UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-80144-CR-Smith/Maynard(s)

UNITED STATES OF AMERICA

v.

JOFF STENN WROY PHILOSSAINT,

MARIEL TOLLINCHI,

REGINE MARIE RENE,

BRIANNA MONIQUE GAYLE,

and MAURICE SHAZIER,

Defendants. 

GOVERNMENT'S PROPOSED JURY INSTRUCTIONS

The United States respectfully requests that the following jury instructions be given at 

trial in this case pursuant to Rule 30 of the Federal Rules of Criminal Procedure. The 

government respectfully requests that it be allowed to propose such additional instructions as 

become appropriate based upon the testimony and evidence at trial, and that it be informed 

prior to closing arguments which instructions the Court will accept.

Respectfully submitted,

JUAN ANTONIO GONZALEZ

UNITED STATES ATTORNEY

By: s/ Marc Osborne

Assistant United States Attorney

Court ID# A5500796 

99 Northeast 4th Street

Miami, Florida 33132-2111 

Tel: (305) 961-9198 

Fax: (305) 530-7976 

marc.osborne@usdoj.gov

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B11

Face Page—Introduction

Members of the Jury:

It’s my duty to instruct you on the rules of law that you must use in deciding this case. 

After I’ve completed these instructions, you will go to the jury room and begin your 

discussions—what we call your deliberations.

You must decide whether the Government has proved the specific facts necessary to 

find the Defendants guilty beyond a reasonable doubt.

1 Modified for multiple defendants.

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B2.1/B2.22

The Duty to Follow Instructions and the Presumption of Innocence

Your decision must be based only on the evidence presented during the trial. You must 

not be influenced in any way by either sympathy for or prejudice against a Defendant or the 

Government.

You must follow the law as I explain it—even if you do not agree with the law—and you 

must follow all of my instructions as a whole. You must not single out or disregard any of the 

Court's instructions on the law.

The indictment or formal charge against a Defendant isn’t evidence of guilt. The law 

presumes every Defendant is innocent. A Defendant does not have to prove his or her

innocence or produce any evidence at all. A Defendant does not have to testify, and if a

Defendant chose not to testify, you cannot consider that in any way while making your 

decision.3 The Government must prove guilt beyond a reasonable doubt. If it fails to do so, 

you must find the Defendant not guilty.

2 Modified for multiple defendants.

3 If all defendants testify, the Court should omit this sentence.

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B3

Definition of “Reasonable Doubt”

The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant's 

guilt beyond all possible doubt. The Government's proof only has to exclude any “reasonable 

doubt” concerning the Defendant's guilt.

A “reasonable doubt” is a real doubt, based on your reason and common sense after 

you’ve carefully and impartially considered all the evidence in the case.

“Proof beyond a reasonable doubt” is proof so convincing that you would be willing to 

rely and act on it without hesitation in the most important of your own affairs. If you are 

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

are not convinced, say so.

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B4

Consideration of Direct and Circumstantial Evidence;

Argument of Counsel; Comments by the Court

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

Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the 

lawyers say is not evidence and isn’t binding on you.

You shouldn’t assume from anything I’ve said that I have any opinion about any factual 

issue 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 about the facts.

Your own recollection and interpretation of the evidence is what matters.

In considering the evidence you may use reasoning and common sense to make 

deductions and reach conclusions. You shouldn’t be concerned about whether the evidence is 

direct or circumstantial.

“Direct evidence” is the testimony of a person who asserts that he or she has actual 

knowledge of a fact, such as an eyewitness.

“Circumstantial evidence” is proof of a chain of facts and circumstances that tend to 

prove or disprove a fact. There’s no legal difference in the weight you may give to either direct 

or circumstantial evidence.

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S1.2

Testimony of Accomplice or Codefendant with Plea Agreement

You must consider some witnesses’ testimony with more caution than others.

