4.Charge Corrections Sidebar
51 linesMS. SASSOON: Your Honor, there are a couple things to raise at sidebar with regards to the instructions before the alternates are discharged.
JUDGE KAPLAN: All right. Just give us a moment.
(At the sidebar)
JUDGE KAPLAN: Quickly.
MS. SASSOON: Page 43. I'm going in reverse order. We didn't catch this typo before, but on lines 18-19, on page 43, it says, "However, if you find that the defendant actually believed the fact was true, then you may not find he knew the facts," and it should say "believed that the fact was not true." And I think it's important just to get the context of the instruction correctly.
JUDGE KAPLAN: I'm just showing you that I marked that on here. Do you agree with that?
MR. COHEN: Yes.
JUDGE KAPLAN: Next.
MS. SASSOON: The other one I have is on page 37, with regard to concealment money laundering. The second element. So we're at lines 16-21.
JUDGE KAPLAN: Just give me a minute to wrestle with the staples.
Go ahead.
MS. SASSOON: So this is not reflected in the language. I think your Honor went slightly off script and said something along the lines of, "If you find he's guilty of wire fraud, this element is satisfied." And I believe it's that that meets the definition of "specified unlawful activity," but your Honor I don't think read lines 20-21.
JUDGE KAPLAN: I think you're right. So I'll read that whole paragraph to the jury then. Yes?
MR. COHEN: Your Honor?
MR. REHN: Sorry. We have one more from the government first.
On page 63, you did not read the sentence telling them that they should not indicate in a note to the Court how they were divided.
JUDGE KAPLAN: Yes, okay.
MR. COHEN: And your Honor, on page 35, lines 5-6, the Court read "must prove beyond a reasonable doubt."
JUDGE KAPLAN: Yes, I did.
MR. COHEN: The text——the wording has to be added to the text.
JUDGE KAPLAN: Well, I gave it orally so I'm just going to interlineate.
MR. COHEN: Okay. And then several times——and I think this can probably be just addressed by one more repetition, but several times, starting with page 19, lines 24-26, the Court read——
JUDGE KAPLAN: You're going too fast for me. Let me get to page 19.
MR. COHEN: Sorry, your Honor.
JUDGE KAPLAN: Yes. What lines?
MR. COHEN: 24-26. And the way it came out in the reading was the Court left out the phrase "the government must prove beyond a reasonable doubt."
JUDGE KAPLAN: That entire phrase?
MR. COHEN: Yes, just that. The rest of it was read except for the clause "the government must prove"——the "beyond a reasonable doubt" part.
JUDGE KAPLAN: So you're telling me that I charged that, and I'm quoting now, charged in Counts Two and Four each of the following elements?
MR. COHEN: Yes, yes.
MR. COHEN: That's what I said, yeah.
MR. COHEN: No. I had it the same as Mr. Rehn. And I think that happened again.
JUDGE KAPLAN: Yes. Look, I understand, and you may well be right that I omitted it, but I think I probably said a hundred times in this that they have to prove every element beyond a reasonable doubt.
MR. COHEN: Right, and where I was getting to was we would ask that you just repeat that one, because it happened a few other times. Rather than——
JUDGE KAPLAN: It's quite possible. All right. So I'll start with that one.
MR. COHEN: Okay.
JUDGE KAPLAN: And then somebody's going to prompt me page by page. And I'll start with you if there's another page that you made a point about——
MR. COHEN: That's it, your Honor.
JUDGE KAPLAN: ——and then go to the government.
MR. COHEN: Your Honor, before we go back, a couple other things. Obviously for record purposes, we continue any objections we made at the charge conference and before about the charges, the charges we had asked for. And also, we would ask that the Court——
JUDGE KAPLAN: I didn't hear your whole statement.
MR. COHEN: I'm sorry. For record purposes——
JUDGE KAPLAN: Obviously you need not renew objections you made at the charge conference.
MR. COHEN: Okay. And lastly, your Honor, we would ask that you instruct the jury that while they certainly can stay to 8:15 tonight, they're not required to, and if they feel it would be more productive for them to pick up on Monday, that they may do so.
JUDGE KAPLAN: Yeah, I'll do that.
Okay.
MR. EVERDELL: Your Honor, one last thing. This is the indictment that the government prepared to pass back to the jury.
JUDGE KAPLAN: I'll deal with that when the jury is out.
MR. EVERDELL: Okay.
(In open court)