IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Criminal Case No. 11-cr-00376-WJM

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. EXECUTIVE RECYCLING, INC.,

2. BRANDON RICHTER, and

3. TOR OLSON,

Defendants.

________________________________________________________________________

ORDER REGARDING MOTIONS IN LIMINE

This criminal action is set to begin trial on Monday, December 3, 2012. Before

the Court are: (1) the Government’s Motion in Limine (ECF No. 218); and (2)

Defendants’ joint Motion in Limine (ECF No. 221). 

I. LEGAL STANDARDS

Federal Rule of Evidence 401 provides that evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be without the evidence”

and “the fact is of consequence in determining the action.” Relevant evidence is

generally admissible at trial, Fed. R. Evid. 402, but a court “may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid. 403. “The

district court has considerable discretion in performing the Rule 403 balancing test.” 

United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001). 

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Any additional evidentiary rules that apply to a particular portion of the Motions in

Limine will be discussed in the relevant portion of the Order below.

II. ANALYSIS

Having reviewed the Motions, the Court has divided the issues into three

categories: (1) issues that can be resolved pre-trial; (2) issues that are contextdependent and must be decided at trial; and (3) issues that are deemed moot by the

briefing on the Motions. 

A. Aspects of the Motions in Limine that can be Decided Pre-Trial

The Court has determined that the following four issues raised in the Motions in

Limine can be ruled on pre-trial: (1) evidence pertaining to an “Honest Services” theory

of mail and wire fraud; (2) the 60 Minutes footage; (3) evidence related to Craig Hospital

and Summit County; and (4) the Government’s summary exhibit(s). The Court will

address each in turn below.

1. Evidence Pertaining to an “Honest Services” theory of mail and wire fraud

The Government moves to exclude any evidence related to an “honest services”

theory of wire and mail fraud. (ECF No. 218 at 3.) The Government contends that any

reference to an honest services theory is irrelevant because the Court has already ruled

that this is not an honest services case. The Government also contends that, to the

extent it is relevant, any relevance is minimal and would be substantially outweighed by

the risk of confusing the jurors because the Government did not charge this as an

honest services case. 

In response, Defendants contend “whether or not the Government can establish

a valid wire or mail fraud claim in this case is still very much an open question.” (ECF

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No. 226 at 2.) Defendants acknowledge that the Court has already ruled that this is not

an honest services case, but contend that the Court’s ruling was premised upon a

misunderstanding of United States v. Evans, 844 F.2d 36 (2d Cir. 1988). Defendants

provided the Court with the brief filed by the United States in Evans and argue that this

brief shows that the Court misapprehended the facts in its prior ruling. (ECF No. 226 at

3-4.) 

Defendants are essentially asking the Court to reconsider its prior ruling. In this

Circuit, grounds warranting a motion to reconsider include (1) an intervening change in

the controlling law, (2) new evidence previously unavailable, and (3) the need to correct

clear error or prevent manifest injustice. Servants of the Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000). 

The Court has reviewed Evans and the brief filed by Defendants and sees no

reason to alter its prior ruling. If anything, these additional materials buttress the

Court’s analysis in the Order denying Defendants’ Motion to Dismiss. (ECF No. 124 at

6.) The brief filed by the government in Evans makes clear that the arms at issue in

that case had previously been sold to other countries by the United States or

manufacturers in the United States. (ECF No. 190-4 at 3.) Because the government

had already sold the arms to other countries, who were in turn attempting to sell them to

Iran, the Second Circuit found that the government had no property interest in the arms. 

Evans, 844 F.2d at 41. The Second Circuit refused to find that the government’s right

to place restrictions on future weapons sales—the only remedy available to the

government for resale of the arms to Iran—was a property interest for purposes of the

mail and wire fraud statutes. Id. 

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The facts of this case are easily distinguishable. The victims in this case were

involved in a direct transaction with Defendants. The Government’s theory of the case

is that the Defendants made certain representations to the victims (e.g., that the ewaste would be disposed of domestically, that the e-waste would be destroyed) and

that, in reliance on these promises, the victims paid the Defendants money to remove

and handle their e-waste. The victims clearly had a property interest in the monies they

paid to Defendants. Thus, despite Defendants’ repeated insistence otherwise, the

Court finds that Evans is not applicable here. 

