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United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

UNITED STATES OF AMERICA

v. 

KYLE CARTER

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Case No. 4:23-cr-225

Judge Mazzant

COURT’S INSTRUCTIONS TO THE JURY

Members of the Jury:

In any jury trial there are, in effect, two judges. I am one of the judges; the other is 

the jury. It is my duty to preside over the trial and to decide what evidence is proper for your 

consideration. It is also my duty at the end of the trial to explain to you the rules of law that 

you must follow and apply in arriving at your verdict.

First, I will give you some general instructions which apply in every case, for example, 

instructions about the burden of proof and how to judge the believability of witnesses. Then 

I will give you some specific rules of law about this particular case, and finally I will explain 

to you the procedures you should follow in your deliberations.

DUTY TO FOLLOW INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually 

happened—that is, in reaching your decision as to the facts—it is your sworn duty to follow 

all of the rules of law as I explain them to you.

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You have no right to disregard or give special attention to any one instruction, or to 

question the wisdom or correctness of any rule I may state to you. You must not substitute 

or follow your own notion or opinion as to what the law is or ought to be. It is your duty to 

apply the law as I explain it to you, regardless of the consequences.

It is also your duty to base your verdict solely on the evidence, without prejudice or 

sympathy. That was the promise you made and the oath you took before being accepted by 

the parties as jurors, and they have the right to expect nothing less.

PRESUMPTION OF INNOCENCE, 

BURDEN OF PROOF, REASONABLE DOUBT

The Indictment or formal charge against a Defendant is not evidence of guilt. Indeed, 

the Defendant is presumed by the law to be innocent. The Defendant begins with a clean 

slate. The law does not require a Defendant to prove his innocence or 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, you must acquit that Defendant. While the Government’s 

burden of proof is a strict or heavy burden, it is not necessary that a Defendant’s guilt be 

proved beyond all possible doubt. It is only required that the Government’s proof exclude 

any “reasonable doubt” concerning the Defendant’s guilt.

A “reasonable doubt” is a doubt based on 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 on 

it without hesitation in making the most important decisions of your own affairs.

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EVIDENCE—EXCLUDING WHAT IS NOT EVIDENCE

As I told you earlier, it is your duty to determine the facts. To do so, you must consider 

only the evidence presented during the trial. Evidence is the sworn testimony of the 

witnesses, including stipulations, and the exhibits. The questions, statements, objections, 

and arguments made by the lawyers are not evidence.

The function of the lawyers is to point out those things that are most significant or 

most helpful to their side of the case, and in so doing to call your attention to certain facts or 

inferences that might otherwise escape your notice. In the final analysis, however, it is your 

own recollection and interpretation of the evidence that controls in the case. What the 

lawyers say is not binding on you.

During the trial I sustained objections to certain questions and exhibits. You must 

disregard those questions and exhibits entirely. Do not speculate as to what the witness would 

have said if permitted to answer the question or as to the contents of an exhibit. Also, certain 

testimony or other evidence has been ordered removed from the record and you have been 

instructed to disregard this evidence. Do not consider any testimony or other evidence which 

has been removed from your consideration in reaching your decision. Your verdict must be 

based solely on the legally admissible evidence and testimony.

Also, do not assume from anything I may have done or said during the trial that I have 

any opinion concerning any of the issues in this case. Except for the instructions to you on 

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the law, you should disregard anything I may have said during the trial in arriving at your own 

verdict.

EVIDENCE—INFERENCES—DIRECT AND CIRCUMSTANTIAL

In considering the evidence, you are permitted to draw such reasonable inferences 

from the testimony and exhibits as you feel are justified in the light of common experience.

In other words, you may make deductions and reach conclusions that reason and common 

sense lead you to draw from the facts which have been established by the evidence.

Do not be concerned about whether evidence is “direct evidence” or “circumstantial 

evidence.” You should consider and weigh all of the evidence that was presented to you.

“Direct evidence” is the testimony of one who asserts actual knowledge of a fact, 

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

circumstances indicating that something is or is not a fact.

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

circumstantial evidence. But the law requires that you, after weighing all of the evidence, 

whether direct or circumstantial, be convinced of the guilt of a Defendant beyond a 

reasonable doubt before you can find him guilty.

CREDIBILITY OF WITNESSES

I remind you that it is your job to decide whether the Government has proved the 

guilt of the Defendant beyond a reasonable doubt. In doing so, you must consider all of the 

evidence. This does not mean, however, that you must accept all of the evidence as true or 

accurate.

