Show Temp

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 1 of 48
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA
- v. -
:
:
THOMAS LIBOUS,
14 Cr. 440 (VB)
:
Defendant.
- - - - - - - - - - - - - - - x
GOVERNMENTS REQUESTS TO CHARGE
PREET BHARARA
United States Attorney
Southern District of New York
Attorney for the United States of America
James McMahon
Benjamin Allee
Assistant United States Attorneys
-Of Counsel-
TABLE OF CONTENTS
Request No. 1:
General Requests .............................. 2
Request No. 2:
The Indictment ................................ 4
Request No. 3:
Summary of the Indictment ..................... 5
Request No. 4:
Use of Conjunctive in the Indictment .......... 7
Request No. 5:
The Statute ................................... 8
Request No. 6:
Purpose of the Statute ....................... 10
Request No. 7:
Elements of the Offense False, Fictitious

or Fraudulent Statements ..................... 11
Request No. 8:
Statement or Representation .................. 13
Request No. 9:
Materiality .................................. 14
Request No. 10: Knowing and Willful Conduct .................. 15

Request No. 11: Jurisdiction of the Government ............... 16
Request No. 12: Elements of the Offense Falsifying,
Concealing or Covering Up by Trick, Scheme
or Device .................................... 17
Request No. 13: Falsify, Conceal or Cover Up a Material
Fact ......................................... 18
Request No. 14: Trick, Scheme or Device ...................... 19
Request No. 15: Venue ........................................ 20
Request No. 16: Manner of Proof .............................. 23
Request No. 17: Variance in Date Alleged ..................... 25
Request No. 18: Stipulations [If Applicable] ................. 26
Request No. 19: Particular Investigative Techniques Not
Required [If Applicable] ..................... 27
Request No. 20: Uncalled Witnesses Equally Available to
Both Sides [If Applicable] .................... 7
Request No. 21: Persons Not on Trial ......................... 29
i
Request No. 22: Preparation of Witnesses [If Applicable] ..... 30

Request No. 23: Testimony of Law Enforcement Officers ........ 31
Request No. 24: Defendants Testimony [If Applicable] ........ 32
Request No. 25: Defendants Right Not to Testify [If
Applicable] .................................. 33
Request No. 26: Testimony of Cooperating Witnesses ........... 34
Request No. 27: Immunized Witness [If Applicable] ............ 36
Request No. 28: Prior Perjury ................................ 38
Request No. 29: Character Witnesses [If Applicable] .......... 39
Request No. 30: False Exculpatory Statements [If
Applicable] .................................. 40
Request No. 31: Evidence of Similar Acts [If Applicable] ..... 41
Request No. 32: Charts and Summaries ......................... 42
Request No. 33: Sympathy, Bias, Prejudice .................... 43
Request No. 34: Conclusion ................................... 44
ii
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA
- v. -
:
:
THOMAS LIBOUS,
14 Cr. 440 (VB)
:
Defendant.
- - - - - - - - - - - - - - - x
REQUESTS TO CHARGE
Pursuant to Rule 30 of the Federal Rules of Criminal
Procedure, the Government respectfully requests that the Court
include the following in its charge to the jury.
Request No. 1 - General Requests

The Government respectfully requests that the Court
give its usual instructions to the jury on the following
matters:
a.
Function of Court and Jury
b.
Indictment Not Evidence
c.
Statements of Court and Counsel Not Evidence
d.
Burden Of Proof and Presumption of Innocence
e.
Reasonable Doubt
f.
Government Treated Like Any Other Party
g.
Credibility of Witnesses
h.
Right to See Exhibits and Have Testimony Read During

Deliberations
i.
Punishment Is Not to Be Considered By the Jury
j.
Verdict of Guilt or Innocence Must Be Unanimous
k.
Jurys Recollection Governs
l.
Note-Taking by Jurors
m.
Duty to Base Verdict on Evidence
n.
Improper Considerations
o.
Motions, Objections, and Questions by the Court
p.
Duty to Weigh Evidence Without Prejudice
q.
Government as a Party
r.
Direct and Circumstantial Evidence
s.
Inferences
2
t.
Circumstantial Evidence of Knowledge, Willfulness, and

Intent
u.
Credibility of Witnesses
Request No. 2 - The Indictment

The defendant, THOMAS LIBOUS, is formally charged in
an Indictment.
this time.
I will not read the entire Indictment to you at
Rather, I will first summarize the offense charged
in the Indictment and then explain in detail the elements of

that offense.
Request 3 - Summary of the Indictment

The Indictment contains one count.
I will summarize
it and then will give you the law in greater detail.

