Opinion
S2 21 Cr. 766 (JPC)
12-01-2022
UNITED STATES OF AMERICA, v. JUSTIN HAMPTON, Defendant.
JURY CHARGE
Table of Contents
I. Introduction
II. General Instructions
A. Role of the Court
B. Role of the Jury
C. Equality of the Parties
D. Presumption of Innocence
E. Proof Beyond a Reasonable Doubt
F. Nature of the Evidence
G. Direct and Circumstantial Evidence
H. Inferences
I. Rulings on Evidence and Objections
J. Credibility of Witnesses
K. Stipulations of Fact
III. Substantive Instructions
A. Summary of the Indictment
B. Conjunctively Charged Counts
C. Multiple Counts
D. Variance in Dates
E. Count One: Conspiracy to Commit Robbery Affecting Interstate Commerce
1. Elements of the Offense i. First Element - Existence of a Conspiracy a. Existence of the Agreement b. Object of the Conspiracy ii. Second Element - Membership in the Conspiracy
F. Counts Two & Three: Robbery Affecting Interstate Commerce
1. Elements of the Offense i. First Element - the Property of Another ii. Second Element - Taking by Actual or Threatened Force, Violence, or Fear iii. Third Element - Interference with Commerce
2. Aiding and Abetting Liability
G. Count Four: Firearms Offense
1. Elements of the Offense i. First Element - “Use,” “Carry,” “Possess,” “Knowingly,” and “Firearm”
a. “Use” 26
b. “Carry”
c. “Possess”
d. “Unlawfully” and “Knowingly”
ii. Second Element - During and In Relation To / In Furtherance of a Crime of Violence 28
a. “In Relation To”
b. “In Furtherance Of”
c. Crime of Violence
2. Aiding and Abetting
3. Brandishing
H. Venue
I. Motive
IV. Further General Instructions
A. Preparation of Witnesses
B. Persons Not on Trial
C. Expert Witnesses
D. Law Enforcement or Government Witnesses
E. Use of Evidence Obtained Pursuant to Searches and Seizures
F. Investigative Technique
G. Redaction of Evidentiary Items [if applicable]
H. Recordings and Transcripts
I. Charts and Summaries: Admitted as Evidence [if applicable]
J. Charts and Summaries: Not Admitted as Evidence [If applicable]
K. Uncalled Witnesses
L. Defendant's Right to Testify [If applicable]
M. Defendant's Right Not to Testify [If applicable]
V. Final Instructions Regarding Jury Deliberations
A. Duties of the Foreperson
B. Right to See Exhibits and Hear Testimony; Communications with Court
C.
D. Improper Considerations: Race, Religion, National Origin, Sex, or Age
E. Verdict Form and Return of Verdict
F. Juror Oath
G. Everyone Must be Present
H. Remaining Issues
VI. Conclusion
I. Introduction
Members of the jury, you have now heard all of the evidence in the case, as well as the final arguments of the parties. We have reached the point where you are about to undertake your final function as jurors. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict.
These instructions will include some general guidance about your role and about how you are to decide the facts of the case, including the burden of proof you must apply. Many of these instructions would apply to any trial.
I will also give you more specific instructions about the legal rules applicable to this particular case, including a description of the elements of the charges against the Defendant.
And lastly, I will give you instructions on the general rules governing your deliberations.
I will read most, if not all, of these instructions to you. It is not my favorite way to communicate with a jury, but there is a crucial need for precision in what I tell you. The law is stated and expressed in words, and those words are very carefully chosen. So when I tell you the law, it is critical that I use exactly the right words.
I have given each of you a copy of this charge. If you find it easier to listen and understand while you are following along with me, please do so. If you prefer, you can just listen and not follow along. Either way, you will have a copy of these instructions with you in the jury room, so you can refer to them if you want to re-read any portion to facilitate your deliberations. Because you will have a copy in the jury room, do not worry if you miss a word or two. For now, listen carefully and try to concentrate on the substance of what I am saying. I ask for your patience, cooperation, and attention.
You will also have with you in the jury room a verdict form on which to record your verdict. That form will list the questions you should consider.
II. General Instructions
A. Role of the Court
My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law, along with the instructions I have given you during the course of the trial, and to apply them to the facts as you determine them. It has been my duty to preside over the trial and to decide what testimony and evidence were proper under the law for your consideration.
On these legal matters, you must take the law as I give it to you. If anyone has stated a legal principle that is different from any that I state to you in my instructions, it is my instructions that you must follow. You should consider these instructions together as a whole; in other words, you should not isolate or give undue weight to any particular instruction or part of the instructions.
B. Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine the credibility of the witnesses. You resolve whatever conflicts, if any, there may be in the evidence presented by the parties. You draw whatever reasonable inferences you believe should be drawn from the facts as you have determined them, and you determine the weight of the evidence. In doing so, remember that you took an oath to render judgment impartially and fairly, without prejudice or sympathy or fear, based solely on the evidence and the law.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts and to follow the law as I give it to you. You must not substitute your own notions or opinions of what the law is or ought to be.
C. Equality of the Parties
I remind you that in reaching your verdict, you are to perform your duty of finding the facts without bias or prejudice as to any party. You must remember that all parties stand as equals before a jury in the courts of the United States. You must also remember that it would be improper for you to allow any feelings you might have about the nature of the crimes charged to interfere with your decision-making process.
This case is important to the Defendant, who is charged with serious crimes. It is also important to the Government, for the enforcement of criminal laws is a matter of prime concern to the public.
The fact that the prosecution is brought in the name of the United States does not entitle the Government or its witnesses to any greater consideration than that accorded to any other party. By the same token, the Government is entitled to no less consideration. Your verdict must be based solely on the evidence or the lack of evidence.
D. Presumption of Innocence
Now, I will instruct you on the presumption of innocence and the Government's burden of proof in this case. The Defendant has pleaded not guilty. In doing so, he has denied every allegation charged against him. As a result of the Defendant's plea of not guilty, the burden is on the Government to prove his guilt beyond a reasonable doubt. This burden never shifts to the Defendant for the simple reason that the law never imposes on a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.
The Defendant began this trial with a clean slate. The law presumes him to be innocent of all charges against him. This presumption of innocence alone is sufficient to acquit the Defendant unless you as jurors are unanimously convinced beyond a reasonable doubt of his guilt, after careful and impartial consideration of all the evidence in this case. The Defendant was entitled to this presumption when the trial began; it remains with him even now as I speak to you; and it will continue with him during your deliberations unless and until you are convinced that the Government has proved his guilt beyond a reasonable doubt.
You must consider each count separately. Your verdict must be unanimous on each and every count of the Indictment. If the Government fails to sustain its burden as to a count, then you must find the Defendant not guilty of that count.
E. Proof Beyond a Reasonable Doubt
Now, the next question naturally presents itself, what is reasonable doubt? The words almost define themselves. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt that would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. On the other hand, a reasonable doubt is not speculation or suspicion. It is not an excuse to avoid the performance of an unpleasant duty. And it is not sympathy.
Proof beyond a reasonable doubt therefore does not require the Government to establish proof of guilt as an absolute certainty or beyond all possible doubt. Instead, the Government must establish guilt beyond a reasonable doubt with proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.