In this case, the Government has made a plea agreement with a Codefendant in 

exchange for his testimony. Such “plea bargaining,” as it’s called, provides for the possibility of 

a lesser sentence than the Codefendant would normally face. Plea bargaining is lawful and 

proper, and the rules of this court expressly provide for it.

But a witness who hopes to gain more favorable treatment may have a reason to make 

a false statement in order 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.

And the fact that a witness has pleaded guilty to an offense isn’t evidence of the guilt 

of any other person.

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Uncalled Witnesses—Equally Available to Both Sides4

(If Applicable)5

There are people whose names you heard during the course of the trial but did not 

testify. One or more of the attorneys has referred to their absence from the trial. I instruct you 

that each party had an equal opportunity or lack of opportunity to call any of these witnesses.

Therefore, you should not draw any inferences or reach any conclusions as to what they would 

have testified to had they been called.

4 Adapted from 1 L. Sand, et al., Modern Federal Jury Instructions, Instruction 6-7 (2000). See 

United States v. Esle, 743 F.2d 1465, 1477-78 (11th Cir. 1984) (after defense argued that jury 

could draw a negative inference from prosecution’s failure to call a certain witness, court 

properly instructed jury that “subpoena power is available to defendants, . . . but you must bear 

in mind that the defendant has no burden of proof. The Government has the entire burden 

of proof.”); United States v. Vincent, 648 F.2d 1046, 1051 (5th Cir. 1981) (after defense argued 

that jury could draw a negative inference from prosecution’s failure to call a certain witness, 

court properly “told the jury that the witness could have been called by either side, but that the 

defendant was not obliged to call any witness, as he could rely on his presumption of innocence 

should he choose to do so”; court also notes, “Generally, no unfavorable presumption may be 

drawn from the failure to call a witness that is equally available to both sides.”); United States v. 

Chapman, 435 F.2d 1245, 1247 (5th Cir. 1971) (court properly “told the jury that if there were 

any witnesses in the courtroom either the Government or the Defendant had the right to call 

them”; court also notes, “The long-standing rule in this circuit is that any inference from a 

party’s failure to call a certain witness equally available to both parties is impermissible.”); 

United States v. Bahna, 68 F.3d 19, 21-22 (2d Cir. 1995) (approving of the following instruction: 

“‘There are several other persons whose names you have heard during [the] course of this trial 

and one or more of the attorneys have referred to their absence from this trial. Neither the 

defendant nor the government could benefit from the absence of such witnesses . . . because 

each side has an equal opportunity, or lack of opportunity, to have them testify. If either side 

had wanted any of them here, so far as the record shows, they had equal opportunity to get 

them and absence should not affect your judgment in passing on this case or in determining 

the guilt or innocence of the defendant. Bear in mind, of course, that the law never imposes 

upon the defendant in a criminal case the burden of producing or calling any witnesses or 

producing any evidence.’”). Courts in this district have given this instruction in United States v. 

Maceira, Case No. 06-20218-CR-Seitz(s), United States v. Fernandez, Case No. 06-20322-CRAltonaga(s), and United States v. Pearson, Case No. 17-80080-CR-Bloom. 5 The government recommends that the Court give this instruction only if the defense makes 

an argument at trial to which the instruction applies.

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B86

Introduction to Offense Instructions

The indictment charges four separate crimes, called “counts,” against the Defendant. 

Each count has a number. You’ll be given a copy of the indictment to refer to during your 

deliberations.

Count 1 charges that the Defendants knowingly and willfully conspired to defraud the 

United States. Counts 2 and 3 charge that the Defendants knowingly conspired to launder 

money.

Count 4 charges that Defendant Philossaint committed what is called a “substantive 

offense,” specifically, procuring citizenship contrary to law. I will explain the law governing 

that substantive offense in a moment.

But first note that the Defendants are not charged in Counts 1 through 3 with 

committing a substantive offense—they are charged with conspiring to commit such an7

offense.

I will also give you specific instructions on conspiracy.

