Jury Instructions for the Veldora Arthur Federal Mortgage Fraud Trial

8/4/2019 Jury Instructions for the Veldora Arthur Federal Mortgage Fraud Trial

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UNITED STATES DISTRICT COURTSOUTH ERN DISTRICT O F FLORIDACASE NO. 10-20753-CR-SE1TZ(S)

UNITED STATES OF AM ERICAVS.NEIL FAGAN,PAM ELA JOH NSO N, andVELDORA ARTHUR,

Defendants. /COURT'S INSTRUCTIONSTO THE JURY

M embers of the Jury:It is now my duty to instruct you on the rules of 1aw that you must follow and apply in

deciding this case. W hen I have fnished, you will hear the parties' closing arguments and then Iwill instruct you to go to the jury room and begin your discussions -- what we call yourdeliberations.

It will be your duty to decide whether the Government has proved beyond a reasonabledoubt the specific facts necessary to find the Defendants guilty of the crimes charged in thelndictment.

Case 1:10-cr-20753-PAS Document 244 Entered on FLSD Docket 09/28/2011 Page 1 of 26


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Your decision must be based only on the evidence presented here.influenced in anywayby either sympathy for orprejudice againstthe Defendants orthe Government.

You must not be

You must follow the 1aw as 1 explain it - even if you do not agree with the law - and youmust follow a11 of my instructions as a whole. You m ay not single out or disregard any of theCourt's instmctions on the law.

The Indictment or formal charge against the Defendants is not evidence of guilt. The lawpresum es every defendant is innocent. The Defendants do not have to prove their innocence orproduce any evidence at all. A Defendant does not have to testify, and if a Defendant chose not totestify, you cannot consider that in any way while making your decision. The Govemment mustprove each Defendant's guilt beyond a reasonable doubt. If it fails to do so, you must find thatDefendant not guilty.

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The Government's burden of proof is heavy, but it does not have to prove a Defendant's guiltbeyond a11 possible doubt.The Govemment's proof only has to exclude any Sreasonable doubt''concerning a Defendant's guilt.

A reasonable doubt'' is a real doubt, based on reason and common sense aher you havecarefully and impartially considered a11 the evidence in the case.

tproof beyond a reasonable doubt'' is proof so convincing that you would be willing to relyand act upon it without hesitation in the most important of your own affairs. If you are convincedthat a Defendant has beenproved guilty beyond areasonable doubt, say so. If you are not convinced,Say SO.



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As 1 said before, you m ust consider only the evidence that 1 have adm itted in the case.Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the lawyerssay is n0t evidence and is not binding on you.

You shouldn't assume from anything I have said that 1 have any opinion about any factualissue in this case. Except for my instructions to you on the law, you should disregard anything I mayhave said during the trial in aniving at your own decision about the facts.

Your own recollection and interpretation of the evidence is what m atters.ln considering the evidence you may use reasoning and comm on sense to make deductions

and reach conclusions. You should not be concerned about whether the evidence is direct orcircum stantial.

Sr irect evidence'' is the testimony of a person who asserts that he or she has actualknowledge of a fact, such as an eyewitness.

icircumstantial evidence'' is proof of a chain of facts and circumstances that tend to proveor disprove a fact. There's no legal difference in the weight m u may give to either direct orcircumstantial evidence.

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W hen I say you must consider a11 the evidence, I do not mean that you must accept a1l theevidence as true or accurate. You should decide whether you believe what each witness had to say,

and how important that testimony was. ln making that decision you m ay believe or disbelieve anywitness, in whole or in part.The number of witnesses testifying concem ing a particular point doesnot necessarily m atter.

To decide whether you believe any witness 1 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 outcom e 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 heor she testified about?Did the witness appear to understand the questions clearly and answerthem directly?Did the witness's testimony differ from other testimony or other evidence?

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You should also ask yourself hetherthere was evidence that a witness testified falselyaboutan important fact. And ask whether there was evidence that at some other time a witness said or didsomething, or did not say or do something, that was different from the testimony the witness gaveduring this trial.

