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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

v.

8:11CR180

FINAL JURY INSTRUCTIONS

BILLY J. NESIBA and CAROL NESIBA,

Defendants.

INSTRUCTION NO. 1

DUTY

It is your duty to decide from the evidence whether the defendants are guilty or

not guilty of the crimes charged. From the evidence, you will decide what the facts are.

You are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions or

conclusions from facts established by the evidence. You will then apply those facts to

the law which I give you in these and other instructions. In that way, you will reach your

verdict. You are the sole judges of the facts, but you must follow the law stated in my

instructions whether you agree or disagree with the law stated in the instructions.

In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of a witness’s

testimony, or you may believe part of a witness’s testimony, or you may decide that you

do not believe any of a witness’s testimony.

In deciding what testimony to believe, you may consider a witness’s intelligence,

the witness’s opportunity to have seen or heard the things involved in the witness’s

testimony, a witness’s memory, the motive a witness has for testifying a certain way, a

witness’s manner while testifying, whether a witness has said something different at an

earlier time, the general reasonableness of a witness’s testimony and the extent to

which the witness’s testimony is consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be just, that is, unaffected by anything except the evidence, your common

sense, and the law stated in my instructions.

Anything that I may say or do during the trial must not be taken by you as an

indication of what I think of the evidence or what I think your verdict should be.

Finally, please remember that only the defendants, and not anyone else, are on

trial here, and the defendants are on trial only for the crime or crimes charged, and not

for anything else.

INSTRUCTION NO. 2

PRESUMPTION OF INNOCENCE

The law presumes that the defendants are innocent. The defendants have no

burden to prove that they are innocent. Hence, even though the defendants stand

charged, the trial begins with no evidence against them.

INSTRUCTION NO. 3

CONSTITUTIONAL RIGHT NOT TO TESTIFY

Because a defendant is not required to prove his or her innocence, a defendant’s

decision to exercise his or her constitutional right not to testify cannot be considered by

you or discussed among jurors in arriving at your verdict.

INSTRUCTION NO. 4

BURDEN OF PROOF

The government carries the burden to prove beyond a reasonable doubt each

essential element of the crimes charged against the defendants. A reasonable doubt is

a doubt based upon reason and common sense, and not the mere possibility of

innocence. A reasonable doubt is the kind of doubt that would make a reasonable

person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of

such a convincing character that a reasonable person would not hesitate to rely and act

upon it. However, proof beyond a reasonable doubt does not mean proof beyond all

possible doubt.

INSTRUCTION NO. 5

EVIDENCE; LIMITATIONS

You should understand that an indictment is simply an accusation. It is not

evidence of anything. The defendants have pled not guilty. The defendants are

presumed to be innocent unless proved guilty beyond a reasonable doubt.

The word “evidence” includes: the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed

to by the parties; and any facts that have been judicially noticed, that is, facts which I

say you must accept as true.

The following things are n ot evidence:

1. Statements, arguments, questions and comments by lawyers are not

evidence.

2. Objections are not evidence.

Lawyers have a right to object when they believe something is improper under

the rules of evidence. You should not be influenced by the lawyer’s objection or by my

ruling on the objection. If I sustain an objection to a question, ignore the question. If I

overrule the objection, treat the answer like any other answer. Do not attempt to draw

any inference in favor of either side as the result of the objection.

3. Testimony that I strike from the record or tell you to disregard is not evidence.

You must not consider such information when reaching your verdict.

4. Anything you see or hear about this case outside the courtroom is not

evidence. You must disregard such information when reaching your verdict.

5. A particular item of evidence is sometimes received for a limited purpose. I

will tell you when that situation arises and will instruct you on the purpose for which the

evidence can and cannot be used.

6. Finally, you may have heard the phrases “direct evidence” and “circumstantial

evidence.” You should not be concerned with those phrases, since the law makes no

distinction between the weight to be given to direct or to circumstantial evidence. You

should give all the evidence the weight and value which you believe that the evidence is

entitled to receive.

INSTRUCTION NO. 6

BENCH CONFERENCES AND RECESSES

During this trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the

courtroom, or by calling a recess. Please understand that while you are waiting, we are

working. The purpose of the conference is to decide how certain evidence is to be

treated under the rules of evidence or to decide a particular procedure to be followed in

the case. We will do what we can to minimize the number and length of these

conferences.

