Tuesday, November 12, 2013

Daugerdas Retrial Jury Instructions - Part 01 Reasonable Doubt (11/12/13)

I have received the prepared jury instructions drafted by Judge Pauley (Wikipedia here) in the Daugerdas retrial.  The full set of jury instructions is linked here.  I did not get the transcript as they were actually read to the jury, but this should be pretty much as delivered for present purposes.  

I will use a series of posts to address various facets of the instructions that I find interesting.

This first post will deal with the reasonable doubt instruction.  The instruction as given is:
Reasonable Doubt  
I have said that the Government must prove a defendant guilty beyond a reasonable doubt. The question naturally arises: what is a reasonable doubt? The words almost define themselves. It is a doubt based in reason and arising out of the evidence in the case, or the lack of evidence. It is a doubt that a reasonable person has after carefully weighing all of the evidence in the case. 
Reasonable doubt is a doubt that appeals to your reason, your judgment, your experience and your common sense. If, after a fair and impartial consideration of all the 8 evidence, you can candidly and honestly say that you are not satisfied with the guilt of a defendant, that you do not have an abiding and firm belief of a defendant’s guilt; in other words, if you have such a doubt as would reasonably cause a prudent person to hesitate to act in a matter of importance in his or her own affairs, then you have a reasonable doubt, and in that circumstance it is your duty to acquit.  
On the other hand, if after a fair and impartial consideration of all the evidence, you can candidly and honestly say that you do have an abiding belief of a defendant’s guilt—a belief that a prudent person would not hesitate to act on in a matter of importance in his or her own affairs—then you have no reasonable doubt, and under such circumstances it is your duty to convict.  
One final word on this subject: reasonable doubt is not whim or speculation. It is not an excuse to avoid the performance of an unpleasant duty. Nor is it sympathy for one party or the other. “Beyond a reasonable doubt” does not mean a positive or mathematical certainty. The Government has met its burden if the guilt of a defendant is established beyond a reasonable doubt, not beyond all possible doubt.
I have no reason to believe that this is not as good as it gets for this genre of instruction.  Certainly Judge Pauley is one of the best and knows how to do justice with instructions.

The problem I have with the reasonable doubt standard for conviction is that it is not as certain a standard as one would hope for criminal convictions.    I do offer my thoughts on the subject from the following excerpt from my Federal Tax Crimes book (footnotes omitted; but caveat that the devil is in the footnotes which I omit so as not to devil up this blog entry; I do provide a pdf with the text and the footnotes here):
A. Presumption of Innocence and Guilt Beyond a Reasonable Doubt. 
In a criminal tax prosecution, just as any other criminal prosecution, the Government bears the burden of proving guilt beyond a reasonable doubt.  The Supreme Court has explained the compelling need for this burden as follows: 
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure.  It is a prime instrument for reducing the risk of convictions resting on factual error.  The standard provides concrete substance for the presumption of innocence -- that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” . . . “[A] person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 
The Court then held that “we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 
Courts and commentators have noted the utilitarian function of burdens of persuasion to a civilized society such as we imagine ours to be.  In criminal cases, societally, it is oft stated that it is better to acquit a guilty person than convict an innocent one; Blackstone even stated that it is better to acquit 10 guilty persons than convict one innocent one.  But, even in this simple – perhaps simplistic – construct for analysis, can or are we willing to say that it is better to acquit 100 guilty persons than convict one innocent person? And, when we layer on the fact that different major crimes present different risks to the community, can the equation of the risks of conviction of the innocent be assessed differently in different cases and contexts?  Specifically, for example, while we might be able to let 10 or even 100 tax evaders go free rather than convict one innocent person of tax evasion, would we want the same odds to apply to persons accused of terrorism?  You see where I am going, since we are never going to have a standard requiring certainty – whatever that is – we are necessarily going to have a standard that allows the innocent to be convicted.  So, what do we give jurors – the usual guilt or innocent finders in criminal cases – to help them keep the risk of conviction of innocent persons to an acceptable level?  We give them an elusive “one-size fits all” instruction on the meaning of beyond a reasonable doubt to which I now turn.