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You are the sole judges of the credibility or “believability” of each witness and the 

weight to be given to the witness’s testimony. An important part of your job will be making 

judgments about the testimony of the witnesses who testified in this case. You should decide 

whether you believe all, some part, or none of what each person had to say, and how 

important that testimony was. In making that decision I suggest that you ask yourself a few 

questions: Did the witness impress you as honest? 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 have any relationship with either the Government or the defense? Did the witness 

seem to have a good memory? Did the witness clearly see or hear the things about which he 

testified? Did the witness have the opportunity and ability to understand the questions clearly 

and answer them directly? Did the witness’s testimony differ from the testimony of other 

witnesses? These are a few of the considerations that will help you determine the accuracy 

of what each witness said.

You are required to evaluate the testimony of a law enforcement officer or federal 

agent as you would the testimony of any other witness. No special weight may be given to his 

or her testimony because he or she is a law enforcement officer or federal agent.

Your job is to think about the testimony of each witness you have heard and decide 

how much you believe of what each witness had to say. In making up your mind and reaching 

a verdict, do not make any decisions simply because there were more witnesses on one side 

than on the other. Do not reach a conclusion on a particular point just because there were 

more witnesses testifying for one side on that point. You will always bear in mind that the law 

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never imposes upon a Defendant in a criminal case the burden or duty of calling any witnesses 

or producing any evidence.

“ON OR ABOUT”

You will note that the Indictment charges that the offense was committed on or about 

a specified date. The Government does not have to prove that the crime was committed on 

that exact date, so long as the Government proves beyond a reasonable doubt that the 

Defendant committed the crime on a date reasonably near April 2014, and continuously 

thereafter up through and including 2018, as stated in the Indictment.

SIMILAR ACTS

You have heard evidence of acts of a Defendant(s) which may be similar to those 

charged in the Indictment, but which were committed on other occasions. You must not 

consider any of this evidence in deciding if the Defendant committed the acts charged in the 

Indictment. However, you may consider this evidence for other, very limited, purposes.

If you find beyond a reasonable doubt from other evidence in this case that the 

Defendant did commit the acts charged in the Indictment, then you may consider evidence 

of the similar acts allegedly committed on other occasions to determine:

Whether the Defendant had the state of mind or intent necessary to commit the crime 

charged in the Indictment;

or

Whether the Defendant had knowledge of the acts charged in the Indictment;

or

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Whether the Defendant committed the acts for which he is on trial by accident or 

mistake.

The are the limited purposes for which any evidence of other similar acts may be 

considered.

IDENTIFICATION TESTIMONY

In any criminal case the Government must prove not only the essential elements of 

the offense or offenses charged, as hereafter defined, but must also prove, beyond a 

reasonable doubt, the identity of a Defendant as the perpetrator of the alleged offense.

In evaluating the identification testimony of a witness, you should consider all of the 

factors already mentioned concerning your assessment of the credibility of any witness in 

general and should also consider whether the witness had an adequate opportunity to observe 

the person in question at the time or times about which the witness testified. You may 

consider all matters, including the length of time the witness had to observe the person in 

question, the prevailing conditions at that time in terms of visibility or distance and the like, 

and whether the witness had known or observed the person at earlier times. 

You may also consider the circumstances surrounding the identification itself 

including, for example, the manner in which the Defendant was presented to the witness for 

identification, and the length of time that elapsed between the incident in question and the 

next opportunity the witness had to observe the Defendant. 

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If, after examining all of the testimony and evidence in the case, you have a reasonable 

doubt as to the identity of a Defendant as the perpetrator of the offense charged, you must 

find that Defendant not guilty.

CAUTION—CONSIDER ONLY CRIME CHARGED

You are here to decide whether the Government has proved beyond a reasonable 

doubt that Defendant is guilty of the crimes charged. The Defendant is not on trial for any 

act, conduct, or offense not alleged in the Indictment. Neither are you called on to return a 

verdict as to the guilt of any other person or persons not on trial as a Defendant in this case, 

except as you are otherwise instructed.

CAUTION—PUNISHMENT

If Defendant isfound guilty, it will be my duty to decide what the punishment will be.

You should not be concerned with punishment in any way. It should not enter your 

consideration or discussion.

SUMMARIES AND CHARTS NOT RECEIVED IN EVIDENCE

Certain charts and summaries have been shown to you solely as an aid to help explain 

the facts disclosed by evidence (testimony, books, records, and other documents) in the case. 

These charts and summaries are not admitted evidence or proof of any facts. You should 

determine the facts from the evidence that has been admitted. 

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SUMMARIES AND CHARTS RECEIVED IN EVIDENCE PURSUANT TO 

FEDERAL RULE OF EVIDENCE 1006

Certain charts and summaries of other records have been received into evidence. They 

should be considered like any other evidence in the case. You should give them only such 

weight as you think they deserve.