INSTRUCTION NO. 7

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said.

Notes may be helpful to you because at the end of the trial, you must make your

decision based on what you recall of the evidence. You will not have a written transcript

to consult, and it may not be practical for the court reporter to read back lengthy

testimony. Therefore, pay close attention to the testimony that is given.

If you do take notes, please keep your notes to yourself until you and the other

jurors go to the jury room to decide the case. Do not let note-taking distract you to the

point that you miss hearing other testimony from the witness.

During the trial, documents and other physical items may be received in

evidence. You will not be supplied with a list of exhibits that are received in evidence.

Therefore, you may wish to make notes about the exhibits, especially their description

and number, so that you can locate and refer to exhibits while you are deliberating.

When we take our recess each day for the lunch-time break and when we take

our recess each night, please take your notes to the jury room and leave your notes

there. The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is

over.

INSTRUCTION NO. 8

CONDUCT OF THE JURY

To insure fairness, you, as jurors, must obey the following rules:

1. Do not talk among yourselves about this case or about anyone involved with

this case until the end of the case when you go to the jury room to decide on your

verdict.

2. Do not talk with anyone else about this case or about anyone involved with it

until the trial has ended and you have been discharged as jurors.

3. During the course of this trial and when you are outside the courtroom, do not

listen to or allow anyone to tell you anything about this case. Do not allow anyone to

talk to you about anyone involved with this case until the trial has ended and I have

accepted your verdict. If anyone tries to talk to you about this case during the trial,

please promptly report the matter to me.

4. During the trial do not talk with or speak to any of the parties, lawyers, or

witnesses involved in this case. Do not even pass the time of day with any of them. You

must not only do justice in this case, but you must also give the appearance of doing

justice. For instance, if a person from one side of the lawsuit sees you talking to a

person from the other side, even if it is on a matter unconnected with this trial or simply

to pass the time of day, such contact might arouse unwarranted suspicion about your

fairness. If a lawyer, party, or witness does not speak to you when you pass in the hall,

ride the elevator, or encounter each other elsewhere while this trial is taking place,

remember that court rules prohibit those persons from talking or visiting with you as

well.

5. You must decide this case on the basis of evidence presented in the

courtroom. Therefore, do not read any news stories or articles about the case or about

anyone involved with this case. Do not listen to any radio or television reports about the

case or about anyone involved with it. Until the trial is over, avoid reading any

newspapers and avoid listening to any TV or radio newscasts. There may be news

reports of this case, and if there are, you might find yourself inadvertently reading or

listening to something before you realize what you are doing.

6. Do not do any research or make any investigation on your own concerning

this case. Do not use or refer to any dictionary, reference, or law book, or the Internet,

concerning any aspect of this case, including any evidence introduced. Do not visit the

scene of any incident mentioned in this case.

7. Do not form any opinion regarding any fact or issue in the case until you have

received the entire evidence, have heard arguments of counsel, have been instructed

as to the law of the case, and have retired to the jury room. Do not make up your mind

during the trial about what the verdict should be. Keep an open mind until after you

have gone to the jury room to decide the case and have discussed the evidence with

the other jurors.

8. Do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. Do not make any inferences unless they are

supported by the evidence.

INSTRUCTION NO. 9

OUTSIDE COMMUNICATIONS AND RESEARCH

You, as jurors, must decide this case based solely on the evidence presented

here within the four walls of this courtroom because the parties must have an

opportunity to respond to any information you consider in deciding this case. This

means that during the trial you must not conduct any independent research about this

case, the matters in the case, and the individuals or corporations involved in the case.

In other words, you should not consult dictionaries or reference materials, search the

Internet, Web sites, blogs, chat rooms, social networking Web sites including Facebook,

My Space, LinkedIn or YouTube, or use your cell phones, iPhones, text messaging,

Twitter or any other electronic tools or devices to obtain information about this case or

to help you decide the case.

Until you retire to deliberate, you may not discuss this case with anyone, even

your fellow jurors. After you retire to deliberate, you may begin discussing the case with

your fellow jurors, but you cannot discuss the case with anyone else until you have

returned a verdict and the case is at an end. I hope that for all of you this case is

interesting and noteworthy. However, until you have returned a verdict and the case is

at an end, you must not talk to anyone or communicate with anyone about the case by

any means, electronic or otherwise. This includes communications with your family and

friends. Such communication would compromise your fairness as jurors and may

require your removal from the case and a retrial of this matter at considerable expense

to the parties.

