Buffis Trial: Proposed Jury Instructions (Government)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA )

) v. ) Criminal No. 13-CR-30028-MGM

) JOSEPH BUFFIS, )

) Defendant. )

GOVERNMENTS PROPOSED FINAL JURY INSTRUCTIONS

The United States of America, by Carmen M. Ortiz, United States Attorney for the

District of Massachusetts, hereby submits its proposed final jury instructions, in the above-

captioned case, pursuant to Rule 30 of the Federal Rules of Criminal Procedure. The

Government respectfully reserves the right to supplement, modify, or withdraw these instructions

in light of the defendant=s jury instructions, rulings on motions in limine, or developments at

trial.

Respectfully submitted,

CARMEN M. ORTIZ United States Attorney /s/ Steven H. Breslow STEVEN H. BRESLOW (NY2915247) DEEPIKA B. SHUKLA (NY4584009, CT29229) Assistant United States Attorneys 300 State Street, Suite 230 Springfield, MA 01105 413-785-0237 [email protected]

Case 3:13-cr-30028-MGM Document 173 Filed 05/28/15 Page 1 of 40

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Certificate of Service

Dated: May 28, 2015

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants.

By: /s/ Deepika B. Shukla DEEPIKA B. SHUKLA Assistant U.S. Attorney


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TABLE OF CONTENTS ______________________________________________________________________________ INSTRUCTION TITLE PAGE

FINAL INSTRUCTIONS

General Instructions 1 Presumption of Innocence; Proof Beyond a Reasonable Doubt ..................5 2 What Is Evidence; Inferences ......................................................................7 3 Kinds of Evidence: Direct and Circumstantial ............................................8 4 What Is Not Evidence ..................................................................................9 5 Preparation of Witnesses............................................................................11 6 Defendants Constitutional Right Not to Testify .......................................12 7 Defendants Interest if Defendant Testifies ...............................................13 8 Definition of Knowingly ............................................................................14 9 Definition of Willfully ...............................................................................15 10 Inconsistencies ...........................................................................................16 11 Statement by Defendant .............................................................................17 12 False Exculpatory Statements ....................................................................18 13 Cautionary and Limiting Instructions as to Particular Kinds of Evidence.19 14 Cooperating Witness ..................................................................................20 15 Stipulations ................................................................................................21 16 Charts and Summaries ...............................................................................22 17 Use of Recordings and Transcripts ............................................................23 18 Sympathy ...................................................................................................24


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19 Punishment .................................................................................................25 20 Variance-Dates ...........................................................................................26 21 All Available Evidence Need Not Be Produced ........................................27 Elements of the Crime 22 Extortion ....................................................................................................28 23 Wire Fraud .................................................................................................30 24 Money Laundering .....................................................................................33 Deliberations and Verdict 25 Foreperson=s Role; Unanimity ...................................................................36 26 Consideration of Evidence .........................................................................37 27 Reaching Agreement ..................................................................................38 28 Return of Verdict Form ..............................................................................39 29 Communication with the Court ..................................................................40


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GOVERNMENT=S REQUESTED CHARGE NO. (1)

Presumption of Innocence; Proof Beyond a Reasonable Doubt

It is a cardinal principle of our system of justice that every person accused of a crime is

presumed to be innocent unless and until his or her guilt is established beyond a reasonable

doubt. The presumption is not a mere formality. It is a matter of the most important substance.

The presumption of innocence alone may be sufficient to raise a reasonable doubt and to

require the acquittal of a defendant. The defendant before you, has the benefit of that

presumption throughout the trial, and you are not to convict him of a particular charge unless you

are persuaded of his guilt of that charge beyond a reasonable doubt.

The presumption of innocence until proven guilty means that the burden of proof is

always on the government to satisfy you that the defendant is guilty of the crime with which he is

charged beyond a reasonable doubt. The law does not require that the government prove guilt

beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden

never shifts to the defendant. It is always the governments burden to prove each of the elements

of the crimes charged beyond a reasonable doubt by the evidence and the reasonable inferences

to be drawn from that evidence. Joseph Buffis has the right to rely upon the failure or inability of

the government to establish beyond a reasonable doubt any essential element of a crime charged

against him.