If after fair and impartial consideration of all the evidence, or the lack of evidence, you have a reasonable doubt as to the Defendant's guilt on the count of the Indictment you are considering, then you must find him not guilty of that count. On the other hand, if after fair and impartial consideration of all the evidence you are satisfied of the Defendant's guilt on a particular count beyond a reasonable doubt, it is your duty to find the Defendant guilty of that count.
F. Nature of the Evidence
In determining the facts, you must rely upon your own recollection of the evidence. What is evidence? Evidence consists of the testimony of witnesses, the exhibits that I have received in evidence, and the stipulations of the parties.
The statements and arguments made by the lawyers are not evidence. Their arguments were intended to convince you what conclusions you should draw from the evidence or lack of evidence. Now, those arguments are important. You should weigh and evaluate them carefully. But you must not confuse them with the evidence. And your recollection of the evidence at trial governs, not the statements of the lawyers.
You should also bear in mind that a question put to a witness is never evidence. It is the answer to the question that is evidence. One exception to this is that you may not consider any answer that I directed you to disregard or that I ordered to be stricken from the record. Any exhibit that was not received into evidence is not evidence. Thus, exhibits marked for identification but not admitted are not evidence, nor are materials that were used only to refresh a witness's recollection or to question or impeach a witness.
The personalities and the conduct of counsel are not in any way at issue. If you formed opinions of any kind about any of the lawyers in the case, favorable or unfavorable, whether you approved or disapproved of their behavior, those opinions should not enter into your deliberations.
Nothing I have said during trial is evidence. If I commented on the evidence at any time, do not accept my statements in place of your recollection or your interpretation.
At times I may have admonished a witness or directed a witness to be responsive to questions or to keep his or her voice up. At times I asked a question myself. Any questions that I asked, or instructions that I gave, were intended only to clarify the presentation of evidence and to bring out something that I thought might be unclear. You should draw no inference or conclusion of any kind, favorable or unfavorable, with respect to any witness or any party in the case, by reason of any comment, question, or instruction of mine. Nor should you infer that I might have any views as to the credibility of any witness, as to the weight of the evidence, or as to how you should decide any issue that is before you. That is entirely your role.
G. Direct and Circumstantial Evidence
As I mentioned at the beginning of trial, there are two types of evidence that you may properly use in deciding whether a defendant is guilty or not guilty beyond a reasonable doubt of the crimes with which he or she is charged.
One type of evidence is called direct evidence. Direct evidence of a fact in issue is presented when a witness testifies to that fact based on that witness's own knowledge, by virtue of what he or she personally saw, heard, or observed.
The second type of evidence is circumstantial evidence. Circumstantial evidence is evidence that tends to prove a disputed fact indirectly by proof of other facts. There is a simple example of circumstantial evidence that is often used in this courthouse.
Assume that when you came into the courthouse this morning that the sun was shining and it was a nice day outdoors. Assume that throughout the day, the courtroom shades were drawn and you could not look outside. Assume further that as you were sitting here, someone walked in with an umbrella that was dripping wet, and then, a few moments later, somebody else walked in with a raincoat that was also dripping wet. Now, because you were indoors and unable to look outside to see whether it was raining, you would have no direct evidence as to whether it was raining. But, on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it was raining.
That is all there is to circumstantial evidence. You infer based on your reason, experience, and common sense from one established fact the existence or nonexistence of some other fact.
To be very clear, circumstantial evidence may be given as much weight as direct evidence. Many material facts, such as state of mind, are not easily proved by direct evidence. Usually, such facts are established by circumstantial evidence and the reasonable inferences you draw. The law makes no distinction between direct and circumstantial evidence but simply requires that before convicting a defendant, the jury must be satisfied of a defendant's guilt beyond a reasonable doubt, based on all of the evidence in the case.
H. Inferences
I just mentioned inferences. And in their arguments, you have heard the attorneys ask you to infer, on the basis of your reason, experience, and common sense, from one or more established facts, the existence of some other fact.
There are times when different inferences may be drawn from facts, whether proved by direct or circumstantial evidence. The Government may have asked you to draw one set of inferences, while the defense may have asked you to draw another. It is for you, and you alone, to decide whether and what inferences you will draw.
The process of drawing inferences from facts in evidence is not a matter of guesswork, suspicion, or speculation. An inference is a reasonable, logical deduction or conclusion that you, the jury, are permitted-but not required-to draw from the facts that have been established by either direct or circumstantial evidence.
But please remember that while you should rely on your experience and common sense in drawing inferences, you may not use your experience and common sense to fill in or create evidence that does not exist. You use them only to draw reasonable inferences from facts proved beyond a reasonable doubt or to weigh and evaluate the evidence provided during the trial.
I. Rulings on Evidence and Objections
On the topic of inferences, you should draw no inference or conclusion for or against any party by reason of lawyers making objections or my rulings on such objections. Counsel have not only the right, but the duty, to make legal objections when they think that such objections are appropriate. Nor were my rulings on objections during trial any indication of my views or opinions of this case. Further, do not concern yourself with what was said at sidebar conferences or during my discussions with counsel or the parties outside your presence. Those discussions related to issues of law and are wholly outside of your concern.
J. Credibility of Witnesses
I am going to give you a few general instructions as to how you may determine whether witnesses are credible and reliable, whether the witnesses told the truth at this trial, and whether they knew what they were talking about. How do you determine that? When evaluating witness credibility, you should use your common sense, good judgment, and life experiences.
Consider how well the witness was able to observe or hear what he or she testified about. The witness may be honest but mistaken. How did the witness's testimony impress you? Did the witness appear to be testifying honestly and candidly? Were the witness's answers direct or were they evasive? Consider the witness's demeanor, manner of testifying, and the strength and accuracy of the witness's recollection. Consider whether any outside factors might have affected a witness's ability to perceive events.
Consider the substance of the testimony. How does the witness's testimony compare with other proof in the case? Is it corroborated or is it contradicted by other evidence? If there is a conflict, does any version appear reliable, and if so, which version seems more reliable?
In addition, you may consider whether a witness had any possible bias or relationship with a party or any possible interest in the outcome of the case. Such a bias or relationship does not necessarily make the witness unworthy of belief. These are simply factors that you may consider.
If a witness made statements in the past that are inconsistent with his or her testimony during the trial concerning facts that are at issue here, you may consider that fact in deciding how much of the testimony, if any, to believe. In making this determination, you may consider whether the witness purposely made a false statement, or whether it was an innocent mistake. You may also consider whether the inconsistency concerns an important fact or merely a small detail, as well as whether the witness had an explanation for the inconsistency, and if so, whether that explanation appealed to your common sense.
If you find that a witness has testified falsely as to any material fact or if you find that a witness has been previously untruthful when testifying under oath or otherwise, you may reject that witness's testimony in its entirety or you may accept only those parts that you believe to be truthful or that are corroborated by other independent evidence in the case.
It is for you, the jury, and for you alone, not the lawyers, or the witnesses, or me as the judge, to decide the credibility of the witnesses who testified and the weight that their testimony deserves.