The Indictment alleges that THOMAS LIBOUS, the
defendant, made false statements to Special Agents of the
Federal Bureau of Investigation who were assisting a federal
grand jury sitting in White Plains in its investigation into
allegations that:
1) THOMAS LIBOUS had obtained a job for his
son at a Westchester law firm in exchange for LIBOUS' promise to

steer future business to the law firm; and 2) THOMAS LIBOUS had
caused an Albany lobbying firm to pay $50,000 to the law firm to
defray the cost of the son's salary.
The Indictment further
alleges that THOMAS LIBOUS was interviewed by Special Agents of

the FBI on June 24, 2010 and that he said in substance and in
part that:
a.
he could not recall how his son began to work at
the law firm;

b.
no deals were made to get his son the job at the
c.
he was not aware that the lobbying firm had paid
law firm;
any part of his son's salary at the law firm;

d.
he never promised to refer work to the law firm;
e.
he was not involved in his son's decision to work
at the law firm;

5
f.
he had no business or personal relationship with
the law firm; and

g.
he did not know of any relationship between the
lobbying firm and the law firm.
Request 4 - Use of Conjunctive in Indictment

[If Indictment Read to, or Provided to, Jury]
You will note that the word "and" is used between
charging words in the Indictment.
charges
that
the
defendant
made
For example, the Indictment

"false,
fictitious,
fraudulent statements."
You should treat the conjunctive "and" as it appears
in the Indictment as being a disjunctive "or".
Thus, it is
enough, for example, that the proofs show that the defendant
made a false, fictitious or fraudulent statement.
and
Request No. 5 - The Statute

The Indictment charges the defendant with knowingly
and willfully falsifying, concealing and covering up material
facts by trick, scheme and device and making materially false,
fictitious and fraudulent statements, in violation of Title 18,
United States Code, Section 1001.
That statute provides, in
relevant part, that:

[W]hoever, in any matter within the jurisdiction of the
executive . . . branch of the Government of the United
States, knowingly and willfully -(1) falsifies, conceals or covers up by any trick,
scheme, or device a material fact; [or]
(2) makes any materially false, fictitious, or
fraudulent statement or representation . . .
shall [be guilty of a crime.]
I have already described some of the ways in which the
Indictment alleges the defendant committed this crime.
The Indictment charges the defendant with making false
statements under two different theories.
First, the Indictment
alleges that the defendant falsified, concealed and covered up

by trick, scheme or device a material fact.
Second, the
Indictment alleges that the defendant made material false,

fictitious or fraudulent statements and representations.
I will
instruct you as to each of these theories, but I must emphasize

that for the defendant to be found guilty, the Government need
only prove one of these theories.
8
The Government need only
prove beyond a reasonable doubt that the defendant committed

this crime by falsifying, concealing or covering up by trick,
scheme or device a material fact OR by making false, fictitious
or fraudulent statements and representations.
Request 6 - Purpose of the Statute

The purpose of Section 1001 is to protect the
authorized functions of the various Governmental departments
from any type of misleading or deceptive practice and from the
adverse consequences which might result from such deceptive
practices.
To establish a violation of Section 1001, it is
necessary for the Government to prove certain essential
elements, which I will soon describe for you, beyond a
reasonable doubt.
However, I want to point out now that it is
not necessary for the Government to prove that the Government

agency was, in fact, misled as a result of the defendant's
alleged action.
It does not matter that the agency was not
misled, or even that it knew of the misleading or deceptive act,

should you find that the act occurred.
These circumstances
would not excuse or justify false, fictitious or fraudulent

statements made, willfully and knowingly about a matter within
the jurisdiction of the Government of the United States.
Adapted from 2 L. Sand, et al., Modern Federal Jury
Instructions, Instr. 36-02 (hereafter "Sand").
10
Request No. 7 - Elements of the Offense - False,

Fictitious or Fraudulent Statements
I will first instruct you under the theory that the
defendant allegedly made materially false, fictitious, or
fraudulent statements.
In order to prove the defendant guilty
of the crime charged, the government must establish beyond a

reasonable doubt that:
First, on or about the date specified, the defendant
made a false, fictitious or fraudulent statement or
representation;
Second, that the statement or representation was
material;
Third, the defendant acted knowingly and willfully;
and
Fourth, the statement or representation was made in a
matter within the jurisdiction of the Government of the United
States.
The Indictment specifies seven different statements
allegedly made by the defendant in an interview on June 24,
2010.
Each of these seven statements is called a distinct
specification.
It is not necessary that the Government prove
that each of the seven statements constituted a material false

statement.
The Government satisfies its burden if it proves
beyond a reasonable doubt that one of the seven statements

11
specified in the Indictment was a material false statement.