As the Court previously ruled, the Government did not charge this case under

the “honest services” theory of mail and wire fraud. Therefore, the Court will not instruct

the jury on an “honest services” theory and will not permit Defendants to argue that the

only property right at issue here was “honest services.” The property right at issue here

is not the inalienable right to honest services; rather, the property is the monies paid to

Defendants by the victims for disposal of their e-waste. 

Accordingly, the Government’s Motion in Limine is GRANTED to the extent it

seeks to prevent Defendants from introducing evidence related to the “honest services”

theory of mail and wire fraud. Additionally, the Court REJECTS the portion of

Defendants’ Disputed Instructions E and F that relates to “the intangible right to honest

services”.

2. 60 Minutes Segment

Defendants move to exclude from evidence the portions of the “60 Minutes”

television segment that the Government has designated. (ECF No. 221 at 2.) 

Defendants contend that it is hearsay and violates the Confrontation Clause, as well as

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 Defendants have argued that, if the Court allows admission of Mr. Richter’s interview,

1

under Rule 106, it should compel the Government to provide the full, unedited version of the

interview. The Court has considered this argument and rejects it. The Government has made

clear that it does not have the unedited version of Mr. Richter’s testimony and Defendants have

failed to cite any authority showing that the Government must affirmatively obtain an unedited

version for Defendants’ use. As the Court pointed out at the Final Trial Preparation

Conference, nothing is stopping Defendants from subpoenaing the full, unedited version from

whatever entity is in possession of it. 

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being unduly prejudicial under Rule 403. 

The Government contends that there is no hearsay issue because, aside from

segments of an interview with Brandon Richter (which is non-hearsay because he is a

Defendant), it seeks to admit only the pictures and not the sound. The Government

states that it will have a witness, who either filmed the designated portions or was

present when they were filmed, testify about the authenticity of all footage and be

available for cross-examination regarding Richter’s statements. 

The Court has viewed the portions of the video that the Government will seek to

admit. The portion of the video that shows the interview with Brandon Richter is plainly

relevant to this case as it is a prior statement of one of the Defendants on the issue of

how Defendants handled the e-waste that was entrusted to them. It is also nonhearsay as it is a statement from one of the Defendants. While the statements made

by Mr. Richter during the interview may not be favorable to Defendants, they are not

unduly prejudicial for purposes of Rule 403. Therefore, the Court sees no reason to

exclude the portions of the tape that show Mr. Richter’s interview and the Government

may present those portions during its case in chief. 

1

The remainder of the designated portion of the 60 Minutes segments shows an

area of China that the parties refer to as “Goyu”. It shows toxic dumps full of electronic

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 It is unclear whether the voice-over commentary would be played for the jury at trial. 

2

The Government represents that it “seeks to admit the pictures only and not the sound”, but the

copy provided to the Court had both the video and the voice-over commentary. 

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waste, deplorable living conditions with local persons washing their clothes in an

extremely polluted river, and local persons chasing and assaulting the camera crew. 

The vocal overlay describes how the local governmental authorities in Goyu want to

keep the toxic dumps a secret and will go to great lengths to do so. The clear

2

implication from the way in which the video is edited (moving between Mr. Richter’s

interview and these video scenes in Goyu) is that Defendants’ e-waste ended up in

toxic dumps like the one in Goyu. 

In short, the portions of the video and commentary that show Goyu are

inflammatory and the manner in which the video was edited and spliced together by 60

Minutes is prejudicial to the Defendants. Defendants contend that there is no evidence

linking e-waste handled by Defendants to any such dumps or to this region of China in

general. (ECF No. 211 at 2.) The Court has seen no contrary evidence. Given the

lack of evidence linking Defendants to Goyu, and the inflammatory nature of the video

and the commentary describing Goyu, the Court will not permit the Government to

introduce the video or audio portions of the 60 Minutes segment that relate to Goyu

during its case-in-chief. 

