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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

v.

DAN HEINE and DIANA YATES,

Defendants.

Case No. 3:15-cr-238-SI

PRELIMINARY JURY 

INSTRUCTIONS

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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You now are the jury in this case. I want to take a few minutes to tell you something 

about your duties as jurors and to give you preliminary instructions. You should keep a copy of 

these written preliminary instructions until we get to the end of the trial. You are welcome to 

consult these preliminary instructions whenever you wish. Do not, however, do any independent 

research, and do not look anything up. At the end of the trial, I will give each of you written final 

instructions. The final instructions will control your deliberations.

When you deliberate, it will be your duty to weigh and evaluate all the evidence received 

in the case and, in that process, to decide the facts. To the facts as you find them, you will apply 

the law as I give it to you, whether you agree with the law or not. You must decide the case 

solely on the evidence and the law before you, and you must perform these duties fairly and 

impartially. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion 

to influence you. You also should not be influenced by any person’s race, color, religion, 

national ancestry, gender, or sexual orientation.

THE CHARGES—PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government against two defendants. 

One defendant is Mr. Dan Heine. The other defendant is Ms. Diana Yates. The United States 

charges both defendants with Conspiracy to Commit Bank Fraud (contained in Count 1) and

Making False Bank Entries or Aiding and Abetting Making False Bank Entries (contained in 

Counts 2 through 19). The charges against the defendants are contained in the indictment. The 

indictment simply describes the charges the government brings against the defendants. The 

indictment is not evidence and does not prove anything.

Both defendants have pleaded not guilty to the charges and are presumed innocent unless 

and until the government proves a defendant guilty beyond a reasonable doubt. In addition, each 

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defendant has the right to remain silent and never have to prove his or her innocence or present 

any evidence.

Although the two defendants are being tried together, you must give separate 

consideration to each defendant and to each count. In doing so, you must determine which 

evidence in the case applies to which defendant, disregarding any evidence admitted solely 

against the other defendant. The fact that you may find one of the defendants guilty or not guilty 

should not control your verdict as to the other defendant. Similarly, your verdict on any count 

should not control your verdict on any other count.

In order to help you follow the evidence, I will now give you a brief summary of the 

elements of the crimes that the government must prove to make its case, along with explanations 

of several terms and phrases.

A. Conspiracy to Commit Bank Fraud (Count 1)

Both defendants are charged in Count 1 of the indictment with the crime of Conspiracy to 

Commit Bank Fraud, in violation of Section 1349 of Title 18 of the United States Code. The 

underlying crime of Bank Fraud, although not separately charged, is a violation of 

Section 1344(1) of Title 18 of the United States Code. You do not need to find that a defendant 

committed the underlying crime of Bank Fraud in order to find that he or she committed the 

crime of conspiring to do so.

In order for a defendant to be found guilty of conspiracy, the government must prove 

each of the following two elements beyond a reasonable doubt:

First, beginning on or about September 2009, and continuing through at least September 

2014, there was an agreement between two or more persons to commit the crime of Bank Fraud;

and

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Second, a defendant became a member of that conspiracy knowing of its objective and 

intending to help accomplish it.

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to 

commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful. 

It does not matter whether the crime agreed upon was committed. 

In this case, the government must prove that there was an agreement or understanding to 

commit the crime of Bank Fraud. There are three elements of the crime of Bank Fraud. They are:

First, a defendant knowingly executed a scheme to defraud a bank as to a material matter;

Second, the defendant did so with the intent to defraud a bank; and

Third, the bank was insured by the Federal Deposit Insurance Corporation (also known as 

the “FDIC”).

I will now explain the terms “knowingly,” “scheme to defraud a bank,” “material matter,”

and “intent to defraud.”

(1) “Knowingly”

An act is done knowingly by a defendant if that defendant is aware of the act and does 

not act through ignorance, mistake, or accident. The government is not required to prove that the 

defendant knew that his or her acts or omissions were unlawful. You may consider evidence of a 

defendant’s words, acts, or omissions, along with all of the other evidence, in deciding whether 

that defendant acted knowingly.

(2) “Scheme to Defraud a Bank”

The phrase “scheme to defraud a bank” means any deliberate plan of action or course of 

conduct by which someone intends to (a) deceive or cheat (b) a bank out of something of value. 

In this context, the words “deceive” and “cheat” are different ways of saying the same thing. 

