IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 95-2014-MWB
vs. FINAL INSTRUCTIONS TO THE JURY
SCOTT E. HILDEBRAND,
Defendant.

____________________

TABLE OF CONTENTS



FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - OFFENSES CHARGED

NO. 4 - "INTENT" AND "KNOWLEDGE"

NO. 5 - CONSPIRACY TO COMMIT MAIL FRAUD

NO. 6 - ACTS AND STATEMENTS OF CO-CONSPIRATORS

NO. 7 - MAIL FRAUD

NO. 8 - LIABILITY FOR MAIL FRAUD

NO. 9 - DIRECTION OF OTHERS AND AIDING AND ABETTING

NO. 10 - LIABILITY OF CO-CONSPIRATORS FOR SUBSTANTIVE OFFENSES

NO. 11 - CONSPIRACY TO COMMIT MONEY LAUNDERING

NO. 12 - ELEMENTS OF SUBSTANTIVE MONEY LAUNDERING OFFENSES

NO. 13 - "GOOD FAITH" DEFENSE

NO. 14 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

NO. 15 - REASONABLE DOUBT

NO. 16 - DUTY TO DELIBERATE

NO. 17 - DUTY DURING DELIBERATIONS

VERDICT FORM



FINAL INSTRUCTION NO. 1 - INTRODUCTION

Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, you will attach no importance or significance whatsoever to the order in which they are given.



FINAL INSTRUCTION NO. 2 - DUTY OF JURORS

It will be your duty to decide from the evidence whether defendant Scott E. Hildebrand is guilty or not guilty of the crimes charged against him. Although other persons were charged as defendants in the same indictment charging Scott E. Hildebrand, only defendant Scott E. Hildebrand is on trial at this time. You should not guess about or concern yourselves with the reason that the other defendants are not on trial here. You are not to consider their absence from this trial when deciding if the government has proved, beyond a reasonable doubt, its case against Scott E. Hildebrand.

It is your duty to find from the evidence what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

Neither in these instructions nor in any ruling, action, or remark that I made during this trial or may make in these instructions do I or did I intend to give any opinion or suggestion as to what the facts are or what your verdict should be.

Finally, please remember that only defendant Scott E. Hildebrand, not anyone else, is on trial here, and that Scott E. Hildebrand is on trial only for the crimes charged against him, not for anything else.



FINAL INSTRUCTION NO. 3 - OFFENSES CHARGED

The charges in this case are as follows:

Count 1 of the indictment charges that the defendant committed the crime of conspiracy to commit mail fraud. Counts 2 through 42 of the indictment charge that the defendant committed specific crimes of mail fraud. Count 43 of the indictment charges that the defendant committed the crime of conspiracy to commit money laundering. Count 44 charges that up to $2,049,600.00 was involved in the money laundering conspiracy charged in Count 43 and that this money is thus forfeitable to the United States. You will only decide the question of forfeitability of the money under Count 44 if you find the defendant guilty on Count 43.

Although you will be given a copy of the indictment to take with you to the jury room, its only purpose is to provide you with an identification of the charge made in each count. As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the government proves, beyond a reasonable doubt, each essential element of a crime charged.

You will note that the indictment charges that the offenses were committed "on or about" a certain date or between certain dates. The United States need not prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

Keep in mind that each count charges a separate crime. Keep in mind that you must consider, separately, each crime charged against the defendant and must return a separate verdict for each of those crimes charged.



FINAL INSTRUCTION NO. 4 - "INTENT" AND "KNOWLEDGE"

Because "intent," "knowledge," or both, are elements of the offenses charged in this case, I must first instruct you that "intent" or "knowledge" may be proved like anything else. You may consider all of the facts and circumstances in evidence that may aid in a determination of the defendant's knowledge or intent.

As to "intent," you may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.

An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident.

