ORDER

LEE H. ROSENTHAL, District Judge.

The attached Court's Instructions to the Jury at Conclusion of Trial was charged to the jury on even date and is to be entered in the record.

JURY INSTRUCTIONS

Members of the Jury:

You have now heard all of the evidence in the case. It is my duty to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case.

In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict.

First, I will give you some general instructions that apply in every case, for example, instructions about the burden of proof and how to judge the believability of witnesses. Then I will give you some specific rules of law about this particular case. Finally, I will explain the procedures for you to follow in your deliberations.

GENERAL INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually happened — that is, in reaching your decision as to the facts — it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard, or give special attention to, any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.

The indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The defendant begins with a clean slate. The law does not require a defendant to prove his innocence or produce any evidence at all.

The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant. While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A "reasonable doubt" is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

As I told you earlier, it is your duty to determine the facts. To do so, you must consider only the evidence presented during the trial. Evidence is the sworn testimony of the witnesses, including the exhibits. The statements, objections, or arguments made by the lawyers are not evidence. The function of the lawyers is to point out those things that are most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding on you.

During the trial, I sustained objections to certain questions and exhibits. You must disregard those questions and exhibits entirely. Do not speculate as to what the witness would have said if permitted to answer the question or as to the contents of an exhibit. Your verdict must be based solely on the legally admissible evidence and testimony.

Also, do not assume from anything I may have done or said during the trial that I have any opinion concerning any of the issues in this case. Except for the instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own verdict.

In considering the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts that have been established by the evidence.

Do not be concerned about whether the evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that was presented to you. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is proof of a chain of events and circumstances indicating that something is or is not a fact. The law makes no distinction between the weight you may give to either direct or circumstantial evidence. But the law requires that you, after weighing all of the evidence, whether direct or circumstantial, be convinced of the guilt of the defendant beyond a reasonable doubt before you can find him guilty.

I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or "believability" of each witness and the weight to be given the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe what each person had to say, and how important that testimony was. In making that decision I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? These are a few of the considerations that will help you determine the accuracy of what each witness said.

Your job is to think about the testimony of each witness you have heard and decide how much you believe of what each witness had to say. In making up your mind and reaching a verdict, do not make any decisions simply because there were more witnesses testifying for one side than on the other. Do not reach a conclusion on a particular point just because there were more witnesses testifying for one side on that point. You will always bear in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

The testimony of a witness may be discredited by showing that the witness testified falsely, or by evidence that at some other time, the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial. Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements were true, and you may not consider the earlier statements as evidence that they are true. Instead, you may use the earlier statements only to determine whether you think they are consistent or inconsistent with the witness's trial testimony and therefore whether they affect that witness's credibility. If you believe that a witness has been discredited in this way, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.

In determining whether any statement, claimed to have been made by the defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care. You should give such weight to the statement as you feel it deserves under all the circumstances. You may consider such factors as the training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

The testimony of an alleged accomplice must be examined and weighed by the jury with greater caution and care than the testimony of ordinary witnesses. You, the jury, must decide whether the witness's testimony has been affected by any interest the witness may have in the outcome of the case, or by any advantage the witness may receive from testifying. You should not convict the defendant on the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

The testimony of a witness who is shown to have used addictive drugs during the period of time about which the witness testified must also be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You should not convict the defendant on the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

You will note that the indictment charges that the offenses were committed "on or about" a specified date. The government does not have to prove that a crime was committed on the exact date alleged, so long as the government proves beyond a reasonable doubt that the defendant committed the crime on a date reasonably near the date stated in the indictment. Similarly, it does not matter if the indictment charges that certain transactions involved specific amounts of money, and the evidence indicates that in fact it was a different amount of money. The law requires only a substantial similarity between the amounts alleged in the indictment and the amounts established by the evidence.

If the defendant is found guilty, it is my duty to decide what the punishment will be. You should not be concerned with punishment in any way. It should not enter your consideration or discussion.

Certain charts and summaries have been received into evidence as Exhibits 800 and 805. You should give them only such weight as you think they deserve.

Other charts and summaries were not received into evidence but have been shown to you solely as an aid to help explain the facts disclosed by evidence — by testimony and exhibits. These charts and summaries are not in themselves proof of any facts. You should determine the facts from the evidence that was admitted.