K. Stipulations of Fact
In this case you have also heard evidence in the form of stipulations of fact. A stipulation of fact is an agreement between the parties that a certain fact is true. You must regard such agreed-upon facts as true.
III. Substantive Instructions
A. Summary of the Indictment
The Defendant in this matter, Justin Hampton, has been formally charged in what is called an Indictment. An Indictment is simply an accusation. It is no more than the means by which a criminal case is started. It is not evidence. It is not proof of a defendant's guilt. You are to give no weight to the fact that an Indictment has been returned against the Defendant.
Before you begin your deliberations, you will be provided with a copy of the Indictment. I will not read the entire Indictment to you at this time. Rather, I will first summarize the offenses charged in the Indictment and then explain in detail the elements of the charged offenses.
The Indictment contains four counts or “charges.” Count One charges that the Defendant knowingly conspired to commit robbery from at least in or about October 2021 through in or about November 2021 that obstructed, delayed, and impacted interstate commerce and the movement of articles and commodities in interstate commerce. Specifically, the Defendant is accused of conspiring to commit armed robberies of commercial establishments located in the Bronx, Brooklyn, and Queens, New York.
Count Two charges that on or about October 19, 2021, the Defendant knowingly committed robbery of a dollar store in the Bronx, New York that obstructed, delayed, and affected interstate commerce and the movement of articles and commodities in interstate commerce.
Count Three charges that, on or about November 10, 2021, the Defendant knowingly committed robbery of a pizza restaurant chain in the Bronx, New York that obstructed, delayed, and affected interstate commerce and the movement of articles and commodities in interstate commerce.
Count Four charges that the Defendant knowingly used and carried a firearm during and in relation to the robbery charged in Count Two, and possessed the firearm in furtherance of the robbery charged in Count Two, with that firearm having been brandished, and aided and abetted such use, carrying, and possession of a firearm which was brandished during the robbery charged in Count Two.
B. Conjunctively Charged Counts
You will note that the conjunctive word “and” is used between certain charging words in the Indictment. For example, Count Four of the Indictment charges that the Defendant “did use and carry a firearm [during and in relation to a robbery] and . . . did possess a firearm [in furtherance of the robbery], and did aid and abet the use, carrying, and possession of a firearm, which was brandished, during the robbery ....” Where a statute specifies multiple alternative ways in which an offense may be committed, an indictment may allege the multiple ways by using the word “and.” If only one of the alternatives is proved beyond a reasonable doubt, that is sufficient for conviction, so long as you agree unanimously as to that particular alternative. You therefore should treat the conjunctive “and” as it appears in the Indictment as being a disjunctive “or” for those offenses for which I instruct that there are multiple alternative ways in which the offense may be committed. Thus, taking as an example the portion of Count Four that I just mentioned, it is enough if the evidence shows beyond a reasonable doubt that the Defendant used or carried a firearm during or in relation to the robbery charged in Count Two, or possessed a firearm in furtherance of that robbery, or aided or abetted the use, carrying, or possession of a firearm.
C. Multiple Counts
As I just indicated, the Indictment contains four counts. Each count constitutes a separate offense or crime. You must consider each count of the Indictment separately, and you must return a separate unanimous verdict as to each count. Whether you find the Defendant guilty or not guilty as to one offense should not affect your verdict as to the other offense charged, with the exception that, as I will explain shortly, if you find the Defendant not guilty of Count Two, you may not consider Count Four.
D. Variance in Dates
Before I describe the specific elements of the alleged offenses, I will advise you that it does not matter if the Indictment charges that a specific act occurred on or about a certain date, but the evidence indicates that the specific act, in fact, occurred on another date. The law only requires a substantial similarity between the date or date ranges alleged in the Indictment and the date or date ranges established by testimony or exhibits. Further, it is not required that the Defendant committed a charged crime throughout the entire time period charged in a particular count; it is sufficient for the Government to prove beyond a reasonable doubt that at some time during the period charged in the Indictment, the Defendant participated in the charged crime.
E. Count One: Conspiracy to Commit Robbery Affecting Interstate Commerce
As I said, Count One charges the Defendant with conspiring to commit robbery, in violation of Title 18, United States Code, Section 1951. Count One charges:
From at least in or about October 2021 through in or about November 2021, in the Southern District of New York and elsewhere, JUSTIN HAMPTON, the defendant, knowingly did conspire with others, known and unknown to commit robbery, as that term is defined in Title 18, United States Code, Section 1951(b)(1), and would
and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined by Title 18, United States Code, Section 1951(b)(3), to wit, HAMPTON, and others conspired to commit armed robberies of commercial establishments located in the Bronx, Brooklyn, and Queens, New York.
1. Elements of the Offense
To satisfy its burden of proof with respect to the conspiracy charged in Count One, the Government must prove beyond a reasonable doubt the following elements:
First, that the conspiracy charged in Count One of the Indictment existed; that is, that there was an agreement or understanding between two or more people to violate those provisions of federal law that make it illegal to commit robbery of commercial establishments affecting interstate commerce; and
Second, that the Defendant knowingly and willfully became a member of that charged conspiracy; that is, that the Defendant knowingly associated himself with the conspiracy to commit robbery of commercial establishments affecting interstate commerce and participated in that conspiracy.
I will separately explain each of those two elements of the conspiracy charged in Count One. But first, I want to emphasize that the crime of conspiracy to violate a federal law is separate and distinct from the crime of actually violating that law, which is referred to as a “substantive offense.” The ultimate success of the conspiracy, or the actual commission of the substantive offense that is the object of the conspiracy, is not relevant to the question of whether the conspiracy existed. In other words, you may find the Defendant guilty of agreeing to commit robbery even if you find that there was no actual robbery. It is the agreement itself-the agreement with others to commit the crime-along with the other elements of conspiracy that the law forbids and defines as a crime.
i. First Element - Existence of a Conspiracy
The first element that the Government must prove beyond a reasonable doubt to establish the offense of conspiracy is that the conspiracy actually existed, that is, that two or more persons knowingly and willfully entered into the unlawful agreement charged in the Indictment. The agreement alleged in the Indictment is an agreement to commit robbery affecting interstate commerce.
A conspiracy is a combination, agreement, or understanding of two or more persons to accomplish, by concerted action, a criminal or unlawful purpose. The unlawful purpose alleged to have been the object of the conspiracy charged in Count One is the commission of a robbery affecting interstate commerce.
The gist, or essence, of the crime of conspiracy is an unlawful agreement between two or more people to violate the law. The first element of the crime of conspiracy thus has two parts: (1) the unlawful agreement; and (2) the object of the conspiracy.
a. Existence of the Agreement
To meet its burden of proof on this element, the Government must prove beyond a reasonable doubt that there was an agreement. However, the Government is not required to show that two or more people sat down around a table and entered into a solemn pact, orally or in writing, stating that they had formed a conspiracy to violate the law and spelling out all the details of the plans and the means by which the unlawful project was to be carried out, or the part that each of the persons who is a party to the conspiracy was going to play. Indeed, it would be unusual if there were ever such a formal document or specific oral agreement in a conspiracy.
