1.Charge Conference — Offense Elements and Venue
181 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA,
v. 14 Cr. 68 (KBF) ROSS WILLIAM ULBRICHT, Defendant. ------------------------------x New York, N.Y. January 29, 2015 9:10 a.m. Before: HON. KATHERINE B. FORREST, District Judge APPEARANCES PREET BHARARA, United States Attorney for the Southern District of New York BY: SERRIN A. TURNER TIMOTHY HOWARD
Assistant United States Attorneys JOSHUA LEWIS DRATEL LINDSAY LEWIS JOSHUA HOROWITZ Attorneys for Defendant - also present - Special Agent Vincent D'Agostino Molly Rosen, Government Paralegal Nicholas Evert, Government Paralegal
(In open court; jury not present)
COURT CLERK: This is the continuation of the matter now on trial. The United States of America v. Ross William Ulbricht, 14 Cr. 68. Counsel, state your names for the record.
MR. TURNER: Good morning, we're down to our skeleton crew, Serrin Turner and Timothy Howard for the government and Molly Rosen, paralegal.
THE COURT: Good morning.
MR. DRATEL: Joshua Dratel for Mr. Ulbricht who is standing beside me. Joshua Horowitz is here as well. Lindsay Lewis from my office is on her way.
THE COURT: Thank you. Good morning to all of you.
MR. DRATEL: Good morning.
THE COURT: My intention was to proceed through the jury instructions and to pick up where we left off, unless you folks had other things that you would like to deal with first. Are there any housekeeping matters or other matters that we should deal with right now before we start?
MR. DRATEL: No, your Honor.
THE COURT: Mr. Turner.
MR. TURNER: No, your Honor. Thank you.
THE COURT: Thank you. We are in the jury instructions. We're working from the same version as yesterday, which is that which you folks have provided to the Court, and we are on objects of the conspiracy, page 54. The single-versus-multiple-conspiracy issue is one that I think we briefed. I think that, unless anybody has anything else they'd like to say in addition to what has been said, I'll go through everything carefully and make a determination as to whether we should have a single versus multiple charge. If there are additional points you'd like to make, go ahead.
MR. DRATEL: We would like to do research and perhaps have a letter perhaps by mid-day tomorrow perhaps.
THE COURT: I will then hold off on going through that. It's something that I need to give thought to, so having your letter would be very helpful.
MR. DRATEL: Okay. Thank you.
THE COURT: So that's the changes for 52 and 53. That's pages 52 and 53, so we'll hold on those. In terms of the objects of the conspiracy, on page 54, there are two changes, one of which doesn't appear to be objected to. That's the insertion of the "beyond a reasonable doubt" language which is fine with me.
MR. TURNER: No objection.
THE COURT: I take it that was then a defense point, so we'll accept that.
MR. DRATEL: Yes.
THE COURT: The other point was the deletion of "or to aid and abet such activity," and this appears in several places. I wanted to find out from Mr. Dratel the basis of the deletion.
MR. DRATEL: I don't think you can aid and abet a conspiracy. Aiding and abetting is the complete -- and while a conspiracy is completed upon agreement, that's different than completing a substantive offense, so I don't see any basis for aiding and abetting a conspiracy. That's a multilevel inchoate crime, which I think is a due process violation.
THE COURT: I was just reading, and I think it's a Judge Oakes case, Second Circuit in the 80's, it could be the Perry case -- but I'm not sure if that's the right case I have written down here, actually, I have it in my robing room, I have the pink highlighter on it -- where this exact issue was debated. And Oakes writes the decision for the panel. The panel believes that there is a crime of aiding and abetting a conspiracy. He suggests that he would have reached the same result on a different basis. So it's sort of a funny opinion in some ways because it says my colleagues, my colleagues, my colleagues in the majority opinion as opposed to what sounds almost like a dissent. And that opinion I believe has been cited again, and that's the Orozco-Prada case, which does suggest that this kind of crime exists. I looked that issue because I, like you, didn't know how you would aid and abet something that itself is a conspiracy, but it does appear to be something which the Second Circuit has addressed.
Have you found any cases, Mr. Dratel, which have said that it's not a crime?
