U.S. v. Brannon

Full title: U.S. v. WILLIAM DEVERS BRANNON, a.k.a. BILLY DEB BRANNON

Court: United States District Court, E.D. Tennessee, at Chattanooga

Date published: Apr 27, 2004

No. 1:03-CR-98 (E.D. Tenn. Apr. 27, 2004)

Opinion

No. 1:03-CR-98.

April 27, 2004

CHARGE TO THE JURY

CURTIS COLLIER, District JudgePage 2

INTRODUCTION

Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case.

I will start by explaining your duties and the general rules that apply in every criminal case.

Then I will explain the elements, or parts, of the crimes that the defendant is accused of committing.

Next, I will explain some rules that you must use in evaluating particular testimony and evidence.

And last, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return.

Please listen very carefully to everything I say.¹

1 Sixth Circuit Pattern Criminal Jury Instructions § 1.01 — Instructions (1991).

JURORS' DUTIES

You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way.

Your second duty is to take the law that I give you, apply it to the facts, and decide if the government has proved the defendant guilty beyond a reasonable doubt. It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and should be considered together as a whole.

The lawyers have talked about the law during their arguments. But if what they said is different from what I say, you must follow what I say. What I say about the law controls.

Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.²

2 Sixth Circuit Pattern Criminal Jury Instructions § 1.02 — General Principles, Jurors' Duties (1991).

PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT

As you know, the defendant has pleaded not guilty to the crimes charged in the indictment. The indictment is not any evidence at all of guilt. It is just the formal way that the government tells a defendant what crimes he is accused of committing. It does not even raise any suspicion of guilt.

Instead, the defendant starts the trial with a clean slate, with no evidence at all against him, and the law presumes that he is innocent. This presumption of innocence stays with the defendant unless the government presents evidence here in court that overcomes the presumption, and convinces you beyond a reasonable doubt that the defendant is guilty.

This means that the defendant has no obligation to present any evidence at all, or to prove to you in any way that he is innocent. It is up to the government to prove that the defendant is guilty, and this burden stays on the government from start to finish. You must find the defendant not guilty unless the government convinces you beyond a reasonable doubt that he is guilty.

The government must prove every element of the crimes charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence.

Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.³

3 Sixth Circuit Pattern Criminal Jury Instructions § 1.03 — Presumption of Innocence, Burden of Proof, Reasonable Doubt (1991).

EVIDENCE DEFINED

You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way.

The evidence in this case includes only what the witnesses said while they were testifying under oath; the stipulations the lawyers agreed to; and the exhibits that I allowed into evidence.

Nothing else is evidence. The lawyers' statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence.

During the trial I did not let you hear the answers to some of the questions that the lawyers asked. Do not speculate about what a witness might have said. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way.

Make your decision based only on the evidence as I have defined it here, and nothing else.⁴

4 Sixth Circuit Pattern Criminal Jury Instructions § 1.04 — Evidence Defined (1991).

CONSIDERATION OF EVIDENCE

You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.⁵

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Now, some of you may have heard the terms "direct evidence" and "circumstantial evidence."

Direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining.

Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.

It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, nor does it say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.⁶

6 Sixth Circuit Pattern Criminal Jury Instructions § 1.06 — Direct and Circumstantial Evidence (1991).

CREDIBILITY OF WITNESSES

Another part of your job as jurors is to decide how credible or believable each witness was. This is your job, not mine. It is up to you to decide if a witness's testimony was believable, and how much weight you think it deserves. You are free to believe everything that a witness said, or only part of it, or none of it at all. But you should act reasonably and carefully in making these decisions.

Let me suggest some things for you to consider in evaluating each witness's testimony.

Ask yourself if the witness was able to clearly see or hear the events. Sometimes even an honest witness may not have been able to see or hear what was happening, and may make a mistake.

Ask yourself how good the witness's memory seemed to be. Did the witness seem able to accurately remember what happened?

Ask yourself if there was anything else that may have interfered with the witness's ability to perceive or remember the events.

Ask yourself how the witness acted while testifying. Did the witness appear honest? Or did the witness appear to be lying?

