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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

)

v. ) CASE NO. 2:06-cr-202-WKW

)

) 

EUGENE L. CLECKLER and )

KIM CLECKLER )

I. Introductory Charges

Members of the Jury:

It is now my duty to instruct you on the rules of law that you must follow and apply in

deciding this case. When I have finished, you will go to the jury room and begin your discussions–

what we call your deliberations.

It will be your duty to decide whetherthe Government has proved beyond a reasonable doubt

the specific facts necessary to find the Defendants guilty of the crimes charged in the indictment.

You must make your decision only on the basis of the testimony and other evidence presented

here during the trial; and you must not be influenced in any way by either sympathy or prejudice for

or against the Defendants or the Government.

You must also follow the law as I explain it to you whether you agree with that law or not;

and you must follow all of my instructions as a whole. You may not single out, or disregard, any of

the Court’s instructions on the law.

The indictment or formal charge against the Defendants is not evidence of guilt. Indeed, the

Defendants are presumed by the law to be innocent. The law does not require a Defendant to prove

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innocence or to produce any evidence at all. The Government has the burden of proving a Defendant

guilty beyond a reasonable doubt, and if it fails to do so for either Defendant, you must find that

Defendant not guilty.

Thus, while the Government’s burden of proof is a strict or heavy burden, it is not necessary

that the Defendants’ guilt be proved beyond all possible doubt. It is only required that the

Government’s proof exclude any “reasonable doubt” concerning a Defendants’ guilt.

A “reasonable doubt” is a real doubt, based upon 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.

If you are convinced that a Defendant has been proved guilty beyond a reasonable doubt, say so. If

you are not convinced, say so.

As I said earlier, you must consider only the evidence that I have admitted in the case. The

term “evidence” includes the testimony of the witnesses and the exhibits admitted in the record.

Remember that anything the lawyers say is not evidence in the case. It is your own recollection and

interpretation of the evidence that controls. What the lawyers say is not binding upon you. Also,

you should not assume from anything I may have said that I have any opinion concerning any of the

issues in this case. Except for my instructions to you on the law, you should disregard anything I

may have said during the trial in arriving at your own decision concerning the facts.

In considering the evidence you may make deductions and reach conclusions which reason

and common sense lead you to make; and you should not be concerned about whether the evidence

is direct or circumstantial. “Direct evidence” is the testimony of one who asserts actual knowledge

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of a fact, such as an eye witness. “Circumstantial evidence” is proof of a chain of facts and

circumstances tending to prove, or disprove, any fact in dispute. The law makes no distinction

between the weight you may give to either direct or circumstantial evidence.

Now, in saying that you must consider all of the evidence, I do not mean that you must accept

all of the evidence as true or accurate. You should decide whether you believe what each witness

had to say, and how important that testimony was. In making that decision you may believe or

disbelieve any witness, in whole or in part. Also, the number of witnesses testifying concerning any

particular dispute is not controlling. 

In deciding whether you believe or do not believe any witness Isuggest that you ask yourself

a few questions: Did the witness impress you as one who was telling the truth? 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 seem to have a good memory? Did the witness have the

opportunity and ability to observe accurately the things he or she testified about? Did the witness

appear to understand the questions clearly and answer them directly? Did the witness’s testimony

differ from other testimony or other evidence?

You should also ask yourself whether there was evidence tending to prove that a witness

testified falsely concerning some important fact; or, whether there was evidence that at some other

time a witness said or did something, or failed to say or do something, which was different from the

testimony he or she gave before you during the trial. The fact that a witness has been convicted of

a felony offense, or a crime involving dishonesty or false statement, is another factor you may

consider in deciding whether you believe that witness. 

You should keep in mind, of course, that a simple mistake by a witness does not necessarily

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mean that the witness was not telling the truth as he or she remembers it, because people naturally

tend to forget some things or remember other things inaccurately. So, if a witness has made a

misstatement, you need to consider whether it was simply an innocent lapse of memory or an

intentional falsehood; and the significance of that may depend on whether it has to do with an

important fact or with only an unimportant detail.

A Defendant has a right not to testify. If a Defendant does testify, however, you should decide

in the same way as that of any other witness whether you believe the Defendant’s testimony.

When knowledge of a technical subject matter might be helpful to the jury, a person having

special training or experience in that technical field is permitted to state an opinion concerning those

technical matters. 

Merely because such a witness has expressed an opinion, however, does not mean that you

must accept that opinion. The same as with any other witness, it is up to you to decide whether to

rely upon it.

The testimony of some witnesses must be considered with more caution than the testimony

of other witnesses.

For example, a paid informer, or a witness who has been promised that he or she will not be

charged or prosecuted, or a witness who hopes to gain more favorable treatment in his or her own

case, may have a reason to make a false statement because the witness wants to strike a good bargain

with the Government.