6 Modified based on the facts of this case. 7 The pattern instruction states that the defendant is charged with “conspiring to commit that

offense.” The government has replaced “that” with “such an.” In this case, the substantive

offense charged in count 4 is not the object of any of the charged conspiracies.

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Count 1

Conspiracy to Commit Wire Fraud8

18 U.S.C. § 1349

It’s a Federal crime to knowingly and willfully conspire or agree with someone to do 

something that, if actually carried out, would result in the crime of wire fraud.

A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In 

other words, it is a kind of partnership for criminal purposes. Every member of the conspiracy 

becomes the agent or partner of every other member.

The Government does not have to prove that all the people named in the indictment 

were members of the plan, or that those who were members made any kind of formal agreement. 

The heart of a conspiracy is the making of the unlawful plan itself, so the Government does 

not have to prove that the conspirators succeeded in carrying out the plan.

A Defendant can be found guilty of this conspiracy offense only if all the following 

facts are proved beyond a reasonable doubt:

(1) two or more persons, in some way or manner, agreed to try to

accomplish a common and unlawful plan to commit wire fraud, as

charged in the indictment; and

(2) the Defendant knew the unlawful purpose of the plan and willfully

joined in it;

A person may be a conspirator even without knowing all the details of the unlawful 

plan or the names and identities all of the other alleged conspirators. If the Defendant played 

only a minor part in the plan but had a general understanding of the unlawful purpose of the 

8 The pattern instruction is for conspiracy to commit mail fraud. The government has modified 

the instruction to reflect wire fraud. The instruction has also been modified for multiple 

defendants.

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plan—and willfully joined in the plan on at least one occasion--that’s sufficient for you to find 

the Defendant guilty.

But simply being present at the scene of an event or merely associating with certain 

people and discussing common goals and interests doesn’t establish proof of a conspiracy. Also, 

a person who doesn’t know about a conspiracy but happens to act in a way that advances some 

purpose of one doesn’t automatically become a conspirator.

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O519

Wire Fraud

18 U.S.C. § 1343

As I told you, Count 1 charges that the defendants conspired to commit wire fraud.

It’s a Federal crime to use interstate wire communications to carry out a scheme to defraud 

someone else.

A Defendant could be found guilty of this crime only if all the following facts were 

proved beyond a reasonable doubt:

(1) the Defendant knowingly devised or participated in a scheme to

defraud someone by using false or fraudulent pretenses,

representations, or promises;

(2) the false pretenses, representations, or promises were about a material 

fact;

(3) the Defendant acted with the intent to defraud; and

(4) the Defendant transmitted or caused to be transmitted by wire some 

communication in interstate commerce to help carry out the scheme to 

defraud.

A “scheme to defraud” means any plan or course of action intended to deceive or cheat 

someone out of money or property by using false or fraudulent pretenses, representations, or 

promises.

A statement or representation is “false” or “fraudulent” if it is about a material fact that 

the speaker knows is untrue or makes with reckless indifference to the truth, and makes with 

the intent to defraud. A statement or representation may be “false” or “fraudulent” when it is 

a half-truth, or effectively conceals a material fact, and is made with the intent to defraud.

9 Modified to reflect the fact that the defendants are not charged with substantive counts of 

wire fraud, only with conspiracy to commit wire fraud.

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A “material fact” is an important fact that a reasonable person would use to decide 

whether to do or not do something. A fact is “material” if it has the capacity or natural tendency 

to influence a person’s decision. It doesn’t matter whether the decision-maker actually relied 

on the statement or knew or should have known that the statement was false.

To act with “intent to defraud” means to act knowingly and with the specific intent to 

use false or fraudulent pretenses, representations, or promises to cause loss or injury. Proving 

intent to deceive alone, without the intent to cause loss or injury, is not sufficient to prove 

intent to defraud.