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Both require dishonesty or misleading conduct. For there to be a scheme to defraud a bank, it is 

not necessary for the government to prove that the bank was the only or sole victim of that

scheme. Also, for there to be a scheme to defraud a bank, it is not necessary for the government 

to prove that a defendant actually was successful in defrauding the bank or that the bank actually 

lost any money or property as a result of the scheme.

(3) “Material Matter” (“Materiality”)

In the context of a scheme to defraud, the phrase “material matter” means something that 

is important and relevant to a serious decision. A statement is material when it contains 

information that has a natural tendency to influence, or is capable of influencing, the decision of 

the decision-making body to whom or which it was addressed. Similarly, omitted information is 

material when the information that has been left out has a natural tendency to influence, or is 

capable of influencing, the decision of the decision-making body to whom or which it was 

addressed. The government does not have to prove actual reliance upon a defendant’s 

misrepresentation to show the materiality of that representation.

(4) “Intent to Defraud a Bank”

A person acts with intent to defraud a bank if he or she acts knowingly with the intent to

(a) deceive or cheat (b) a bank out of something of value. In this context, the words “deceive” and 

“cheat” are different ways of saying the same thing. Both require dishonesty or misleading conduct.

B. Making a False Bank Entry(Counts 2 through 19)

Both defendants are charged in Counts 2 through 19 of the indictment with the crime of 

Making a False Bank Entry, in violation of Section 1005 of Title 18 of the United States Code, 

and aiding and abetting that crime, in violation of Section 2 of Title 18 of the United States 

Code. In order for a defendant to be found guilty of the charge of Making a False Bank Entry, 

the government must prove each of the following four elements beyond a reasonable doubt:

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First, a defendant made a material false entry in the books or records of a bank, caused a 

material false entry to be made, or aided and abetted the making of a material false entry;

Second, the bank was insured by the Federal Deposit Insurance Corporation (FDIC);

Third, the defendant knew the entry was false when it was made; and

Fourth, the defendant intended that the false entry injure or defraud a bank, or any 

individual person, or deceive any officer of a bank, or the Federal Deposit Insurance Corporation

(FDIC), or any agent or examiner appointed to examine the affairs of a bank.

I will now explain the terms “false bank entry,” “material,” and “aided or abetted.”

(1) “False Bank Entry”

An entry in the books or records of a bank is false if it is intentionally made to represent 

what is not true or does not exist. For purposes of this crime, an entry can be false if it omits, or 

leaves out, material information necessary to make what is stated or included in that entry not 

misleading or deceptive.

(2) “Material” (“Materiality”)

In this context, a statement or omission in a bank entry is material if it is important and 

relevant to a serious decision. A statement is material when it contains information that has a 

natural tendency to influence, or is capable of influencing, the decision of the decision-making 

body to whom or which it was addressed. Similarly, omitted information is material when the 

information that has been left out has a natural tendency to influence, or is capable of 

influencing, the decision of the decision-making body to whom or which it was addressed. The 

government does not have to prove actual reliance upon a defendant’s misrepresentation to show 

the materiality of that representation.

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(3) “Aided and Abetted”

A defendant may be found guilty of the crime of Making a False Bank Entry even if that

defendant personally did not commit the act or acts constituting the crime but instead aided and 

abetted in its commission. To prove a defendant guilty of Making a False Bank Entry by aiding 

and abetting, the government must prove each of the following four elements beyond a 

reasonable doubt:

First, the crime of Making a False Bank Entry was committed by someone;

Second, the defendant aided, counseled, commanded, induced, or procured that person 

with respect to the crime of Making a False Bank Entry;

Third, the defendant acted with the intent to facilitate the crime of Making a False Bank 

Entry; and 

Fourth, the defendant acted before the crime was completed.

It is not enough that a defendant merely associated with the person committing the crime, 

or unknowingly or unintentionally did things that were helpful to that person, or was present at 

the scene of the crime. For aiding and abetting liability, the evidence must show beyond a 

reasonable doubt that a defendant acted with the knowledge and intention of helping another 

person commit the crime of Making a False Bank Entry.

A defendant acts with the intent to facilitate a crime when that defendant actively 

participates in a criminal venture with advance knowledge of the crime.

If the government proves the crime of Making a False Bank Entry, the government is not 

required to prove precisely which defendant actually committed that crime and which defendant 

aided and abetted that crime.

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WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;

(2) the exhibits that are received in evidence; and

(3) any facts to which the parties agree (or stipulate).