So, while a witness of that kind may be entirely truthful when testifying, you should consider

that testimony with more caution than the testimony of other witnesses.

In this case you have been permitted to take notes during the course of the trial, and most of

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all – perhaps all of you – have taken advantage of that opportunity and have made notes from time

to time.

You will have your notes available to you during your deliberations, but you should make

use of them only as an aid to your memory. In other words, you should not give your notes any

precedence over your independent recollection of the evidence or the lack of evidence; and neither

should you be unduly influenced by the notes of other jurors.

I emphasize that notes are not entitled to any greater weight than the memory or impression

of each juror as to what the testimony may have been.

At this time I will explain the indictment that charges two separate offenses called

“counts” against Defendants Eugene L. and Kim Cleckler. I will not read it to you at length

because you will be given a copy of the indictment for reference during your deliberations.

In summary, Count 1 charges that the Defendants knowingly and willfully conspired

together to reduce the amount of additional taxes that the IRS was going to assess as a result

of the audit by submitting fraudulent documents to an IRS agent. Count 2 charges that the

Defendants did corruptly obstruct and impede and endeavor to obstruct and impede the due

administration of the internal revenue laws. I will now explain the law governing these

offenses.

II. Offense Instructions

Title 18, United States Code, Section 371, makes it a Federal crime or offense for anyone to

conspire or agree with someone else to defraud the United States or any of its agencies To “defraud”

the United States means to interfere with or obstruct one of its lawful governmental functions by

deceit, craft or trickery.

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A “conspiracy” is simply an agreement or a kind of “partnership” in criminal purposes in

which each member becomes the agent or partner of every other member.

In order to establish a conspiracy offense it is not necessary for the Government to prove that

all of the people named in the indictment were members of the scheme; or that those who were

members had entered into any formal type of agreement; or that the members had planned together

all of the details of the scheme or the “overt acts” that the indictment charges would be carried out

in an effort to commit the intended crime.

Also, because the essence of a conspiracy offense is the making of the agreement itself

(followed by the commission of any overt act), it is not necessary for the Government to prove that

the conspirators actually succeeded in accomplishing their unlawful plan.

What the evidence in the case must show beyond a reasonable doubt is:

First: That two or more persons, in some way or manner, came to a mutual understanding

to try to accomplish a common and unlawful plan, as charged in the indictment;

Second: That the Defendant, knowing the unlawful purpose of the plan, willfully joined in

it;

Third: That one of the conspirators during the existence of the conspiracy knowingly

committed at least one of the methods (or “overt acts”) described in the indictment; and

Fourth: That such “overt act” was knowingly committed at or about the time alleged in an

effort to carry out or accomplish some object of the conspiracy.

An “overt act” is any transaction or event, even one which may be entirely innocent when

considered alone, but which is knowingly committed by a conspirator in an effort to accomplish

some object of the conspiracy. There is, however, a limit on how much time the Government has

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to bring a conspiracy case against a defendant. For you to find the defendants guilty of conspiracy,

the Government must prove beyond a reasonable doubt that at least one overt act in furtherance of

the conspiracy was committed after August 1, 2000.

A person may become a member of a conspiracy without knowing all of the details of the

unlawful scheme, and without knowing who all of the other members are. So, if a Defendant has a

general understanding of the unlawful purpose of the plan and knowingly and willfully joins in that

plan on one occasion, that is sufficient to convict that Defendant for conspiracy even though the

Defendant did not participate before, and even though the Defendant played only a minor part.

Of course, mere presence at the scene of a transaction or event, or the mere fact that certain

persons may have associated with each other, and may have assembled together and discussed

common aims and interests, does not, standing alone, establish proof of a conspiracy. Also, 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 conspirator.

Title 26, United States Code, 7212(a), makes it a federal crime or offense for anyone to

corruptly obstruct or impede18 or endeavor to obstruct or impede the due administration of the

Internal Revenue laws.

A Defendant can be found guilty of that offense only if all of the following facts are proved

beyond a reasonable doubt:

First: That the Defendant knowingly obstructed or impeded or endeavored to obstruct or

impede the due administration of the Internal Revenue laws, as charged, and;

Second: That the Defendant did so corruptly.

To act “corruptly” means to act knowingly and dishonestly with the specific intent to secure

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an unlawful benefit either for oneself or for another. To “endeavor” to obstruct or impede means

to engage in some act, or to take some step, in a conscious attempt to obstruct or impede; and to

“obstruct or impede” means to hinder or prevent or delay, or make more difficult, the due

administration of the Internal Revenue laws. However, it is not necessary for the Government to

prove that the administration of the Internal Revenue laws was in fact obstructed or impeded in any

way, only that the Defendant corruptly endeavored to do so. Neither is it necessary that the

Government prove all of the alleged ways and means of committing the charged offense as stated

in the indictment. It would be sufficient if the Government proves beyond a reasonable doubt, that

the Defendant committed any one of those alleged ways and means with the corrupt intent to obstruct

and impede the due administration of the Internal Revenue laws; provided, however, you must

unanimously agree upon which of those alleged ways and means the Defendant corruptly committed.