Exhibits 546a, 547a, 548a, 549a, 550a, and 551a have been identified as typewritten transcripts of the oral conversations that can be heard on the recordings received in evidence as Exhibits 546, 547, 548, 549, 550, and 551. The transcripts also purport to identify the speakers engaged in such conversation. I have admitted the transcripts for the limited and secondary purpose of aiding you in following the content of the conversation as you listen to the recordings, and also to aid you in identifying the speakers. You are specifically instructed that whether the transcripts correctly or incorrectly reflect the content of the conversation or the identity of the speakers is for you to determine based on your own evaluation of the evidence from your own examination of the transcript in relation to your hearing of the recordings themselves as the primary evidence of their own contents. If you should determine that any transcript is in any respect incorrect or unreliable, you should disregard it to that extent. It is what you hear on the recording that is evidence, not a transcript.

You are here to decide whether the government has proved beyond a reasonable doubt that the defendant, Mr. Mark James, is guilty of the crimes charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment. Neither are you called upon to return a verdict as to the guilt of any other person or persons not on trial as a defendant in this case.

A separate crime is charged against the defendant in each of the two counts of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty or not guilty of one of the counts charged should not control your verdict as to the other count. You must give separate consideration to the evidence as to each count.

You have heard evidence of the acts of the defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes. If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine: whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment; or whether the defendant had a motive or the opportunity to commit the acts charged in the indictment; or whether the defendant acted according to a plan or in preparation for commission of a crime; or whether the defendant committed the acts for which he is on trial by accident or mistake. These are the limited purposes for which any evidence of other similar acts may be considered.

SPECIFIC INSTRUCTIONS ON THE COUNTS CHARGED

1. Definitions and Instructions That Apply to Both Count One (Conspiracy to Commit Wire Fraud) and Count Two (Conspiracy to Commit Money Laundering)

a. Definitions That Apply to Both Counts One and Two

The word "knowingly," as used in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.

"Interstate commerce," as used in these instructions, means commerce or travel between one state and another in the United States. "Foreign commerce" means commerce or travel between any part of the United States and any other country. "Commerce" includes travel, trade, transportation, and communication.

b. Instructions That Apply to Both Counts One and Two

The defendant, Mr. Mark Allan James, is charged in Count One with conspiring to commit wire fraud and in Count Two with conspiracy to commit certain kinds of financial transactions known as money laundering. United States law makes it a crime for anyone to conspire with someone else to commit an offense against the laws of the United States.

A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.

For you to find Mr. James guilty of conspiracy under either Count One or Count Two, you must first be convinced that the government has proved each of the following beyond a reasonable doubt:

The instructions on the first element for each of Count One and Count Two are set out in the instructions that apply separately to each of these counts. The instructions on wire fraud for Count One are on pages 15 to 17. The instructions on money laundering for Count Two are on pages 17 to 20.

The instructions for the second element of conspiracy in both Counts One and Count Two are the same. For this second element for both Counts One and Two, you are instructed that a person may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy, even though the defendant had not participated before and even though he played only a minor part.

The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.

Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other or may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not thereby become a conspirator.

An essential element of Count One, conspiracy to commit wire fraud, is the "intent to defraud." An essential element of Count Two, conspiracy to commit money laundering, is the "intent to promote the carrying on of the specified unlawful activity," which in this case is wire fraud. The government alleges that Hewlett Packard sold or agreed to sell the computer equipment at issue at heavily discounted prices exclusively for the purchasers' internal use, without knowing that the actual purchasers in fact intended to resell the equipment. The government alleges that Hewlett Packard would not have provided the discounts without the purchasers' representation that it was the end-user who would use the equipment internally and not resell it.

Mr. James contends that he believed Hewlett Packard condoned — that is, knew of and implicitly approved — the sales of discounted equipment to purchasers who intended to resell it. Mr. James contends that, because he believed Hewlett Packard condoned such sales, he did not "intend to defraud" or act with the "specific intent to promote the carrying on of wire fraud." Mr. James has no obligation to prove that his contention is correct. Rather, as noted, the burden is on the government to prove all of the material elements of each offense charged, beyond a reasonable doubt, including the proof of "intent to defraud" or the "specific intent to promote the carrying on of wire fraud." In determining whether Mr. James had the required intent to commit fraud or to promote the carrying on of wire fraud, you may consider any evidence that information was communicated to Mr. James that Hewlett Packard knew of and implicitly approved the sales of discounted equipment for resale alleged in the indictment.