But keep in mind that a simple mistake does not mean a witness was not telling the truth ashe or she remembers it. People naturally tend to forget some things or remember them inaccurately.So, if a witness misstated something, you m ust decide whether it was because of an innocent lapsein memory or an intentional deception. The significance of your decision may depend on whetherthe misstatement is about an important fact or about an unimportant detail.

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

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In addition, some of the people who may have been involved in these events are not on trial.This does not matter. There is no requirement that a11 members of a conspiracy or a11 co-defendants

be charged and prosecuted in one proceeding.You may not draw any inference, favorable or unfavorable, towards the Government or the

Defendants on trial from the fact that any person in addition to the Defendants is not on trial here.You also m ay not speculate as to the reasons why other persons are not on trial.

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W hen scientific, technical or other specialized knowledge might be helpful, a person whohas special training or experience in that field is allowed to state an opinion about the matter.

In this case, you have heard the testimony of Ruben Schneider and Tony Mesa, both expertsin real estate transactions.

But that doesn't mean you must accept the witness's opinion. As with any other witness'stestim ony, you must decide for yourself whether to rely upon the opinion.

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The Indictment charges 5 separate crimes, called scounts,'' against the Defendants. Eachcount has a num ber. You will be given a copy of the lndictm ent for reference during your

deliberations.Count 1 charges that the Defendants knowingly conspired to com mit the federal crimes of

wire fraud and m ail fraud.Counts 2 tkough 5 each charge that the Defendants com mitted what are called ftsubstantive

offenses.'' The charges in Counts 2 through 5 are the same, namely that the Defendants executed ascheme to comm it m ail fraud.committed mail fraud as to unit 2813. Count 3 charges that Defendants Fagan, Arthur, and Johnsoncommitted mail fraud as to unit 371 1. Count 4 charges that Defendants Fagan and Johnsoncommitted mail fraud as to unit 3615. Count 5 charges that Defendants Fagan, Arthur, and Johnson

Specifcally, Count 2 charges that Defendants Fagan and Jolmson

com mitted mail fraud as to unit 31 1 1.I will explain the 1aw governing those substantive offenses in a moment.But first note that the Defendants are not charged in Count 1 with com mitting a substantive

offense - they are charged with conspiring to comm it that substantive offense.



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lt is a crime or offense for anyone to conspire or agree with someone else to do somethingwhich would result in m ail fraud or wire fraud, which are unlawful acts.

A fconspiracy'' is an agreement by two or more persons to comm it an unlawful act. ln otherwords, it is a kind of partnership for criminal pumoses. Every member of the conspiracy becomesthe agent or partner of every other member.

The Governm ent does not have to prove that a11 the people named in the lndictment werem embers of the plan, g.l that those who were members made any kind of formal agreement. The heartof a conspiracy is the making of the unlawful plan itself, so the Govelmm ent does not have to provethat the conspirators succeeded in canying out the plan.

A Defendant can be found guilty of this conspiracy offense only if a11 the following facts areproved beyond a reasonable doubt:

two or m ore persons, in some way or m anner, agreed to try toaccomplish a common and unlawful plan to comm it mail fraudor wire fraud, as charged in the lndictment; andthe Defendant knew the unlawful pum ose of the plan andwillfully joined in it;(2)

A person may be a conspirator even without knowing a11 the details of the unlawful plan orthe names and identities a11 of the other alleged conspirators.

lf a Defendant played only a m inor part in the plan but had a general understanding of theunlawful purpose of the plan - and willfully joined in the plan on at least one occasion - that issufficient for you to find a Defendant guilty of Count 1 .

But sim ply being present at the scene of an event or merely associating with certain peopleand discussing common goals and interests does not establish proof of a conspiracy. Also, a person

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who does not know about a conspiracy but happens to act in away that advances some purpose of onedoesn't automatically become a conspirator.

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In this case, regarding the conspiracy alleged in Count 1, the Indictment charges that theDefendants conspired to com mit wire fraud and to commit mail fraud. ln other words, the Defendants

are charged with conspiring to comm it two separate substantive crimes.The Govermnent does not have to prove that a Defendant willfully conspired to commit both

crimes. It is sufficient if the Government proves beyond areasonable doubtthat aDefendant willfullyconspired to commit one of those crimes.

