The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
ORDER OF COURT REGARDING DEFENDANT'S NOTICE OF ISSUES/ OBJECTIONS (DOC. NO. 657)
After careful consideration of Defendant's Notice of Issues/ Objections (doc. no. 657) to this Court's Order of Court Re: Jury Selection, Voir Dire, and Other Pretrial Issues (See Doc. Nos. 598, 599, 604, and 607) (doc. no. 629), the government's response thereto (doc. no. 663), and defendant's reply to the government's response (doc. no. 668), the Court will sustain certain of defendant's objections and overrule others, as set forth below.
A. Objections to Preliminary Charges
Initially, defendant states that the Court's preliminary jury instructions set forth in its Order of Court Re: Jury Selection, Voir Dire, and Other Pretrial Issues (See Doc. Nos. 598, 599, 604, and 607) (doc. no. 629) were "all developed without any conference or discussion with the parties. The defense was not given an opportunity to discuss these charges with the Court or to place objections on the record in order to preserve the points for appellate review, should that be necessary." Notice of Issues/ Objections (doc. no. 657), at 1.
First, it is inaccurate and misleading for defendant to suggest that the preliminary jury instructions "were all developed" without input from the parties. Quite to the contrary, as defendant knows, the Court's instructions on presumption of innocence, defendant's legal right to earn "other compensation," and the pretrial admission of government's exhibits (see next section) were crafted at defendant's request.*fn1 Most of the preliminary jury instructions were adapted from the instructions adopted in October 2007 by the Third Circuit Committee on Model Criminal Jury Instructions, Chapter 1: Preliminary Instructions Before Opening Statements.
Second, defendant's Notice of Issues/ Objections (doc. no. 657) obviously "place objections on the record in order to preserve the points for appellate review, should that be necessary." Defendant appears to suggest, from this and other filings, that he must be given the opportunity to place objections verbally on the record in open court, as opposed to in the written submissions the Court considered in drafting said preliminary jury instructions, prior to this Court's submitting those instructions to counsel for comments and objections. The Court is confident that defendant's Notice of Issues/ Objections (doc. no. 657) place his Issues/ Objections on the record for appellate review (should that be necessary), but if counsel believes more is needed, defendant (and the government) may file appropriate objections in writing to this Order entered today on or before January 21, 2008 at noon.
2. Instruction on Pretrial Admission of Government's Exhibits
Defendant previously requested the Court to instruct the jury prior to opening statements as follows:
During the course of the trial, the Government may offer exhibits such as documents or things into evidence. The Court has decided prior to the trial whether those exhibits are admissible or not. Therefore, counsel for the Defendant may not object to a Government exhibit when offered. You are not to infer that defense counsel does not object.
Defendant's Brief in Support of Motion for Clarification and/or Modification of Trial Procedures and Scope of Exhibit and In Limine Rulings (doc. no. 605), at 14.
In addition to this preliminary jury instruction, defendant also requested "that each time the Government offers an exhibit to which the Defendant has previously objected, that the Court instructs the jury that the Defendant has objected to that exhibit, and it was admitted over his objection." Id.
The Court's ruling on these requests was as follows:
[T]he Court will also grant defendant's request and include a preliminary instruction about the Court's pretrial procedure for admitting or precluding exhibits and ruling on objections to exhibits in advance of trial, and will inform the jury that defendant has objected to substantially all of the government's exhibits, and that the Court overruled most of those objections in that pretrial procedure. However, the Court will not grant defendant's request to repeat such an instruction during trial every time the government introduces one of its exhibits. Such a rote and tedious procedure is unnecessary in light of the preliminary instruction, and would further delay an already lengthy trial through repetition of a preliminary instruction that is neither complicated nor difficult to remember.
Order of Court Re: Jury Selection, Voir Dire, and Other Pretrial Issues (See Doc. Nos. 598, 599, 604, and 607) (doc. no. 629) at 46.
Accordingly, the Court granted, but modified, defendant's proposed preliminary jury instruction in a manner consistent with his request that the Court instruct the jury, with each government exhibit to which he objected, that he objected to that exhibit and that it was admitted over his objection. Because defendant objected to about 98% of the government's exhibits, his requested trial instruction would have applied to almost all of the government's exhibits, and the jury would have learned that defendant objected to substantially all of the government's exhibits and that substantially all of his objections had been overruled. Thus, the Court crafted the following preliminary instruction:
During the course of the trial, the Government will offer many exhibits, such as documents or other items into evidence. The Court made rulings prior to the trial about objections to the exhibits and decided whether those exhibits would be admissible or not; the exhibits you will see were generally admitted before trial in this manner.