However, the Court finds some merit in the Government’s argument that,

because Defendants are going to present evidence about a legitimate market for used

electronic devices in Asia by way of the testimony of Mr. Minter, the Government should

be permitted to introduce evidence showing the “dark side” of the e-waste market in

Asia. Accordingly, the Court leaves open the possibility that the Government could use

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aspects of the 60 Minutes segment describing conditions in Goyu during its rebuttal

case, contingent entirely on what the Defendants introduce by way of evidence on

these issues in their case-in-chief. However, the Government is on notice that, to the

extent any of the video of the conditions in Goyu is allowed, the Court will not likely

allow the admission of the audio voice-over commentary that appears on the 60

Minutes segment. 

Accordingly, the Defendants’ Motion in Limine is GRANTED to the extent it

seeks to exclude the portions of the 60 Minutes segment related to Goyu from being

introduced into evidence during the Government’s case-in-chief. After Defendants’

case-in-chief, if the Government requests, the Court will consider whether to permit the

Goyu portion of the 60 Minutes segment to be introduced during the Government’s

rebuttal case. Defendants’ Motion in Limine is DENIED as to the video and audio

portions of the 60 Minutes segment that show the interview with Defendant Richter. 

3. Craig Hospital & Summit County 

In its Rule 404(b) disclosure, the Government states that it intends to introduce

evidence that Defendants promised Craig Hospital and Summit County that it would

dispose of e-waste in an environmentally safe manner, without exportation overseas,

and that the e-waste would be completely destroyed. (ECF No. 171.) 

Defendants move to exclude any reference to Defendants’ relationship with

Craig Hospital or Summit County as improper and untimely Rule 404(b) evidence.

 (ECF No. 221 at 5-6.) Defendants also contend that allowing such evidence would be

an improper amendment of the indictment. Finally, Defendants argue that admission of

this evidence would violate 403. 

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The Court need not address Defendants’ arguments regarding whether this is

improper 404(b) evidence or an improper amendment to the indictment because the

Court finds that allowing admission of the evidence would violate Rule 403. The

Indictment charges Defendants with 13 counts of mail and wire fraud against nine

entities. To prove these counts, the Government will be permitted to introduce a

plethora of evidence about business dealings between these nine entities and the

Defendants. 

The Government has failed to show how the evidence as to Craig Hospital or

Summit County is different than the evidence involving the nine victims that are charged

in the Indictment. Therefore, the evidence related to Summit County and Craig Hospital

is very likely cumulative of what the Government will already introduce as to the nine

victims named in the Indictment. Additionally, the Court finds under Rule 611 that,

because they are not named victims, the evidence relating to Summit County and Craig

Hospital would be confusing to the jury and a waste of the Court’s and jury’s time. 

The Court acknowledges that, because Summit County and Craig Hospital were

allegedly victims of the same alleged scheme, the evidence may be probative of some

of the issues in this case. However, the Court finds that the probative value of this

evidence is substantially outweighed by the danger of confusing the issues, misleading

the jury, wasting time, and needlessly presenting cumulative evidence. Given the

complexity of these charges and the number of victims named in the Indictment, the

jury will already have its hands more than full keeping the evidence organized in their

minds. The Court need not add to the jury’s burden by allowing the Government to

introduce evidence about two victims that are not named in the Indictment. 

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Accordingly, the Court finds that evidence related to Summit County and Craig

Hospital must be excluded under Rule 403. Defendants’ Motion in Limine is GRANTED

to the extent it seeks to exclude evidence related to uncharged victims Craig Hospital

and Summit County. 

4. Summaries

Eleven days before trial, the Government disclosed to Defendants a summary

exhibit (summarizing hundreds of documents showing shipments linked to the

Defendants that went overseas) that it intends to use at trial. (ECF No. 227 at 4-5.) 

Defendants move to exclude this summary and argue that the late notice of this

summary violates Defendants’ Due Process rights. Defendants point out that they

requested a bill of particulars as to Counts 1-13, which was denied by the Court, and

that they repeatedly asked the Government to outline which shipments it intended to

use to prove its case. Defendants move to exclude the Government’s summary based

on the “irreparable prejudice” to Defendants due to the late notice. (ECF No. 221 at 9-

10.)