Common sense will tell you that when people in fact undertake to enter into a criminal conspiracy, much is left to the unexpressed understanding. Conspirators do not usually reduce their agreements to writing. They do not typically broadcast their plans publicly. By its very nature, a conspiracy is almost always secret in its origin and execution. It is enough if two or more people, in some way or manner, impliedly or tacitly come to an understanding to violate the law. Express language or specific words are not required to indicate assent or agreement to form the conspiracy. You need only find that two or more people entered into the unlawful agreement alleged in the Indictment in order to find that a conspiracy existed.
In determining whether there has been an unlawful agreement as alleged in Count One, you may judge the proven acts and conduct of the alleged co-conspirators that were taken to carry out the apparent criminal purpose. The old adage, “actions speak louder than words,” is applicable here. Disconnected acts, when taken together in connection with one another, can show a conspiracy or an agreement to secure a particular result just as satisfactorily and conclusively as more direct proof.
When people enter into a conspiracy to accomplish an unlawful end, they become agents or partners of one another in carrying out the conspiracy. In determining the factual issues before you, you may take into account any acts done or statements made by any of the alleged coconspirators during the course of the conspiracy, even though such acts or statements may not have been made in the presence of the Defendant or may have been made without his knowledge.
Of course, proof concerning the accomplishment of the object of a conspiracy may be the most persuasive evidence that the conspiracy itself existed, but it is not necessary that the conspiracy actually succeeded for you to conclude that it existed. In deciding whether the conspiracy charged in Count One existed, you may consider all the evidence of the acts, conduct, and statements of the alleged conspirators and the reasonable inferences to be drawn from that evidence.
It is sufficient to establish the existence of the conspiracy if, after considering all of the relevant evidence, you find beyond a reasonable doubt that the minds of at least two alleged conspirators met in an understanding way, and that they agreed, as I have explained, to work together to accomplish the object or objective of the conspiracy charged in Count One.
In short, the Government must prove beyond a reasonable doubt that at least two alleged conspirators came to a mutual understanding, either spoken or unspoken, to commit a robbery in the manner charged in Count One.
b. Object of the Conspiracy
To prove the first element of the conspiracy charged, the Government must also show that there was an unlawful object or goal of the conspiracy. The object of a conspiracy is the illegal goal the co-conspirators agree or hope to achieve. Count One of the Indictment charges that the object of the conspiracy was to commit robbery of commercial establishments affecting interstate commerce in the Bronx, Brooklyn, and Queens, New York.
A robbery is the unlawful taking of personal property from another against his or her will. This is done by threatening or actually using force, violence, or fear of injury, immediately or in the future, to person or property. The term “property” in this setting includes tangible and intangible things of value, both lawful and illicit.
In order to find that the Defendant conspired to commit robbery affecting interstate commerce, you must find that the Government proved beyond a reasonable doubt that the Defendant unlawfully agreed with at least one other person: (i) to obtain or take the personal property of another, or from the presence of another, or attempt to do so; (ii) to do so against the intended victim's will by actual or threatened force, violence, or fear of injury, whether immediate or in the future; and (iii) in a manner that would have, in any way or degree, obstructed, delayed, or affected interstate commerce. I will discuss these concepts in greater detail in a few minutes when I discuss the elements of Count Two and Three.
As I previously explained, because a conspiracy is a separate and distinct crime from the substantive offense itself, to find the Defendant guilty of the conspiracy charged in Count One, it is not necessary for you to find that the robberies of commercial establishments in the Bronx, Brooklyn, and Queens actually occurred. In other words, the Government is not required to show that the conspiracy was successful to carry its burden on Count One.
ii. Second Element - Membership in the Conspiracy
If you conclude that the Government has proved beyond a reasonable doubt that the conspiracy charged in Count One of the Indictment existed, and that the conspiracy had as its object the illegal purpose charged in the Indictment, then you must next determine whether the Defendant participated in the conspiracy with knowledge of its unlawful purpose and in furtherance of its unlawful objective.
In relation to the conspiracy charged in Count One, the Government must prove beyond a reasonable doubt that the Defendant unlawfully, knowingly, and willfully entered into the conspiracy and that he agreed to take part in the conspiracy to promote and cooperate in its unlawful objective. The terms “unlawfully,” “knowingly,” and “willfully” are used because, if you find that the Defendant did join the conspiracy, you must also consider whether the Government has proved beyond a reasonable doubt that, in doing so, he knew what he was doing and the unlawfulness of his acts. In other words, the Government must prove beyond a reasonable doubt that the Defendant joined the conspiracy deliberately and voluntarily.
“Unlawfully” simply means contrary to law; a defendant need not have known that he or she was breaking any particular law, but he or she must have been aware of the generally unlawful nature of his or her acts.
An act is done “knowingly” and “willfully” if it is done deliberately and purposely; that is, a defendant's acts must have been the product of that defendant's conscious objective, rather than the product of a mistake or accident, or mere negligence, or some other innocent reason.
A defendant's knowledge is a matter of inference from the proven facts. I remind you that ultimate facts of knowledge and criminal intent, though subjective, may be established by circumstantial evidence, based upon a person's outward manifestations, his or her words, his or her conduct, his or her acts, and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn therefrom. Circumstantial evidence, if believed, is of no less value than direct evidence. It is for you to determine whether the Government has established to your satisfaction, and beyond a reasonable doubt, that the Defendant possessed such knowledge and intent.
It is important to note that the Defendant's participation in the conspiracy must be established by evidence of his own acts or statements, as well as those of the other alleged coconspirators, and the reasonable inferences that may be drawn from them. However, I want to caution you that a person's mere association with a member of a conspiracy does not make that person a member of the conspiracy, even when that association is coupled with knowledge that a conspiracy is taking place. Mere presence at the scene of a crime, even coupled with knowledge that a crime is taking place, is not sufficient to support a conviction. In other words, knowledge without agreement and participation is not sufficient. What is necessary is that the Defendant joined in the conspiracy with knowledge of its unlawful purposes, and with an intent to aid in the accomplishment of its unlawful objectives.
In sum, the Government must prove beyond a reasonable doubt that the Defendant-with an understanding of the unlawful character of the conspiracy-knowingly and intentionally engaged, advised, or assisted in the conspiracy for the purpose of committing a robbery affecting interstate commerce. If so, the Defendant thereby became a knowing and willing participant in the unlawful agreement, that is to say, a conspirator.
Once a conspiracy is formed, it is presumed to continue until either its objective is accomplished or there is some affirmative act of termination by the members. So too, once a person is found to be a member of a conspiracy, he or she is presumed to continue as a member in the conspiracy until a conspiracy is terminated or achieves its objective, unless it is shown by some affirmative proof that the person withdrew and disassociated himself or herself from it.
F. Counts Two & Three: Robbery Affecting Interstate Commerce
Count Two charges the Defendant with committing a robbery affecting interstate commerce of a dollar store in the Bronx on or about October 19, 2021, while Count Three charges the Defendant with committing the same crime but of a pizza restaurant in the Bronx on or about November 10, 2021. Count Two reads as follows:
On or about October 19, 2021, in the Southern District of New York and elsewhere, JUSTIN HAMPTON, the defendant, knowingly did commit robbery, as that term is defined in Title 18, United States Code, Section 1951 (b)(1), and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18, United States Code, Section 1951(b)(3), to wit, HAMPTON participated in an armed robbery of a branch of a particular dollar store in the vicinity of Soundview Avenue in the Bronx, New York.