The charts and summaries include inferences or conclusions drawn from the records

underlying them. It is up to you to determine if these inferences or conclusions are accurate.

The underlying records are the best evidence of what occurred.

SUMMARY WITNESS TESTIMONY AND

CHARTS BASED ON OTHER EVIDENCE

Summary testimony by a witness and charts or summaries prepared or relied upon by 

the witness have been received into evidence for the purpose of explaining facts disclosed by 

testimony and exhibits which are also in evidence in this case. If you find that such summary 

testimony and charts correctly reflect the other evidence in the case, you may rely upon them. 

But if and to the extent that you find they are not in truth summaries of the evidence in the 

case, you are to disregard them. The best evidence of what occurred are the underlying 

records themselves

STIPULATIONS OF FACT

A “stipulation” is an agreement. When there is no dispute about certain facts, the 

attorneys may agree or “stipulate” to those facts. You must accept a stipulated fact as 

evidence and treat that fact as having been proven here in court. The parties stipulate to the 

following:

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(1) During the course of the alleged conspiracy, the claims submitted to Blue Cross 

Blue Shield were transmitted by way of wire, radio, or television 

communications, in interstate commerce, for the purpose of executing such 

alleged conspiracy; and

(2) The claims submitted to Blue Cross Blue Shield constitute a writing, sign, 

signal, picture, or sound.

(3) Venue is proper in the Eastern District of Texas.

CONSPIRACY TO COMMIT WIRE FRAUD (COUNT ONE)

18 U.S.C. § 1349

Title 18, United States Code, Section 1349, makes it a crime for two or more persons 

to conspire to commit wire fraud.

The Defendant is charged in Count One of the Indictment with the offense of 

conspiracy to commit wire fraud in violation of Title 18, United States Code, Section 1349.

A “conspiracy” is an agreement between two or more persons to join together to 

accomplish some unlawful purpose. It is a kind of “partnership in crime” in which each 

member of the conspiracy becomes the agent of every other member.

For you to find Defendant guilty of this crime, you must be convinced that the 

Government has proved each of the following three elements beyond a reasonable doubt:

First: That the Defendant and at least one other person made an agreement to 

commit the crime of wire fraud, the elements of which are described below;

Second: That the Defendant knew the unlawful purpose of the agreement; and

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Third: That the Defendant joined in the agreement willfully, that is, with the intent 

to further the unlawful purpose.

A person commits the crime of wire fraud when:

First: The person knowingly devised or intended to devise any scheme to defraud;

Second: The scheme to defraud employed false material representations, pretenses, 

or promises; 

Third: The person transmitted or caused to be transmitted by way of wire, radio, or 

television communications, in interstate or foreign commerce, any writing, sign, 

signal, picture, or sound for the purpose of executing such scheme; and

Fourth: That the person acted with a specific intent to defraud.

To show that a Defendant conspired to commit wire fraud, the Government need not 

prove that he in fact committed the object offense of wire fraud.

One may become a member of a conspiracy without knowing all the details of the 

unlawful scheme or the identities of all other alleged conspirators. If a Defendant

understands the unlawful nature of a plan or scheme and knowingly and intentionally joins 

in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even 

though the Defendant had not participated before and even though the Defendant played 

only a minor part. 

The Government need not prove an overt act in furtherance of the conspiracy.

The Government need not prove that the alleged conspirators entered into any formal 

agreement nor that they directly stated between themselves all the details of the scheme. 

Similarly, the Government need not prove that all of the details of the scheme alleged in the 

Indictment were actually agreed upon or carried out. Nor must it prove that all of the persons 

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alleged to have been members of the conspiracy were such, or that the alleged conspirators 

actually succeeded in accomplishing their unlawful objectives. 

Mere presence at the scene of an event, even with knowledge that a crime is being 

committed, 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 necessarily 

establish proof of the existence 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 a conspiracy, 

does not thereby become a conspirator.

In your consideration of the conspiracy offense as alleged in the Indictment, you 

should first determine, from all of the testimony and evidence in the case, whether or not the 

conspiracy existed as charged. If you conclude that a conspiracy did exist as alleged, you 

should next determine whether or not the defendant willfully became a member of such 

conspiracy.

In determining whether a defendant was a member of an alleged conspiracy, however, 

the jury should consider only the evidence, if any, pertaining to that defendant’s own acts 

and statements. A defendant is not responsible for the acts or declarations of other alleged 

participants until it is established beyond a reasonable doubt, first, that a conspiracy existed, 

and second, from evidence of that defendant’s own acts and statements that the defendant 

was one of its members. 