The Government points out that Defendants have had the material underlying

these summary charts for more than 14 months and that Defendants have cited no law

showing that the summary charts are Brady material that need to be disclosed. (ECF

No. 221 at 4-5.) The Government argues that Defendants are trying to improperly

narrow the fraud charges by requiring the Government to prove that the shipments

themselves were illegal and not just that they violated a promise made to the victim

(e.g., that the e-waste would be disposed of domestically or that it would be destroyed

rather than recycled). 

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With respect to the timing of the disclosure of the summary, the Court finds that

the Defendants have not shown a Due Process violation. Defendants have had the

underlying data for over a year and the Government is not required to reveal its theory

of the case to Defendants by disclosing its trial exhibits. Moreover, in denying the

Motion for Bill of Particulars, the Court found that the Indictment gave the Defendants

sufficient notice of the charges against them and the Court sees no reason to

reconsider this ruling. 

What lies at the heart of this issue is the parties’ disagreement about what the

Government must prove in order to convict Defendants on the mail and wire fraud

counts (Counts 1-13). Defendants contend that the Government must link a specific

shipment to each mail or wire fraud count. (ECF No. 221 at 9.) Defendants also

contend that the Government must prove that each shipment was, in and of itself,

illegal. (See ECF No. 221 at 10 (emphasizing that “there is nothing unlawful about

facilitating an export of a reusable monitor”)). The Government, on the other hand,

contends that wire fraud claims are “broad in scope” and “not limited to each individual,

separate act of fraud within it or each individual victim.” (ECF No. 227 at 5.) The

Government contends that Defendants are attempting to improperly narrow the mail

and wire fraud claims by requiring that the Government prove “the exact contents of

each shipment” and “whether or not the monitors were working when they were

exported.” (Id.) 

To avoid having this issue rear its head at every stage of the trial, and to provide

the maximum amount of clarity for the parties in advance of trial, the Court will provide

the parties with its jury instructions on the mail and wire fraud counts in the Conclusion

Case 1:11-cr-00376-WJM Document 236 Filed 12/02/12 USDC Colorado Page 10 of 20
 To the extent Defendants argue that the Indictment’s use of the term “e-waste” in 3

conjunction with Counts 1-13 compels the Government to prove that the materials were

hazardous waste, the Court firmly rejects such an argument. “E-waste” is a generalized term

that encompasses more than just electronic materials that are considered hazardous waste. 

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portion of this Order. As the parties will see, nothing in the instructions on the mail and

wire fraud counts relates to whether or not the shipments contained hazardous waste. 

Put simply, the Court concludes that nothing in the elements of the mail and wire fraud

statutes require the Government to prove, in addition to such elements, that each

overseas shipment contained hazardous waste in order to convict Defendants on these

charges. 

3

Accordingly, Defendants’ Motion in Limine is DENIED to the extent it seeks to

bar the Government from introducing its summary exhibits at trial. Of course, before

these exhibits can be admitted as evidence, the Government will be required to prove

the admissibility of each summary exhibit in accordance with the Federal Rules of

Evidence, and Rule 1006 in particular. 

B. Issues as to which the Court Reserves Ruling

The Court has determined that the following issues raised in the Motions in

Limine must be decided during trial. However, in an effort both at transparency and to

streamline as much as possible the admission of testimonial and documentary

evidence at trial, the Court will provide a brief discussion of the salient issues: 

1. Prior Statements of Defendants’ Agents

The Government moves to prevent Defendants from introducing e-mails from

themselves and their employees on hearsay grounds. (ECF No. 218 at 1-2.) Though

the Government intends to introduce the same sort of evidence (different e-mails from

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Defendants and their employees), the Government notes that, when it seeks admission

of these e-mails, they are non-hearsay as the statement of a party-opponent or its

agent. (Id.)

Defendants respond that they are aware of FRE 801(d)(1) and 803 and will

consider these rules in determining whether to offer a prior statement. (ECF No. 226 at

1-2.) However, Defendants also point out that prior statements are not hearsay under

FRE 801(d)(1)(B) when offered to rebut a charge of recent fabrication or improper

motive. (Id. at 1.)