The Government does not have to prove all the details alleged in the indictment about 

the precise nature and purpose of the scheme. It also doesn’t have to prove that the material 

transmitted by interstate wire was itself false or fraudulent; or that using the wire was intended

as the specific or exclusive means of carrying out the alleged fraud; or that the Defendant 

personally made the transmission over the wire. And it doesn’t have to prove that the alleged 

scheme actually succeeded in defrauding anyone.

To “use” interstate wire communications is to act so that something would normally 

be sent through wire, radio, or television communications in the normal course of business.10

10 The government has omitted the following sentence from the end of the instruction: “Each 

separate use of the interstate wire communications as part of the scheme to defraud is a 

separate crime.” The defendants in this case are not charged with separate crimes of wire fraud.

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O109.1

Counts 2 and 3

Money Laundering Conspiracy

18 U.S.C. § 1956(h)

It’s a Federal crime to conspire to engage in money laundering or transactions involving 

the proceeds of specified unlawful activity that violates Title 18, United States Code, Section 

1956 or 1957.

Count 2 charges the defendants with conspiring to violate Title 18, United States 

Code, Section 1956(a)(1)(B)(i). A Defendant could be found guilty of this crime only if all the 

following facts were proved beyond a reasonable doubt:11

(1) the Defendant knowingly conducted or tried to conduct financial

transactions;

(2) the Defendant knew that the money or property involved in the

transaction were the proceeds of some kind of unlawful activity;

(3) money or property did come from an unlawful activity, specifically wire 

fraud; and

(4) the Defendant knew that the transaction was designed, in whole or in 

part, to conceal or disguise the nature, location, source, ownership, or 

the control of the proceeds.

Count 3 charges that Defendants Philossaint and Tollinchi conspired to violate two 

provisions of law. The first is Title 18, United States Code, Section 1956(a)(2)(B)(i). A

Defendant could be found guilty of this crime only if all the following facts were proved beyond 

a reasonable doubt:12

11 The elements of this offense are taken from instruction O74.2, modified because the 

defendants are not charged with money laundering, only with conspiracy to launder money.

12 The first element of this offense is taken from instruction O74.3. The rest of the elements 

are taken from instruction O74.2.

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(1) the Defendant knowingly transmitted or transferred money from a 

place in the United States to or through a place outside the United 

States;

(2) the Defendant knew that the money or property involved in the

transaction were the proceeds of some kind of unlawful activity;

(3) money or property did come from an unlawful activity, specifically wire 

fraud; and

(4) the Defendant knew that the transaction was designed, in whole or in 

part, to conceal or disguise the nature, location, source, ownership, or 

the control of the proceeds.

Count 3 also charges that Defendants Philossaint and Tollinchi conspired to violate

Title 18, United States Code, Section 1957. A Defendant could be found guilty of this crime 

only if all the following facts were proved beyond a reasonable doubt:13

(1) the Defendant knowingly engaged or attempted to engage in a

monetary transaction;

(2) the Defendant knew the transaction involved property or funds that

were the proceeds of some criminal activity;

(3) the property had a value of more than $10,000;

(4) the property was in fact proceeds of wire fraud; and

(5) the transaction took place in the United States.

I have already explained to you the law regarding conspiracies generally.14 A Defendant 

can be found guilty of conspiring to launder money15 only if all the following facts are proved 

beyond a reasonable doubt:

(1) two or more people agreed to try to accomplish a common and unlawful 

plan to violate 18 U.S.C. Section 1956 or 1957; and

13 The first element of this offense is taken from instruction O74.3. The rest of the elements 

are taken from instruction O74.2. 14 The pattern instruction includes language that is also found in instruction O51. 15 The pattern instruction refers to ‘this crime’.

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(2) the Defendant knew about the plan’s unlawful purpose and voluntarily 

joined in it.

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O120

Procurement of Citizenship or Naturalization Unlawfully

18 U.S.C. § 1425

It’s a Federal crime for any person to knowingly procure or attempt to procure, contrary 

to law, the naturalization of any person.