However, and this is important, you may not find the defendant
guilty unless you all agree, unanimously, as to which of the
specified statements constituted a material false statements.
It is not enough that all believe that some statement
by the defendant was materially false.
That is, you cannot find
the defendant guilty if some of you think that only

Specification 1 constituted a material false statement and the
rest of you think only Specification 2 constituted a material
false statement.
There must be at least one specific statement
that all of you believe constitutes a material false statement

in order for you to find the defendant guilty.
Court's charge in United States v. Wilson, 10 Cr. 629
(VB), Docket 77 at 102-04; adapted from Sand, Instr.
36-09.
12
Request 8 - Statement or Representation

The first element that the Government must prove
beyond a reasonable doubt is that the defendant made a false,
fictitious or fraudulent statement or representation.
Under
this statute, there is no distinction between written and oral

statements.
The statement or representation is false or
fictitious if it was untrue when made and known at the time to

be untrue by the person making it.
A statement or
representation is fraudulent if it was untrue when made and it

was made with the intent to deceive the Government agency to
which it was submitted.
(VB), Docket 77 at 102-04; adapted from Sand, Instr.
36-10.
13
Request 9 - Materiality
The second element the Government must prove beyond a
reasonable doubt is that the defendant's statement or
representation was material.
A fact is material if it has a natural tendency to
influence, or was capable of influencing, the Government's
decisions or activities. However, proof of actual reliance on
the statement by the Government is not required.
Sand, Instr. 36-11; Court's charge in United States v.
Wilson, 10 Cr. 629 (VB), Document 77 at 103-04; United
States v. Whab, 355 F.3d 155, 163 (2d Cir. 2004)("A
false statement is material if it has a natural
tendency to influence, or is capable of influencing,
the decision of the decisionmaking body to which it
was addressed")(internal quotation marks omitted)
14
Request 10 - Knowing and Willful Conduct

The third element which the Government must prove
beyond a reasonable doubt is that the defendant acted knowingly
and willfully.
An act is done knowingly if it is done purposely and
voluntarily, as opposed to mistakenly or accidently.
An act is done willfully if it is done with an
intention to do something the law forbids, that is, with a bad
purpose to disobey the law.
(VB), Docket 77 at 102-04; Sand, Instr. 36-13.
15
Request 11 - Jurisdiction of the Government

The fourth element is that the statement or
representation be made with regard to a matter within the
jurisdiction of the Executive Branch of the Government of the
United States. I charge you that the Federal Bureau of
Investigation is an agency of the Department of Justice, a
department of the United States Government, both of which are
part of the Executive Branch of the Government.
To be within the jurisdiction of a department or
agency of the United States Government means that the statement
must concern an authorized function of that department or
agency.
It is not necessary for the Government to prove that
the defendant had actual knowledge that a false statement was to
be utilized in a matter which was within the jurisdiction of the
Government of the United States.
It is sufficient to satisfy
this element if you find that the false statement was made with
regard to a matter within the jurisdiction of the Government of
the United States.
Adapted from Sand, Instr. 36-14; Court's charge in
United States v. Wilson, 10 Cr. 629 (VB), Docket 77 at
102-04.
16
Request 12 - Elements of the Offense - Falsifying, Concealing

or Covering Up by Trick, Scheme or Device
The Indictment also charges that the defendant
violated Section 1001 on the theory that he falsified, concealed
or covered up by trick, scheme or device a material fact.
Under
this theory, the Government must prove beyond a reasonable doubt

that:
First, that on or about the date specified in the
Indictment, the defendant falsified, concealed or covered up a
material fact;
Second, that he did so by trick, scheme or device;
Third, that he acted knowingly and willfully; and
Fourth, that the falsification, concealment or cover
up was with respect to a matter within the jurisdiction of the
Government of the United States.
Adapted from Sand, Instr. 36-3.
17
Request 13 - Falsify, Conceal or Cover Up a Material Fact

The first element the Government must prove beyond a
reasonable doubt is that the defendant concealed or covered up a
material fact.
These words almost define themselves.
To
"falsify" means to make an untrue statement, which is untrue at

the time made and is known by the defendant to be untrue at the
time made.
To "conceal" means to withhold from another.
It
requires some act to prevent detection of some fact the

defendant was required to reveal.
To "cover up" means to hide
from another.
A fact is material if it could have influenced the
Government's decisions or activities.
Proof of actual reliance
on the statement by the Government is not required.