Count Three reads as follows:
On or about November 10, 2021, in the Southern District of New York and elsewhere, JUSTIN HAMPTON, the defendant, knowingly did commit robbery, as that term is defined in Title 18, United States Code, Section 1951(b)(1), and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18 United States Code, Section 1951(b)(3), to wit, HAMPTON participated in a robbery of a branch of a particular pizza restaurant chain in the vicinity of Bruckner Boulevard in the Bronx, New York.
The allegations contained in these Counts are brought under the law that prohibits robbery affecting interstate commerce, and also under a provision of the Federal Criminal Code that makes it a crime for anyone to aid, abet, counsel, command, induce, or procure the commission of another crime. I will provide instructions on those concepts in a few minutes.
1. Elements of the Offense
In order to meet its burden of proof on Counts Two and Three, the Government must prove beyond a reasonable doubt each of the following elements:
First, that the Defendant knowingly obtained or took the property of another, or attempted to do so;
Second, that the Defendant did so against the victim's will, by actual or threatened force, violence, or fear of injury, whether immediately or in the future;
Third, that as a result of the Defendant's actions, interstate commerce, or an item moving in interstate commerce, was delayed, obstructed, or affected in any way or degree; and
Fourth, the Government must also establish beyond a reasonable doubt that the Defendant acted knowingly, willfully, and unlawfully. I have already explained these concepts in connection with the charge contained in Count One, and you should follow my previous instructions on this point.
i. First Element - the Property of Another
The first element of each of Count Two and Count Three that the Government must prove beyond a reasonable doubt is that the Defendant knowingly obtained, or attempted to obtain, the personal property of another or from the presence of another. The term “property” includes money and other tangible and intangible things of value, both lawful and illicit.
ii. Second Element - Taking by Actual or Threatened Force, Violence, or Fear
The second element that the Government must prove beyond a reasonable doubt is that the Defendant took the personal property, or attempted to do so, against the victim's will, by actual or threatened force, violence, or fear of injury, whether immediate or in the future. It is not necessary that the Government prove that force, violence, and fear were all used or threatened. The Government satisfies its burden in this regard if it proves beyond a reasonable doubt that any of these methods was employed.
In considering whether the Defendant used, or threatened to use, force, violence, or fear, you should give those words their common and ordinary meaning, and understand them as you normally would. The violence does not have to be directed at the person whose property was taken. The use of a threat of force or violence might be aimed at a third person. A threat may be made verbally or by a physical gesture. Whether a statement or physical gesture by a defendant actually was a threat depends upon the surrounding facts. Fear exists if at least one victim experiences anxiety, concern, or worry over expected personal harm. The existence of fear must be determined by the facts existing at the time of a defendant's actions.
Your decision as to whether the Defendant used or threatened fear of injury involves a decision about the victim's state of mind at the time of the Defendant's actions. It is obviously impossible to ascertain or prove directly a person's subjective feeling. You cannot look into a person's mind to see what his or her state of mind is or was. But a careful consideration of the circumstances and evidence may enable you to decide whether fear would reasonably have been the victim's state of mind. Looking at the situation and the action of people involved may help you determine what their state of mind was, and whether property was obtained, or attempted to be obtained, by the Defendant through the use or threat of fear.
It also is not necessary that the fear be a consequence of a direct threat; it is sufficient that the surrounding circumstances render the victim's fear reasonable. You must find that a reasonable person would have been fearful in the circumstances.
iii. Third Element - Interference with Commerce
The third element that the Government must prove beyond a reasonable doubt is that the robbery affected interstate or foreign commerce, even if the effect would have been slight or minor.
The requirement of showing an effect on commerce involves only a minimal burden of proving a connection to interstate commerce, and is satisfied by conduct that affects commerce in any way or degree. Even a potential or subtle effect on commerce will suffice.
With regard to this element, it is not necessary for the Government to prove that a particular defendant's conduct actually affected commerce. It is sufficient if the alleged robbery possibly or potentially would have affected interstate or foreign commerce.
It is also not necessary for you to find that the Defendant intended or anticipated that the effect of his own acts, or the acts of his co-conspirators, would be to affect interstate commerce, or that the Defendant or his co-conspirators had or shared a purpose to affect commerce. All that is necessary is that the natural effect of the acts he conspired to commit would either actually or potentially affect interstate or foreign commerce.
Nor do you have to decide whether the effect on interstate commerce was or would have been harmful or beneficial to a particular business, or to commerce in general. The Government satisfies its burden of proving an effect on commerce if it proves beyond a reasonable doubt any effect, whether harmful or not.
2. Aiding and Abetting Liability
With respect to the robbery offenses charged in Counts Two and Three, the Indictment charges the Defendant with what is called “aiding and abetting” liability. I am going to explain what this form of liability is. In relevant part, the Federal Criminal Code provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
Under this law, it is not necessary for the Government to show that a defendant himself or herself physically committed the crime with which he or she is charged in order for you to find him or her guilty. Thus, if you do not find beyond a reasonable doubt that a particular defendant himself or herself committed the crime charged, you may, under certain circumstances, still find that defendant guilty of that crime as an aider or abettor.
A person who aids or abets another to commit an offense is just as guilty of that offense as if he or she committed it himself or herself. Accordingly, you may find the Defendant guilty of the substantive crime if you find beyond a reasonable doubt that the Government has proved that another person actually committed the crime, and that the Defendant aided and abetted that person in the commission of the offense.
As you can see, the first requirement is that another person has committed the crime charged. Obviously, no one can be convicted of aiding and abetting the criminal acts of another if no crime was committed by the other person in the first place. But if you do find that a crime was committed, then you must consider whether the Defendant aided or abetted the commission of the crime.
In order to aid or abet another to commit a crime, it is necessary that a defendant willfully and knowingly associate himself or herself in some way with the crime, and that he or she willfully and knowingly seek by some act to help make the crime succeed.
As I previously explained, participation in a crime is willful if action is taken voluntarily and intentionally, or, in the case of a failure to act, with the specific intent to fail to do something the law requires to be done; that is to say, with a bad purpose either to disobey or to disregard the law.
The mere presence of a defendant where a crime is being committed, even coupled with knowledge by that defendant that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding and abetting. An aider and abettor must have some interest in the criminal venture.
To determine whether the Defendant aided or abetted the commission of the crime charged in Count Two or Three, ask yourself these questions:
• Did he participate in the crime charged as something he wished to bring about?
• Did he associate himself with the criminal venture knowingly and willfully?
• Did he seek by his actions to make the criminal venture succeed?
If the answers to these questions is yes, then the Defendant is an aider and abettor, and therefore guilty of the offense. If he did not, then he is not an aider and abettor, and if he does not personally commit the crime, then he is not guilty of that offense.
G. Count Four: Firearms Offense
Count Four charges a firearms offense. Specifically, Count Four charges the Defendant with violating Title 18, United States Code, Section 924(c). That provision makes it a crime for any person, “during and in relation to any [federal] crime of violence or drug trafficking crime [to] use[] or carr[y] a firearm,” or, “in furtherance of any such crime, [to] possess[] a firearm.”