But before you can return a verdict of guilty on Count 1, you m ust consider each offenseseparately and you m ust unanimously agree on whether each individual Defendant conspired tocom mit one or both crimes charged in the conspiracy. You will indicate your unanimous decisionon this issue on the verdict forms. Now, I will instruct you as to the elements of wire fraud and mailfraud.

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As 1 said, Defendants are not charged w ith the substantive crim e of wire fraud. They arecharged with conspiracy to com mit wire fraud. In order to determine whether a Defendant conspiredto commit wire fraud, you must know the actions that constitute wire fraud. It is a Federal crime touse interstate wire, radio, or television communications to carry out a scheme to defraud someoneelse.

A person commits wire fraud if:the person knowingly devised or participated in a scheme todefraud, or to obtain money or property by using falsepretenses, representations, Or promises;the false pretenses, representations, or promises were about amaterial fact;the person acted with the intent to defraud; andthe person transmitted or caused to be transm itted by wiresom e comm unication in interstate comm erce to help carry outthe scheme to defraud.

(4)

The term 'tscheme to defraud'' includes any plan or course of action intended to deceive orcheat someone out of money or property by using false or fraudulent pretenses, representations, orpromises.

A statement or representation is 'lfalse'' or tfraudulent'' if it is about a m aterial fact that thespeaker knows is untrue or makes with reckless indifference to the truth, and makes with the intentto defraud. A statement or representation may be Sfalse'' or ifraudulent'' when it is a half truth, oreffectively conceals a material fact, and is made with the intent to defraud.

A tmaterial fact'' is an important fact that a reasonable person would use to decide whetherto do or not do something. A fact is Simaterial'' if it has the capacity or natural tendency to influence

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a person's decision. It does not matter whether the decision-m aker actually relied on the statementor knew or should have known that the statement was false.

The tsintentto defraud'' is the specific intentto deceive or cheat someone, usually forpersonalfinancial gain or to cause financial loss to someone else.

The Government does not have to prove a1l the details alleged in the Indictment about theprecise nature and purpose of the scheme. It also does not have to prove that the material transmittedby interstate wire was itself false or fraudulent; or that using the wire was intended as the specificor exclusive means of canying out the alleged fraud; or that the Defendant personally made the

transm ission over the wires. And it does not have to prove that the alleged scheme actuallysucceeded in defrauding anyone.

To Stuse'' interstate wire comm unications is to act so that som ething would norm ally be sentthrough wire, radio, or television communications in the normal course of business.

The phrase tttransmitted or caused to be transmitted by wire some communication ininterstate commerce'' means to send from one state to another by m eans of telephone or telegraphlines or by means of radio or television. The phrase includes a telephone conversation by a personin one state with a person in another state, or electronic signals sent from one state to another, suchas by fax or financial wire.

W e will now turn to mail fraud.

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In your deliberations as to all 5 counts, I instruct you that it is a Federal crime to use theUnited States mail or to transmit something by private or commercial interstate canier in canyingout a scheme to defraud someone. This is comm only called mail fraud.

Count 1 of the lndictment charges the Defendants with conspiracy to com mit mail fraud. Inorder to find Defendants guilty of Count 1, you do not nted to find that they actually committed m ailfraud; you must find that they conspired to do so.

Counts 2 through 5 charge Defendants with the substantive crime of mail fraud. As toCounts 2-5, a Defendant can be found guilty of mail fraud only if a11 the following facts are proved

beyond a reasonable doubt:(1) the Defendant knowingly devised or participated in a scheme to defraudsomeone, or obtain money or property, using false or fraudulent pretenses,

representations, or promises;the false or fraudulent pretenses, representations, or prom ises were about am aterial fact;the Defendant intended to defraud someone; and

(2)

(3)(4) the Defendant used the United States Postal Service to mail or caused to bemailed something m eant to help carry out the schem e to defraud or used aprivate or commercial interstate carrier to deposit or cause to be deposited

with the carrier something meant to help carry out the scheme to defraud.A tprivate or com mercial 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 the carrier.