MR. TURNER: Can I clarify for the record, the charge is conspiracy to aid and abet, not to aid and abet a conspiracy.
THE COURT: I'm sorry. Correct. Conspiracy to aid and abet. My mistake flows from the fact that I find this a somewhat confusing concept.
MR. DRATEL: That, I don't think you can have a conspiracy to aid and abet either because the conspiracy to commit is to the unlawful act, not to aid and abet an unlawful act, and there are cases on that. I don't have them. Maybe we'll put that all in our letter tomorrow, your Honor, okay? We'll include that.
THE COURT: Actually, it is the U.S. v. Perry case. If you've got anything, Mr. Dratel, that suggests that U.S. v. Perry and that line is not good law, I would need to see that; otherwise, I would be bound to follow Second Circuit law.
MR. DRATEL: I understand.
THE COURT: It's 643 F.2d 18, and that was the case that I was referring to.
MR. DRATEL: Thank you. Can we address that in our letter tomorrow?
THE COURT: Yes.
Is there anything that you wanted to say further on that topic, Mr. Turner, other than what's laid in and out your papers?
MR. TURNER: On that topic, yes. This has already been briefed. It was in the motions to dismiss. This is the charge in the indictment. It specifically alleges conspiracy to aid and abet. The indictment has been upheld in response to the motion to dismiss, and we're now entitled to present that indictment to the jury. So as far as we're concerned, it's the law of the case.
THE COURT: I hear your position. Let's go on to the next change, which really starts on 57, and it's the inclusion of additional language on participation in a conspiracy, and it's that whole page, 57. I didn't know if this was agreed-to language or not agreed-to language.
MR. TURNER: This is the government's proposal. I'm not sure whether he agrees to it.
THE COURT: Defense.
MR. DRATEL: Our defense is not withdrawal, and on its face, the instruction appears not to be objectionable; however, I just want to go back and look to see if we want to add any language.
THE COURT: The Court was fine with the language.
Page 58, extent of participation, the first change is the insertion of "He need not have been a part of the conspiracy when it ended." And I think that that is a correct statement of the law.
MR. DRATEL: Yes.
THE COURT: And I think it's a government change.
MR. TURNER: Yes, your Honor.
THE COURT: I don't have any problem with the inclusion of "participated in" as opposed to "join" in that first paragraph on page 58.
Mr. Dratel, do you have any problem with that?
MR. DRATEL: No.
THE COURT: The next change is also the similar one. We'll just take both of those joining/participating changes. The following one is "before or after he joined" in addition to all that was done, and then the language that follows that and then the other insertion.
MR. DRATEL: I know what the state of the law is, but I'm just objecting to "before."
THE COURT: You're making a principled objection recognizing the law is against you on that?
MR. DRATEL: Right.
MR. TURNER: Your Honor, this was actually my language, but can we change "before or after he joined" to "before or after he participated"? It's just a small concern there. If he started the conspiracy, it's a little awkward to say he joined, so if we can make it a little more open.
THE COURT: I think the effect of participation or joining is the same.
The next page, page 59, without reading it in, it's the first full paragraph, I was fine with these changes. Does anybody have a problem with them?
MR. TURNER: No. That was the government's change.
MR. DRATEL: Yes. It's the same concept.
THE COURT: So I'll take those. Then we are on page 64. There was a typo which was the first change. That's fine. Deletion of the word "to." And then the inclusion of the word specific.
MR. DRATEL: I'm sorry, page 60 --
THE COURT: Four. This is continuing criminal enterprise charge, the CCE charge. So the inclusion of the words "specific violations."
MR. TURNER: My only concern there, your Honor, is that there's clear circuit law holding that a conspiracy can be one of the predicate violations. So, if the idea here is that it has to consist in, like, one specific act, I don't think that's accurate. I think three or more violations says enough.
THE COURT: Well, let's take that as part of some of the -- and this I think is the issue that we should spend the rest of our time talking about this morning, perhaps -- which is, the issues with respect to CCE more generally; and I think that point fits into the extent to which the three or more series of violations need to be laid out someplace.