You may find that defendant Scott E. Hildebrand acted knowingly if you find beyond a reasonable doubt that he was aware of a high probability that materially false representations were being made about the Baskerville case or the claims process, but deliberately avoided learning the truth. The element of knowledge may be inferred if Scott E. Hildebrand deliberately closed his eyes to what would otherwise have been obvious to him. However, you may not find that Scott E. Hildebrand acted knowingly if you find that he actually believed that no materially false representations were being made about the Baskerville case or the claims process and you find that he was simply careless, or negligent, or mistaken.



FINAL INSTRUCTION NO. 5 - CONSPIRACY TO COMMIT MAIL FRAUD

Count 1 of the indictment charges a conspiracy to commit mail fraud by defendant Scott E. Hildebrand and other persons not defendants here. The statute governing this conspiracy charge is 18 U.S.C. § 371, which provides in pertinent part as follows:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be [guilty of an offense against the laws of the United States].



The crime of conspiracy to commit mail fraud as charged in Count 1 of the indictment has four essential elements, which are the following:

One, between about January 1, 1993, and about October 19, 1994, two or more persons reached an agreement or came to an understanding to commit mail fraud.

Two, 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.

Three, at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding.

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more acts for the purpose of carrying out or carrying forward the agreement or understanding.

For you to find the defendant guilty of this crime, the government must prove all of these essential elements beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty. However, it is not necessary for the government to prove that the defendant benefitted from the unlawful plan.

The following is an explanation of the elements of a conspiracy charge:

The government must prove that the 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, or otherwise charged with a crime. 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.

However, a person may join in an agreement or understanding 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. However, the defendant must know of the existence of the conspiracy. Without such knowledge, the defendant cannot be guilty even if his acts furthered the conspiracy.

In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

It is not necessary that the act done in furtherance of the conspiracy be in itself unlawful. It may be perfectly innocent in itself. Nor is it 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.

In Final Instruction No. 7, I define the elements of mail fraud in relation to the charges in Counts 2 through 42 of the indictment. You may use those definitions in considering whether the defendant conspired to commit mail fraud, keeping in mind that Count 1 charges a conspiracy to commit mail fraud, not that mail fraud was actually committed.



FINAL INSTRUCTION NO. 6 - ACTS AND STATEMENTS OF CO-CONSPIRATORS

If you find beyond a reasonable doubt that a conspiracy existed and that the defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant. This includes acts done or statements made before the defendant joined the conspiracy, for a person who knowingly, voluntarily, and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy. However, acts and statements that were made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other person, including the defendant.



FINAL INSTRUCTION NO. 7 - MAIL FRAUD

Counts 2 through 42 of the indictment charge the defendant with specific crimes of mail fraud. The statute governing these offenses is 18 U.S.C. § 1341, which provides, in pertinent part, as follows:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing shall be [guilty of an offense against the laws of the United States].



While the statute is commonly referred to as the "mail fraud" statute, you will note that not just use of the mails is covered. The statute can also be violated if a private or commercial interstate carrier is used to send or deliver any matter or thing. The United Parcel Service (UPS) and Federal Express (Fed Ex) are commercial interstate carriers within the meaning of the statute.

The crime of mail fraud, as charged in these counts, has four essential elements, which are as follows:

One, the defendant voluntarily and intentionally devised or participated in a scheme to defraud or to obtain money by means of false representations or promises which scheme is described as follows: a scheme to defraud people out of $300 each by falsely telling them the $300 was to pay for administrative costs in filing "claims" against the United States and that the "claims" would result in millions of dollars in payments to the "claimants."

The phrase "scheme to defraud" includes any plan or course of action intended to deceive or cheat another out of money. It also means obtaining money from another by means of false representations or promises.

A statement or representation is "false" when it is untrue when made or effectively conceals a material fact. A material fact is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. A false statement can involve future intentions as well as existing facts.