WHAT IS NOT EVIDENCE

The following things are not evidence, and you must not consider them as evidence in 

deciding the facts of this case:

(1) statements and arguments of the attorneys;

(2) questions and objections of the attorneys;

(3) testimony that I instruct you to disregard; and

(4) anything you may see or hear when the court is not in session, even if what you 

see or hear is done or said by one of the parties or by one of the witnesses.

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such 

as testimony by a witness about what that witness personally saw or heard or did. Circumstantial 

evidence is indirect evidence, that is, it is proof of one or more facts from which one can find 

another fact.

You are to consider both direct and circumstantial evidence. Either can be used to prove 

any fact. The law makes no distinction between the weight to be given to either direct or 

circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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RULING ON OBJECTIONS

There are rules of evidence that control what can be received in evidence. When a lawyer 

asks a question or offers an exhibit in evidence and a lawyer on the other side thinks that it is not 

permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 

question may be answered or the exhibit received. If I sustain the objection, the question cannot 

be answered, or the exhibit cannot be received. Whenever I sustain an objection to a question, 

you must ignore the question and must not guess what the answer would have been.

Sometimes I may order that evidence be stricken from the record and that you disregard 

or ignore the evidence. That means that when you are deciding the case, you must not consider 

the evidence that I told you to disregard.

CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and 

which testimony not to believe. You may believe everything a witness says, or part of it, or none 

of it.

In considering the testimony of any witness, you may take into account:

(1) the witness’s opportunity and ability to see or hear or know the things testified to;

(2) the witness’s memory;

(3) the witness’s manner while testifying;

(4) the witness’s interest in the outcome of the case, if any;

(5) the witness’s bias or prejudice, if any;

(6) whether other evidence contradicted the witness’s testimony;

(7) the reasonableness of the witness’s testimony in light of all the evidence; and

(8) any other factors that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the number of 

witnesses who testify about it. What is important is how believable the witnesses are, and how 

much weight you think their testimony deserves.

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors.

First, keep an open mind throughout the trial, and do not decide what the verdict should 

be until you and your fellow jurors have completed your deliberations at the end of the case.

Second, because you must decide this case based only on the evidence received in the 

case and on my instructions as to the law that applies, you must not be exposed to any other 

information about the case or to the issues it involves during the course of your jury duty. Thus, 

until the end of the case or unless I tell you otherwise:

Do not communicate with anyone in any way and do not let anyone else communicate 

with you in any way about the merits of the case or anything to do with it. This includes 

discussing the case in person, in writing, by phone, by email, by text or other electronic 

messaging, or through any Internet or social media chat room, blog, website, or application, 

including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat, or any 

other form of social media. This applies to communicating with your fellow jurors until I give 

you the case for deliberation. This also applies to communicating with everyone else, including 

your family members, your employer, the media or press, and the people involved in the trial, 

although you may notify your family and your employer that you have been seated as a juror in a 

federal court trial, and you may say how long you expect the trial to last. But, if you are asked or 

approached in any way about your jury service or anything about this case: (1) you must respond 

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that you have been ordered by a federal judge not to discuss the matter until after the trial has 

concluded; and (2) you must report the contact to me.

Because you will receive all the evidence and legal instruction you properly may consider 

to return a verdict: do not read, watch, or listen to any news or media accounts or commentary 

about the case or anything to do with it; do not do any research, such as consulting dictionaries, 

searching the Internet, or using any other reference materials; and do not make any investigation 

or in any other way try to learn about the case on your own. Do not visit or view any place 

discussed in this case, and do not use Internet program, application, or any other device to learn 

more about or to investigate anything discussed or even mentioned during the trial. It is very 

important for a fair trial that you do not do any research about this case, the law, or the people 

involved—including the parties, the witnesses, or the lawyers—until after you have been 

excused as jurors from this trial. If you happen to read or hear anything touching on this case in 

the media, turn away, and report it to me as soon as possible.

These rules protect each party’s right to have this case decided only on evidence that has 

been presented here in court. Witnesses here in court take an oath to tell the truth, and the 

accuracy of their testimony is tested through the trial process. If you do any research or 

investigation outside the courtroom, or gain any information through improper communications, 

then your verdict may be influenced by inaccurate, incomplete, or misleading information that 

has not been tested by the trial process. Each of the parties is entitled to a fair trial by an 

impartial jury, and if you decide the case based on information not presented in court, you will 

have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it 

is very important that each of you follow these rules.