I think the law is clear that they need not be laid out in the indictment. There have been some views expressed by judges that perhaps they should be, but the law has developed that indictments have passed muster without the violations being specified. So, I believe under the law, that ship has sailed. The question is whether or not they need to be spelled out in the instructions or in closing or somewhere. And here, the government does reference "these offenses include," but violations I think are potentially broader than that.
Go ahead, Mr. Turner.
MR. TURNER: Sure. Your Honor, if it's permissible for the indictment to just have this level of specificity which is reflected in the instruction that it includes violations of these various offenses, that's, again, the charge we're entitled to present to the jury. There's no sort of sudden bill of particulars that can be thrust on the government. I think the language in some of the opinions when they talk about specifying the offenses, all they're really talking about is specifying offenses as reflected in something like page 66. I haven't seen any law suggesting that the government is suddenly required to choose three specific acts and argue only those acts. The jury is free to select whatever acts they want to from the evidence they have heard.
THE COURT: I want to separate analytically a couple of things just to make sure that I understand exactly where the issues between the parties join.
One is listing the counts on page 66, Count One, Count Two, Count Three and then another Count Three is listing offenses. If the jury convicted the defendant on those counts, they could certainly be predicate counts that would constitute the continuing series. That's one issue.
There's a separate issue as to whether or not if the defendant were to be acquitted on one or more of those counts, whether or not there would be sufficient other violations in whatever counts either he was convicted of or there need not be convictions under the CCE case law for violations to be found.
In other words, you can have somebody who is acquitted of a particular charge but found to have violated the narcotics law in a continuing series, so without having a conviction on that series. That seems to be clear.
So I need to understand if the government's position is that they're only seeking to have the series be Counts One Two, Three and Three, because Three is mentioned twice, or whether it is that there are potentially numerous violations embedded within any one of those counts.
MR. TURNER: It's the latter, your Honor. When we reference the counts here, it's just that these offenses are defined in discussing Count One, Count Two, Count Three. For example, the last paragraph there, using a communication facility in committing or in causing or facilitating violations of narcotics laws, that's not charged anywhere in a count. It's one of the objects of Count Three, but it's not something the jury is required to find. They can find that another object was part of the conspiracy. But nonetheless, the point is that that violation is defined in discussing Count Three.
So we could argue to the jury there have been numerous electronic communications you've seen where we would argue the defendant is using a communications facility in furtherance of narcotics trafficking or of aiding and abetting narcotics activity. The law is very clear that each time a communications facility is used in that way, that is a separate violation. So the jury can pick three of those and say --
THE COURT: I think the communication facility, agree with you, there is a case on that. I don't think it's the most clear of all of the CCE continuing series of violations. There's been some criticism of using repeated phone calls all in furtherance of the same object, but I don't disagree with you that there is a case on that. Certainly I think there are cases which say if you distributed drugs or participated in the distribution of drugs on three or more occasions, that's enough.
MR. TURNER: Right. We'll have thousands of transactions that the defendant participated in to the extent that he facilitated those transactions through the site, got a commission through the site. Each one of those can be taken separately.
THE COURT: So your position is that the government does not need to anywhere lay out, for instance, on January 1, 2012, the following happened on December 1, the following happened November 1, the following happened, etc.
MR. TURNER: Right. There's no need for us to specify in advance "Here are the ones you are limited to finding." The jury is free to look at the evidence and decide whether the charge in the indictment has been proven.
THE COURT: Let me hear from Mr. Dratel as to the basis for deleting these. And I've looked at the cases, by the way, that you folks have cited in your original pieces.
Go ahead, Mr. Dratel.
MR. DRATEL: If the government doesn't have to specify the series of violations that constitute the crime, then the jury is not tethered to anything legally in the context of what the elements of the offense are and what the charge is. So, for example, we don't know what was in the grand jury. I doubt Mr. Duch's material was in the grand jury. He signed a cooperation agreement in December. So they're going to put in front of the jury a series of violations to establish the CCE that the grand jury never saw. So, this is a variance of significant proportion.
Also, essentially what the government wants to do is have the option of a charge that is duplicitous in the sense that it includes many other offenses without defining them, and that's something that's obviously a problem with respect to due process, double jeopardy, all of that.
The question of the indictment is very different. If the government's position were correct, all the Court would do on these instructions would read the indictment and not read a series of instructions about what the elements are of an offense and explain them to the jury.