Ask yourself if the witness had any relationship to the government or the defendant, or anything to gain or lose from the case, that might influence the witness's testimony. Ask yourself if the witness had any bias, or prejudice, or reason for testifying that might cause the witness to lie or to slant the testimony in favor of one side or the other.

And ask yourself how believable the witness's testimony was in light of all the other evidence. Was the witness's testimony supported or contradicted by other evidence that you found believable? If you believe that a witness's testimony was contradicted by other evidence, remember that people sometimes forget things, and that even two honest people who witness the same event may not describe it exactly the same way.

The testimony of a witness may be discredited or impeached by showing that the witness has been convicted of a felony. Prior conviction is a circumstance that you may consider in determining the credibility of a witness. You are to determine the weight, if any, to be given a prior felony conviction as impeachment.

These are only some of the things that you may consider in deciding how believable each witness was. You may also consider other things that you think shed some light on the witness's believability. Use your common sense and your everyday experience in dealing with other people. And then decide what testimony you believe, and how much weight you think it deserves.⁷

7 Sixth Circuit Pattern Criminal Jury Instructions § 1.07 — Credibility of Witnesses (1991).

LAWYERS' OBJECTIONS

There is one more general subject that I want to talk to you about before I begin explaining the elements of the crimes charged.

The lawyers for both sides objected to some of the things that were said or done during the trial. Do not hold that against either side. The lawyers have a duty to object whenever they think that something is not permitted by the rules of evidence. Those rules are designed to make sure that both sides receive a fair trial.

And do not interpret my rulings on their objections as any indication of how I think the case should be decided. My rulings were based on the rules of evidence, not on how I feel about the case. Remember that your decision must be based only on the evidence that you saw and heard here in court.⁸

8 Sixth Circuit Pattern Criminal Jury Instructions § 1.09 — Lawyers' Objections (1991).

SEPARATE CONSIDERATION — MULTIPLE CRIMES

The defendant has been charged with multiple crimes. The number of the charges in the indictment is no evidence of guilt, and this should not influence your decision in any way. It is your duty to separately consider the evidence that relates to each charge and to return a separate verdict for each one. For each charge, you must decide whether the government has presented proof beyond a reasonable doubt that the Defendant is guilty of that particular charge.

INTRODUCTION TO THE ELEMENTS

That concludes the part of my instructions explaining your duties and the general rules that apply in every criminal case. In a moment, I will explain the elements of the crimes that the defendant is accused of committing.

But before I do that, I want to emphasize that the defendant is only on trial for the particular crimes charged in the indictment. Your job is limited to deciding whether the government has proved the crimes charged.

Also keep in mind that whether anyone else should be prosecuted and convicted for these crimes is not a proper matter for you to consider. The possible guilt of others is no defense to a criminal charge. Your job is to decide if the government has proved the defendant guilty. Do not let the possible guilt of others influence your decision in any way.⁹

9 Sixth Circuit Pattern Criminal Jury Instructions § 2.01 — Defining the Crime and Related Matters, Introduction (1991).

COUNTS 1-21: INTERSTATE TRANSPORTATION OF FRAUDULENTLY ACQUIRED PROPERTY

Counts 1-21 of the indictment charge that on or about various dates in 1998 through 2000, defendant WILLIAM DEVERS BRANNON and Dianna Blairtorbett did unlawfully transport, transmit and transfer in interstate and foreign commerce money of the value of $5,000 and more, knowing that the money had been taken by fraud.¹⁰

Title 18, United States Code, Section 2314, makes it a Federal crime or offense for anyone to transport, or to cause to be transported in interstate commerce, property which has been taken by fraud and has a value of $5,000 or more.

The essence of the offense alleged in the indictment is a scheme to defraud which resulted in the interstate movement of money or property having a value of $5,000 or more.

The defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

First: That a scheme or artifice to defraud was devised, conceived, or created;

Second: That the money or property was obtained as a result of the fraudulent scheme;

Third: That the money or property had a value of $5,000 or more;

Fourth: That the money or property traveled in interstate commerce; and

Fifth: That the defendant knew that the money or property had traveled in interstate commerce.