Adapted from Sand, Instrs. 36-4 and 36-5.
18
Request 14 - Trick, Scheme or Device

The second element that the Government must prove
beyond a reasonable doubt is that the defendant falsified,
concealed or covered up by trick, scheme or device.
a plan for the accomplishment of an object.
A scheme is
A trick or device
is a deceptive act or strategy calculated to deceive persons.

I have already instructed you on the remaining two
elements, that is, that the defendant must act willfully and
knowingly and with respect to a matter within the jurisdiction
of the Government of the United States.
19
Request No. 15 - Venue

In addition to the elements of the charged crime, you
have to decide whether any part of the crime occurred within the
Southern District of New York, which includes Westchester
County, which includes White Plains.
In addition, I instruct
you that the Southern District of New York is also comprised of

the following other counties: New York County, which is the
island of Manhattan, Bronx County, and Putnam, Dutchess,
Rockland, Orange, and Sullivan Counties. That is the Southern
District of New York.
The Government need not prove that all the conduct
charged in the Indictment occurred in this district.
Venue
turns on whether any part of the crime was committed within the
district.
With respect violations of Section 1001, the statute
charged here, venue is appropriate in jurisdictions in which a

charged false statement was made or in which it was received and
acted upon by the federal government.
Thus, for instance, when
a defendant makes a false statement in one jurisdiction and that

false statement is received and acted upon by a federal agency
in a different jurisdiction, venue would be appropriate in both
jurisdictions.
Moreover, the Government need only prove venue by a
preponderance of the evidence.
Preponderance of the evidence
simply means proof that something is more likely than not.

20
Please remember that the preponderance of the evidence standard

applies only to the element of venue and the Government must
prove all the other elements beyond a reasonable doubt.
You may
rely on direct or circumstantial evidence in making a finding as

to venue.
If you find that the Government has proven venue by a
preponderance of the evidence, then you should check "yes" on
the verdict form in response to the question that asks about
venue.
You should then continue with your deliberations.
If
you find that the Government has not proven venue by a

preponderance of the evidence, then you should check "no" on
your verdict form in response to the question about venue.
The
foreperson should then sign and date the form and alert the
deputy clerk that you are ready to return your verdict.
Please
do not continue further with your deliberations if you find that

the Government has not proven venue.
Adapted from this Court's charge in United States v.
Wilson, 10 Cr. 629 (VB), Document 77 at 106-07; United
States v. Wilson, 512 Fed.Appx. 75 at 77 (2d Cir.
2013)("Where a statement is made in one jurisdiction
and relied upon in another, 'the materiality
requirement proves dispositive with respect to
venue.'"); Sand, Instr. 3-11.
With regard to venue, "[d]espite its constitutional
pedigree, venue is not an element of any crime, so as
to require proof beyond a reasonable doubt." United
States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012)
(emphasis in original). "As venue is not an element
of a criminal offense, there is no legal basis for the
request for an instruction to acquit if the jury finds
21
that venue was not proven." United States v. HartWilliams, 967 F.Supp. 73, 75-76 (E.D.N.Y.
1997)(Korman, J.)(proposing special verdict if venue
decided by jury). An "acquittal" on venue grounds
alone would be meaningless because the Double Jeopardy
Clause would not bar another prosecution if the
Government only fails to prove venue. See United
States v. Brennan, 183 F.3d 139, 149 (2d Cir.
1999)(vacating convictions on venue grounds but
recognizing "that a United States Attorney in a
district where venue could properly be laid may
consider undertaking a new prosecution"); see also
United States v. Hernandez, 189 F.3d 785, 792 n.5 (9th
Cir. 1999); United States v. Saavedra, 223 F.3d 85, 95
n. 1 (2d Cir. 2000)(Cabranes, J. dissenting)(" . . .
if we had vacated the defendants' convictions [on
venue grounds], the Double Jeopardy Clause of the
Constitution would not bar reprosecution of the
defendants . . .") As a result, the Court of Appeals
and some District Judges recently have asked in dicta
whether venue disputes must be submitted to the jury.
United States v. Liu, 515 Fed.Appx. 49, 52 (2d Cir.
2013)(summary order); Davis, 689 F.3d at 185 n.2;
United States v. Parrilla, 2014 WL 7496319 at *10 n.2
(S.D.N.Y. 2014)(Nathan, J.); see Hart-Williams, 967
F.Supp. at 75-77 (declining to submit venue issue to
jury; "no rational reason to submit the issue to the
jury" because venue is not an element of the crime
charged).
22
Request 16 - Manner of Proof

Your decision whether the defendant acted willfully in
making any statements you find to be false involves a decision
about the defendant's state of mind at the time the statements
were made.
It is obviously impossible to ascertain or prove
directly what the operation of the defendant's mind was.
You
cannot look into a person's mind to see what his state of mind
is or was.
But a wise and intelligent consideration of all the
facts and circumstances shown by the evidence and the exhibits

in the case may enable you to infer with a reasonable degree of
accuracy what the defendant's state of mind was.
In our everyday affairs, we are continuously called
upon to decide from the actions of others what their state of
mind is.
Experience has taught us that, frequently, actions
speak louder, more clearly, than spoken or written words.