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A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a 

mistrial could result that would require the entire trial process to start over. If any juror is 

exposed to any outside information, you must notify me as soon as possible.

NO TRANSCRIPT AVAILABLE TO JURY

At the end of the trial, you will have to make your decision based on what you recall of 

the evidence. You will not have a written transcript of the trial. I urge you to pay close attention 

to the testimony as it is given.

TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take notes, 

please keep them to yourself until you and your fellow jurors go to the jury room to decide the 

case at the end of the trial. Do not let note-taking distract you from being attentive. When you 

leave the courthouse for recesses, your notes should be left in the jury room. No one will read 

your notes. Whether or not you take notes, you should rely on your own memory of the evidence. 

Notes are only to assist your memory. You should not be overly influenced by your notes or 

those of your fellow jurors.

CONFERENCES AND RECESSES

During the trial, it may become necessary for me to take up legal matters with the 

attorneys privately, either by having a conference to the side of the bench or, when necessary, by 

calling a recess. I will do what I can to keep the number and length of these conferences to a 

minimum, and I may not always immediately grant an attorney’s request for a conference.

OUTLINE OF TRIAL

The next phase of the trial will begin shortly. First, each party may make an opening 

statement. We will begin with the government, followed by each of the two defendants, one at a 

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time. An opening statement is not evidence. It is simply an outline to help you understand what 

that party expects the evidence will show. A party is not required to make an opening statement.

After opening statements, the government will begin to present evidence. The 

government will call a witness and ask the witness questions. That is called “direct examination.” 

When the government is done questioning that witness, each of the two defendants will be given 

an opportunity to question that witness. That is called “cross-examination.” When the last 

defendant has completed cross-examination of a witness, I will allow the government to ask any 

follow-up questions, based on the cross-examinations. That is called “redirect examination.” 

After that, I will allow each defendant to ask any follow-up questions. That is called “re-cross.” 

When all of the questioning of a witness has been completed by all parties, the witness will step 

down, and the government may call its next witness. I will try to alternate which of the two 

defendants goes first in cross-examination. You should not draw any conclusions or make any 

inferences, however, based on which defendant cross-examines a witness first.

After the government has called all of the witnesses that it wishes to call, the government 

will say “the government rests its case.” I will then give the defendants, one at a time, the 

opportunity to call witnesses. A defendant has no obligation to call a witness, but if a defendant 

wants to call a witness, the questioning will proceed with direct examination by the party who 

called that witness, followed by cross-examination by the other two parties, starting with the 

other defendant. That will be followed by re-direct, and re-cross. After a defendant has called all 

of the witnesses that defendant wishes to call, that defendant’s lawyer will say “the defense 

rests.” I will then invite the other defendant to begin calling its witnesses, if that defendant 

chooses to do so. After the second defendant rests, I will give an opportunity to the government 

to call any additional witnesses, who are called “rebuttal witnesses.”

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After rebuttal, all of the evidence will have been presented to you. I will then instruct you 

on the law that applies to the case, giving each of you written copies of my final jury 

instructions. The attorneys then will make their closing arguments. After that, you will go to the 

jury room to deliberate on your verdict.

CAUTIONARY INSTRUCTION—RECESS

We will soon take a break or recess. Remember, until the trial is over, do not discuss this 

case with anyone, including your fellow jurors, members of your family, people involved in the 

trial, or anyone else, and do not allow others to discuss the case with you. This includes 

discussing the case in Facebook, Twitter, Internet chat rooms, Internet blogs, Internet bulletin 

boards, emails, text messaging, or any other form of electronic or social media. If anyone tries to 

communicate with you about the case, in person, by telephone, by mail, or electronically, you 

must let me know about that communication or contact as soon as possible.

Do not read, watch, or listen to any news reports or other accounts about the trial or 

anyone associated with it, including any online information. Do not do any research, such as 

consulting dictionaries, searching the Internet or using any other reference materials, and do not 

make any investigation about the case on your own. You must keep an open mind until all of the 

evidence has been presented and you have heard my final jury instructions on the law, the 

closing arguments of counsel, and the views of your fellow jurors. This is necessary to ensure 

that all parties receive a fair trial.

If you need to speak with me about anything, simply give a signed note to the clerk of the 

courtroom, Mary Austad, and she will give it to me.

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