A tschem e to defraud'' includes any plan or course of action intended to deceive or cheatsomeone out of money or property using false or fraudulent pretenses, representations, or promises.

A statem ent or representation is ifalse'' or ifraudulent'' if it is about a material fact, it is made

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with intent to defraud, and the speaker either knows it is untrue or makes it with reckless indifferenceto the truth. lt may be false or fraudulent if it is made with the intent to defraud and is a half-truthor effectively conceals a material fact.

A Slmaterial fact'' is an important fact that a reasonable person would use to decide whetherto do or not do something. A fact is sm aterial'' if it has the capacity or natural tendency to intluencea person's decision. It does not matter whether the decision-m aker actually relied on the statementor knew or should have known that the statement was false.

To act with kdintent to defraud'' means to act knowingly and withthe specific intent to deceive

or cheat someone, usually for personal financial gain or to cause financial loss to someone else.The Government does not have to prove all the details about the precise nature and purpose

of the scheme or that the material mailed or deposited with an interstate carrier was itself false orfraudulent. lt also does not have to prove that the use of the mail or the interstate carrier wasintended as the specifc or exclusive means carrying out the fraud, or that a Defendant did the actualmailing or depositing. It does not even have to prove that anyone was actually defrauded.

To ticause'' the m ail or an interstate carrier to be used is to do an act knowing that the use ofthe mail or the carrier will usually follow in the ordinary course of business or where that use canreasonably be foreseen.

Each separate use of the mail or an interstate canier as part of the scheme to defraud is aseparate crime.



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During a conspiracy, if a conspirator commits a crime to advance the conspiracy toward itsgoals, then in some cases a co-conspirator may be guilty of the crime even though the co-conspiratordid not pm icipate directly in the crim e.

So regarding Counts 2 through 5, if you have first found any of the Defendants guilty of thecrime of conspiracy as charged in Count 1, you may also find that Defendant guilty of the crimecharged in Counts 2 through 5 even though that Defendant did not personally participate in thecrime. To do so, you m ust find beyond a reasonable doubt:

That during the conspiracy a conspirator comm itted the substantive crimecharged to further the conspiracy's purpose;That the Defendant was a knowing and willful member of the conspiracywhen the crime was committed; andThat it was reasonably foreseeable that a co-conspirator would com mit thecrim e as a consequence of the conspiracy.

(2)(3)



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It is possible to prove a Defendant guilty of a crim e even without evidence that a Defendantpersonally performed evez.y act charged.

Ordinarily, any act a person can do may be done by directing another person, or fagentv'' Orit may be done by acting with or under the direction of others.

A Defendant itaids and abets'' a person if the Defendant intentionally joins with the personto comm it a crim e.

A Defendant is criminally responsible for the acts of anotherperson if the Defendant aids andabets the other person. A Defendant is also responsible if the Defendant willfully directs orauthorizes the acts of an agent, employee, or other associate.

But fnding that a Defendant is criminally responsible for the acts of another person requiresproof that the Defendant intentionally associated with or participated in the crime - not just proofthat the Defendant was simply present at the scene of a crime or knew about it.

ln other words, you m ust find beyond a reasonable doubt that the Defendant was a willfulparticipant and not merely a knowing spectator.

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You will see that the lndictment charges that a crim e was comm itted tson or about'' a certaindate. The Government doesn't have to prove that the offense occurred on an exact date. TheGovernment only has to prove beyond a reasonable doubt that the crim e was committed on a datereasonably close to the date alleged.

The word dlknowingly'' means that an act was done voluntarily and intentionally and notbecause of a mistake or by accident.

The word 'willfully'' means that the act was committed voluntarily and purposely, with theintent to do something the 1aw forbids; that is, with the bad pupose to disobey or disregard the law.W hile a person must have acted with the intent to do som ething the law forbids before you can findthat the person acted ttwillfullyr'' the person need not be aware of the specific 1aw or rule that hisconduct may be violating.