Therefore, you may well rely in part on circumstantial evidence
in determining the defendant's state of mind.
Proof of the circumstances surrounding the defendant's
actions can supply an adequate basis for a finding that the
defendant acted knowingly and willfully.
The actions of an
individual must be set in their time and place. The meaning of a

particular act may depend on the circumstances surrounding it.
Thus you may consider evidence which you recall and believe
about the defendant's actual knowledge of certain facts and
23
occurrences, as compared to the testimony he gave about these

facts and occurrences; the extent to which statements were made
to conceal facts or events; and, in general, the manner in which
certain actions were undertaken by the defendant, and by others
with his knowledge.
You may consider whether the defendant had a motive to
lie or to conceal the facts. The Government is not required to
prove the existence of such a motive, let alone exactly what the
motive was.
The Government's failure to prove a motive does not
establish innocence.
But if you do find evidence of a motive,
that may help you decide what the defendant's state of mind was.
Therefore, you should ask yourselves whether the defendant stood
to gain any personal benefit from concealing the truth, or
whether he stood to avoid any personal liability.
Sand, Instr. 48-12.
24
Request No. 17 - Variance in Date Alleged

The Indictment alleges that certain acts occurred on
or about a specific date.
It does not matter if the evidence
you heard at trial indicates that a particular act occurred on a

different date.
The law requires only a substantial similarity
between the dates alleged in the Indictment and the dates

established by the evidence.
Court's charge in United States v. Lowe, 13 Cr. 985
(VB) at Tr. 881.
25
Request No. 18 - Stipulations

[If Applicable]
In this case you have heard evidence in the form of
stipulations.
A stipulation of fact is an agreement among the
parties that a certain fact is true.
You may accept as true the
fact as to which the parties have stipulated.

Adapted from Sand, Instrs. 5-6 and 5-7.
26
Request No. 19 - Particular Investigative Techniques Not

Required
[If Applicable]
You have heard reference, in the arguments and crossexamination of defense counsel in this case, to the fact that
certain investigative techniques were not used by the
Government.
There is no legal requirement, however, that the
Government prove its case through any particular means.
While
you are to carefully consider the evidence adduced by the

Government, you are not to speculate as to why they used the
techniques they did or why they did not use other techniques.
The Government is not on trial.
not your concern.
Law enforcement techniques are
Your concern is to determine whether or not,
on the evidence or lack of evidence, the defendant=s guilt has

been proven beyond a reasonable doubt.
Adapted from the charge of Judge John F. Keenan in
United States v. Medina, 91 Cr. 894 (JFK) (S.D.N.Y.
1992), and from the charge of Judge Pierre N. Leval in
United States v. Mucciante, 91 Cr. 403 (PNL) (S.D.N.Y.
1992).
27
Request No. 20 - Uncalled WitnessesEqually Available To Both

Sides
[If Applicable]
There are people whose names you heard during the
course of the trial but did not appear to testify.
One or more
of the attorneys has referred to their absence from the trial.

I instruct you that each party had an 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 they would have testified to had they been called.
Their
absence should not affect your judgment in any way.

You should remember my instruction, however, that the
law does not impose on a defendant in a criminal case the burden
or duty of calling any witnesses or producing any evidence.
28
Request No. 21 - Persons Not on Trial

You may not draw any inference, favorable or unfavorable, toward the Government or the defendant from the fact that
any person was not named as a defendant in this case, and you
may not speculate as to the reasons why other persons are not on
trial before you now.
Those matters are wholly outside your
concern and have no bearing on your function as jurors in

deciding the case before you.
Adopted from Court's charge in United States v. Lowe,
13 Cr. 985 (VB) at Tr. 881-82.
29
Request No. 22 - Preparation of Witnesses

[If Applicable]
You have heard evidence during the trial that
witnesses have discussed the facts of the case and their
testimony with the lawyers before the witnesses appeared in
court.
Although you may consider that fact when you are
evaluating a witnesss credibility, I should tell you that there
is nothing either unusual or improper 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, focus on
those subjects, and have the opportunity to review relevant
exhibits before being questioned about them here.
In fact, it
would be unusual for a lawyer to call a witness without such a

meeting.
Again, the weight you give to the fact or the nature
of the witness=s preparation for his or her testimony and what
inferences you draw from such preparation are matters completely
within your discretion.
Adapted from the Court's charge in United States v.
Lowe, 13 Cr. 985 (VB) at Tr. 846-47.
30
Request 23 - Testimony of Law Enforcement Officers

