5.Jury Instruction Corrections

JUDGE KAPLAN: Okay. During the course of my reading of the typewritten instructions, counsel have brought to my attention that in one place or another, I left out a phrase or a word, and we're going to go through about a half a dozen of these corrections now.

First of all, before we even do that, I remind you that as I said many, many times during the course of the instructions, it is the government's burden to prove each of the essential elements of the offense beyond a reasonable doubt, and if anywhere in the typescript or in my oral rendition of the typescript I left out any of those words, you are to understand that they belong there, "beyond a reasonable doubt."

Okay. Now——

JUDGE KAPLAN: Okay. See, I have very able prompters.

Oh, you're now going in ascending order rather than descending order?

JUDGE KAPLAN: Listen, I'll go either way. I'm very versatile on that, backwards and forwards.

Okay. In the course of charging you on the second element of concealment money laundering, I am told that I orally may have gone off script, so I'm going to read you that paragraph again. But it is accurate in the typescript. And that paragraph reads:

The second element of concealment money laundering is that the financial transactions would have involved the proceeds of specified unlawful activity. Here, the specified unlawful activity is the wire fraud offense charged in Count One, and I instruct you as a matter of law that the wire fraud charged in Count One of the indictment, if proven beyond a reasonable doubt, meets the definition of "specified unlawful activity." You must determine whether the funds involved in the financial transactions would have been proceeds of that unlawful activity.

Next.

JUDGE KAPLAN: Don't worry. I think I can handle it.

I'll read you this whole paragraph. We were talking here about conscious avoidance and willful blindness, and in summing up part of that, I left a "not" out somewhere. So I'm now going to read it to you accurately, and this will be reflected in an interlineation in my handwriting, which I promise to make arguably readable.

Accordingly, if you find that the defendant was aware of a high probability of a fact and that defendant acted with deliberate disregard of the facts, you may find that the defendant knew that fact. However, if you find that the defendant actually believed that the fact was not true, then you may not find that he knew that fact.

Next.

JUDGE KAPLAN: Yes. I neglected to tell you that if you communicate with the Court before you reach a verdict, either by a note or in the courtroom, you are not ever to indicate how you are divided on the defendant's guilt or lack of guilt, unless I specifically ask you for it.

And?

JUDGE KAPLAN: There was a place on page 28 where I was talking about securities fraud and I mistakenly said "fraudulent commerce" instead of "fraudulent conduct." But we'll fix that one too. Thank you, Aditi.

Okay. Now back to the alternates.

You folks are temporarily excused, but you are subject to re-call. I imagine Andy will tell you how to find out when the case is finally over and you're done. You can always call Andy. So if the five of you would kindly go with Andy, collect your stuff, leave your notes with Andy, and we'll proceed from there.

JUDGE KAPLAN: Please be seated.

Now, members of the jury, it is ten after 3. Let's talk about the rest of the day.

First of all, although I'm willing to stay till 8:15 if you want to stay till 8:15——car service, cafeteria, dinner——but you're not obliged to. And it would be extremely helpful if you could send us a note in the next half hour about——I have to be careful how I phrase this to get it exactly right——should we order supper, should we order car service. Two different questions. You could do one without the other. And it's a question of what you want. And if you want to order both against the possibility that you'll use it, that's okay too. The government can afford it. I don't mean to say the government's money should be wasted. Obviously not. But we have to give advance notice to the vendors in order to make sure it's available should you need it, and that's a legitimate purpose.

So as soon as Andy gets back, we will send you out to deliberate.

First thing he's going to do is swear the officer, of which these two were going to remind me.

Oh, yes. I'm reminded that I committed to the court staff that we would not keep you past 8. Somebody has a train to catch.

Swear the Marshal, please.

JUDGE KAPLAN: Ladies and gentlemen, thank you for your attention. You will get the charge in writing as soon as we can Xerox enough copies. And we'll wrestle with the exhibit issues.

Thank you. Please deliberate on your verdict.

JUDGE KAPLAN: Please be seated.

Andy, how are we going to handle the exhibits?

JUDGE KAPLAN: Read only, read only. That's the phrase I'm looking for.

Okay. Now is that procedure satisfactory to both sides?

JUDGE KAPLAN: Okay. I guess we will reconvene very briefly around a quarter to 4, ten to 4, whenever we get notice about what they're going to do, and we'll take it from there.

Anything else we need to do before we break?

JUDGE KAPLAN: Oh, yes, yes. Let's just make a record of that.

I've been given a proposed redacted indictment, which is undoubtedly somewhere in the cloud of paper on my desk. Let's mark this Court Exhibit W. And we'll send that in to the jury room. And that's satisfactory to both sides, I understand.

JUDGE KAPLAN: If it's okay with both of you, it's okay with me.

Okay. Anything else?

Okay. We'll designate a dinner hour if they decide to stay for dinner, but otherwise, everybody is to be——I mean, counsel on both sides who are capable of acting, authorized to act, ought to be in the courtroom or in the immediate environs. Andy has to know where to get you at any time.

And that's that. We'll await further communications.

ALL COUNSEL: Thank you.