The mail fraud counts of the indictment charge that the defendant, along with others either not charged or not on trial here, devised or participated in a scheme. The government need not prove, however, that the defendant or others either not charged or not on trial here met together to formulate the scheme charged, or that there was a formal agreement among them, in order for them to be held jointly responsible for the operation of the scheme and the use of the mails or a commercial interstate carrier for the purpose of accomplishing the scheme. It is sufficient if only one person conceives the scheme and the others knowingly, voluntarily, and intentionally join in and participate in some way in the operation of the scheme in order for such others to be held jointly responsible.

It is also not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme, that the material mailed or sent was itself false or fraudulent, that the alleged scheme actually succeeded in defrauding anyone, or that the use of the mail or a commercial interstate carrier was intended as the specific or exclusive means of accomplishing the alleged fraud.



Two, the defendant voluntarily and intentionally devised or participated in a scheme with the intent to defraud.

To act with "intent to defraud" means to act knowingly and with the intent to deceive someone for the purpose of causing some financial loss to another or bringing about some financial gain to oneself or another to the detriment of a third party. With respect to false statements, the defendant must have known the statement was untrue when made or have made the statement with reckless indifference to its truth or falsity.



Three, it was reasonably foreseeable that the mails or a commercial interstate carrier would be used.

Four, the mails or a commercial interstate carrier were used in furtherance of some essential step of the scheme.

It is not necessary that the use of the mails or a commercial interstate carrier by the participants themselves be contemplated or that the defendant do any actual mailing or sending himself. It is also not necessary that the defendant specifically intend that the mails or a commercial interstate carrier be used. It is sufficient if the mails or a commercial interstate carrier were in fact used to carry out the scheme and that the use of the mails or a commercial interstate carrier by someone was reasonably foreseeable.

Mailings or shipments that are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are in furtherance of the scheme. It is not necessary that a mailing predate the receipt of the money involved in the scheme.

A postmark or shipping mark is evidence from which you may, but are not required to, find or infer that the mails or a commercial interstate carrier were used to deliver an item. Use of the mails or a commercial interstate carrier may be established by circumstantial evidence.



For you to find the defendant guilty of any count of mail fraud, the government must prove all of the essential elements beyond a reasonable doubt as to the defendant and that count; otherwise, you must find the defendant not guilty of that count of mail fraud.

Under the mail fraud statute, each separate use of the mails or a commercial interstate carrier in furtherance of the scheme to defraud constitutes a separate offense.



FINAL INSTRUCTION NO. 8 - LIABILITY FOR MAIL FRAUD

This case is submitted to you as to Counts 2 through 42 on three theories of criminal liability. The first theory is that the defendant personally committed the offenses.

The second theory is that the defendant aided and abetted the commission of the offenses. Aiding and abetting will be explained to you in Final Instruction No. 9. Under an aiding and abetting theory, the personal involvement of the defendant in the commission of the charged offenses is not required, and there is no burden on the government, under this theory, to prove beyond a reasonable doubt that the defendant was personally present at the time and place of the offenses.

The third theory is that the offenses in Counts 2 through 42 were committed by a co-conspirator of the defendant during the course of and in furtherance of the conspiracy charged in Count 1. This theory will be explained to you in Final Instruction No. 10, and you should remember that you can only consider this theory if you have first found the defendant guilty of the charged conspiracy beyond a reasonable doubt. Under this third theory, there is no burden on the government to prove that the defendant was personally involved in the mail frauds alleged in Counts 2 through 42.



FINAL INSTRUCTION NO. 9 - DIRECTION OF OTHERS AND AIDING AND ABETTING

A person may be found guilty of mail fraud even if he personally did not do every act constituting the offense charged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. Notice, however, that before the defendant may be held criminally responsible for the acts of others, it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

If another person is acting under the direction of the defendant, then the law holds the defendant responsible for the acts and conduct of such other person just as though the defendant had committed the acts or engaged in such conduct.