If, after fair and impartial consideration of all the evidence, you have a reasonable doubt

as to the defendants guilt of a particular crime, it is your duty to acquit him of that crime. On the


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other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond

a reasonable doubt of the defendants guilt of a particular crime, you should vote to convict him.

SOURCE Pattern Criminal Jury Instructions for the District Courts of the First Circuit (Judge D. Brock Hornbys 2015 Revisions), Instruction No. 3.02.


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What Is Evidence; Inferences

The evidence from which you are to decide what the facts are consists of sworn

testimony of witnesses, both on direct and cross-examination, regardless of who called the

witness; the exhibits that have been received into evidence; and any facts to which the lawyers

have agreed or stipulated. A stipulation means simply that the government and Joseph Buffis

accept the truth of a particular proposition or fact. Since there is no disagreement, there is no

need for evidence apart from the stipulation. You must accept the stipulation as fact to be given

whatever weight you choose.

Although you may consider only the evidence presented in the case, you are not limited

in considering that evidence to the bald statements made by the witnesses or contained in the

documents. In other words, you are not limited solely to what you see and hear as the witnesses

testify. You are permitted to draw from facts that you find to have been proven such reasonable

inferences as you believe are justified in the light of common sense and personal experience.



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Kinds of Evidence: Direct and Circumstantial

There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof

of a fact, such as testimony of an eyewitness that the witness saw something. Circumstantial

evidence is indirect evidence that is proof of a fact or facts from which you could draw the

inference, by reason and common sense, that another fact exists, even though it has not been

proven directly. You are entitled to consider both kinds of evidence. The law permits you to give

equal weight to both, but it is for you to decide how much weight to give to any evidence.



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What Is Not Evidence

Certain things are not evidence. I will list them for you:

(1) Arguments and statements by lawyers are not evidence. The lawyers are not

witnesses. What they say in their opening statements, closing arguments and at other times is

intended to help you interpret the evidence, but it is not evidence. If the facts as you remember

them from the evidence differ from the way the lawyers have stated them, your memory of them

controls.

(2) Questions and objections by lawyers are not evidence. Lawyers have a duty to their

clients to object when they believe a question is improper under the rules of evidence. You

should not be influenced by the objection or by my ruling on it.

(3) Anything that I have excluded from evidence or ordered stricken and instructed you to

disregard is not evidence. You must not consider such items.

(4) Anything you may have seen or heard when the court was not in session is not

evidence. You are to decide the case solely on the evidence received at trial.

(5) The indictment is not evidence. This case, like most criminal cases, began with an

indictment. You will have that indictment before you in the course of your deliberations in the

jury room. That indictment was returned by a grand jury, which heard only the governments

side of the case. I caution you, as I have before, that the fact that Joseph Buffis has had an

indictment filed against him is no evidence whatsoever of his guilt. The indictment is simply an


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accusation. It is the means by which the allegations and charges of the government are brought

before this court. The indictment proves nothing.

SOURCE

Pattern Criminal Jury Instructions for the District Courts of the First Circuit (Judge D. Brock Hornbys 2015 Revisions), Instruction No. 3.08.


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Preparation of Witnesses

Some mention has been made of the preparation of witnesses to testify by the Assistant

United States Attorneys. There is nothing wrong with a lawyer preparing a witness to testify.

As a matter of fact, if the lawyers did not do some preparation, this case would be much longer

than it has been. It is to be expected that when an attorney puts a witness on the stand for direct

examination, he will have met with the witness and know what the answers are going to be most

of the time, that is, assuming the witness is willing to talk to the lawyer ahead of time.

The fact that a witness met with an attorney prior to that witness testifying before you,

standing alone, should not usually cause you to discredit the testimony of that witness. You

may, however, consider the fact that a witness was willing to meet, or not meet, with one side or

the other, prior to this case, in evaluating the witness= testimony. You may also consider whether

any such meeting did, in fact, influence the testimony of the witness.

SOURCE

Adapted from Judge McNaught=s charge in United States v. Ronna, Cr. No. 81-13-Mc. See also, Judge Zobel=s charge in United States v. Kepreos, Cr. No. 83-12-Z.


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Defendants Constitutional Right Not to Testify

The Defendant has a constitutional right not to testify and no inference of guilt, or of

anything else, may be drawn from the fact that Joseph Buffis did not testify. For any of you to

draw such an inference would be wrong; indeed, it would be a violation of your oath as a juror.