You have heard the testimony of a law enforcement
official.
The fact that a witness may be employed by the
federal Government as a law enforcement official does not mean

that his testimony is necessarily deserving of more or less
consideration or greater or lesser weight than that of an
ordinary witness.
(VB), Docket 77 at 87.
31
Request No. 24 - Defendants Testimony

[If Applicable]
The defendant in a criminal case never has any duty to
testify or come forward with any evidence.
This is because the
burden of proof beyond a reasonable doubt remains on the

Government at all times, and the defendant is presumed innocent.
In this case, the defendant, did testify and he was subject to
cross-examination like any other witness.
You should examine
and evaluate his testimony just as you would the testimony of

any witness.
Adapted from Sand, Instr. 4-7; United States v.
Gaines, 457 F.3d 238 (2d Cir. 2006).
32
Request No. 25 - Defendants Right Not to Testify

[If Requested by Defense]
The defendant did not testify in this case.
defendant has no obligation to testify or to present any

evidence because it is the Governments burden to prove the
defendant guilty beyond a reasonable doubt.
A defendant is
never required to prove that he is innocent.

You may not attach any significance to the fact that
the defendant did not testify.
No adverse inference against him
may be drawn by you because he did not take the witness stand.
You may not consider this against the defendant in any way.
Court's charge in United States v. Lowe, 13 Cr. 985
(VB) at Tr. 847.
33
Request 26 - Testimony of Cooperating Witnesses

You have heard witnesses who testified that they were
involved in criminal activities and have entered into agreements
to cooperate with the Government.
There has been discussion of
those agreements in the arguments of counsel.

There is nothing improper or illegal about the
Government's use of such witnesses.
Whether or not you approve
of the use of such witnesses in an effort to detect or prosecute

criminal activity is not to enter into your deliberations.
Your
sole concern is to decide whether the witnesses have given

truthful testimony in this courtroom.
Although the law allows the use of such testimony, the
nature of such testimony is such that it must be scrutinized
with great care and viewed with special caution.
As always, it
is for you to decide what weight, if any, to give to these

witnesses' testimony, in light of all the facts and
circumstances.
You should bear in mind that a cooperating witness has
an interest different from that of an ordinary witness.
witness who believes that he may be able to avoid criminal

prosecution or obtain a lesser punishment by testifying in a
manner favorable to the prosecution may have a motive to testify
falsely.
At the same time, you should consider whether the
witness would benefit more by lying or by telling the truth.

34
If you believe a witness was motivated by personal

gain, was the motivation one that would cause him to lie, or was
it one that would cause him to tell the truth, and did this
motivation color his testimony?
Obviously, you should reject the testimony if you find
that it was false.
However, if, after a cautious and careful
examination of the testimony and the witness' demeanor, you are

satisfied that the testimony is true, then you should accept it
as credible and act on it accordingly.
As with any witness, you
may accept parts and reject other parts of the witness'

testimony.
In sum, you should look to all the evidence in
deciding what credence and what weight, if any, you will give to
the testimony of Mr. Mangone.
Adapted from Court's charge in United States v. Lowe,
13 Cr. 985 (VB) at Tr. 845-46.
35
Request 27 - Immunized Witness

[If Applicable]
You have heard the testimony of a witness who has
testified under a grant of immunity from this Court. What this
means is that the testimony of the witness may not be used
against him in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise failing to
comply with the immunity order of this court.
You are instructed that the Government is entitled to
call, as a witness, a person who has been granted immunity by
order of this Court and that you may convict a defendant on the
basis of such a witness' testimony alone, if you find that the
testimony proves the defendant guilty beyond a reasonable doubt.
However, the testimony of a witness who has been
granted immunity should be examined by you with greater care
than the testimony of an ordinary witness. You should scrutinize
it closely to determine whether or not it is colored in such a
way as to place guilt upon the defendant in order to further the
witness' own interests; for, such a witness, confronted with the
realization that he can win his own freedom by helping to
convict another, has a motive to falsify his testimony.
Such testimony should be scrutinized by you with great
care and you should act upon it with caution. If you believe it
to be true, and determine to accept the testimony, you may give
36
it such weight, if any, as you believe it deserves.