Also, you know, with respect to Counts One, Two and Three, I don't think it's necessarily the case that they alone would constitute a series because they may all be based on the same single act. In other words, they can find Count One and Count Two based on the same single transaction.
THE COURT: Well, in fact, there's case law about some of the points that you have raised, and let's just take the double jeopardy point, and the way it appears to be dealt with is if there's a conviction on the CCE charge, then you deal with that at sentencing. And you may end up dismissing, for instance, a conviction on a conspiracy charge, but it's a sentencing issue. That's the way I read the case law for the double jeopardy issue.
In terms of the violations for the grand jury, let me hear from you, Mr. Turner. It does strike me that certainly there were statements in the indictment as to thousands of transactions and that was part of the indictment and, therefore, the fact that you have put on evidence of one of those vendors and buyers is just proof of that.
MR. TURNER: I don't think that has anything to do with what we can prove to the jury. To give your Honor an example from a different context. Overt acts: Where you have to specify an overt act as part of a conspiracy, part of the standard instruction the to the jury is you don't have to find that that specific overt act was the overt act. You're free to find that any other overt act satisfies the overt act requirement.
It's the same here. We're not suggesting -- of course we're not suggesting that the elements of the crime should not be instructed to the jury, but that's different from limiting the government to a specific theory or limiting the jury to a specific finding that it has to make when numerous alternative findings would satisfy the elements.
THE COURT: How about the point Mr. Turner just made, Mr. Dratel, on the overt act? That does seem to have some traction.
MR. DRATEL: I think it's really more like a R.I.C.O. where you have predicate offenses that are the underlying bases for the count and those have to be enumerated, charged and proven separately; otherwise, you have no idea what the jury is doing. If the government has thousands of transactions, it shouldn't be that difficult to list them for the jury or to identify them for the jury in a way that protects Mr. Ulbricht from this moving target that we'll never know what is the basis for this count. Just by saying, well, there's drug-dealing on the site, you won't be able to do that in a R.I.C.O. Well, it's an organized crime operation, so therefore pick -- and those cases initially were like that, they were all reversed or changed to the extent that you couldn't just have predicate acts floating out there that were not specific and identified.
THE COURT: I'll let you respond. Let me find out how the jury is doing. We're waiting on five.
MR. TURNER: You can say this with respect to any crime, your Honor. You can say wire fraud, unless the government has spelled out in the instructions what were the constituent acts of the wire fraud, then we'll never know what the jury was thinking. It's the jury's business to determine what proof meets the elements. That's the way it works.
So here, we have the charge in the indictment. It's up to the jury to decide whether the proof the government has presented meets the elements of the crime and the government doesn't have to again instruct the jury that only if you find the proof is met, that the proof meets the elements in this particular way, can you find the defendant guilty. No. It's up to the jury to figure out on their own whether there is sufficient proof to meet the elements. That's their job. And this charge is no different from any other in that respect.
MR. DRATEL: If he's talking about wire fraud, a substantive wire mail fraud count has the actual transmission as the crime. It's identified in the indictment. This is not a conspiracy.
THE COURT: Let me consider those arguments against the case law and we'll take it from there.
While we're waiting for the jurors, let's just go on. Page 69, there are two changes. I agree that as to the first shaded language, it's unnecessary and confusing actually to the Court, that's the shaded language, the insertion of "but any such person." I assume that the next portion of language is a governmental insertion, and I would like to hear from the defendant whether or not he agrees.
Mr. Turner, am I right about that?
MR. TURNER: Yes, your Honor.
THE COURT: I don't think either of these insertions are frankly necessary.
MR. TURNER: I can explain the reason why we thought it was necessary.
THE COURT: Why don't you tell me your reason.
MR. TURNER: Because the language in the instruction as it exists focuses on employer/employee-like supervision, and we have actually two theories on the organizer supervisor manager relationship, and one is the fact that this individual, this defendant, supervised a number of employees or contractors who were working under him, that's one theory, but he was also an organizer of others. The vendors, he organized all of their activities into essentially one orderly enterprise in the sense there is very specific Second Circuit language approving of that theory. That's a theory we want to argue to the jury and that's why we'd like it reflected in the instructions.