SOURCE



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Defendants Interest if Defendant Testifies (Requested only if the defendant testifies)

In a criminal case, the defendant cannot be required to testify, but, if he chooses to testify,

he is, of course, permitted to take the witness stand on his own behalf. In this case, the defendant

decided to testify. You should examine and evaluate his testimony just as you would the

testimony of any witness with an interest in the outcome of this case.

SOURCE

Adapted from l L. Sand, et al, Modern Federal Jury Instructions: Criminal, & 7.01, Instruction No. 7-4 (2013). See United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Dwyer, 843 F.2d 60, 62-63 (1st Cir. 1988); United States v. Rollins, 784 F.2d 35, 36-38 (1st Cir. 1986).


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Definition of Knowingly

The word knowingly, as that term has been used from time to time in these

instructions, means that the act was done voluntarily and intentionally and not because of

mistake or accident.

SOURCE



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Definition of Willfully

To act willfully means to act voluntarily and intelligently and with the specific intent

that the underlying crime be committedthat is to say, with bad purpose, either to disobey or

disregard the lawnot to act by ignorance, accident or mistake.

SOURCE



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Inconsistencies

Inconsistencies or discrepancies in the testimony of a witness or between the testimony of

different witnesses may or may not cause you to disbelieve or discredit such testimony. Innocent

misrecollection or inconsistent recollection, like failure of recollection, is not an uncommon

experience. Also, two or more persons witnessing an incident or a transaction may simply see or

hear it differently. In weighing the effect of a discrepancy, always consider whether it pertains to

a matter of importance or an insignificant detail and consider whether the discrepancy results

from innocent error or intentional falsehood.

SOURCE

Adapted from 1A OMalley, Grenig, and Lee, Federal Jury Practice and Instructions, Criminal, 15.01 (6th ed.) (database updated February 2014).


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Statements by Defendant

You have heard evidence that Joseph Buffis made statements in which the government

claims he admitted certain facts.

It is for you to decide (1) whether Joseph Buffis made the statement, and (2) if so, how

much weight to give it. In making those decisions, you should consider all of the evidence about

the statement, including the circumstances under which the statement may have been made and

any facts or circumstances tending to corroborate or contradict the version of events described in

the statement.

SOURCE



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False Exculpatory Statements

When a Defendant voluntarily and intentionally offers an explanation, or makes some

statement before trial tending to show his or her innocence, and that explanation or statement is

later shown to be false, you may consider whether this evidence points to a consciousness of

guilt. The significance to be attached to any such evidence is a matter for you to determine.

SOURCE

Eight Circuit Model Criminal Jury Instructions, Instruction No. 4.15 (2009); see also United States v. Eley, 723 F.2d 1522, 1525 (11th Cir. 1984); United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982); United States v. McDougald, 650 F.2d 523, 522 (4th Cir. 1981) (citing Wilson v. United States, 162 U.S. 613, 621 (1896)); United States v. Boekelman, 594 F.2d 1238, 1240-41 (9th Cir. 1979); United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).


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Cautionary and Limiting Instructions as to Particular Kinds of Evidence

A particular item of evidence is sometimes received for a limited purpose only. That is, it

can be used by you only for one particular purpose, and not for any other purpose. I have told

you when that occurred, and instructed you on the purposes for which the item can and cannot be

used.



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Cooperating Witness

You have heard the testimony of Tara Viola and Fusco. They:

1. provided evidence under agreements with the government; and

2. testified under a grant of immunity.

Immunity means that Tara Viola and Thomas Fuscos testimony may not be used

against them in any subsequent criminal proceeding. However, if they testified untruthfully, they

could be prosecuted for perjury or making a false statement, even though they were testifying

under a grant of immunity.

Some people in this position are entirely truthful when testifying. Still, you should

consider the testimony of Tara Viola and Thomas Fusco with particular caution. They may have

had reason to make up stories or exaggerate what others did because they wanted to help

themselves. You must determine whether the testimony of such a witness has been affected by

any interest in the outcome of this case, any prejudice for or against the defendant, or by any of

the benefits he has received from the government.