Sand, Instr. 7-8.
37
Request 28 - Prior Perjury

There has been evidence that a witness who testified
at this trial lied under oath at another proceeding. I must warn
you that the testimony of this witness should be viewed
cautiously and weighed with great care. It is, however, for you
to decide how much of his testimony, if any, you wish to
believe.
Sand, Instr. 7-18
38
Request No. 29 - Character Witnesses

[If Applicable]
The defendant has called witnesses who have given
their opinion of good character.
This testimony is not to be
taken by you as the witnesss opinion as to whether the

defendant is guilty or not guilty.
alone to determine.
That question is for you
You should, however, consider this
character evidence together with all the other facts and all the
other evidence in the case in determining whether the defendant
is guilty or not guilty of the charges.
Such character evidence may indicate to you that it is
improbable that a person of good character would commit the
offense charged.
Accordingly, if after considering the question
of the defendant=s good character, you find a reasonable doubt

has been created, you must acquit him or her of all the charges.
On the other hand, if after considering all the evidence
including that of defendants character, you are satisfied
beyond a reasonable doubt that the defendant is guilty, you
should not acquit the defendant merely because you believe him
to be a person of good character.
Sand, Instr. 5-15; adapted from United States v.
Fayette, 388 F.2d 728, 737 (2d Cir. 1968). See United
States v. Kelly, 349 F.2d 720, 765 (2d Cir. 1965);
United States v. Kabot, 295 F.2d 848, 855 n.1 (2d Cir.
1961); see also Michelson v. United States, 335 U.S.
469 (1948).
39
Request No. 30 - False Exculpatory Statements

[If Applicable]
You have heard testimony that the defendant made
statements in which he claimed that his conduct was consistent
with innocence and not with guilt.
The Government claims that
these statements in which the defendant exculpated himself is

false.
If you find that the defendant gave a false statement to
divert suspicion from his offense, you may infer that the
defendant believed that he was guilty.
You may not, however,
infer on the basis of this alone that the defendant is, in fact,
guilty of the crimes for which he is charged.
Whether the evidence as to a defendant=s statements
shows that the defendant believed that he was guilty, and the
significance, if any, to be attached to any such evidence, are
matters for you, the jury, to decide.
Sand, Instr. 6-11.
40
Request No. 31 - Evidence of Similar Acts

[If Applicable]
The Government has offered evidence tending to show
that on different occasions the defendant engaged in conduct
similar to the charges in the Indictment.
The defendant is not on trial for committing these
uncharged acts.
Accordingly, you may not consider the evidence
of the similar acts as a substitute for proof that the defendant

committed the crimes charged.
Nor may you consider this
evidence as proof that the defendant has a criminal personality

or bad character.
The evidence of the other, similar acts was
admitted for a much more limited purpose and you may consider it
only for that limited purpose.
If you determine that the defendant committed the acts
charged in the indictment and the similar acts as well, then you
may, but you need not draw an inference that in doing the acts
charged in the indictment, the defendant acted knowingly and
intentionally and not because of some mistake, accident or other
innocent reasons.
Evidence of similar acts may not be considered by you
for any other purpose.
Specifically, you may not use this
evidence to conclude that because the defendant committed the

other act the defendant must also have committed the acts
charged in the indictment.
41
Request No. 32 - Charts and Summaries

The Government has presented exhibits in the form of
charts.
I will characterize these charts as demonstrative
charts.
These demonstrative charts were shown to you in order
to make the other evidence more meaningful and to aid you in

considering the evidence.
The information on each of these
demonstrative charts is based on other exhibits in evidence in

the case and on testimony presented during the case.
The
sources of information for these demonstrative charts are noted

on each chart.
The underlying exhibits for these charts will be
provided to you.
These demonstrative charts are not better than
the testimony and documents on which they are based, and are not
themselves independent evidence.
Therefore, you are to give no
greater consideration to these demonstrative charts than you

would give to the evidence on which they are based.
It is for you to decide whether the demonstrative
charts correctly present the information contained in the
testimony and the exhibits on which they are based.
You are
entitled to consider the demonstrative charts if you find that

they help you in analyzing and understanding the evidence.
Sand, Instr. 5-12.
42
Request No. 33 - Sympathy, Bias, Prejudice

Under your oath as jurors you are not to be swayed by
sympathy.
You are to be guided solely by the evidence in the
case, and the crucial, hard-core question that you must ask
yourselves as you sift through this evidence is: Has the
Government proven the guilt of the defendant beyond a reasonable
doubt?
It is for you alone to decide whether the Government
has proven that the defendant are guilty of the crimes charged
solely on the basis of the evidence and subject to the law as I
have charged you.
It must be clear to you that, if you let fear
or prejudice, or bias or sympathy interfere with your thinking,

then there is a risk that you will not arrive at a true and just
verdict.
If you have a reasonable doubt as to the defendants
guilt, you should not hesitate for any reason to find a verdict
of not guilty.
On the other hand, if you should find that the
Government has met its burden of proving the defendants guilt

beyond a reasonable doubt, you should not hesitate because of
sympathy or any other reason to render a verdict of guilty.
Sand, Instr. 2-12.
43
Request No. 34 - Conclusion