INSTRUCTION NO. 10

OUTLINE OF TRIAL

The trial will proceed in the following manner:

The government, through the Assistant United States Attorney, will make an

opening statement. The defendants may, but do not have to, make opening

statements. An opening statement is not evidence but is simply a summary of what the

attorney expects the evidence to be.

The government will then present its evidence, and the defendants may cross-

examine witnesses who have testified in the government’s case. After the government

has presented its case, the defendants may, but do not have to, present evidence,

testify, or call witnesses. If a defendant calls witnesses, government counsel may

cross-examine those witnesses.

After presentation of evidence is completed, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. As with opening

statements, closing arguments are not evidence. I will instruct you further on the law.

After that you will retire to deliberate on your verdict.

When you reach your verdict, we will return to the courtroom where your

foreperson will deliver the verdict to me. After the verdict is announced, one of the

lawyers may ask that the jury be polled, that is, that you each be asked individually

whether the verdict is your true verdict.

Once you have delivered your verdict, you will be discharged and will be free to

leave.

INSTRUCTION NO. 11

NATURE OF THE CASE; NATURE OF INDICTMENT

This is a criminal case brought by the United States of America against the

defendants, Billy J. Nesiba and Carol Nesiba, Case No. 8:11CR180. The parties to this

criminal lawsuit are the government, represented by Assistant United States Attorneys

Russell X. Mayer and Michael P. Norris; the defendant Billy J. Nesiba, represented by

counsel Shannon P. O’Connor; and the defendant Carol Nesiba, represented by

counsel Matthew F. Heffron. The charges against the defendants are set forth in an

indictment. You must understand that the indictment is simply an accusation. The

indictment is not evidence. In order to help you follow the evidence in this case, I will

now summarize the crimes charged in the indictment which the government must prove

beyond a reasonable doubt with respect to each defendant.

Generally, Count I of the indictment charges that the defendants conspired to

commit bank fraud and to make false statements to banks in connection with loans, in

violation of 18 U.S.C. §§ 371 and 1349. Counts II, III, and IV of the indictment charge

that the defendants knowingly and intentionally executed, and attempted to execute, a

scheme to defraud three federally-insured financial institutions to obtain monies, funds,

or credits by means material falsehoods, fraudulent pretenses and fraudulent

representations, in violation of 18 U.S.C. § 1344. Counts V to X of the indictment

charge that the defendants made false statements to banks for the purpose of

influencing the banks’ actions with respect to loans by failing to report or under-reporting

the extent of their liabilities at other banks on six separate occasions between

November of 2004 and May of 2007, in violation of 18 U.S.C. § 1014. The indictment

also charges that the defendants aided and abetted the commission of these crimes, in

violation of 18 U.S.C. § 2. Essentially, the defendants are charged with either

misrepresenting or omitting material facts on personal financial statements in order to

get loans from three banks: the Bank of Doniphan, Doniphan, Nebraska; the Heritage

Bank, Doniphan, Nebraska; and TierOne Bank, Hastings, Nebraska.

The defendants have pled not guilty to the charges of the indictment. Because

they have pled not guilty, the law requires you to presume them to be innocent. This

presumption of innocence may be overcome only if the government proves, beyond a

reasonable doubt, each element of the crimes charged against each of the defendants.

INSTRUCTION NO. 12

CONSIDER EACH COUNT AND EACH DEFENDANT SEPARATELY

Keep in mind that you must give separate consideration to the evidence about

each individual defendant and each charge of the indictment. Each defendant and each

count should be considered separately, and you must return a separate verdict for each

defendant and each count.

The fact that you find one defendant guilty or not guilty of one of the offenses

charged should not control your verdict as to any other offense charged against that

defendant or against any other defendant.

INSTRUCTION NO. 13

COUNT I: CONSPIRACY

ELEMENTS OF OFFENSE

To obtain a conviction on a charge of conspiracy to commit or attempt to commit

the crime of bank fraud or of making false statements to a bank, as charged in Count I

of the indictment, the government must prove the following elements beyond a

reasonable doubt, with respect to each defendant:

1. Beginning on or about November 16, 2004, and continuing to on or about

May 15, 2007, two or more persons reached an agreement or came to an agreement or

understanding to commit bank fraud or make false statements to banks in connection

with loans.