SOURCE



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Stipulations

The evidence in this case includes facts to which the lawyers have agreed or stipulated. A

stipulation means simply that the government and the defendant accept the truth of a particular

proposition or fact. Since there is no disagreement, there is no need for evidence apart from the

stipulation. You must accept the stipulation as fact to be given whatever weight you choose.

SOURCE



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Charts and Summaries

The government has presented exhibits in the form of charts and summaries. These

charts and summaries were either admitted in place of the underlying documents or in addition to

the underlying documents that they represent. These charts and summaries were prepared in

order to save you time and avoid unnecessary inconvenience. You should consider these charts

and summaries as you would any other evidence.

SOURCE

Adapted from 1 L. Sand, et al., Modern Federal Jury Instructions: Criminal, & 5.05, Instruction No. 5-12 (2007) and Fed. R. Evid. 1006.


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Use of Recordings and Transcripts

At this time you are going to hear conversations that were recorded. This is proper

evidence for you to consider. In order to help you, I am going to allow you to have a transcript

to read along as the recording is played. The transcript is merely to help you understand what is

said on the recording. If you believe at any point that the transcript says something different from

what you hear on the recording, remember it is the recording that is the evidence, not the

transcript. Any time there is a variation between the recording and the transcript, you must be

guided solely by what you hear on the recording and not by what you see in the transcript.

SOURCE



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Sympathy

Under your oath as jurors you are not to be swayed by sympathy. You are to be guided

solely by the evidence in this case, and the crucial, hard-core question that you must ask

yourselves as you sift through the 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 is

guilty of the crimes charged solely on the basis of the evidence and subject to the law as I charge

you. It must be clear to you that once you let fear or prejudice, or bias or sympathy interfere with

your thinking there is a risk that you will not arrive at a true and just verdict.

If you have a reasonable doubt as to the defendant=s guilt, you should not hesitate for any

reason to find a verdict of acquittal. But on the other hand, if you should find that the government

has met its burden of proving the defendant=s guilt beyond a reasonable doubt, you should not

hesitate because of sympathy or any other reason to render a verdict of guilty.

SOURCE

1 L. Sand, et al, Modern Federal Jury Instructions: Criminal, & 2.01, Instruction No. 2-12 (2013); see also United States v. Levy-Cordero, 67 F.3d 1002, 1009 (1st Cir. 1995).


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Punishment

The question of possible punishment of the defendant is of no concern to the jury and

should not, in any sense, enter into or influence your deliberations. The duty of imposing

sentence rests exclusively upon the court. Your function is to weigh the evidence in the case and

to determine whether or not the defendant is guilty beyond a reasonable doubt, solely upon the

basis of the evidence. Under your oath as jurors, you cannot allow a consideration of the

punishment which may be imposed upon the defendant, if he is convicted, to influence your

verdict in any way, or, in any sense, enter into your deliberations.

SOURCE

1 L. Sand, et al, Modern Federal Jury Instructions: Criminal, & 9.01, Instruction No. 9-1 (2013); Shannon v. United States, 512 U.S. 573 (1994).


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Variance - Dates

I should draw your attention to the fact that it does not matter if the indictment charges

that a specific act occurred on or about a certain date, and the evidence indicates that, in fact, it

was on another date. The law only requires a substantial similarity, between the dates alleged in

the indictment and the date established by testimony or exhibits.

SOURCE

1 L. Sand, et al, Modern Federal Jury Instructions: Criminal, & 3.01, Instruction No. 3-12 (2013); see United States v. Morris, 700 F.2d 427 (1st Cir. 1983).


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All Available Evidence Need Not Be Produced

Although the government is required to prove a defendant guilty beyond a reasonable

doubt, the government is not required to present all possible evidence related to the case or to

produce all possible witnesses who might have some knowledge about the facts of the case. In

addition, as I have explained, the defendant is not required to present any evidence or produce any

witnesses.

SOURCE Committee on Model Criminal Jury Instructions Within the Third Circuit, Modern Criminal Jury Instructions ' 3.05.