Given the importance of context with respect to Rule 801, the Court cannot make

a pretrial ruling on the admissibility of any of these statements. The Court notes that

the parties seem to have a solid grasp of the evidentiary rules with respect to these

statements and expects the attorneys to be mindful of these rules when offering

evidence. Accordingly, the Court reserves ruling on this issue.

2. “Blame the Victim” Evidence

The Government asks the Court to exclude any evidence “designed to blame the

victim for failing to detect and prevent the defendant’s crime.” (ECF No. 218 at 3-4.)

The Government points out that, in a fraud charge, the focus of the intent is on the

defrauder, and not the victim. (Id.) The Government cites precedent from the Supreme

Court and the Eleventh Circuit that holds that the victim’s negligence is not a defense to

a fraud count. (Id.) 

Defendants contend that it is “not the theory of the defense” to blame the victim. 

(ECF No. 226 at 6-7.) However, Defendants correctly contend that the materiality of the

false statements is an element of a fraud claim. Therefore, Defendants argue that the

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Court cannot preclude them from offering evidence related to whether or not

representations made to the victims were material. (Id.) 

Again, the Court finds that it is nearly impossible to make a pretrial ruling on this

category of evidence. The context within which the evidence is offered will dictate its

admissibility. The Court notes that the parties seem to have a good grasp of the law

governing this issue and the Court expects counsel to be mindful of these principles

during trial. Accordingly, the Court reserves ruling on this issue.

3. Out-of-Court Statements

Defendants move to exclude statements made by former employees of

Executive Recycling based on hearsay. (ECF No. 221 at 1.) Defendants acknowledge

that these statements are not hearsay as to Executive Recycling but contend that they

are hearsay as to Brandon Richter and Tor Olson. Defendants also contend that

admission of these statements could violate the Confrontation Clause. Finally,

Defendants argue that any statement that directly inculpates Richter or Olson should be

excluded under the rule of Bruton v. United States, 371 U.S. 123 (1968), even if its

relevant and admissible against Executive Recycling. 

The Government contends that the prior statements are not testimonial and,

therefore, do not implicate the Confrontation Clause. (ECF No. 227.) The Government

acknowledges that prior statements of a co-defendant cannot be used against the other

defendant, but contends that they are not excluded per se and that they are in fact

admissible when they are not testimonial. The Government cites Davis v. Washington,

547 U.S. 813 (2006) in support of this argument. 

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The Court finds that context will be crucial for making a ruling on admissibility of

any out-of-court statement. Specifically, the Court must determine whether each out of

court statement is testimonial for purposes of the Confrontation Clause and that

determination must be done on a case-by-case basis. Moreover, any agency

relationship of the declarant with the Defendants affects the hearsay analysis.

 Accordingly, the Court reserves ruling on this issue. 

4. Shippers Export Declarations (SEDs)

Defendants move to exclude the “Shipper’s Export Declarations” (SEDs) and

“Automated Export System” (AES) reports that list Executive Recycling as the “Principal

Party in Interest” for hundreds of shipments. (ECF No. 221 at 3.) Defendants point out

that the SEDs and AES were not filed by Executive Recycling or any of its agents and

contend that the documents are “inherently untrustworthy and contain and rely

exclusively on multiple levels of hearsay”. Defendants seem to implicitly admit that

these are business records but argue that, because they rely on information obtained

from sources outside the business preparing or making the record, they must have an

“element of unusual reliability” that is not present here. (Id. at 4 (citing United States v.

Blechman, 657 F.3d 1052 (10th Cir. 2011). ) 

The Government contends that this is a trial-context issue. It says that it will

attempt to establish admissibility, including the requisite foundation and any hearsay

exception necessary for admission of these documents, and that Defendants will have

the opportunity to cross-examine and object to this evidence at the time it is offered at

trial. (ECF No. 227 at 3.)

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 The parties are hereby on notice that, depending on the evidence admitted at trial with 4

regard to overseas shipments linked to Defendants, the Court may reconsider its prior Order

Denying Defendants’ Motion to Strike Surplussage. (ECF No. 124 at 7-9.) Because the Court

does not intend to read the Indictment to the jury until after all evidence has been presented in

this case, it need not decide this issue now. However, the Court wanted to inform the parties

that it is reconsidering this issue. 