Bank fraud is knowingly executing or attempting to execute a scheme to defraud

to obtain money, funds, or credits owned by or under the custody and control of a

financial institution by means of material falsehoods, fraudulent pretenses or false or

fraudulent representations and doing so with intent to defraud.

Making a false statement to a bank is knowingly making or causing to be made a

false statement for the purpose of influencing the action of the bank.

2. The defendant voluntarily and intentionally joined in the agreement or

understanding, either at the time it was first reached or at some later time while it was

still in effect;

3. At the time the defendant joined in the agreement or understanding, he or

she knew the purpose of the agreement or understanding; and

4. While the agreement or understanding was in effect, a person or persons

who had joined in the agreement knowingly did one or more of the following acts for the

purpose of carrying out or carrying forward the agreement or understanding:

(a) On or about November 16, 2004, the defendants prepared or caused

to be prepared or submitted or caused to be submitted to Heritage Bank a Personal

Financial Statement which underreported approximately $120,000 of loan debt owed to

the Bank of Doniphan.

(b) On or about April II, 2005, the defendants prepared or caused to be

prepared or submitted or caused to be submitted to the Bank of Doniphan, an Individual

Financial Statement and Agreement which omitted approximately $150,000 of loan debt

owed to Heritage Bank.

(c) On or about February 1, 2006, the defendants prepared or caused to

be prepared or submitted or caused to be submitted to Heritage Bank, a Personal

Financial Statement which underreported approximately $240,000 of loan debt owed to

the Bank of Doniphan.

(d) On or about June 6, 2006, the defendants prepared or caused to be

prepared or submitted or caused to be submitted to TierOne Bank, an Individual

Financial Statement and Agreement which underreported approximately $256,000 of

loan debt owed to the Bank of Doniphan and Heritage Bank.

(e) On or about April 23, 2007, the defendants prepared or caused to be

prepared or submitted or caused to be submitted to the Bank of Doniphan, a Personal

Financial Statement which omitted approximately $165,000 of loan debt owed to

Heritage Bank, and underreported approximately $115,000 of loan debt owed to

TierOne Bank.

(f) On or about May 3, 2007, the defendants prepared or caused to be

prepared or submitted or caused to be submitted to Heritage Bank, a Personal Financial

Statement which omitted approximately $115,000 of loan debt owed to TierOne Bank,

and underreported approximately $297,000 of loan debt owed to the Bank of Doniphan.

If you find the government has proved all of these elements beyond a reasonable

doubt, then you must find the defendant(s) guilty of the crime charged in Count I of the

indictment. If you find the government has not proved all of these elements beyond a

reasonable doubt, you must find the defendant(s) not guilty of this crime.

INSTRUCTION NO. 14

CONSPIRACY: “AGREEMENT” EXPLAINED

The government must prove that a defendant reached an agreement or

understanding with at least one other person. It makes no difference whether that

person is a defendant or named in the indictment. You do not have to find that all of the

persons charged were members of the conspiracy.

The “agreement or understanding” need not be an express or formal agreement

or be in writing or cover all the details of how it is to be carried out. Nor is it necessary

that the members have directly stated between themselves the details or purpose of the

scheme.

You should understand that merely being present at the scene of an event, or

merely acting in the same way as others or merely associating with others, does not

prove that a person has joined in an agreement or understanding. A person who has no

knowledge of a conspiracy but who happens to act in a way which advances some

purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this

element, without knowing all the details of the agreement or understanding, and without

knowing who all the other members are. Further, it is not necessary that a person

agree to play any particular part in carrying out the agreement or understanding. A

person may become a member of a conspiracy even if that person agrees to play only a

minor part in the conspiracy, as long as that person has an understanding of the

unlawful nature of the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy

alleged in Count I of the indictment existed. If you find that the alleged conspiracy did

exist, you must also decide, with respect to each defendant, whether that defendant

voluntarily and intentionally joined the conspiracy, either at the time it was first formed or

at some later time while it was still in effect. In making that decision, you must consider

only evidence of that defendant’s own actions and statements. You may not consider

actions and pretrial statements of others, except to the extent that pretrial statements of

others describe something that had been said or done by that defendant.

INSTRUCTION NO. 15

CONSPIRACY: “OVERT ACT” EXPLAINED

It is not necessary that the act done in furtherance of the conspiracy be in itself

unlawful. It may be perfectly innocent in itself.