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Extortion 18 U.S.C. 1951(a)

Count One charges Joseph Buffis with extortion by wrongful use of fear or under color of

official right on February 21, 2012. Joseph Buffis is accused of obstructing, delaying, or affecting

commerce by committing extortion. It is against federal law to engage in such conduct. For you

to find Joseph Buffis guilty of this crime, you must be convinced that the government has proven

each of the following things beyond a reasonable doubt:

First, that Joseph Buffis knowingly and willfully obtained property from Tara Viola and

Thomas Fusco;

Second, that he did so by means of extortion; and

Third, that the extortion affected interstate commerce.

The term interstate commerce means commerce between any point in a state and any

point outside the state. It is only necessary that the government prove beyond a reasonable doubt

that there is a realistic probability that the acts committed by Joseph Buffis as charged in the

indictment had some slight or minimal effect on interstate commerce. It is not necessary for you

to find that Joseph Buffis knew or intended that his actions would affect interstate commerce.

Extortion means obtaining property from another with his or her consent, but where that

consent is obtained by the wrongful use of fear or under color of official right.

To prove extortion by fear, the government must show: (1) that at least one of the alleged

victims believed that economic loss would result from failing to comply with Joseph Buffiss

demands and (2) that the circumstances made the fear reasonable. Economic loss may include the


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possibility of lost business opportunities. But the loss feared must be a particular economic loss,

not merely the loss of a potential benefit.

To prove extortion under color of official right, the government must show that Joseph

Buffis obtained property to which he was not entitled and knew at the time that he was obtaining

it in return for official acts. The government need not show that Joseph Buffis initiated the

transfer, nor does the government need to show that Joseph Buffis actually had the ultimate

authority to achieve the desired result.

To act willfully means to act voluntarily and intelligently and with the specific intent

that the underlying crime be committedthat is to say, with bad purpose, either to disobey or

disregard the lawnot to act by ignorance, accident or mistake.

Joseph Buffis is charged with extortion by wrongful use of fear and under color of official

right. If you find that Joseph Buffis extorted at least one of his alleged victims either by use of

fear or under color of official right, you should find him guilty of extortion by wrongful use of

fear and under color of official right. Therefore, when evaluating the charges against the

defendant, you can treat and as or.

SOURCE

Pattern Criminal Jury Instructions for the District Courts of the First Circuit (Judge D. Brock Hornbys 2015 Revisions), Instruction No. 4.18.1951; United States v. Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003) (quoting United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir.2000)) (Quite simply, the law is well established that where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury instruction may properly be framed in the disjunctive.).


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Wire Fraud 18 U.S.C. 1343

Counts Five through Seven charge Joseph Buffis with wire fraud on the following dates:

Count 5 November 16, 2009; Count 6 November 28, 2010; and Count 7 December 2, 2011.

Joseph Buffis is charged with violating the federal statute making wire fraud illegal.

For you to find Joseph Buffis guilty of wire fraud, you must be convinced that the

government has proven each of the following things beyond a reasonable doubt:

First, that there was a scheme to defraud or to obtain money or property by means of false

or fraudulent pretenses;

Second, that the scheme to defraud involved the misrepresentation or concealment of a

material fact or matter or the scheme to obtain money or property by means of false or fraudulent

pretenses involved a false statement, assertion, half-truth or knowing concealment concerning a

material fact or matter;

Third, that Joseph Buffis knowingly and willfully participated in this scheme with the

intent to defraud; and

Fourth, that for the purpose of executing the scheme or in furtherance of the scheme,

Joseph Buffis caused an interstate wire communication to be used, or it was reasonably

foreseeable that for the purpose of executing the scheme or in furtherance of the scheme, an

interstate wire communication would be used, on or about the date alleged.

A scheme includes any plan, pattern or course of action. It is not necessary that the

government prove all details concerning the precise nature and purpose of the scheme or that the


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alleged scheme actually succeeded in defrauding anyone. But the government must prove beyond

a reasonable doubt that the scheme was substantially as charged.

The term defraud means to deceive another in order to obtain money or property.

The term false or fraudulent pretenses means any false statements or assertions that

were either known to be untrue when made or were made with reckless indifference to their truth

and that were made with the intent to defraud. The term includes actual, direct false statements as

well as half-truths and the knowing concealment of facts.

A material fact or matter is one that has a natural tendency to influence or be capable of

influencing the decision of the decisionmaker to whom it was addressed.

Joseph Buffis acted knowingly if he was conscious and aware of his actions, realized

what he was doing or what was happening around him and did not act because of ignorance,

mistake or accident.