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On the record before it, the Court cannot say, as a matter of law, that the

Government cannot lay a proper foundation for the SEDs and/or establish sufficient

hearsay exceptions to allow admission of the SEDs. Accordingly, the Court reserves

ruling on this issue. 

4

5. Tacoma Photos

Defendants move to exclude photos of the shipment charged in Counts 14 & 15

that were taken when the shipment arrived back in Tacoma, Washington after having

been rejected by the Hong Kong customs authorities. (ECF No. 221 at 6.) Defendants

contend that these photos are irrelevant or that they should be excluded under Rule

403. The basis for Defendants’ objection is that the container of CRTs was unpacked

and repacked by Hong Kong authorities and that no employee of Executive Recycling

touched the container after it left Executive Recycling’s facility. Defendants contend

that the photos taken in Hong Kong do not resemble those taken in Tacoma and that

the photos would unduly prejudice them. (Id.) 

The Government takes issue with Defendants’ description of the photos and the

manner in which they vary from those taken in Hong Kong. Moreover, the Government

contends that Defendants’ arguments go to the weight of the evidence, not its

admissibility. (ECF No. 227 at 4.) 

Case 1:11-cr-00376-WJM Document 236 Filed 12/02/12 USDC Colorado Page 15 of 20
 The Court acknowledges, as the Government contends, that evidence of overseas 5

shipments to Hong Kong may be relevant and nothing in this Order precludes the Government

from offering such evidence during trial. However, the Court expects that the Government will

not emphasize Hong Kong law or the fact that these shipments may have violated Hong Kong

law.

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The Court notes that the parties have not submitted the photos to the Court for

review. Without seeing the photos, it is impossible to make a ruling on their

admissibility. Accordingly, the Court reserves ruling on this issue.

C. Moot Issues

Defendants moved to exclude: (1) “[a]ny report by the U.S. Government

Accountability Office (“GAO”); and (2) evidence related to violation of Hong Kong law. 

In its Response Brief, the Government states that it is not offering any GAO reports. 

(ECF No. 227 at 5.) The Government also states that “does not intend to prove

defendants violated Hong Kong law.” (ECF No. 227 at 4.) 

On the basis of these representations, which the Court expects the Government

to stand behind at trial, the Court finds that Defendants’ Motion to exclude this evidence

is moot.5

III. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. The Government’s Motion In Limine (ECF No. 218) is GRANTED in part and the

Court RESERVES RULING in part; 

2. Defendants’ Motion In Limine (ECF No. 221) is GRANTED in part and the Court

RESERVES RULING in part; and

3. With respect to the mail and wire fraud counts, the Court will instruct the jury as

follows: 

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MAIL FRAUD — ELEMENTS

The defendants are charged in Counts 7 and 8 with

violations of 18 U.S.C. Section 1341: Mail Fraud.

This law makes it a crime to use the mails in carrying

out a scheme to defraud or to obtain money or property by

false pretenses, representations, or promises.

To find the Defendant whose case you are

considering guilty of this crime, you must be convinced that

the Government has proved each of the following, or that the

Defendant intentionally aided and abetted the commission of

the crime (as defined in these instructions), beyond a

reasonable doubt:

1. The Defendant devised or intended to devise a

scheme to defraud or to obtain money or property by

false pretenses, representations, or promises, as

described in Counts 7 and 8 of the Indictment;

2. The Defendant acted with specific intent to defraud or

to obtain money or property by false pretenses,

representations, or promises;

3. The Defendant mailed something, or caused another

person to mail something, through a private or

commercial interstate carrier for the purpose of

carrying out the scheme; and

4. The scheme employed false or fraudulent pretenses,

representations, or promises that were material.

Each separate use of the mail in furtherance of a scheme

constitutes a separate offense. 

WIRE FRAUD - ELEMENTS

The Defendants are charged in Counts 1-6 and 9-13

with violations of 18 U.S.C. Section 3143: Wire Fraud.

This law makes it a crime to use interstate wire

communications facilities for the purpose of executing a

scheme to defraud or to obtain money be means of false or

fraudulent pretenses, representations, or promises.