There is no universally accepted instruction to the jury defining reasonable doubt.  Some courts and commentators urge that the bare words – beyond a reasonable doubt — should be used with no attempt to further define the term.  Other offerings of instructions provide more words, if perhaps uncertain guidance and clarity; indeed, dare I say it, there is even reasonable doubt about precisely what reasonable doubt is.  Some perhaps would argue that this is a good state of affairs, for it permits the jury in its collective wisdom to shape the fact finding process to its perception of the needs of the community and the individual charges and defendant.  Still, because jury charges are so important in the process of a criminal trial, I offer a sampling of instructions to the jury.   
A leading and oft quoted form book offers the following to assist the jury in applying the reasonable doubt standard: 
The question naturally is what is a reasonable doubt. The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must ... be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.  
In 1988, the Federal Judicial Center offered the following instruction: 
As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt.  Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. 
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.  There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.  If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. 
The Fifth Circuit’s pattern jury instructions adds to the mix the presumption of innocence: 
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 law does not require a defendant to prove his innocence or produce any evidence at all [and no inference whatever may be drawn from the election of a defendant not to testify].  The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
While the government's burden of proof is a strict or heavy burden, it is not necessary that the 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 upon reason and common sense after careful and impartial consideration of all the evidence in the case.  Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
Delete bracketed material if defendant testifies. 
Trial lawyers love to describe burdens in percentage terms.  In the ordinary civil case, the party bearing the burden of persuasion must prove by a preponderance of the evidence which is quantified as evidence which the trier assesses as proving the key fact to be more likely than not – i.e., in excess of 50%.  Now, if you were going to state the percentage for beyond a reasonable doubt, what would it be?  One author states the inquiry as follows: 
Consider what “proof beyond a reasonable doubt” actually mandates that the jury do. Surely it requires more proof than the preponderance of the evidence standard, which governs in civil cases. As commonly explained to civil juries, the preponderance standard is quantified as any amount of certainty greater than 50%, and proof beyond a reasonable doubt must mean more than that.  But how much more proof than a preponderance is needed in a criminal case? The quantity of certainty is never quantified; instead, it is kept quite vague. Is 90% certainty required? 95%? 99%? Or could the amount of certainty be much lower, say perhaps 75%? 
Indeed, whatever the “percentage” level of certainty imagined to be inherent in the standard, it is reported that “research has consistently shown that the jurors in criminal cases will often be satisfied with much less certainty than is conventionally assumed.” 
Consider again the following from Judge Posner: 
Judges, when asked to express proof beyond a reasonable doubt as a probability of guilt, generally pick a number between .75 and .90 (depending on the judge), and jury quantifications are similar.  These may seem shockingly low figures, implying that as many as a quarter of the people convicted of crime are innocent. 
 Judge Posner notes that prosecutorial selectivity in picking cases to prosecute substantially mitigates the risk that the innocent will be convicted.  Still, assuming that there were no prosecutorial selectivity mitigating factors, are you concerned that judges and jurors in 20 or 25% doubt could return a verdict of guilty in a criminal case?  
Judge Posner’s conclusions are his own, based on his experience and his anecdotal polling of his colleagues.  Other attempts at empirical studies of these issues show that judges and suggest that jurors are all over the lot on the issue.  In one study of his 10 of his colleagues by Judge Weinstein of the Eastern District of New York, “one gave a probability of 76%, one gave 80%, four gave 85%, two gave 90%, and one gave 95%.  In other words, the probabilities hovered around 85%-90%.”  In a larger survey of federal judges throughout the country: 
Of the 171 judges who responded, 126 had thresholds that were 90% or higher. Eleven judges had thresholds of 75% or below, one of whom was satisfied with a 50% probability. The other study was conducted among Illinois state court judges. On a scale of 1 to 10, the mean level of certainty in this study was 8.9, with a median of 8.8; 63% of the judges responded with a level of 9.0 or higher.  Most (but not all) judges, then, tend to see the government's burden much the way Blackstone did [about 90%]. 
Of course, I noted above that there are unique prosecutorial mitigating factors in tax cases that virtually require that the Government only choose cases to prosecute where the evidence in all except the atypical case will produce a conviction.  This further mitigates the possibility of conviction of the innocent in tax cases .  Moreover, in applying whatever the juries perceive the standard to be (whether it is 80% or 90% or some other number), in tax cases one can argue that a jury will be more like to hold the Government to the burden more stringently than it might for some other type of case (e.g. a terrorist case).


  1. I am the guy that has sued him on behalf of the football players. I don't think he's done judging by an analogous action against George Calvert that resulted in indictment and conviction. He is leaving his current firm next week.