You will note that the indictment charges that the offense was committed “on or

about” a certain date. The Government does not have to prove with certainty the exact date

of the alleged offense. It is sufficient if the government proves beyond a reasonable doubt

that the offense was committed on a date reasonably near the date alleged.

The word “knowingly,” as that term is used in the indictment or in these instructions,

means that the act was done voluntarily and intentionally and not because of mistake or

accident.

The word “willfully,” as that term is used in the indictment or in these instructions,

means that the act was committed voluntarily and purposely, with the specific intent to do

something the law forbids; that is with bad purpose either to disobey or disregard the

law.

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The guilt of a Defendant in a criminal case may be proved without evidence that

the Defendant personally did every act involved in the commission of the crime charged.

The law recognizes that, ordinarily, anything a person can do for one’s self may also be

accomplished through direction of another person as an agent, or by acting together with,

or under the direction of, another person or persons in a joint effort.

So, if the acts or conduct of an agent, employee or other associate of the Defendant

are willfully directed or authorized by that Defendant, or if that Defendant aids and abets

another person by willfully joining together with that person in the commission of a

crime, then the law holds the Defendant responsible for the conduct of that other person

just as though the Defendant had personally engaged in such conduct.

However, before any Defendant can be held criminally responsible for the conduct

of others it is necessary that the Defendant willfully associated in some way with the

crime, and willfully participated in it. Mere presence at the scene of a crime and even

knowledge that a crime is being committed are not sufficient to establish that a Defendant

either directed or aided and abetted the crime. You must find beyond a reasonable doubt

that the Defendant was a willful participant and not merely a knowing spectator.

A separate crime or offense is charged against one or more of the Defendants in

each count of the indictment. Each charge, and the evidence pertaining to it, should be

considered separately. Also, the case of each Defendant should be considered separately

and individually. The fact that you may find any one or more of the Defendants guilty or

not guilty of any of the offenses charged should not affect your verdict as to any other

offense or any other Defendant.

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I caution you, members of the Jury, that you are here to determine from the

evidence in this case whether each Defendant is guilty or not guilty. Each Defendant is on

trial only for the specific offenses alleged in the indictment.

Also, the question of punishment should never be considered by the jury in any

way in deciding the case. If a Defendant is convicted, the matter of punishment is for the

Judge alone to determine.

III. Closing Instructions

Any verdict you reach in the jury room, whether guilty or not guilty, must be unanimous. In

other words, to return a verdict you must all agree. Your deliberations will be secret; you will never

have to explain your verdict to anyone.

It is your duty as jurors to discuss the case with one another in an effort to reach agreement

if you can do so. Each of you must decide the case for yourself, but only after full consideration of

the evidence with the other members of the jury. While you are discussing the case do not hesitate

to reexamine your own opinion and change your mind if you become convinced that you were

wrong. But do not give up your honest beliefs solely because the others think differently or merely

to get the case over with.

Remember, that in a very real way you are judges – judges of the facts. Your only interest

is to seek the truth from the evidence in the case.

When you go to the jury room you should first select one of your members to act as your

foreperson. The foreperson will preside over your deliberations and will speak for you here in court.

A form of verdict has been prepared for your convenience.

You will take the verdict form to the jury room and when you have reached unanimous

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agreement you will have your foreperson fill in the verdict form, date and sign it, and then return to

the courtroom.

If you should desire to communicate with me at any time, please write down your message

or question and pass the note to the marshal who will bring it to my attention. I will then respond

as promptly as possible, either in writing or by having you returned to the courtroom so that I can

address you orally. I caution you, however, with regard to any message or question you might send,

that you should not tell me your numerical division at the time.

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

)

v. ) CASE NO. 2:06-cr-202-WKW

)

) 

EUGENE L. CLECKLER and )

KIM CLECKLER )

JURY VERDICT

As to the charge contained in Count One of the Indictment, we, the Jury, find the Defendant,

EUGENE L. CLECKLER:

_____ Guilty

 or

_____ Not Guilty

As to the charge contained in Count One of the Indictment, we, the Jury, find the Defendant,

KIM CLECKLER:

_____ Guilty

 or

_____ Not Guilty

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As to the charge contained in Count Two of the Indictment, we, the Jury, find the Defendant,

EUGENE L. CLECKLER:

_____ Guilty

 or

_____ Not Guilty

As to the charge contained in Count Two of the Indictment, we, the Jury, find the Defendant, KIM

CLECKLER:

_____ Guilty

 or

_____ Not Guilty

So Say We All.

This the _____ day of January, 2007.

______________________________

Foreperson

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