THE COURT: Let me understand that argument. Is it the government's position that to focus for a moment on the word "organize" or "organizer" as this element can be read to do, or it has three different parts but focusing on "organizer," is it the government's position that the defendant, if he had no other administrators, would nonetheless have organized whatever number of vendors there are and, in fact, organized whatever buyers there are through the implementation of electronic processes?
MR. TURNER: I think we focus on the vendors, but the answer is yes. So if you had a kingpin who, let's say, didn't have anybody who was his employee, not that you would characterize it that way, but he nonetheless had a whole network of vendors and that his activity was crucial into organizing them all into one effective project or one effective enterprise, that would meet the terms of the statute as the Second Circuit has specifically defined organizer in this context. This is verbatim Second Circuit language.
MR. DRATEL: Applied in a very, very different context, --
MR. TURNER: I don't think so.
MR. DRATEL: -- not in the context that they're talking about, people, buyers and sellers out in the world, completely disconnected from the defendant on a real-world level.
MR. TURNER: We're talking about a continuing criminal enterprise.
THE COURT: This is a mob case. I forgot which one you cited. What's the name of the case?
MR. TURNER: I was just going to check my notes, your Honor. I can pull it up. I believe the circuit is just defining those terms supervisor, organizer, manager generally and that's the way it defines "organizer," but I can pull it up, your Honor.
THE COURT: I can look back at your original instruction and see what you cited.
MR. TURNER: I think the whole point of the statute is to go after someone who builds an enterprise, and you can do that in a number of ways.
THE COURT: Let me throw this out there, but tell me what your view is on how it's different from -- and it's somebody who is a broker and what they do is they send out instructions for everybody to call an automated phone line and push the button "I'd like to buy now," and 15 people call in. So it's one person working out of his own home, he's got a bunch of stray cats wandering around wanting to sell drugs, he says "Fine, if you want drugs, call this number and push the button, press one," he's organized them. Does that constitute organizer?
MR. TURNER: I think it could. I think if you're creating an enterprise there that is something different than what existed before. If you are building a substantial enterprise and you are the key organizer of that enterprise, then you can do that in a number of ways. There are other elements of the statute, as well. You have to yourself receive substantial profits from the enterprise. It can't just be some guy in the street who is brokering some deals --
THE COURT: Although $1,400 was found to be substantial in one of the cases. I'm saying the word "substantial" is --
MR. TURNER: That's the flexibility of the statute, I suppose. There are differences between the terms organizer supervisor and manager. Supervisor and manager mean something different than organizer; and the way the Second Circuit has specifically defined it is exactly the way we put it in the instruction.
MR. DRATEL: I don't think the Second Circuit ever defined it as customers.
MR. TURNER: Again --
THE COURT: He was focusing on vendors. What's your view on the point regarding vendors?
MR. TURNER: The vendors are -- the organizational aspect of it in the context of those cases is much more clearly connected in terms of an organization.
This is not an organization. There is no way the government can claim this is an organization. So in the context of organize, organize is a root of organization. Vendors are not part of an organization. Even under the government's theory, they avail themselves of a website; it's not an organization. And that's what this statute is about.
It's not about a landlord, even if the landlord is liable being the organizer because he rents out space to people who deal drugs, that's not a CCE. It's never been.
THE COURT: Let me consider all of that.
We have also got on page 72 -- are we still waiting for some folks?
COURT CLERK: Two more.
THE COURT: We have conspiracy to commit or aid and abet computer hacking. Now, the indictment does charge aiding and abetting for computer hacking.
MR. DRATEL: That's just the same question, but it says to commit or aid and abet. I know it charges that. I think it's just the same argument as before about the conspiracy to aid and abet. I don't think this is an aid and abet conspiracy. This is a conspiracy to aid and abet. My objection is to the legal concept of a conspiracy to aid and abet. That would not be appropriate.
THE COURT: Tell me, Mr. Turner, how you folks read this. Do you read it as a conspiracy to commit or a conspiracy to aid and abet computer hacking, or do you read it as a conspiracy to commit computer hacking and separately potentially aiding and abetting computer hacking?