It is not necessary that the defendant have personally committed the act, known

about it, or witnessed it. It makes no difference which of the conspirators did the act.

This is because a conspiracy is a kind of “partnership” so that under the law each

member is an agent or partner of every other member and each member is bound by or

responsible for the acts of every other member done to further their scheme.

It is not necessary that the government prove, beyond a reasonable doubt, that

more than one act was done in furtherance of the conspiracy. It is sufficient if the

government proves, beyond a reasonable doubt, one such act; but in that event, in

order to return a verdict of guilty, you must unanimously agree upon which act was

done.

INSTRUCTION NO. 16

CONSPIRACY: SUCCESS IMMATERIAL

It is not necessary for the government to prove that the conspirators actually

succeeded in accomplishing their unlawful plan.

INSTRUCTION NO. 17

COUNTS II, III and IV: BANK FRAUD

ELEMENTS

To obtain a conviction on a charge of bank fraud, as charged in Counts II, III and

IV of the indictment, the government must prove the following elements beyond a

reasonable doubt, with respect to each defendant and to each count:

1. The defendant knowingly executed or attempted to execute a scheme to

defraud to obtain money, funds, or credits owned by or under the custody and control of

a financial institution by means of material falsehoods, fraudulent pretenses or false or

fraudulent representations;

2. The defendant did so with intent to defraud; and

3. The financial institution was insured by the United States Government

Federal Deposit Insurance Corporation.

The phrase “scheme to defraud” includes any plan or course of action intended

to deceive or cheat another out of money, property or property rights by employing

material falsehoods or concealing or omitting material facts. It also means the obtaining

of money or property from a financial institution by means of material false

representations or promises.

A statement or representation is “false” when it is untrue when made or it

effectively conceals or omits a material fact. A fact or representation is “material” if it

has a natural tendency to influence, or is capable of influencing, the decision of the

institution in deciding whether to engage or not to engage in a particular transaction.

However, whether a fact or representation is “material” does not depend on whether the

institution was actually deceived.


doubt, then you must find the defendant(s) guilty of the crime charged in Counts II, III

and IV of the indictment. If you find the government has not proved all of these

elements beyond a reasonable doubt, you must find the defendant(s) not guilty of this

crime.

INSTRUCTION NO. 18

COUNT V: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS

To obtain a conviction on a charge of making a false statement to a financial

institution as charged in Count V of the Indictment, the government must prove the

following elements beyond a reasonable doubt, with respect to each defendant:

1. That the defendant knowingly made and caused to be made a false

statement, to-wit: the defendant under-reported to Heritage Bank the extent of his/her

loan debt liability to the Bank of Doniphan.

2. That the defendant made and caused to be made a false statement for the

purpose of influencing the action of Heritage Bank on a personal financial statement in

support of obtaining loan credit from Heritage Bank; and

3. That Heritage Bank was insured by the Federal Deposit Insurance

Corporation at the time the statement was made.


doubt with respect to each defendant, then you must find that defendant guilty of the

crime charged in Count V of the indictment. If you find the government has not proved

all of these elements beyond a reasonable doubt, you must find the defendant not guilty

of this crime.

INSTRUCTION NO. 19

COUNT VI: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS


institution, as charged in Count VI of the Indictment, the government must prove the



statement, to-wit: the defendant under reported to the Bank of Doniphan the extent of

his/her loan debt liability to Heritage Bank.

2. That the defendant made the false statement for the purpose of

influencing the action of the Bank of Doniphan on an Individual Statement and

Agreement in support of obtaining loan credit from the Bank of Doniphan; and

3. That the Bank of Doniphan was insured by the FDIC at the time the

statement was made.



crime charged in Count VI of the indictment. If you find the government has not proved

all of these elements beyond a reasonable doubt, you must find that defendant

not guilty of this crime.