In order to hold a person to be criminally liable for aiding and abetting the commission of a crime, a person must, before or at the time the crime was committed,

(1) have known an offense of mail fraud was being committed or going to be committed;

(2) have knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of that offense; and

(3) have acted with intent to defraud.

For you to find the defendant guilty of an offense of mail fraud by reason of aiding and abetting, the government must prove beyond a reasonable doubt that all of the essential elements of that offense were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

In other words, you may not find the defendant guilty of an offense of mail fraud unless you find beyond a reasonable doubt that every element of the offense as defined in Final Instruction No. 7 was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law. However, it is not necessary that the other person or persons be convicted or even identified.

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 voluntarily participated in the commission of an offense. 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 that advances some offense, does not thereby become criminally liable for that offense.



FINAL INSTRUCTION NO. 10 - LIABILITY OF CO-CONSPIRATORS FOR SUBSTANTIVE OFFENSES

If you find that the defendant is guilty of conspiracy to commit mail fraud as charged in Count 1, or is a co-conspirator in the conspiracy charged in Count 1, you may also find the defendant guilty of a substantive offense of mail fraud as charged in any other count of the indictment, provided that you find that the essential elements of that count as defined in Final Instruction No. 7 have been established beyond a reasonable doubt and provided that you also find the following beyond a reasonable doubt:

First, that the offense or offenses defined in the mail fraud count or counts was or were committed pursuant to the conspiracy, and

Second, that the defendant was a member of the conspiracy at the time the specific mail fraud offense was or offenses were committed, and

Third, that the offense or offenses defined in the specific mail fraud count was or counts were reasonably foreseeable as a necessary or natural consequence of the conspiracy.

Under the conditions just defined, the defendant may be found guilty of a mail fraud count even though he did not personally participate in the acts constituting the offense as defined in the mail fraud count. The reason for this is that a co-conspirator committing a mail fraud offense pursuant to a conspiracy is held to be the agent of the other conspirators, whether or not they are charged or on trial here, and is accountable for their false statements or omissions. Therefore, a defendant who is a party to a conspiracy to commit mail fraud may be held responsible for mail fraud offenses committed by others in furtherance of the conspiracy or which were reasonably foreseeable even though that defendant does not participate in, agree to, or know of the specific mail fraud offenses.



FINAL INSTRUCTION NO. 11 - CONSPIRACY TO COMMIT MONEY LAUNDERING

Count 43 of the indictment charges the defendant with the crime of conspiracy to commit money laundering. The statute governing this offense is 18 U.S.C. § 1956(h), which provides as follows:

(h) Any person who conspires to commit any offense defined in [section 1956] or section 1957 shall be [guilty of an offense against the laws of the United States].



The indictment alleges that the defendant conspired to commit money laundering violations of 18 U.S.C. § 1956(a)(1) and 1957. Section 1956(a)(1) of Title 18 provides as follows:

(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)(1) with the intent to promote the carrying on of specified unlawful activity; 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; shall be



[guilty of an offense against the laws of the United States].



Section 1957(a) of Title 18 provides as follows:



(a) Whoever, in [the United States], knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity, shall be [guilty of an offense against the laws of the United States].



Count 43 of the indictment charges a conspiracy to commit money laundering in three separate ways: violations of § 1956(a)(1)(A), violations of § 1956(a)(1)(B), and violations of § 1957(a). It is not necessary for the government to prove a conspiracy to commit all of those offenses. It would be sufficient if the government proves beyond a reasonable doubt a conspiracy to commit any one of those offenses. However, in order to return a verdict of guilty, you must unanimously agree upon which of the three offenses was the subject of the conspiracy, whether it was one, two, or all three of the offenses. If you cannot agree in that manner, you must find the defendant not guilty.

The crime of conspiracy to commit money laundering as charged in Count 43 of the indictment has four essential elements, which are as follows:

One, between about October 1, 1993, and about October 19, 1994, two or more persons reached an agreement or came to an understanding to commit money laundering.

Two, 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.