An act or failure to act is willful if done voluntarily and intentionally, and with the

specific intent to do something the law forbids, or with specific intent to fail to do something the

law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.

Thus, if Joseph Buffis acted in good faith, he cannot be guilty of the crime. The burden to

prove intent, as with all other elements of the crime, rests with the government.

Intent or knowledge may not ordinarily be proven directly because there is no way of

directly scrutinizing the workings of the human mind. In determining what Joseph Buffis knew or

intended at a particular time, you may consider any statements made or acts done or omitted by

Joseph Buffis and all other facts and circumstances received in evidence that may aid in your

determination of Joseph Buffiss knowledge or intent. You may infer, but you certainly are not


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required to infer, that a person intends the natural and probable consequences of acts knowingly

done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by

the evidence received during this trial.

The Internet is a means of interstate communication. An intrastate communication that

results in an interstate communication will suffice to satisfy the interstate nexus so long as the

interstate communication was reasonably foreseeable, and the content of reasonable foreseeability

must inevitably keep pace with advances in technology and the general awareness of such

advances.

The wire communication does not itself have to be essential to the scheme, but it must

have been made for the purpose of carrying it out. There is no requirement that Joseph Buffis

himself was responsible for the wire communication, that the wire communication itself was

fraudulent or that the use of wire communications facilities in interstate commerce was intended

as the specific or exclusive means of accomplishing the alleged fraud. But the government must

prove beyond a reasonable doubt that Joseph Buffis knew, or could reasonably have foreseen, that

use of a wire communication would follow in the course of the scheme.

SOURCE

Pattern Criminal Jury Instructions for the District Courts of the First Circuit (Judge D. Brock Hornbys 2015 Revisions), Instruction No. 4.18.1343.; United States v. Dwinells, 508 F.3d 63, 65 (1st Cir. 2007); United States v. DeBiasi, 712 F.2d 785, 791 (2d Cir. 1983); United States v. Muni, 668 F.2d 87, 89-90 (2d Cir. 1981); Eisenberger v. Spectex Industries, Inc., 644 F. Supp. 48, 51 (E.D.N.Y. 1986) (following DeBiasi); BCCI Holdings (Luxembourg) Societe Anonyme v. Khalil, 56 F. Supp. 2d. 14, 52 (D.D.C. 1999) (following DeBiasi).


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Money Laundering 18 U.S.C. 1956(a)(1)(B)(i)

Counts Two through Four and Eight through Eleven charge Joseph Buffis with money

laundering on the following dates: Count 2 February 23, 2012; Count 3 February 27, 2012;

Count 4 March 20, 2013; Count 8 December 16, 2011; Count 9 January 4, 2012; Count 10

January 5, 2012, and Count 11 January 11, 2012.

Joseph Buffis is charged with violating that portion of the federal money laundering

statute that prohibits concealment of the proceeds of certain unlawful activities. It is against

federal law to engage in such concealment. For Joseph Buffis to be convicted of this crime, you

must be convinced that the government has proven each of the following things beyond a

reasonable doubt:

First, that Joseph Buffis entered into a financial transaction or transactions, on or about the

date alleged, with a financial institution engaged in interstate commerce;

Second, that the transaction involved the use of proceeds of unlawful activities,

specifically, proceeds of the extortion or wire fraud;

Third, that Joseph Buffis knew that these were the proceeds of some kind of crime that

amounts to a state or federal felony; and

Fourth, that Joseph Buffis knew that the transaction or transactions were designed in

whole or in part to conceal or disguise the nature, location, source, ownership, or control of the

proceeds of that specified unlawful activity.

A withdrawal, deposit, or transfer of funds from a bank is a financial transaction.


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Proceeds means any profits that someone acquires or retains as a result of the

commission of the unlawful activity.

Knowledge may not ordinarily be proven directly because there is no way of directly

scrutinizing the workings of the human mind. In determining what Joseph Buffis knew or

intended at a particular time, you may consider any statements made or acts done or omitted by

Joseph Buffis and all other facts and circumstances received in evidence that may aid in your

determination of Joseph Buffiss knowledge or intent. You may infer, but you are certainly not

required to infer, that a person intends the natural and probable consequences of acts knowingly

done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by

the evidence received during this trial.