INSTRUCTION NO. 20

COUNT VII: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS

To obtain a conviction on making a false statement to a financial institution, as

charged in Count VII of the indictment, the government must prove the following

elements beyond a reasonable doubt, with respect to each defendant:


statement, to-wit: the defendant underreported to Heritage Bank the extent of his/her

loan debt liability to the Bank of Doniphan;

2. The defendant made the false statement for the purpose of influencing the

action of Heritage Bank on a personal financial statement in support of obtaining loan

credit from Heritage Bank; and

3. That Heritage Bank was insured by the FDIC at the time the statement

was made.



crime charged in Count VII of the indictment. If you find the government has not proved



INSTRUCTION NO. 21

COUNT VIII: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS


institution, as charged in Count VIII of the indictment, the government must prove the



statement, to-wit: the defendant underreported to TierOne Bank the extent of his or her

loan debt liability to Heritage Bank and the Bank of Doniphan;


action of TierOne Bank on an Individual Financial Statement and Agreement in support

of obtaining loan credit from TierOne Bank; and

3. That TierOne Bank was insured by the FDIC at the time the statement

was made.



crime charged in Count VIII of the indictment. If you find the government has not

proved all of these elements beyond a reasonable doubt, you must find that defendant


INSTRUCTION NO. 22

COUNT IX: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS


institution, as charged in Count IX of the Indictment, the government must prove the



statement, to-wit: the defendant underreported to the Bank of Doniphan the extent of

his/her loan debt liability to Heritage Bank and TierOne Bank;


action of the Bank of Doniphan on a Personal Financial Statement in support of

obtaining loan credit from the Bank of Doniphan; and

3. That the Bank of Doniphan was insured by the FDIC at the time the

statement was made.



crime charged in Count IX of the indictment. If you find the government has not proved



INSTRUCTION NO. 23

COUNT X: MAKING A FALSE STATEMENT TO A FINANCIAL INSTITUTION—

ELEMENTS

To obtain a conviction on a charge making a false statement to a financial

institution, as charged in Count X of the indictment, the government must prove the



statement, to-wit: the defendant underreported to Heritage Bank the extent of his or her

loan liability to the Bank of Doniphan and TierOne Bank;


action of Heritage Bank on a Personal Financial Statement in support of extending loan

credit from Heritage Bank; and

3. That Heritage Bank was insured by the FDIC at the time the statement

was made.


doubt with respect to that defendant, then you must find that defendant guilty of the

crime charged in Count X of the indictment. If you find the government has not proved



INSTRUCTION NO. 24

AIDING AND ABETTING

A person may also be found guilty of bank fraud or making a false statement to a

bank even if he or she personally did not do every act constituting the offense charged,

if he or she aided and abetted the commission of bank fraud or making a false

statement to a bank.

In order to have aided and abetted the commission of a crime, a person must

have:

1. Known the crime of bank fraud or of making a false statement to a bank

was being committed or was going to be committed; and

2. Knowingly acted in some way for the purpose of causing, encouraging, or

aiding the commission of the crime of bank fraud or making a false

statement to a bank; and

3. Acted with intent to defraud.

For you to find the defendant(s) guilty of bank fraud or making a false statement

to a financial institution by reason of aiding and abetting, the government must prove

beyond a reasonable doubt, with respect to each defendant, that all of the elements of

bank fraud, as instructed in Instruction No. 17, or all of the elements of making a false

statement to a financial institution, as instructed in Instruction Nos. 18-23, were

committed by some person or persons and that the defendant aided and abetted the

commission of that crime; otherwise, you must find that defendant not guilty of this

crime.

You should understand that merely being present at the scene of an event, or

merely acting in the same way as others, or merely associating with others, does not

prove that a person has become an aider and abettor. A person who has no knowledge

that a crime is being committed or about to be committed, but who happens to act in a

way which advances some offense, does not thereby become an aider and abettor.

INSTRUCTION NO. 25

FALSE STATEMENT OR REPRESENTATION

A false statement or representation, as used in these instructions, includes both

oral or written statements.

With respect to the crime of making a false statement to a bank, as instructed in

Instruction No. 17 through Instruction No. 23, proof that a bank was influenced by or

actually relied on the false statement is not necessary.

INSTRUCTION NO. 26

GAMBLING EVIDENCE

You have heard evidence of defendants’ alleged gambling at casinos. You are

not to consider that evidence as proof of the character of the defendant(s) in order to

show that on a particular occasion the defendant(s) acted in conformity with that

character. Evidence of gambling can be considered only with respect to the issues of

defendants’ motive, opportunity, intent, preparation, plan, knowledge, absence of

mistake, or lack of accident.

INSTRUCTION NO. 27

INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and

during the trial remain in effect. I now give you some additional instructions. You must

continue to follow the instructions I gave you earlier as well as those I give you now. Do

not single out some instructions and ignore others. I urge you to review the instructions

I gave you at the beginning of the trial before you begin to deliberate. You should take

your instructions and notes to the jury room with you.