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To find the Defendant whose case you are

considering guilty of this crime, you must be convinced that

the Government has proved each of the following, or that the

Defendant intentionally aided and abetted the commission of

the crime (as described in these instructions), beyond a

reasonable doubt: 

1. The Defendant devised or intended to devise a

scheme to defraud or to obtain money or property by

means of false or fraudulent pretenses,

representation, or promises, as described in Counts

1-6 and 9-13 of the Indictment; 

2. The Defendant acted with specific intent to defraud or

to obtain money by means of false or fraudulent

pretenses, representation, or promises;

3. The Defendant used interstate wire communications

facilities or caused another person to use interstate

wire communications facilities for the purpose of

carrying out the scheme; and 

4. The scheme employed false or fraudulent pretenses,

representations, or promises that were material.

Each separate use of interstate wire communication facilities

in furtherance of a scheme constitutes a separate offense. 

SCHEME TO DEFRAUD — DEFINED

A “scheme to defraud or to obtain money by means of

false or fraudulent pretenses, representations, or promises”

is conduct intended, or reasonably calculated, to deceive

persons of ordinary prudence or comprehension.

To prove a “scheme to defraud”, what must be proved

beyond a reasonable doubt is that the defendant knowingly

devised or intended to devise a scheme that was

substantially the same as the one alleged in the Indictment

and that the use of mail or interstate wire communications

facilities was closely related to the scheme in that the

defendant caused the use of the mail or interstate wire

communications facilities in an attempt to execute the

scheme. 

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To “cause” the mails to be used is to do an act with

knowledge that the use of the mails will follow in the ordinary

course of business or where such use can reasonably be

foreseen even though the Defendant did not intend or

request the mails to be used. 

To “cause” interstate wire communications facilities to

be used is to do an act with knowledge that the use of the

facilities will follow in the ordinary course of business or

where such use can reasonably be foreseen even though

the defendant did not intend or request that such facilities be

used.

INTENT TO DEFRAUD — DEFINED

An “intent to defraud or to obtain money by means of

fraudulent pretenses, representations, or promises” means

an intent to deceive or cheat someone.

FALSE REPRESENTATION — DEFINED

A representation is “false” if it is known to be untrue or

is made with reckless indifference as to its truth or falsity. A

representation would also be false when it constitutes a halftruth or effectively omits or conceals a material fact,

provided it is made with intent to defraud.

MATERIAL STATEMENT — DEFINED

A false statement 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.

INTERSTATE WIRE COMMUNICATION — DEFINED

An “interstate wire communication” is a wire

communication that crosses a state line. A “wire

communication” includes telephone calls, electronic signals

sent by wire (such as a fax or a financial wire), the use of the

internet to send a message (such as an e-mail), and

communicating with a website via the internet. 

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UNANIMITY REQUIRED FOR WIRE AND MAIL FRAUD

COUNTS

With respect to the first element of each mail and wire

fraud count, the Government has charged Defendants under

two theories: (1) the Defendants devised a scheme to

defraud; and (2) the Defendants devised a scheme to obtain

moneys, funds, and property by means of false pretenses,

representations, or promises. 

The Government does not have to prove both of

these theories for you to return a guilty verdict. Proof

beyond a reasonable doubt on one of the theories is

enough. But in order to return a guilty verdict, all twelve of

you must agree that the same theory has been proved. For

you to return a guilty verdict against a particular Defendant

on a particular count, all of you must agree either that the

Government proved beyond a reasonable doubt that the

Defendant whose case you are considering devised a

scheme to defraud, or all of you must agree that the

Defendant whose case you are considering devised a

scheme to obtain moneys, funds, and property by means of

false pretenses, representations, and promises.

The order of the instructions above is not necessarily the order in which they will

appear in the Court’s final jury instructions. The Court also reserves the right to modify

the instructions stylistically so that they conform with the remainder of the Court’s final

jury instructions. However, the substance of the Court’s final jury instructions on this

issue will be as set forth above.

Dated this 2 day of December, 2012. nd

BY THE COURT:

 

William J. Martínez 

United States District Judge

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