Count Four reads as follows:
On or about October 19, 2021, in the Southern District of New York, JUSTIN HAMPTON, the defendant, during and in relation to a crime of violence for which he may be prosecuted in a court of the United Sates, namely, the robbery charged in Count Two of this Indictment, knowingly did use and carry a firearm and, in furtherance of such crime, did possess a firearm, and did aid and abet the use, carrying, and possession of a firearm, which was brandished, during the robbery charged in Count Two of this Indictment.
You just heard that Count Four, by its terms, is connected to the robbery charged in Count Two. Because Count Four is connected to Count Two, you cannot consider Count Four unless you first determine that the Defendant is guilty of the robbery charged in Count Two.
1. Elements of the Offense
For the Government to sustain its burden as to Count Four, the Government must prove beyond a reasonable doubt the following elements:
First, that on or about the date alleged in the Indictment, which is October 19, 2021, the Defendant knowingly used, carried, or possessed a firearm, or any combination of those acts, or aided and abetted the use, carrying, or possession of a firearm by another; and
Second, that the Defendant used or carried the firearm during and in relation to, or possessed a firearm in furtherance of, the robbery charged in Count Two.
i. First Element - “Use,” “Carry,” “Possess,” “Knowingly,” and “Firearm”
The first element the Government must prove beyond a reasonable doubt on Count Four is that on or about the date set forth in the Indictment, the Defendant knowingly used, carried, or possessed a firearm, or aided and abetted the use, carrying, or possession of a firearm.
A “firearm” is pretty much self-explanatory. The technical definition is “any weapon . . . which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.” In considering the specific element of whether the Defendant used or carried or possessed a firearm, it does not matter whether the firearm was loaded or operable at the time of the crime. I instruct you that a gun is a firearm, but a pellet gun is not a firearm.
There are a few different ways in which a person may use, carry, or possess a firearm in the course of a relevant crime that would violate this statute. I am going to explain to you what each method is. However, please recall my discussion of the disjunctive “and.” Here, if the Government proves any of them as to the Defendant charged in a particular count beyond a reasonable doubt, then this first element of Count Four is satisfied.
a. “Use”
The first method is “use.” In order to prove that the Defendant used the firearm, the Government must prove beyond a reasonable doubt an active employment of the firearm during and in relation to the commission of the relevant crime-here, the robbery charged in Count Two. This does not mean that the user must actually fire or attempt to fire the weapon, although those would obviously constitute use of the weapon. Brandishing, displaying, or even referring to the weapon so that others present knew that the Defendant had the firearm available if needed all constitute use of the firearm. The mere possession of a firearm at or near the site of the crime without active employment as I just described it is not, however, sufficient to constitute use of the firearm.
b. “Carry”
The next option is to “carry.” In order to prove that the Defendant carried a firearm, the Government must prove beyond a reasonable doubt that the Defendant had the weapon within his control so that it was available in such a way that it furthered the commission of the crime. The Defendant need not have held the firearm physically, that is, have had actual possession of it on his person. If you find that the Defendant had dominion and control over the place where the firearm was located, and had the power and intention to exercise control over the firearm, and that the firearm was immediately available to him in such a way that it furthered the commission of the robbery, you may find that the Government has proved that the Defendant carried the weapon.
c. “Possess”
Possession is pretty much what it sounds like; that is, having physical custody or control of an object, as I possess this pen. This is called “actual possession.” However, it is not necessary that a person have an object on his or her person in order to have legal possession of it. If a person has the ability to exercise substantial control over an object, even if he or she does not have the object in his or her physical custody, and that person has the intent to exercise such control, then the person is in possession of that object. This is called “constructive possession.”
The law also recognizes that possession may be sole or joint. If one person alone possesses an object, that is sole possession. However, it is possible that more than one person may have the power and intention to exercise control over firearms. This is called joint possession. If you find beyond a reasonable doubt that the Defendant had such power and intention, then he possessed the firearm under this element even if he possessed it jointly with another. Proof of ownership of the firearm is not required.
d. “Unlawfully” and “Knowingly”
To satisfy this element, you must also find that the Defendant used, carried, or possessed the firearm unlawfully and knowingly. I have previously defined these terms for you in connection with Count One, and you should apply those definitions here. In short, they mean that the Defendant used, carried, or possessed the weapon purposely and voluntarily, and not by accident or mistake, and that he was aware of the generally unlawful nature of his acts.
ii. Second Element - During and In Relation To / In Furtherance of a Crime of Violence
The second element that the Government must prove beyond a reasonable doubt is that the Defendant used or carried a firearm during and in relation to a crime of violence, or possessed a firearm in furtherance of a crime of violence.
a. “In Relation To”
In order to prove that the Defendant used or carried a firearm “in relation to” a crime of violence, here, the robbery affecting interstate commerce charged in Count Two, the Government must prove beyond a reasonable doubt that the Defendant used or carried the firearm and that the firearm had some purpose, role, or effect with respect to the crime charged in Count Two.
b. “In Furtherance Of”
In order to prove that the Defendant possessed a firearm “in furtherance of” a crime of violence, here, the robbery affecting interstate commerce charged in Count Two, the Government must prove beyond a reasonable doubt that the Defendant both possessed the firearm and that such possession advanced or moved forward the crime charged in Count Two. The mere presence of a firearm is not enough. Possessing in furtherance of the crime requires that the possession was incident to and an essential part of the crime. The firearm must have played some part in furthering the crime charged in Count Two in order for this element to be satisfied.
c. Crime of Violence
An offense qualifies as a crime of violence prosecutable in a court of the United States if the offense by its nature involved a substantial risk that physical force might be used against the person or property of another. “Physical force” means force capable of causing physical pain or injury to a person or injury to property.
I instruct you that the crime of robbery affecting interstate commerce alleged in Count Two is a crime of violence.
2. Aiding and Abetting
The defendant is also charged with aiding and abetting the crime charged in Count Four. I previously instructed you on aiding and abetting law with respect to Counts Two and Three, and you should apply those instructions in determining whether the Defendant is guilty of Count Four. I also want to give you an additional instruction that applies specifically to Count Four.
To convict a defendant of aiding and abetting the crimes charged in Count Four, you must find that the defendant either facilitated the use, carrying, or possession of the firearm or the commission of the charged violent crime. It is not necessary that the Defendant facilitate both the possession, use, or carrying of the firearm and the crime of violence.
Furthermore, to convict a defendant of the offense charged in Count Four on an aiding and abetting theory, you additionally must find that the Defendant had advance knowledge that a participant in the crime of violence would use, carry, or possess a firearm in furtherance of the crime of violence. Advance knowledge means knowledge at a time when the Defendant could still have attempted to alter the plan or withdraw from it. Knowledge of the gun may, but does not have to, exist before the underlying crime is begun. It is sufficient if the knowledge is gained in the middle of the underlying crime, so long as the Defendant continues to participate in the crime and has a realistic opportunity to withdraw from it. You may, but need not, infer that the Defendant has sufficient foreknowledge if you find that the Defendant continued his participation in the crime after learning about the use, carrying, or possession of a gun by a co-conspirator.