  2. Swiss follow Swiss laws, not the crimes of American extraterritorial bullies.

    The US is really wasting its time by harrassing a tiny nation with such extraterritorial abuse and misuse. Instead, it needs to focus on providing the world with reciprocity so that it will stop being a hypocritical bigot.

    Notice in the following article that the American lovers of tax evasion refuse to report the finances of dual citizens living in America to the other nation of their citizenship:

    Bankers' lawsuit jeopardizes U.S. tax dodger crackdown -lawyers

    Please, Jack, stop defending the American love for tax evasion and condemn your nation for opposing reciprocity. You need to attack your nation for not exporting the finances of its dual citizens even though you realize that such is violation of US federal laws on national origin discrimination. If you don't want to hate your own nation for its faults, then stop supporting American extraterritorial crimes, ok? Leave Switzerland alone and collect the garbage in your own backyard.

  3. Thanks Swiss Techie for sharing the article.

    I noticed there would be a fine of $100 per violation. What a joke. That's about twice the fine for staying five minutes at an expired parking meter.

    "What American has a bank account in
    Bolivia? What American has a bank account in Colombia?"
    Of course the US wants reciprocity only from countries where US persons would put their money (Switzerland, Canada) but with countries from which deposits come (Mexico, Bolivia, Venezuela, Russia and other ex-USSR.)

    Then there's the concern of someone from these countries being kidnapped if his wealth becomes known. What about dual citizens of these countries who live in the US but go to their birth country for a visit? Aren't we at risk especially after sending FBAR info over the web?

  4. Nice post, Can you give me some more details about Energy Audits Rochester NY.

  5. Milan Madhani, CPAMay 21, 2014 at 12:40 PM

    anon5percent, would it be okay to use some your reasonable cause letter as a template? I find that you have summarized quite a few good portions of the IRM & the reasonable causes by Moby in his OPT out. I am in the midst of an OPT Out For a client.

  6. What is the protocol of being able to use anon5percent's reasonable cause letter as a template for current OVDI Opt Out cases?

  7. I have teh same situation. I think the best would be to Opt Out. The 3520 penalty is almost never applied. The 3520 is an even more rare form than the FBAR.

  8. I think anon5percent posted them so that readers could learn and use it in their case, subject to changes to fit the facts and the nuances of the case. The latter is absolutely critical. Make that letter your letter addressing your facts.


    Jack Townsend

  9. I posted my documents so that readers could see what worked for me and evaluate if any of it applied to their situation and use it how they see fit. There is very little information available for those who wish to opt out. Fear drives the decisions of many benign actors in OVDI and I hoped to dispel some of that fear by sharing. I think Moby, Sally, Just Me and ij felt similarly. Please steal with pride from the documents and adapt whatever you take to fit your case as you think is best.

  10. anon5percent & Jack, I think anon5percent's reasonable cause letter is brilliant. I read Moby's OPT out letter (which includes his reasonable causes) & the Exhibit "S" TAO issued by TAS for JustMe, and anon5percent has elements of both. I am adapting it to my use. The only hiccup for me is that I don't have the case where it would be a streamlined Opt Out program per Notice 2012-65 (I have $21000 in unpaid taxes from just one foreign account), and a 3520 inheritance form. Also, one late filed FBAR for 2011, outside of the OVDI period. So it's a little tricky. But thanks for making this available. I believe anon5percent really, summarized everything both from IRM, IRS websites (Fact Sheet), FBAR mitigation guidelines, and Section 6664. Whew!!! I'll let you know how it turns out.

  11. I believe I mentioned this in the narrative, but my agent informed me that had I not applied for the Streamlined we could have actually closed sooner as the agent was willing to accept my opt out arguments and not apply any penalties. The agent expected a quicker response from the regular opt out committee. By applying to the Streamlined, I had to wait behind many other people so the terms and conditions of the Streamlined Program could be applied to me. I applied to Streamlined, because if accepted, I was assured of no penalties. As my agent could not tell me before I wrote my opt out letter what the agent's view was, I decided to take the safest route.

    Don't forget that if you opt out, some of those taxes owed in OVDI will go away if your client was filing. In my case, some of the years were already closed and were not reopened outside of OVDI. I had the taxes I paid in OVDI for those years refunded to me. If there are PFICs they will have to be recalculated using the 1291 method. While that may come out with less tax if your client has not been selling them, warn your client that he or she will likely be creamed with taxes on them when they sell. It might be worth doing some kind of estimate for them. That is the downside if you have PFICs and opt out.


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