Therefore, because of my pretrial procedure, counsel for the Defendant may not object to a Government exhibit when offered. You are not to infer that defense counsel does not object. Defendant objected to substantially all of the government's trial exhibits and the Court has overruled most of his objections. Since defendant will not be objecting to those government trial exhibits during the trial, because the Court has already admitted them into evidence, defendant wants you to be aware that he has objected to substantially all of the Government's trial exhibits.
Order of Court Re: . . . Defendant's Motion for Clarification And/or Modification of Trial Procedures . . ., etc. (doc. no. 632) at 12 (emphasis added).
Defendant objects to the underscored portion of the Court's modified preliminary jury instruction as "unfairly prejudicial and pejorative" and to the words "substantially all" as misleading, and he requests the Court to revert to his proposed instruction or, alternatively, to delete the underscored portion of the instruction. Defendant also renews his request for a contemporaneous instruction with every exhibit the government offers to which he had objected.
The Court reaffirms that it will not repeat an instruction relating to pretrial admission of documents during trial every time the government introduces one of its exhibits, for the reasons stated above. Moreover, the Court does not agree that the modified preliminary jury instruction is prejudicial or pejorative. It is, rather, a completely accurate and fair instruction that merely states what would have been obvious to the jury had the Court agreed to defendant's request to instruct the jury every time the government offered an exhibit to which he had objected, which was almost all of them.
Nevertheless, although defendant initially requested preliminary and trial instructions which would have had informed the jury that defendant had objected to almost all of the government's exhibits and that almost all of his objections had been overruled, he no longer wants such an instruction as part of the preliminary jury instructions. Because this preliminary jury instruction was crafted in response to - and consistent with - defendant's initial request and he is now withdrawing that request, the Court will grant his current request, in the alternative, to eliminate the underscored language from the instruction. The Court therefore SUSTAINS in part and OVERRULES in part this objection to the preliminary jury instructions.*fn2
3. Mail Fraud/ Wire Fraud Elements of the Offense (Doc. No. 629), p. 60
Defendant objects to the Court's giving an incomplete and inaccurate preliminary jury instruction as to the elements of the offenses with which he is charged, and requests the Court to give complete instructions and explanations on all of the elements of the mail and wire fraud offenses. Some background is necessary to address this objection.
Counsel were unable, after several attempts over a period of several months (see various Joint Proposed Jury Instructions at docs. no. 233, filed on June 15, 2006, and 371 and 372, filed on August 18 and 21, 2006, respectively), to come to agreement on any but a handful of the instructions as to the elements of the offenses or relevant defenses in their joint unified proposed jury instructions, and were not at all helpful to the Court in the process of drafting final jury instructions. Thus, this Court is still in the process of refining and drafting its final jury instructions which, as previously stated, will be given to counsel at the close of the government's case in chief, Minute Entry (doc. no. 446) at ¶ 3, leaving more than adequate time for counsel to proffer alternative instructions and/or place any objections on the record at a final charging conference and/or in writing, as is this Court's customary practice.
For this reason, it is not possible at this time to give the entire complete final jury instructions as part of the preliminary jury instructions before opening statements. With more cooperation amongst counsel, that might have been possible, but as things stand now, it is not and the time to do so has passed.
For purposes of the preliminary instructions to the jury, this Court followed the guidance of the Third Circuit Committee on Model Criminal Jury Instructions, and crafted preliminary instructions which included a "brief outline" of the essential elements of the offenses charged "to assist the jurors in understanding the evidence as it is presented and also in understanding the judge's final instructions explaining the elements in more detail." See Committee's Comments to Model Criminal Jury Instruction § 1.12. Thus, the Court included only the following brief instructions on simple mail and wire fraud, without further elaboration on the various terms and specific elements:
Mail Fraud -- Elements of the Offense
The indictment charges the defendant with simple mail fraud, and "theft of honest services" mail fraud, in violation of title 18 United ...