MR. TURNER: It's a conspiracy to commit or to aid and abet computer hacking; that's the way it's charged. So there's an agreement with others to commit computer hacking or to aid and abet others in computer hacking.
THE COURT: In other words, the jury could not find conspiracy but could find aiding and abetting computer hacking?
MR. TURNER: No. It's a conspiracy charge.
THE COURT: I think that's what I'm trying to figure out in terms of how you read it, because one could parse the language in two different ways.
MR. TURNER: The object of the conspiracy is to commit or aid and abet computer hacking.
THE COURT: So it is exactly the same issue. Then we've got the same issues appear on page 73. I think those are the same issues.
MR. DRATEL: Yes.
THE COURT: It's the same issue on page 75, so those all flow from that issue.
The next change I have is on page 83. It's the deletion of the term "funds." Did anybody disagree with that deletion?
MR. TURNER: Your Honor, I'm sorry. Could we go back to 73. I think there was an additional change --
THE COURT: I'm sorry. You're right.
MR. TURNER: -- which would include any computer connected to the Internet.
THE COURT: Correct. Whose change was that?
MR. DRATEL: That was mine. And the reason would be I think that's the equivalent of a directed verdict on that element. It's kind of like with the interstate commerce and some of the other aspects about drugs. I think the current state is not to tell the jury that a specific piece of evidence satisfies that element. It may not be a dispute, but I think it's somewhat of a directed verdict on that issue.
THE COURT: Mr. Turner.
MR. TURNER: Well, your Honor, I think it's providing an example to the jury of what a protected computer can mean. All it says is "...which would include any computer connected to the Internet." It doesn't say that the computers in this case have been proven to be connected to the Internet or anything like that.
THE COURT: I now understand the back and forth on that issue, so let me circle back to it. Then if there is nothing else, let's go to page 83, and that's a deletion by the defendant. Does anybody have a problem with that deletion?
MR. TURNER: Yes, your Honor. I think it's an accurate statement of the law. They need to understand that "funds" includes a medium of exchange so that the government can argue that bitcoins are funds under the statute.
THE COURT: Mr. Dratel, do you disagree that it's a correct statement of the law?
MR. DRATEL: The basis for the objection is consistent with our pretrial motions in respect to the money laundering counts.
THE COURT: I will then keep the fund language consistent with my ruling on that motion.
Page 85, there is a deletion and insertion. Is it your deletion?
MR. DRATEL: It's my deletion.
THE COURT: It's Mr. Dratel's deletion.
MR. DRATEL: Both are mine.
THE COURT: Why don't you tell me the basis.
MR. DRATEL: Sure. I'll take the second one first. It just says "each potential conspirator." I think there has to be a conspirator, not a potential conspirator, but the larger one in the first paragraph is --
THE COURT: Let me make sure we're in the same place. Page 85, this is on money laundering?
MR. DRATEL: Yes.
THE COURT: The third element.
MR. DRATEL: Yes. And the first one I mentioned is just that the last word of the second paragraph, the word "potential."
THE COURT: I see. There's also the insertion in between.
MR. DRATEL: Right.
THE COURT: That's not yours?
MR. DRATEL: Wait. No. I think they're all mine, but the first sentence that is deleted, with the one that begins with "The government does not have to," it's our position -- and I understand what the state of the law may be -- but it's our position that it would have to be specified because otherwise, again, we'd have the same problem of the jury basically passing on something that is not even in the case. It says -- I take out the word "only," that the government has to prove that the individuals agreeing knew that the defendant knew the transactions involved the proceeds, because I believe that's an element of the offense is the defendant's knowledge.
THE COURT: We're waiting on two jurors who have been among those coming in a little bit later on another occasion. One of them number three has said that he's on his way. He has communicated with Joe, but we haven't heard from number six, so he's going to try to find out where she is.
Mr. Turner, why don't you respond to what Mr. Dratel just said.
MR. TURNER: I think this is a pretty simple one, your Honor. The defendant's view of the law, I mean, basically is an instruction which reflects what the defendant desires the law to be but not what it is. 1956 is very clear that while the government has to prove that the proceeds actually did come from specified unlawful activity, as far as the defendant's state of mind is concerned, the government only has to prove the defendant knew the proceeds came from some form of unlawful activity. The statute is explicit about that.