Three, at the time the defendant joined in the agreement or understanding, he knew the essential purpose of the agreement or understanding.

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more acts for the purpose of carrying out or carrying forward the agreement or understanding.

For you to find the defendant guilty of this crime, the government must prove all of these essential elements beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty. In considering this charge, you should also refer to the explanation of the elements of a conspiracy offense in Final Instruction No. 5, beginning on page 6, which apply equally to a conspiracy to commit money laundering, as does Final Instruction No. 6.



FINAL INSTRUCTION NO. 12 - ELEMENTS OF SUBSTANTIVE MONEY LAUNDERING OFFENSES

To assist you in determining whether there was an agreement or understanding to commit money laundering in any of the three ways alleged, you are advised that the elements of these money laundering offenses are as follows:

For a violation of § 1956(a)(1)(A):

One, a person conducted a financial transaction, that is, a payment by check or a cash withdrawal from a bank;

Two, a person conducted the financial transaction with money that involved the proceeds of mail fraud;

Three, at the time a person conducted the financial transaction, the person knew the money represented the proceeds of some form of unlawful activity; and

Four, a person conducted the financial transaction with the intent to promote the carrying on of mail fraud.

It is not necessary to show that a person intended to commit mail fraud himself or herself; it is sufficient that in conducting the financial transaction, the person intended to make the unlawful activity easier or less difficult.

For a violation of § 1956(a)(1)(B):

One, a person conducted a financial transaction, that is, a payment by check or cash withdrawal from a bank;

Two, a person conducted the financial transaction with money that involved the proceeds of mail fraud.

Three, at the time a person conducted the financial transaction, the person knew the money represented the proceeds of some form of unlawful activity; and

Fourth, a person conducted the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the mail fraud.

For a violation of § 1957:

One, a person knowingly engaged in a financial transaction, that is, the withdrawal of money from an account at a bank.

Two, the withdrawal was by way of check or cash in an amount greater than $10,000 derived from mail fraud as defined in Final Instruction No. 7;

Three, a person then knew that the withdrawal involved proceeds of a criminal offense; and

Four, the withdrawal took place in the United States.

The government must prove only that a person knew that the property involved in the monetary transaction constituted, or was derived from, directly or indirectly, proceeds obtained from some kind of criminal activity.

The following definitions apply to this Instruction:



The phrase "financial transaction," as used in this Instruction means a transaction involving the use of a bank which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.



The term "transaction," as used above, means, with respect to a bank, a deposit, withdrawal, transfer between accounts, exchange of currency, or any other payment, transfer, or delivery by, through, or to a bank, by whatever means.



The phrase "interstate commerce," as used above, means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.



It is not necessary for the government to show that a person's transaction with a financial institution, that is with a bank, itself affected interstate commerce. All that is necessary is that at the time of the alleged offense the bank was engaged in or had other activities which affected interstate or foreign commerce in any way or degree.



You may find that the transaction involved the use of a bank which engaged in or the activities of which affected interstate commerce in any way or degree if you find from the evidence beyond a reasonable doubt that it sent checks for clearing to another state or transferred funds to another state or had customers in other states or purchased supplies or goods from other states or was insured by the Federal Deposit Insurance Corporation (FDIC).



The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of mail fraud. Proceeds can be any kind of property, not just money. It can include checks or money orders and bank account balances resulting from the deposit of cash, checks or money orders.



It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was a defendant. It is a crime to conduct a financial transaction involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.



The government is not required to trace the property it alleges to be proceeds of mail fraud to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of mail fraud generally. For example, in a case involving alleged mail fraud proceeds, the government would not have to trace the money to a particular mail fraud offense, but could satisfy the requirement by proving that the money was the proceeds of mail fraud generally.



The government need not prove that all of the property involved in the transaction was the proceeds of mail fraud. It is sufficient if the government proves that at least part of the property represents such proceeds.