On the other hand, if and when it does appear beyond a reasonable doubt from the 

evidence in the case that a conspiracy did exist as charged, and that the defendant was one of 

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its members, then the statements and acts knowingly made and done during such conspiracy 

and in furtherance of its objects, by any other proven member of the conspiracy, may be 

considered by the jury as evidence against the defendant, even though he was not present to 

hear the statement made or see the act done.

This is true because, as stated earlier, 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 and the statements of every other member made in 

pursuit of their unlawful scheme.

“KNOWINGLY”—TO ACT

The word “knowingly,” as that term has been used from time to time in these 

instructions, means that the act was done voluntarily and intentionally, not because of 

mistake or accident.

“WILLFULY”—TO ACT

The word “willfully,” as that term has been used from time to time in these 

instructions, mean that the act was committed voluntarily and purposely, with the specific 

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

disregard the law.

GOOD FAITH

While the term “good faith” has no precise definition, it encompasses, 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.

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If you find that a defendant acted in good faith, then he lacked the willfulness required 

to prove the offense of conspiracy to commit wire fraud charged in Count One of the 

Indictment. A defendant does not have to prove his good faith. Rather, the government must 

prove beyond a reasonable doubt that the defendant acted willfully as charged in Count One 

of the Indictment. A defendant does not act in good faith if he knowingly made false or 

fraudulent representations or promises or otherwise acted with the intent to defraud or 

deceive another in connection with the wire fraud statute as charged in Count One of the 

Indictment.

DELIBERATE IGNORANCE

You may find that a Defendant had knowledge of a fact if you find that the Defendant 

deliberately closed his eyes to what would otherwise have been obvious to him. While 

knowledge on the part of the Defendant cannot be established merely by demonstrating that 

the Defendant was negligent, careless, or foolish, knowledge can be inferred if the Defendant 

deliberately blinded himself to the existence of a fact. However, the Government retains its 

burden to show, beyond a reasonable doubt, that the knowledge elements of the crimes have been 

satisfied.

MATERIALITY

As used in these instructions, a representation, statement, pretense, or promise is 

“material” if it has a natural tendency to influence, or is capable of influencing, the decision 

of the person or entity to which it is addressed. The Government can prove materiality in 

either of two ways. First, a representation, statement, pretense, or promise is “material” if a 

reasonable person would attached importance to its existence or nonexistence in determining 

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his choice of action in the transaction in question. Second, a statement could be material, 

even though only an unreasonable person would rely on it, if the person who made the 

statement knew or had reason to know his victim was likely to rely on it. 

In determining materiality, you should consider that naivety, carelessness, 

negligence, or stupidity of a victim does not excuse criminal conduct, if any, on the part of 

the Defendant.

CHARACTER EVIDENCE

Where a defendant has offered evidence of good general reputation for truth and 

veracity, honesty and integrity, or character as a law-abiding citizen, you should consider 

such evidence along with all the other evidence in the case. Evidence of a defendant’s 

character, inconsistent with those traits of character ordinarily involved in the commission 

of the crime charged, may give rise to a reasonable doubt, since you may think it improbable 

that a person of good character with respect to those traits would commit such a crime.

DUTY TO DELIBERATE

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your 

verdict must be unanimous as to Count One of the Indictment.

It is your duty to consult with one another and to deliberate in an effort to reach 

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

impartial consideration of the evidence with your fellow jurors. Do not let any bias, 

sympathy, or prejudice that you may feel toward one side or the other influence your decision 

in any way. In particular, do not let racial, ethnic, national origin, or other bias influence your 

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decision in any way. During your deliberations, do not hesitate to reexamine your own 

opinions and change your mind if convinced that you were wrong. But do not give up your 

honest beliefs as to the weight or effect of the evidence solely because of the opinion of your 

fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges—judges of the facts. Your duty is to decide 

whether the Government has proved the Defendant guilty beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is select one of your 

number as your foreperson, who will help to guide your deliberations and will speak for you 

here in the courtroom.

A verdict form has been prepared for your convenience.

The foreperson will write the unanimous answer of the jury in the space provided for 

count onr of the Indictment, either “guilty” or “not guilty.” At the conclusion of your 

deliberations, the foreperson should date and sign the verdict with his or her initials.

During your deliberations, you must not communicate with or provide any 

information to anyone by any means about this case. You may not use any electronic device 

or media, such as a telephone, cell phone, smart phone, iPhone, BlackBerry, or computer; 

the Internet, any Internet service, or any text or instant messaging service; or any Internet 

chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter to 

communicate to anyone any information about this case or to conduct any research about 

this case until I accept your verdict.

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If you need to communicate with me during your deliberations, the foreperson should 

write the message and give it to the court security officer. I will either reply in writing or bring 

you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court, how 

the jury stands, numerically or otherwise, on count one of the Indictment, until after you 

have reached a unanimous verdict.

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