3. Brandishing
If and only if you find the Defendant guilty on Count Four, then you must make an additional finding.
If you find that the Defendant used, carried, or possessed a firearm, or aided and abetted the same, during and in relation to the robbery, you must determine whether the Government has proved beyond a reasonable doubt that the Defendant “brandished” a firearm, or aided and abetted another who brandished a firearm.
To “brandish” a firearm means to display all or part of the firearm, or to otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.
There is a place on the verdict form in which to record your determination on this question.
H. Venue
With respect to each count in the Indictment, the Government, in addition to proving the essential elements of that charge, must also prove that at least one act in furtherance of the charge occurred in the Southern District of New York. This is called establishing venue.
The Southern District of New York includes all of Manhattan and the Bronx, as well as Westchester, Rockland, Putnam, Dutchess, Orange, and Sullivan Counties.
The Government does not have to prove that the completed crime was committed within the Southern District of New York, or that the Defendant was ever in the Southern District of New York. It is sufficient to satisfy the venue requirement if any act in furtherance of the crime charged occurred in this District. The act itself need not be a criminal act. And the act need not have been taken by the Defendant, so long as the act was part of the charged offense that you find the Defendant committed.
Unlike the elements of the offenses which must be proved beyond a reasonable doubt, the Government is only required to prove venue by a preponderance of the evidence. A preponderance of the evidence means that it is more probable than not that some act in furtherance of the crime you are considering occurred in this District.
If you find that the Government has failed to prove venue on a particular count, then you must acquit the Defendant of that count.
I. Motive
Proof of motive is not a necessary element of any of the crimes with which the Defendant is charged. Proof of motive does not establish guilt, nor does the lack of proof of motive establish that the Defendant is not guilty. If the guilt of a defendant is shown beyond a reasonable doubt, it is immaterial what that defendant's motive for the crime or crimes may be, or whether that defendant's motive was shown at all. The presence or absence of motive is, however, a circumstance that you may consider as bearing on the intent of the Defendant.
IV. Further General Instructions
A. Preparation of Witnesses
You have heard evidence that, prior to appearing in court, witnesses have discussed the facts of the case and their testimony with the lawyers. Although you may consider this fact when you are evaluating a witness's credibility, I should tell you that there is nothing improper or unusual about a witness meeting with lawyers before testifying so that the witness can be aware of the subjects he or she will be questioned about, can focus on those subjects, and have the opportunity to review relevant exhibits before being questioned about them. Such consultation helps conserve our time during trial. In fact, it would be unusual for a lawyer to call a witness without such consultation.
Again, the weight you give to the fact or the nature of a witness's preparation for his or her testimony and what inferences you draw from such preparation are matters completely within your discretion.
B. Persons Not on Trial
Some of the persons who may have been involved in the events leading to this trial are not on trial. This does not matter. There is no requirement that all members of a conspiracy be charged, prosecuted, or tried together in the same proceeding. You may not draw any inference, favorable or unfavorable, toward the Government or the Defendant from the fact that certain persons other than the Defendant were not named in the Indictment. Nor may you speculate as to the reasons why other persons are not on trial. Those matters are wholly outside your concern and have no bearing on your function as jurors. Whether a person should be named as a co-conspirator or indicted as a defendant in this case or another separate case is a matter within the sole discretion of the United States Attorney and the Grand Jury. Thus, you may not consider it in any way in reaching your verdict as to the Defendant.
C. Expert Witnesses
You have heard testimony from an expert witness. An expert witness is someone who, by education or experience, has acquired learning or experience in a specialized area of knowledge. Such a witness is permitted to express his opinions on matters about which he or she has specialized knowledge and training. The parties may present expert testimony to you on the theory that someone who is experienced in the field can assist you in understanding the evidence or in reaching an independent decision on the facts.
Your role in judging credibility applies to the expert as well as other witnesses. In weighing the expert's opinion, you may consider the expert's qualifications, education, and reasons for testifying, as well as all of the other considerations that ordinarily apply, including all the other evidence in the case. If you find the opinion of the expert is based on sufficient data, education, and experience, and the other evidence does not give you reason to doubt his conclusions, you would be justified in placing reliance on his testimony. However, you should not accept witness testimony simply because the witness is an expert. The determination of the facts in this case rests solely with you, the finders of fact.
D. Law Enforcement or Government Witnesses
You have heard the testimony of law enforcement or other government witnesses. The fact that a witness may be employed as a law enforcement official or government employee does not mean that his or her testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of another witness.
At the same time, it is quite legitimate for defense counsel to try to attack the credibility of a law enforcement witness on the grounds that the witness's testimony may be colored by a personal or professional interest in the outcome of the case.
It is your decision, after reviewing all of the evidence, whether to accept the testimony of the law enforcement or government witnesses, as it is with every other type of witness, and to give to that testimony the weight you find it deserves.
E. Use of Evidence Obtained Pursuant to Searches and Seizures
You have heard testimony about evidence seized in connection with certain searches or seizures conducted by law enforcement officers, including of certain electronic devices. Evidence obtained from these searches and seizures was properly admitted in this case, and may be properly considered by you. Indeed, such searches and seizures are entirely appropriate law enforcement actions. Whether you approve or disapprove of how evidence was obtained should not enter into your deliberations, because I instruct you that the Government's use of the evidence is entirely lawful. You must, therefore, regardless of your personal opinion, give this evidence full consideration along with all the other evidence in the case in determining whether the Government has proved the Defendant's guilt beyond a reasonable doubt. Once again, however, it is for you to decide what weight, if any, to give to this evidence.
F. Investigative Technique
You have heard reference to the fact that certain investigative techniques were or were not used by law enforcement authorities. There is no legal requirement that law enforcement agents investigate crimes in a particular way or that the Government prove its case through any particular means. While you are to carefully consider the evidence presented, you need not speculate as to why law enforcement used the techniques they did, or why they did not use other techniques. The Government is not on trial and law enforcement techniques are not your concern. Your sole concern is to determine whether or not, based on the evidence or lack of evidence, the guilt of the Defendant has been established beyond a reasonable doubt.
G. Redaction of Evidentiary Items [if applicable]
We have, among the exhibits received in evidence, some documents that are redacted. “Redacted” means that part of the document was taken out. You are to concern yourself only with the part of the document that has been admitted into evidence. You should not consider any possible reason why the other part of it has been deleted.
H. Recordings and Transcripts
Audio and video recordings of various telephone conversations and events have been admitted into evidence. The Government's use of audio and video recordings as a method for gathering evidence is perfectly lawful, and the Government is entitled to use the recordings in this case.
[If applicable] The Government has also been permitted to hand out typed documents that it prepared containing the Government's interpretation of what appears on the audio recordings which have been received as evidence. Those documents were given to you as an aid or guide to assist you in listening to the recordings. However, they are not in and of themselves evidence. You alone should make your own interpretation of what appears on the recordings based on what you heard. If you think you heard something different from what appeared on the transcript then what you heard is controlling.
Let me say again, you, the jury, are the sole judges of the facts.