Your function now is to weigh the evidence in this
case and to determine the guilt or non-guilt of the defendant.
You must base your verdict solely on the evidence and these
instructions as to the law, and you are obliged under your oath
as jurors to follow the law as I have instructed you, whether
you agree or disagree with the particular law in question.
The verdict must represent the considered judgment of each
juror.
In order to return a verdict, it is necessary that each
juror agree to it.
Your verdict must be unanimous.
It is your duty, as jurors, to consult with one

another, and to deliberate with a view toward reaching an
agreement, if you can possibly do so without violence to
individual judgment.
Each of you must decide the case for
himself or herself, but do so only after an impartial discussion

and consideration of all the evidence in the case with your
fellow jurors.
In the course of your deliberations, do not
hesitate to re-examine your own views and to change an opinion

if you are convinced it is erroneous.
But do not surrender your
honest conviction as to the weight or effect of evidence solely

because of the opinion of your fellow jurors.
Remember at all times, you are not partisans.
judges judges of the facts.
You are
Your sole interest is to seek the
truth from the evidence in the case.

44
If you are divided, do not report how the vote stands,

and if you have reached a verdict, do not report what it is
until you are asked in open court.
In conclusion, ladies and gentlemen, I am sure that,
if you listen to the views of your fellow jurors and apply your
own common sense, you will reach a fair verdict.
Remember that your verdict must be rendered without
fear, without favor, and without prejudice or sympathy.
Dated:
White Plains, New York

June 29, 2015
Respectfully submitted,
PREET BHARARA
United States Attorney for the
Southern District of New York
By:
________________________________
James McMahon/Benjamin Allee
Assistant United States Attorneys
(914) 993-1936/1962
45

Show Temp

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Show Temp

Hochgeladen von

Copyright:

Verfügbare Formate

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 1 of 48

UNITED STATES DISTRICT COURT

14 Cr. 440 (VB)

GOVERNMENTS REQUESTS TO CHARGE

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 2 of 48

General Requests .............................. 2

The Indictment ................................ 4

Summary of the Indictment ..................... 5

Use of Conjunctive in the Indictment .......... 7

The Statute ................................... 8

Purpose of the Statute ....................... 10

Elements of the Offense False, Fictitious

Statement or Representation .................. 13

Request No. 10: Knowing and Willful Conduct .................. 15

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 3 of 48

Request No. 22: Preparation of Witnesses [If Applicable] ..... 30

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 4 of 48

UNITED STATES DISTRICT COURT

14 Cr. 440 (VB)

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 5 of 48

Request No. 1 - General Requests

Function of Court and Jury

Indictment Not Evidence

Statements of Court and Counsel Not Evidence

Burden Of Proof and Presumption of Innocence

Government Treated Like Any Other Party

Right to See Exhibits and Have Testimony Read During

Punishment Is Not to Be Considered By the Jury

Verdict of Guilt or Innocence Must Be Unanimous

Jurys Recollection Governs

Duty to Base Verdict on Evidence

Motions, Objections, and Questions by the Court

Duty to Weigh Evidence Without Prejudice

Direct and Circumstantial Evidence

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 6 of 48

Circumstantial Evidence of Knowledge, Willfulness, and

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 7 of 48

Request No. 2 - The Indictment

I will not read the entire Indictment to you at

Rather, I will first summarize the offense charged

in the Indictment and then explain in detail the elements of

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 8 of 48

Request 3 - Summary of the Indictment

it and then will give you the law in greater detail.

1) THOMAS LIBOUS had obtained a job for his

son at a Westchester law firm in exchange for LIBOUS' promise to

The Indictment further

alleges that THOMAS LIBOUS was interviewed by Special Agents of

he could not recall how his son began to work at

the law firm;

no deals were made to get his son the job at the

he was not aware that the lobbying firm had paid

any part of his son's salary at the law firm;

he never promised to refer work to the law firm;

he was not involved in his son's decision to work

at the law firm;

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 9 of 48

he had no business or personal relationship with

the law firm; and

he did not know of any relationship between the

lobbying firm and the law firm.

Case 7:14-cr-00440-VB Document 45 Filed 06/29/15 Page 10 of 48