2. Additional Instructions Specific to Count One

The defendant, Mark Allan James, is charged in Count One with conspiring to commit wire fraud. With respect to the first element of conspiracy, wire fraud, you are instructed that Title 18, United States Code, Section 1343, makes it a crime for anyone to use interstate wire communications in carrying out a scheme to defraud. Wire fraud has four elements:

A "scheme to defraud" means any plan, pattern, or course of action intended to deprive another of money or property.

A "specific intent to defraud" means a conscious, knowing intent to deceive or cheat someone.

A representation is "false" if it is known to be untrue or is made with reckless indifference as to its truth or falsity. A representation is also "false" if it is a half-truth or effectively omits or conceals a material fact, provided the representation is made with the intent to defraud.

A misrepresentation is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom it is addressed.

It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme. What must be proved beyond a reasonable doubt is that Mr. James knowingly or intentionally engaged in a scheme to defraud Hewlett Packard of money or property by means of false representations or promises that was substantially the same as the scheme alleged in the indictment.

It is also not necessary that the government prove that the material transmitted by wire communications was itself false or fraudulent, or that the use of the interstate wire-communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud. What must be proved beyond a reasonable doubt is that the use of the interstate wire-communications facilities was closely related to the scheme because Mr. James either used such facilities or caused them to be used in an attempt to execute or carry out the scheme.

To "cause" interstate wire-communications facilities to be used is to do an act with knowledge that the use of the wire-communications facilities will follow in the ordinary course of business or when such use can reasonably be foreseen.

3. Additional Instructions Specific to Count Two (Conspiracy to Commit Money Laundering)

Title 18, United States Code, Section 1956(h) makes it a crime for anyone to conspire with someone else to commit money laundering, and Title 18, United States Code, Section 1956(a)(2)(a) makes it a crime to knowingly engage money laundering. Count Two of the Indictment charges Mr. James with conspiring to commit money laundering.

"Money laundering," as used in these instructions, means transmitting or transferring funds from a place inside the United States to or through a place outside the United States, or from a place outside the United States to or through a place inside the United States, with the intent to promote the carrying on of a specified illegal activity, that is, wire fraud.

As to the first element of Count Two, you must be convinced that Mr. James and at least one other person made an agreement to commit the crime of money laundering. Money laundering has the following two elements:

To "transmit or transfer" includes all means and methods of sending money, including electronic transfer by wire or computer or other means.

It does not matter whether the monetary instrument or money involved in the case came from or was derived from criminal activity. It could be legitimately earned money.

A "monetary instrument" includes the currency of any country and includes checks, money orders, investment securities, or negotiable instruments in any form that allows ownership to transfer on delivery.

The term "specified unlawful activity," as used in these instructions, means wire fraud.

The term, "with the intent to promote the carrying on of specified unlawful activity," means that Mr. James must have conducted or attempted to conduct the financial transaction for the purpose of making it easier or helping to bring out the specified unlawful activity, that is, wire fraud.

The events presented at trial happened in various places. There is no requirement that the entire conspiracy take place in the Southern District of Texas, but in order for you to return a guilty verdict, the government must prove by a preponderance of the evidence that either the agreement or an overt act took place in this district, even if the defendant never set foot in the district. An overt act is an act performed to effect or further the object of a conspiracy, although it remains separate and distinct from the conspiracy itself. Though the overt act need not be of a criminal nature, it must be done in furtherance of the object of the conspiracy. Unlike the other elements of the offense, this is a fact that the government has to prove only by a preponderance of the evidence. This means the government has to convince you only that it is more likely than not that part of the conspiracy took place in the Southern District of Texas. All other elements of the offense must be proved beyond a reasonable doubt. You are instructed that the City of Houston and Harris County, Texas are located in the Southern District of Texas.

FINAL INSTRUCTIONS

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.

It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are judges — judges of the facts. Your duty is to decide whether the government has proved the defendant guilty beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. A verdict form has been prepared for your convenience. The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict form. The foreperson will retain possession of the verdict form until the court asks for it.

If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the court security officer. I will either reply in writing or bring you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.