INSTRUCTION NO. 28

GOOD FAITH

One of the issues in this case is whether the defendant(s) acted in good faith.

Good faith is a complete defense to a charge of bank fraud if it is inconsistent with intent

to defraud which is an element of the charge.

Evidence that the defendant(s) acted in good faith may be considered by you,

together with all the other evidence, in determining whether or not he or she acted with

intent to defraud.

INSTRUCTION NO. 29

REASONABLE DOUBT

The law presumes a defendant to be innocent of a crime. Thus a defendant,

although accused, begins the trial with a “clean slate”—with no evidence against him.

And the law permits nothing but legal evidence presented before the jury to be

considered in support of any charge against the accused. So the presumption of

innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied

beyond a reasonable doubt of the defendant’s guilt after careful and impartial

consideration of all the evidence in the case. It is not required that the government

prove guilt beyond all possible doubt.

The test is one of reasonable doubt. A reasonable doubt is a doubt based upon

reason and common sense—the kind of doubt that would make a reasonable person

hesitate to act in the most important of his or her affairs. Proof beyond a reasonable

doubt must, therefore, be proof of such a convincing character that a reasonable person

would not hesitate to rely and act upon it in the most important of his or her own affairs.

A defendant is never to be convicted on mere suspicion or conjecture. The

burden is always on the prosecution to prove guilt beyond a reasonable doubt. This

burden never shifts to the defendant, for the law never imposes upon a defendant in a

criminal case the burden or duty of calling any witnesses or producing any evidence.

So, if the jury, after careful and impartial consideration of all the evidence in the

case, has a reasonable doubt that a defendant is guilty of a charge, it must acquit. If

the jury views the evidence in the case as reasonably permitting either of two

conclusions—one that the defendant is guilty and the other that the defendant is not

guilty—the jury must, of course, adopt the conclusion that the defendant is not guilty.

INSTRUCTION NO. 30

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to

draw reasonable inferences from the testimony and exhibits that you feel are justified in

the light of common experience. In other words, you may make deductions and reach

conclusions which reason and common sense lead you to draw from the facts which

have been established by the testimony and evidence in the case.

INSTRUCTION NO. 31

CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of what a witness

said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness’s intelligence, the

opportunity the witness had to have seen or heard the things testified about, the

witness’s memory, any motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said something different at

an earlier time, the general reasonableness of the testimony, and the extent to which

the testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people

sometimes hear or see things differently and sometimes forget things. Therefore, you

need to consider whether a contradiction is an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with

an important fact or only a small detail.

INSTRUCTION NO. 32

NOTES

Some of you may have taken notes during the trial; others of you may have

chosen not to take notes. If you did take notes, remember that those notes are not

themselves evidence, but are instead merely memory aids. You must reach a verdict

based upon your independent recollection of the evidence presented during the trial, not

upon your notes or another juror's notes. Notes are not entitled to any greater weight

than the recollection or impression of each juror as to what the testimony may have

been.

INSTRUCTION NO. 33

ELECTION OF FOREPERSON; DUTY TO DELIBERATE

In conducting your deliberations and returning your verdict, there are certain

rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as

your foreperson. That person will preside over your discussions and speak for you here

in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement because a verdict—whether guilty or not

guilty— must be unanimous. Each of you must make your own conscientious decision,

but only after you have considered all the evidence, discussed it fully with your fellow

jurors, and listened to the views of your fellow jurors. Do not be afraid to change your

opinions if the discussion persuades you that you should. But do not come to a

decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if a defendant is found guilty, the sentence to be imposed is my

responsibility. You may not consider punishment in any way in deciding whether the

government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the U.S. Marshal or the courtroom deputy, signed by one or

more jurors. I will respond as soon as possible either in writing or orally in open court.

Remember that you should not tell anyone—including me—how your votes stand

numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict, whether guilty or not guilty, must be

unanimous. Nothing I have said or done is intended to suggest what your verdict

should be—that is entirely for you to decide.

Finally, the verdict form is simply the written notice of the decision that you reach

in this case. You will take the verdict form to the jury room, and when each of you has

agreed on a verdict for the defendant, your foreperson will fill in the form, sign and date

it, and advise the marshal or courtroom deputy that you are ready to return to the

courtroom.

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