Concealment means that at least one purpose for the transaction was to conceal or

disguise the assets. The government may prove concealment through direct evidence, like the

defendants own statements, or by circumstantial evidence, like the steps a defendant has taken to

disguise a transaction. The government need not show that the defendant concealed his own

identity during the transaction. Concealment may be found if a transaction that is not concealed is

part of a larger money laundering scheme. Commingling proceeds of extortion or fraud with

other money for the purpose of concealing the nature of source of the extortion or fraud proceeds

constitutes concealment.

Where proceeds of extortion or fraud are commingled with other money, the government

need not trace the funds constituting the criminal proceeds. Therefore, the government does not

need to show that funds withdrawn from the defendant's account could not possibly have come

from any source other than the extortion or fraud.


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SOURCE

Pattern Criminal Jury Instructions for the District Courts of the First Circuit (Judge D. Brock Hornbys 2015 Revisions), Instruction No. 4.18.1956(a)(1)(B)(i); United States v. Hall, 434 F.3d 42, 50 (1st Cir. 2005); United States v. Burns, 162 F.3d 840, 848-49 (5th Cir. 1998); United States v. Iacaboni, 221 F. Supp. 2d 104, 117 (D. Mass. 2002) (citing United States v. McGauley, 279 F.3d 62, 76 (1st Cir. 2002)); United States v. Sokolow, 91 F.3d 396, 409 (3rd Cir. 1996); United States v. Johnson, 971 F.2d 562, 570 (10th Cir. 1992).


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Foreperson=s Role; Unanimity

I come now to the last part of the instructions, the rules for your deliberations.

When you retire you will discuss the case with the other jurors to reach agreement if you

can do so. You shall permit your foreperson to preside over your deliberations, and your

foreperson will speak for you here in court. Your verdict must be unanimous.

SOURCE



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Consideration of Evidence

Your verdict must be based solely on the evidence and on the law as I have given it to you

in these instructions. However, nothing that I have said or done is intended to suggest what your

verdict should beCthat is entirely for you to decide.

SOURCE



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Reaching Agreement

Each of you must decide the case for yourself, but you should do so only after considering

all the evidence, discussing it fully with the other jurors, and listening to the views of the other

jurors.

Do not be afraid to change your opinion if you think you are wrong. But do not come to a

decision simply because other jurors think it is right.

This case has taken time and effort to prepare and try. There is no reason to think it could

be better tried or that another jury is better qualified to decide it. It is important therefore that you

reach a verdict if you can do so conscientiously. If it looks at some point as if you may have

difficulty in reaching a unanimous verdict, and if the greater number of you are agreed on a

verdict, the jurors in both the majority and the minority should reexamine their positions to see

whether they have given careful consideration and sufficient weight to the evidence that has

favorably impressed the jurors who disagree with them. You should not hesitate to reconsider

your views from time to time and to change them if you are persuaded that this is appropriate.

It is important that you attempt to return a verdict, but of course, only if each of you can

do so after having made your own conscientious determination. Do not surrender an honest

conviction as to the weight and effect of the evidence simply to reach a verdict.

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Return of Verdict Form

I want to read to you now what is called the verdict form. This is simply the written

notice of the decision you will reach in this case.

[Read form.]

After you have reached unanimous agreement on a verdict, your foreperson will fill in the

form that has been given to you, sign and date it, and advise the jury officer outside your door

that you are ready to return to the courtroom.

After you return to the courtroom, your foreperson will deliver the completed verdict

form as directed in open court.

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Communication with the Court

If it becomes necessary during your deliberations to communicate with me, you may send

a note through the jury officer signed by your foreperson or by one or more members of the jury.

No member of the jury should ever attempt to communicate with me on anything concerning the

case except by a signed writing, and I will communicate with any member of the jury on

anything concerning the case only in writing, or orally here in open court. If you send out a

question, I will consult with the parties as promptly as possible before answering it, which may

take some time. You may continue with your deliberations while waiting for the answer to any

question. Remember that you are not to tell anyone including me how the jury stands,

numerically or otherwise, until after you have reached a unanimous verdict or have been

discharged.

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Buffis Trial: Proposed Jury Instructions (Government)

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Transcript of Buffis Trial: Proposed Jury Instructions (Government)