Criminal Pattern Jury Instructions: Federal Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) Translating Criminal Statutes Into Language the Jury Can Understand Sarah N. Welling Ashland-Spears Distinguished Research Professor of Law Alicia N. Harden Third-Year Student, College of Law Project Goals Process Create jury instructions, using plain English, based on accurate statements of the law 1. Parse the Statute 3. Using Plain English, Draft Pattern Jury Instructions, Use Notes, and Commentary for Use at Trial conducts (or attempts to) Determine the accurate state of the law by parsing complex statutes into simple legal requirements for conviction and integrating statutory requirements with any limits or variations identified in caselaw financial transaction Avoid having a trial judgment reversed based on jury instruction error, thereby preventing waste of scarce judicial resources Provide an efficient method of determining the proper jury instruction in the case by providing the judge with an accurate and concise statement of the law, thereby reducing the resources expended on deciding appropriate jury instructions in an individual case to promote the carrying on of specified unlawful activity (a)(1)(A)(i) (a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity— (A)(i) with the intent to promote the carrying on of specified unlawful activity; or (ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or (B) knowing that the transaction is designed in whole or in part— (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law, shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is great, or imprisonment for not more than twenty years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement. Summary: This part of the statute criminalizes “promotional” money laundering, or when dirty money is used to continue performing/promoting the underlying crime. A separate statute criminalizes “investment” money laundering, or when dirty money is invested into the financial system. Hon. Julian Abele Cook, Jr., Chair United States District Judge, Eastern District of Michigan Prof. Sarah N. Welling, Reporter College of Law, University of Kentucky Hon. Dan Aaron Polster United States District Judge, Northern District of Ohio Hon. Amul Thapar United States District Judge, Eastern District. of Kentucky Paragraph 3 of the Instruction is usually an optional instruction that the judge may give that describes what the Government does not have to prove. The following is an example of an optional instruction in Instruction 11.01: [The government does not have to prove the defendant knew the property involved represented proceeds of a felony as long as he knew the property involved represented proceeds of some form of unlawful activity.] This may not be a separate paragraph, but may be built into a definition or element. knowing that the transaction is designed in whole or in part or to violate IRC §§7201, 7206 (a)(1)(A)(ii) to conceal or disguise the nature, location, source, ownership or control of proceeds of specified unlawful activity (a)(1)(B)(i) or to avoid a transaction Reporting requirement (a)(1)(B)(ii) 2. Check Caselaw for any Variations or Limitations on the Statutory Language Not all of the property has to be from the unlawful activity. “[Defendant] asserts, without citing authority, that because the statute refers to "proceeds" of unlawful activity, the Government must show that the entire [amount] was proceeds from [specified unlawful activity]. . . . We . . . reject [defendant’s] argument that the entire amount involved in the transaction must be derived from specified unlawful activities.” U.S. v. Conner, 1991 WL 213756 at 2 (6th Cir. 1991) (emphasis added). Money from the unlawful activity can be commingled with other money, and the Government does not have to trace the funds. “When money from illegal sources is co-mingled with money from unspecified other sources, ‘all such funds are attributable to the money laundering scheme.’” U.S. v. Owen, 159 F.3d 221, 229 (6th Cir. 1998). Jimmie Lynn Ramsaur Assistant United States Attorney, Middle District of Tennessee Richard Helfrick Deputy Defender, Eastern District of Michigan Ann C. Rowland Assistant United States Attorney, Northern District. of Ohio Debra M. Hughes First Assistant Federal Defender, Northern District. of Ohio Gary J. Sergent O’Hara, Ruberg, Taylor, Sloan & Sergent Sheldon N. Light Assistant United States Attorney, Eastern District. of Michigan Edwin J. Walbourn, III Assistant United States Attorney, Eastern District. of Kentucky Dean Alan C. Michaels Moritz College of Law, The Ohio State University Mariah A. Wooten First Assistant Federal Public Defender, Middle District of Tennessee Paragraph 4 of the Instruction is a “wrap-up” that briefly restates the elements that the Government has to prove beyond a reasonable doubt in order for the jury to convict the defendant. Following the Instruction is a Use Note, which consists of important notes to the judge. These generally take the form of short statements. Each Instruction also has Commentary, or essay-style notes that explain the law behind the Instruction. Important cases are identified and the Commentary may include an explanation of when the Instruction applies. If the Sixth Circuit has expressed approval of an Instruction, this information is also included. 