The term "interstate commerce" includes any movement or transportation of money from one state into another state.¹¹

11 Eleventh Circuit Pattern Criminal Jury Instructions § 78.1 (2003) (modified).

Scheme to Defraud

A scheme to defraud is any deliberate plan of action or course of conduct by which someone intends to deceive or to cheat another or by which someone intends to deprive another of something of value.¹² A scheme to defraud may be described as a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community.¹³ There must be proof of either a misrepresentation, false statement, or omission reasonably calculated to deceive a person of ordinary prudence and comprehension.¹⁴ A scheme to defraud may occur even absent a false statement or false representation¹⁵ and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of material facts and information done with the intent to defraud.

A statement, representation, or omission is "material" if it had a natural tendency to influence or was capable of influencing a decision or an action, whether or not it actually influenced or deceived anyone.¹⁶ In determining whether a particular false statement or representation by the defendant was material, you should consider whether a truthful statement or representation by the defendant would have caused the intended victim to engage in a different course of conduct. Although a false statement or false representation made by the defendant must have had the capability of influencing a decision by the intended victim, the government is not required to prove that the false statement or representation actually influenced or deceived the intended victim. A statement or representation can be material even if the intended victim knew it was false. A statement or representation by the defendant is material if you find that it could have influenced a decision by the intended victim.

16 Devitt and Blackmar § 40.03; cf. United States v. Rogers, 118 F.3d 466, 472 (6th Cir. 1997).

It is not necessary for the government to prove the defendant personally devised the scheme to defraud. It is sufficient if the government proves the defendant knew of the essential nature of the scheme to defraud and knowingly joined the scheme or knowingly participated in the scheme.

Intent to Defraud

A key issue in this case is whether the defendant had intent to defraud. To act with an "intent to defraud" means to act knowingly and with the intention or the purpose to deceive or to cheat. An intent to defraud is accompanied, ordinarily, by a desire or purpose to bring about some gain or benefit to oneself or some other person, or by a desire or purpose to cause some loss to another person.¹⁷

17 Devitt and Blackmar § 40.14; United States v. Frost, 125 F.3d 346, 354 (1997), cert. denied, 525 U.S. 810 (1998); United States v. Merklinger, 16 F.3d 670 (6th Cir. 1994).

The term "knowingly" means that the defendant was conscious and aware of his actions, realized what he was doing or what was happening, and did not act because of ignorance, mistake, or accident.¹⁸

18 Devitt and Blackmar § 17.04 — "Knowingly" — Defined (modified).

Good Faith

Good faith on the part of the defendant is inconsistent with intent to defraud, an element of the charge. The burden is not on the defendant to prove his good faith; rather, the government must prove beyond a reasonable doubt that the defendant acted with intent to defraud.¹⁹

Aiding and Abetting

For you to find the defendant guilty of interstate transportation of property acquired by fraud, it is not necessary for you to find that he personally committed the crime himself. You may also find him guilty if he intentionally helped or encouraged someone else to commit the crime. A person who does this is called an aider and abettor.

But for you to find defendant guilty of these crimes as an aider and abettor, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First, that the crime of interstate transportation of property acquired by fraud was committed.

(B) Second, that the defendant helped to commit the crime or encouraged someone else to commit the crime.

(C) And third, that the defendant intended to help commit or encourage the crime.

Proof that the defendant may have known about the crime, even if he was there when it was committed, is not enough for you to find him guilty. You can consider this in deciding whether the government has proved that he was an aider and abettor, but without more it is not enough.

What the government must prove is that the defendant did something to help or encourage the crime with the intent that the crime be committed. If you find that the govemment has proven the above three elements, it is not necessary for you to find that the defendant himself transported any money or property in interstate commerce, or caused the transportation of any money or property in interstate commerce. Who devised the scheme or who caused the interstate transportation is not key in determining whether someone is an aider and abetter. What is key is whether the government has proven all of these elements.

If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you cannot find the defendant guilty of interstate transportation of property acquired by fraud as an aider and abettor.²⁰

20 Sixth Circuit Pattern Criminal Jury Instructions § 4.01 — Aiding and Abetting (modified).

INTRODUCTION TO DELIBERATION

That concludes the part of my instructions explaining the rules for considering some of the testimony and evidence. Now let me finish up by explaining some things about your deliberations in the jury room, and your possible verdicts.

The first thing that you should do in the jury room is choose someone to be your foreperson. This person will help to guide your discussions, and will speak for you here in court.