The Defendant can be found guilty of this offense, only if all the following facts are 

proved beyond a reasonable doubt:

(1) the Defendant knowingly procured

(2) contrary to law

(3) the naturalization of any person.

A defendant acts “contrary to law” if the defendant knowingly makes a false statement 

under oath in a proceeding or matter relating to naturalization.

16

16 18 U.S.C. § 1015

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S7

Aiding and Abetting; Agency

18 U.S.C. § 2

It’s possible to prove the Defendant guilty of a crime even without evidence that the 

Defendant personally performed every act charged.

Ordinarily, any act a person can do may be done by directing another person, or 

“agent.” Or it may be done by acting with or under the direction of others.

A Defendant “aids and abets” a person if the Defendant intentionally joins with the 

person to commit a crime.

A Defendant is criminally responsible for the acts of another person if the Defendant 

aids and abets the other person. A Defendant is also responsible if the Defendant willfully 

directs or authorizes the acts of an agent, employee, or other associate.

But finding that a Defendant is criminally responsible for the acts of another person 

requires proof that the Defendant intentionally associated with or participated in the crime—

not just proof that the Defendant was simply present at the scene of a crime or knew about it.

In other words, you must find beyond a reasonable doubt that the Defendant was a 

willful participant and not merely a knowing spectator.

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B9.2

On or About a Particular Date; Knowingly; Willfully—Generally

You’ll see that the indictment charges that a crime was committed “on or about” a 

certain date. The Government doesn’t have to prove that the offense occurred on an exact 

date. The Government only has to prove beyond a reasonable doubt that the crime was 

committed on a date reasonably close to the date alleged.

The word “knowingly” means that an act was done voluntarily and intentionally and 

not because of a mistake or by accident.

The word “willfully” means that the act was committed voluntarily and purposely, with 

the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard 

the law. While a person must have acted with the intent to do something the law forbids before 

you can find that the person acted “willfully,” the person need not be aware of the specific law 

or rule that his conduct may be violating.

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B11

Duty to Deliberate

Your verdict, whether guilty or not guilty, must be unanimous—in other words, you 

must all agree. Your deliberations are secret, and you’ll never have to explain your verdict to 

anyone.

Each of you must decide the case for yourself, but only after fully considering the 

evidence with the other jurors. So you must discuss the case with one another and try to reach 

an agreement. While you’re discussing the case, don’t hesitate to reexamine your own opinion 

and change your mind if you become convinced that you were wrong. But don’t give up your 

honest beliefs just because others think differently or because you simply want to get the case 

over with.

Remember that, in a very real way, you’re judges—judges of the facts. Your only interest 

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

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B12

Verdict

When you get to the jury room, choose one of your members to act as foreperson. The 

foreperson will direct your deliberations and will speak for you in court.

A verdict form has been prepared for your convenience.

[Explain verdict]

Take the verdict form with you to the jury room. When you’ve all agreed on the verdict, 

your foreperson must fill in the form, sign it, date it, and carry it. Then you’ll return it to the 

courtroom.

If you wish to communicate with me at any time, please write down your message or 

question and give it to the marshal. The marshal will bring it to me and I’ll respond as promptly 

as possible—either in writing or by talking to you in the courtroom. But I caution you not to 

tell me how many jurors have voted one way or the other at that time.

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B10.4

Caution: Punishment

(Multiple Defendants, Multiple Counts)

Each count of the indictment charges a separate crime against one or more of the 

Defendants. You must consider each crime and the evidence relating to it separately. And you 

must consider the case of each Defendant separately and individually. If you find a Defendant 

guilty of one crime, that must not affect your verdict for any other crime or any other 

Defendant.

I caution you that each Defendant is on trial only for the specific crimes charged in the 

indictment. You’re here to determine from the evidence in this case whether each Defendant 

is guilty or not guilty of those specific crimes.

You must never consider punishment in any way to decide whether a Defendant is 

guilty. If you find a Defendant guilty, the punishment is for the Judge alone to decide later.

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