4. Maintain the Accuracy of the Jury Instructions by Including Updates in the Commentary Hon. Thomas A. Wiseman, Jr. United States District Judge, Middle District of Tennessee Prof. John Nussbaumer Thomas M. Cooley Law School proceeds of some form of unlawful activity Save time and resources for the whole system Committee Members Paragraph 2 of the Instruction states the definitions that the jury must apply. Definitions can be from caselaw or statutes. the knowing the property involved represents with intent 18 U.S.C. § 1956(a)(1) which in fact involves proceeds of specified unlawful activity Paragraph 1 of the Instruction states the elements of the crime. Elements are ordered in a way to make them most comprehensible to the jury Each element must be proven by the Government; it is very important that the jury understand the Government’s burden. Subsequent decisions by the Supreme Court or the Sixth Circuit are most frequently addressed in the Commentary, unless the text of the Instruction needs to be adjusted For example, in 2008, in U.S. v. Santos, 128 S.Ct. 2020 (2008), the Supreme Court limited the scope of the definition “proceeds” when gambling is the unlawful activity. Congress later amended the statute, but in 2009, in U.S. v. Kratt, 2009 WL 2767152 (6th Cir. 2009), the Sixth Circuit held that the Court’s decision in Santos applied generally to all money laundering cases. Thus, within the Sixth Circuit, any case that comes from conduct prior to May 20, 2009, must go through a Santos analysis to see if the rule applies. On March 18, 2011, the Sixth Circuit reversed a conviction of conspiracy to commit money laundering because the jury was not instructed on the Santos issue. U.S. v. Crosgrove, 2011 WL 922253 (6th Cir. 2011). 2011-2012 Focus The Committee is currently producing new elements instructions for drug crimes and credit card fraud. In 2012, the Committee will turn its attention to elements instructions on child pornography and the crime of enticing a child to engage in sexual acts. All new instructions will be posted online. Hypothetical Facts: Defendant manufactures and deals drugs, and in an effort to broaden his distribution network, he takes the profits from his drug enterprise and purchases boats. In buying the boats to sell more drugs, the defendant promoted the underlying drug crimes. Resulting Instruction 11.01 MONEY LAUNDERING – Domestic Financial Transaction (18 U.S.C. § 1956(a)(1)(A)(intent to promote the carrying on of specified unlawful activity)) (1) Count  of the indictment charges the defendant with [conducting] a financial transaction in violation of federal law. For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt: (A) First, that the defendant [conducted] a financial transaction. (B) Second, that the financial transaction involved property that represented the proceeds of [manufacturing a controlled substance]. (C) Third, that the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity. (D) Fourth, that the defendant had the intent [to promote the carrying on of [manufacture of a controlled substance]]. (2) Now I will give you more detailed instructions on some of these terms. (A) The term “financial transaction” means [(A) a transaction which in any way or degree affects interstate or foreign commerce . . . or (B) a transaction involving the use of a financial institution . . . ]. (B) [The term “financial institution” means [an insured bank, a commercial bank or trust company, a private banker, . . . any credit union, . . . an insurance company, [or] the United States Postal Service . . . ]. (C) The word “conducts” includes initiating, concluding, or participating in initiating or concluding a transaction. (D) The word “proceeds” means any property [derived from], directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity. (E) The phrase “knew that the property involved in a financial transaction represents the proceeds of some form of unlawful activity” means that the defendant knew the property involved in the transaction represented the proceeds of some form, though not necessarily which form, of activity that constitutes a felony under state or federal law. (3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge. Use Note Brackets indicate options for the court. The definition of financial institution in paragraph (2)(B) should be given only when a financial institution is used to prove the presence of a financial transaction. The final bracketed sentence in paragraph (2)(E) should be given only when the defendant raises as an issue whether he knew that the unlawful activity which generated the proceeds was a felony or a misdemeanor. For Further Information Please contact Sarah Welling at 859.257.8326 or [email protected] Complete Sixth Circuit Criminal Pattern Jury Instructions can be found at http://www.ca6.uscourts.gov/internet/crim_jury_insts.htm. Instructions may be downloaded in Word, WordPerfect, or PDF.