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''Good faith'' is a complete defense to a charge that requires intent to defraud. A defendantisn't required to prove good faith. The Governm ent must prove intent to defraud beyond a

reasonable doubt.An honestly held opinion or an honestly formed belitf cnnnot be fraudulent intent - even if

the opinion or belief is mistaken. Similarly, evidence of a mistake in judgment, an error inmanagement, or carelessness can't establish fraudulent intent.

But an honest belief that abusiness venture would ultimately succeed doesn't constitute goodfaith if the Defendant intended to deceive others by making representations the Defendant knew tobe false or fraudulent or made it with reckless indifference to the truth.

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Evidence of a Defendant's character traits may create a reasonable doubt.You should consider testimony that a Defendant is an honest and law-abiding citizen along

with a11 the other evidence to decide whether the Governm ent has proved beyond areasonable doubtthat the Defendant committed the offense.

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During the trial, you heard evidence of acts done by M s. Arthur on another occasion whichare not charged in this lndictment.

As l instructed you during the trial you must not consider this evidence as to M r. Fagan orM s. Jolmson. Such evidence only applies to M s. Arthur.

You also must not consider any of this evidence to decide whether M s. Arthur committed theacts charged inthe lndictment. But you m ay consider this evidence against M s. Arthur for other verylimited purposes.

If the other evidence presented during the trial leads youto decide beyond areasonable doubtthat M s. Arthur committed the acts charged in the lndictm ent, you m ay consider the evidence ofconduct by M s. Arthur on another occasion to decide whether: M s. Arthur had the state of mind orintent necessary to commit the crimes charged here, or acted in accordance with a plan, or M s.Arthur committed the charged acts by accident or mistake.

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Each count of he Indictment charges a separate crime against one or more of the Defendants.You must consider each crime and the evidence relating to it separately. And you must consider the

case of each Defendant separately and individually. If you 5nd a Defendant guilty of one crime, thatmust not affect your verdict for any other crim e or any other Defendant.

l caution you that each Defendant is on trial only for the specific crimes charged in thelndictment. You're here to determine from the evidence in this case whether each Defendant isguilty or not guilty of those specific crimes. The verdict forms which Iw ill discuss in a m oment willspecify each Defendant and the specific crimes he or she is charged with.

You must never consider punishm ent in any way to decide whether a Defendant is guilty.lf you find a Defendant guilty, the punishment is for the Judge alone to decide later.



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Your verdict, whether guilty or not guilty, m ust be unanim ous - in other words, you m ustal1 agree. Your deliberations are secret, and you will never have to explain your verdict to anyone.

Each of you must decide the case for yourself, but only after fully considering the evidencewith the otherjurors. So you must discuss the case with one another and try to reach an agreement.W hile you are discussing the case, do not hesitate to reexamine your own opinion and change yourmind if you become convinced that you were wrong. But do not give up your honest beliefs justbecause others think differently or because you sim ply want to get the case over with.

Remember that, in a very real way, you are judges -judges of the facts. Your only interestis to seek the truth from the evidenee in the case.



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You've been permitted to take notes during the trial. M ost of you - perhaps al1 of you- havetaken advantage of that opportunity.

You must use your notes only as a memory aid during deliberations. You must not give yournotes priority over your independent recollection of the evidence. And you must not allow yourselfto be unduly influenced by the notes of otherjurors.

I emphasize that notes are not entitledimpressions about the testim ony.

to any greater w eight than your memories or



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When you get to the jury room, choose one of your members to act as foreperson.Theforeperson will direct your deliberations and will speak for you in court.

A verdict form for each Defendant has been prepared for your convenience.gExplain verdict)

Take the verdict forms with you to thejury room. When you have all agreed on the verdicts,your foreperson must f511 in the forms, sign them, date them, and can'y them. Then you will returnit to the courtroom.

If you wishto comm unicate with me at anytim e,please write downyour message or questionand give it to the Court Security Officer. The Court Security Officer will bring it to me and 1511respond as promptly as possible - either in writing or by talking to you in the courtroom. But 1caution you not to tell me how many jurors have voted one way or the other at that time.

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Jury Instructions for the Veldora Arthur Federal Mortgage Fraud Trial

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