The phrase "knew the money represented the proceeds of some form of unlawful activity," means that a person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under State or Federal law. Thus, the government need not prove that a person specifically knew that the money involved in the financial transaction represented the proceeds of mail fraud or any other specific offense; it need only prove that he knew it represented the proceeds of some form, though not necessarily which form, of felony under state or federal law.



Keep in mind that the indictment charges a conspiracy to commit money laundering and not that money laundering was actually committed.



FINAL INSTRUCTION NO. 13 - "GOOD FAITH" DEFENSE

The defendant in this case asserts as a defense to the mail fraud and conspiracy to commit mail fraud charges that he acted in good faith. Here, the defendant claims he acted in good faith, because he believed the statements being made about the Baskerville case or the claims process were true. Good faith is a complete defense to the charges of mail fraud and conspiracy to commit mail fraud, because good faith on the part of the defendant is simply inconsistent with intent to defraud, which is an essential element of those charges. Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. The mail fraud statute is written to subject to criminal punishment only those people who knowingly defraud or intend to defraud.

While the term "good faith" has no precise definition, it means, among other things, a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid taking unfair advantage of another.

A person who acts, or causes another person to act, on a belief or an opinion honestly held is not punishable under the mail fraud and mail fraud conspiracy statutes merely because the person's belief or opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or an error in management does not rise to the level of intent to defraud.

However, the defendant does not act in "good faith" if, even though the defendant honestly holds a certain opinion or belief, the defendant also knowingly makes false or fraudulent pretenses, representations, or promises to others.

Evidence that the defendant acted in good faith may be considered by you, together with all of the other evidence, in determining whether or not the defendant acted with intent to defraud.

If you find that the defendant acted in good faith, then you must find the defendant not guilty of the mail fraud and conspiracy to commit mail fraud offenses charged in the indictment.



FINAL INSTRUCTION NO. 14 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

The defendant is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion which might arise from the arrest or charge of Scott E. Hildebrand, or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial and alone is sufficient to find him not guilty. The presumption of innocence may be overcome only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against the defendant.

The burden is always upon 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. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution. Because there is no burden upon the defendant to prove that he is innocent, the fact that the defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.

Unless the prosecution proves beyond a reasonable doubt that the defendant has committed each and every element of any offense charged in the indictment against the defendant, you must find the defendant not guilty of the offense.



FINAL INSTRUCTION NO. 15 - REASONABLE DOUBT

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 in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.



FINAL INSTRUCTION NO. 16 - DUTY TO DELIBERATE

A verdict must represent the considered judgment of each juror. Your verdict must be unanimous.

As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course, you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to an unanimous result, you must examine the question submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if, in your individual judgment, the evidence fails to establish guilt beyond a reasonable doubt, then the defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty, and if all of you reach that conclusion, then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the government to prove beyond a reasonable doubt every essential element of the crimes charged.

Finally, remember that you are not partisans; you are judges--judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. However, I suggest that you carefully consider all of the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial, or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.



FINAL INSTRUCTION NO. 17 - DUTY DURING DELIBERATIONS

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, if the defendant is 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.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, 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.

Fourth, 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 you reach in this case. You will take this form to the jury room, and, when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, you will all sign it, and your foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 12th day of June, 1997.



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MARK W. BENNETT

U. S. DISTRICT COURT JUDGE









IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 95-2014-MWB
vs.

VERDICT FORM

SCOTT E. HILDEBRAND,
Defendant.

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As to each count of the indictment, we, the Jury, find defendant Scott E. Hildebrand:

Not Guilty Guilty

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If you have found the defendant guilty of Count 43, please indicate which object or objects of the conspiracy you have found beyond a reasonable doubt:

_____ 1. Conducting financial transactions

_____ a. with the intent to promote unlawful activity

_____ b. knowing the transaction was designed to conceal the nature, location, source, ownership, or control of the funds



_____ 2. Engaging in monetary transactions in amounts over $10,000



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