I. Charts and Summaries: Admitted as Evidence [if applicable]
Some of the exhibits that were admitted into evidence were in the form of charts and summaries. I decided to admit these charts and summaries in addition to the underlying documents that they represent in order to save time and avoid unnecessary inconvenience. You should consider these charts and summaries as you would any other evidence.
J. Charts and Summaries: Not Admitted as Evidence [If applicable]
The parties have used exhibits in the form of charts and other summaries. These charges and summaries were shown to you in order to make the other evidence more meaningful and to aid you in considering the evidence. They are no better than the testimony or the documents upon which they are based, and are not themselves independent evidence. Therefore, you are to give no greater consideration to these charts or summaries than you would give to the evidence upon which they are based.
It is for you to decide whether the charts or summaries correctly present the information contained in the testimony and in the exhibits on which they were based. You are entitled to consider the charts and summaries if you find that they are of assistance to you in analyzing and understanding the evidence.
K. Uncalled Witnesses
During the course of trial, you have heard reference to other persons who did not appear in court to testify. I instruct you that each party had equal opportunity, or lack of opportunity, to call any of these witnesses. Therefore, you should not draw any inferences or reach any conclusions as to what those witnesses would have testified to had they been called. Their absence should not affect your judgment in any way.
As I have said, the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence, and the burden always rests with the Government to prove a defendant's guilt beyond a reasonable doubt.
L. Defendant's Right to Testify [If applicable]
In a criminal case, a defendant cannot be required to testify, but, if he or she chooses to testify, he or she is, of course, permitted to take the witness stand on his or her 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.
M. Defendant's Right Not to Testify [If applicable]
In a criminal case, a defendant cannot be required to testify, but, if he or she chooses to testify, he or she is, of course, permitted to take the witness stand on his or her own behalf. In this case, the Defendant decided not to testify. You may not attach any significance or draw adverse inference to the fact that the Defendant did not testify. You may not consider this against the Defendant in any way in your deliberations in the jury room, and it should not be discussed.
This is because, under our Constitution, a defendant has no obligation to testify or to present any evidence, because it is the Government's burden to prove the defendant guilty beyond a reasonable doubt. That burden remains with the Government throughout the entire trial and never shifts to a defendant. A defendant is never required to prove that he is innocent.
V. Final Instructions Regarding Jury Deliberations
A. Duties of the Foreperson
The first thing you should do when you retire to deliberate is take a vote to select one of you to sit as your foreperson. The foreperson will send out any notes, and when the jury has reached a verdict, he or she will notify the Court Security Officer that the jury has reached a verdict, and when you come into open court, the foreperson will be asked to state what the verdict is.
B. Right to See Exhibits and Hear Testimony; Communications with Court
A list of the witnesses who testified at trial and of the exhibits introduced into evidence will be sent to you in the jury room, along with a copy of the Indictment, a copy of my instructions on the law, and a copy of the verdict form. There are two computer screens in the jury room, and the electronic exhibits that have been received in evidence during the trial have been uploaded to a hard drive connected to those screens. You therefore will be able to access and view any of the electronic exhibits in the jury room on those jury screens, and you can do that using a wireless mouse that is in the room and connected to the computer. And as I mentioned, you will have a list of these exhibits, which should help you identify any exhibits you wish to view on the screen.
In addition, if you want to see any hard copies of the exhibits or to read or hear any of the testimony during your deliberations, that can be arranged. The guns that were introduced into evidence will not be sent back to the jury room, but if you wish to view them again I will arrange for you to see them in this courtroom. Please appreciate that it is not always easy to locate any testimony that you might want, so be as clear and precise as you possibly can. Any communication with me, whether requesting exhibits or testimony or otherwise, should be made in writing, signed by the foreperson with the date and time indicated, and given to the Court Security Officer. Any notes will become part of the record in this case. I will respond to any questions or requests you have as promptly as possible, either in writing or by having you return to the courtroom so I can speak with you in person. In any event, do not tell me or anyone else how the jury stands on the issue of the Defendant's guilt until after a unanimous verdict is reached.
C.
Many of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have taken should not be given any greater weight or influence in the determination of the case than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. Any difference between a juror's recollections and another juror's notes should be settled by referring to the transcript, for it is the court record rather than any juror's notes upon which the jury must base its determination of the facts and its verdict.
D. Improper Considerations: Race, Religion, National Origin, Sex, or Age
Your verdict must be based solely upon the evidence developed at trial or the lack of evidence. In reaching your decision as to whether the Government sustained its burden of proof, it would be improper for you to consider any personal feelings-positive or negative-you may have about a defendant's race, religion, national origin, sex, or age. The Defendant and the Government are entitled to a trial free from prejudice, and our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence.
E. Verdict Form and Return of Verdict
We have prepared a verdict form for you to use in recording your decisions. After you have reached a verdict, the foreperson should fill in the verdict sheet, sign it noting the date and time, and then give a note-not the verdict sheet-to the Court Security Officer outside your door stating simply that you have reached a verdict. Do not specify what the verdict is in your note. Instead, the foreperson should retain the verdict sheet, and give the verdict to me in open court when you are all called in.
I will stress again that each of you must be in agreement with the verdict that is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
F. Juror Oath
I remind you that you took an oath to render judgment impartially and fairly, without prejudice or sympathy, solely upon the evidence in the case and the applicable law. I know that you will do this and reach a just and true verdict.
Under your oath as jurors, you are not to be swayed by sympathy. If you let sympathy- or for that matter, prejudice or bias-interfere with your thinking, there is a risk that you will not arrive at a true and just verdict. Rather, you are to be guided solely by the evidence in this case and the law as I have instructed you. And as you sift through that evidence, the crucial question for you and you alone to decide as to each count against the Defendant is: Has the Government proved each element beyond a reasonable doubt?
If you have a reasonable doubt as to the Defendant's guilt with respect to a particular count, then you must render a verdict of acquittal on that particular count. But, on the other hand, if you find that the Government has met its burden of proving guilt beyond a reasonable doubt with respect to a particular count, then you should not hesitate because of sympathy or any other reason to render a verdict of guilty on that count.
I also caution you that, under your oath as jurors, you cannot allow to enter into your deliberations any consideration of the punishment that may be imposed upon the Defendant if he is convicted. The duty of imposing a sentence in the event of conviction rests exclusively with me and the issue of punishment may not affect your deliberations as to whether the Government has established the Defendant's guilt beyond a reasonable doubt.
G. Everyone Must be Present
You are not to discuss the case unless all jurors are present. Nine, ten, or even eleven jurors together is only a gathering of individuals. Only when all twelve jurors are present do you constitute a jury, and only then may you deliberate.
H. Remaining Issues
I will ask you to remain seated while I confer with the attorneys to see if there are any additional instructions that they would like me to give to you, or if there is anything I may not have covered.
VI. Conclusion
Members of the jury, that concludes my instructions to you. You may now retire to the jury room and begin this phase of your deliberations. As the first matter of business, please select a foreperson and send me a note, signed, dated, and timed, through the Court Security Officer, telling me whom you have elected as your foreperson. In conclusion, ladies and gentlemen, I am sure that if you listen to the views of your fellow jurors and if you apply your own common sense you will reach a fair verdict here.