Once you start deliberating, do not talk to Ms. Palmer, or to me, or to anyone else except each other about the case. If you have any questions or messages, you must write them down on a piece of paper, sign them, and then give them to Ms. Palmer. Ms. Palmer will give them to me, and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take me some time to get back to you. Any questions or messages normally should be sent to me through your foreperson.

One more thing about messages. Do not ever write down or tell anyone how you stand on your votes. For example, do not write down or tell anyone what your vote happens to be. That should stay secret until you are finished.²¹

21 Sixth Circuit Pattern Criminal Jury Instructions § 8.01 — Introduction.

UNANIMOUS VERDICT

Your verdict, whether it is guilty or not guilty, must be unanimous.

To find the defendant guilty, every one of you must agree that the government has overcome the presumption of innocence with evidence that proves the defendant's guilt beyond a reasonable doubt.

To find the defendant not guilty, every one of you must agree that the government has failed to convince you beyond a reasonable doubt.

Either way, guilty or not guilty, your verdict must be unanimous.²²

22 Sixth Circuit Pattern Criminal Jury Instructions § 8.03 — Unanimous Verdict.

DUTY TO DELIBERATE

Now that all the evidence is in and the arguments are completed, you are free to talk about the case in the jury room. In fact, it is your duty to talk with each other about the evidence, and to make every reasonable effort you can to reach unanimous agreement. Talk with each other, listen carefully and respectfully to each other's views, and keep an open mind as you listen to what your fellow jurors have to say. Try your best to work out your differences. Do not hesitate to change your mind if you are convinced that other jurors are right and that your original position was wrong.

But do not ever change your mind just because other jurors see things differently, or just to get the case over with. In the end, your vote must be exactly that — your own vote. It is important for you to reach unanimous agreement, but only if you can do so honestly and in good conscience.

No one will be allowed to hear your discussions in the jury room, and no record will be made of what you say. So you should all feel free to speak your minds.

Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.²³

23 Sixth Circuit Pattern Criminal Jury Instructions § 8.04 — Duty to Deliberate (1991).

VERDICT FORM

I have prepared a verdict form that you should use to record your verdict. The form reads as follows:

If you decide that the government has proved the charge against the defendant beyond a reasonable doubt, say so by having your foreperson mark the appropriate place on the form. If you decide that the government has not proved the charge against him beyond a reasonable doubt, say so by having your foreperson mark the appropriate place on the form. Your foreperson should then sign the form, put the date on it, and return it to me.²⁴

24 Sixth Circuit Pattern Criminal Jury Instructions § 8.06 — Verdict Form.

VERDICT FORM We, the jury, unanimously find the defendant, WILLIAM DEVERS BRANNON is: [ indicate verdict for each count with an "X" on the line ]

______________ ____________ of Count 1 of the indictment; not guilty guilty

______________ ____________ of Count 2 of the indictment; not guilty guilty

______________ ____________ of Count 3 of the indictment; not guilty guilty

______________ ____________ of Count 4 of the indictment; not guilty guilty

______________ ____________ of Count 5 of the indictment; not guilty guilty

______________ ____________ of Count 6 of the indictment; not guilty guilty

______________ ____________ of Count 7 of the indictment; not guilty guilty

______________ ____________ of Count 8 of the indictment; not guilty guilty

______________ ____________ of Count 9 of the indictment; not guilty guilty

______________ ____________ of Count 10 of the indictment; not guilty guilty

______________ ____________ of Count 11 of the indictment; not guilty guilty

______________ ____________ of Count 12 of the indictment; not guilty guilty

______________ ____________ of Count 13 of the indictment; not guilty guilty

______________ ____________ of Count 14 of the indictment; not guilty guilty

______________ ____________ of Count 15 of the indictment; not guilty guilty

______________ ____________ of Count 16 of the indictment; not guilty guilty

______________ ____________ of Count 17 of the indictment; not guilty guilty

______________ ____________ of Count 18 of the indictment; not guilty guilty

______________ ____________ of Count 19 of the indictment; not guilty guilty

______________ ____________ of Count 20 of the indictment; and not guilty guilty

______________ ____________ of Count 21 of the indictment; not guilty guilty

________________________ _________________________ FOREPERSON DATE