THE COURT: I do agree with you, Mr. Turner, that that is the current state of the law.
MR. DRATEL: What about "potential"?
THE COURT: The word "potential"?
MR. TURNER: No objection.
THE COURT: We'll take out the word "potential."
The next page, page 86, the first change is simply a typo. "It concerns," and then the insertion of the words "the purpose." And then down at the bottom there's an additional sentence, which I think is a correct statement of the law.
MR. DRATEL: I would take out the "again."
MR. TURNER: No objection.
THE COURT: No objection?
MR. TURNER: No.
THE COURT: Page 89, variance in dates. This struck me as language changes and not anything particularly substantive.
MR. TURNER: I think that's right. We just wanted to make clear that there's case law holding that as long as we prove that conduct occurred within the dates, not even necessarily around the dates. This is basically in response to the defense's argument that oh, well, he was involved, but then he left. We would argue that, if so, that's conduct within the date range and is still leaves him liable.
THE COURT: Mr. Dratel, do you have any problem with this?
MR. DRATEL: I think the second sentence, the Court instruction was the correct instruction and the traditional instruction. That's what I think it should be as far as the second sentence.
THE COURT: In other words, you would not have any conduct alleged, you object to the insertion of that and would keep "These events or transactions occurred."
MR. DRATEL: I'm sorry. Third sentence. I'm sorry.
THE COURT: Third sentence. As long as there is a substantial similarity between the dates alleged, etc., etc., that was the way it was.
MR. DRATEL: Yes.
THE COURT: And you prefer that over "the conduct occurred around any dates or within any time periods."
MR. DRATEL: Correct. Because that means it could occur without -- that language could have it occur outside the time period of the indictment.
MR. TURNER: Which is fine, as long as it's around the time period.
MR. DRATEL: I don't think so.
MR. TURNER: No. That's what substantially similar means.
THE COURT: It's within any time period the indictment alleges.
MR. TURNER: That's what we want to make clear.
THE COURT: The cases I think talk about substantial similarity. Let me see what you cited, Mr. Turner, as to whether or not the breadth of it supports what you're saying, but I'm more used to substantial similarity language.
MR. TURNER: Can we provide that case law later in the day?
THE COURT: You may have had it already in your initial instructions. I just didn't think there was a --
MR. TURNER: This is a modification based on the defense's opening, but there is support in the law for the "within" concept.
THE COURT: Give me what you have.
MR. TURNER: Sure.
THE COURT: Fine. Page 90, venue, this is a case in which venue has received more attention than some cases. I think it is worth inserting the following sentence after the first sentence. I think it's implicit, but I think in this case it's perhaps more useful than in some cases to hold this out. The insertion would be "You must make a separate venue determination with respect to each count." Otherwise, I am fine with the changes that have been proposed.
MR. TURNER: We have no objection to that change, your Honor.
MR. DRATEL: No, your Honor. No objection.
THE COURT: Now, that's for that page, page 90. Now, on the next page, it's still in the venue section, but there are debates or disputes between the parties as to the deletions on these pages. So the Rowe case does appear to support the first recitation of the law.
Are you folks okay or do we need a very short break before we start? Let's get going. Bring Mr. Duch out.
The Remiroyer (ph) case is I think the second case for the second paragraph there that, when I was going over it, it does appear that the law is clear, it's preponderance. I understand your point. Mr. Dratel, I assume for you, it's your argument for reasonable doubt for that for venue, but you understand the law is against you on that --
MR. DRATEL: Yes.
THE COURT: -- for just venue, only venue in terms of the reasonable doubt.
MR. DRATEL: I'm sorry?
THE COURT: The only element which the jury finds by a preponderance is the venue element. Every other element is beyond a reasonable doubt.
MR. DRATEL: Right.
THE COURT: Let's bring out the jury.
(Continued on next page)
(In open court; jury present)
THE COURT: Good morning, ladies and gentlemen.
Mr. Duch, I remind you that remain under oath from yesterday.
MICHAEL DUCH: Yes.
THE COURT: Mr. Dratel, you may proceed.
MR. DRATEL: Thank you, your Honor. MICHAEL DUCH,