a verdict if you can do so conscientiously. If it looks at
some point as if you may have
difficulty in reaching a unanimous verdict, and if the greater
number of you are agreed on a
verdict, the jurors in both the majority and the minority should
reexamine their positions to see
whether they have given careful consideration and sufficient
weight to the evidence that has
favorably impressed the jurors who disagree with them. You
should not hesitate to reconsider
your views from time to time and to change them if you are
persuaded that this is appropriate.
It is important that you attempt to return a verdict, but of
course, only if each of you can
do so after having made your own conscientious determination. Do
not surrender an honest
conviction as to the weight and effect of the evidence simply to
reach a verdict.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 6.03.
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GOVERNMENT=S REQUESTED CHARGE NO. (28)
Return of Verdict Form
I want to read to you now what is called the verdict form. This
is simply the written
notice of the decision you will reach in this case.
[Read form.]
After you have reached unanimous agreement on a verdict, your
foreperson will fill in the
form that has been given to you, sign and date it, and advise
the jury officer outside your door
that you are ready to return to the courtroom.
After you return to the courtroom, your foreperson will deliver
the completed verdict
form as directed in open court.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 6.04.
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GOVERNMENT=S REQUESTED CHARGE NO. (29)
Communication with the Court
If it becomes necessary during your deliberations to communicate
with me, you may send
a note through the jury officer signed by your foreperson or by
one or more members of the jury.
No member of the jury should ever attempt to communicate with me
on anything concerning the
case except by a signed writing, and I will communicate with any
member of the jury on
anything concerning the case only in writing, or orally here in
open court. If you send out a
question, I will consult with the parties as promptly as
possible before answering it, which may
take some time. You may continue with your deliberations while
waiting for the answer to any
question. Remember that you are not to tell anyone including me
how the jury stands,
numerically or otherwise, until after you have reached a
unanimous verdict or have been
discharged.
SOURCE
Pattern Criminal Jury Instructions for the District Courts of
the First Circuit (Judge D. Brock Hornbys 2015 Revisions),
Instruction No. 6.05.
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