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Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 1 of 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : : CRIMINAL No. MJG-11-0011 v. : : DIMITRIOS GRIFAKIS, : : Defendant :..ooo... GOVERNMENT'S REQUESTED JURY INSTRUCTIONS The United States of America, by and through undersigned counsel, respectfully requests the Court to instruct the jury in the above-captioned matter in accordance with the proposed instructions attached hereto, in addition to its usual instructions in a criminal case. The government asks that it be allowed to submit proposed supplemental instructions if they become appropriate in light of developments prior to or at trial.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 2 of 32 The government further requests that, pursuant to Rule 30 of the Federal Rules of Criminal Procedure, the Court inform counsel of its proposed instructions prior to argument to the jury. Date: April 25, 2011 Respectfully Submitted, Rod J. Rosenstein United States Attorney Ignacia S. Moreno Assistant Attorney General /S/ Justin S. Herring Assistant United States Attorneys 36 South Charles Street Fourth Floor Baltimore, Maryland 21201 (410) 209-4800 Thomas T. Ballantine Special Assistant United States Attorney Counsel, Environmental Crimes Section U.S. Department of Justice

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 3 of 32 The government requests the following standard instructions from Sand & Siffert, Modern Federal Jury Instructions: 1. Instruction 2-1 Juror Attentiveness 2. Instruction 2-2 Role of the Court 3. Instruction 2-3 Role of the Jury 4. Instruction 2-5 The Government as a Party 5. Instruction 2-8 Conduct of Counsel 6. Instruction 2-11 Improper Considerations 7. Instruction 2-12 Sympathy 8. Instruction 2-17 Publicity 9. Instruction 2-18 Jury to Consider this Defendant 10. Instruction 3-1 Indictment is Not Evidence 11. Instruction 3-4 Failure to Name Other Persons 12. Instruction 3-6 Multiple Counts 13. Instruction 3-11 Venue 14. Instruction 3-12 Variance--Dates 15. Instruction 3A-1 Knowingly 16. Instruction 3A-3 Willfully 17. Instruction 3A-4 Intentionally 18. Instruction 4-1 Presumption of Innocence and Burden of Proof 19. Instruction 4-3 Number of Witnesses and Uncontradicted Testimony 20. Instruction 4-4 Specific Investigation Techniques Not Required 21. Instruction 5-2 Direct and Circumstantial Evidence

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 4 of 32 22. Instruction 5-3 Questions 23. Instruction 5-4 Testimony, Exhibits, Stipulations and Judicial Notice in General 24. Instruction 5-6 Stipulation of Facts (if applicable) 25. Instruction 5-7 Stipulation of Testimony (if applicable) 26. Instruction 5-12 Charts and Summaries (admitted as Evidence) (if applicable) 27. Instruction 5-21 Improper Consideration of Defendant Not Testifying (if applicable) 28. Instruction 6-1 Inference Defined 29. Instruction 6-11 Consciousness of Guilt from False Exculpatory Statement 30. Instruction 6-17 Knowledge, Willfulness, Intent 31. Instruction 7-1 Witness Credibility General Instruction 32. Instruction 7-5 Accomplices Called by the Government 33. Instruction 7-16 Law Enforcement Witness 34. Instruction 7-19 Impeachment by Prior Inconsistent Statement (if applicable) 35. Instruction 7-21 Expert Witness Generally 36. Instruction 9-1 Punishment 37. Instruction 9-7 Duty To Consult and Need for Unanimity

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 5 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 38 (Obstruction of Justice--Agency Proceedings) The Indictment and the Statute The defendant has been charged in the Indictment with obstructing and endeavoring to obstruct the due administration of proceedings pending before the United States Coast Guard. The Indictment reads: [Read Indictment] The relevant statute on this subject is 18 U.S.C. 1505, which provides: Whoever corruptly, or by threats of force, or by threatening letter or communication influences, obstructs, or impedes, or endeavors to influence, obstruct or impede the due and proper administration of law under which any proceeding is being held before any department or agency of the United States... [shall be guilty of a crime]. 18 U.S.C. 1505 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-7.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 6 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 39 (Obstruction of Justice--Agency Proceedings) Elements of the Offense In order to establish that the defendant is guilty of the charge in the Indictment, the government must prove each of the following elements beyond a reasonable doubt: First, that on or about the date set forth in the Indictment, a proceeding was pending before the United States Coast Guard; Coast Guard; Second, that the defendant knew that a proceeding was pending before the United States Third, that the defendant corruptly endeavored to influence, obstruct or impede the due and proper administration of the law under which the proceeding was being conducted. 18 U.S.C. 1505 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-9.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 7 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 40 (Obstruction of Justice--Agency Proceedings) First Element--Proceeding Was Pending The first element the government must prove beyond a reasonable doubt is that at or about the date set forth in the Indictment, a proceeding was pending before an agency of the United States. In this regard, you are instructed that the United States Coast Guard is an agency of the United States and that a Port State Examination is a proceeding. 18 U.S.C. 1505 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-10.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 8 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 41 (Obstruction of Justice--Agency Proceedings) Second Element--Knowledge of Proceeding in Progress The second element the government must prove beyond a reasonable doubt is that the defendant knew that the administrative proceeding was in progress. In order to satisfy this element, you need only determine that the defendant knew at or about the date charged that a Port State Examination was being conducted by the United States Coast Guard. 18 U.S.C. 1505 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-11.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 9 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 42 (Obstruction of Justice--Agency Proceedings) Third Element--Act of Obstructing or Impeding The final element the government must prove beyond a reasonable doubt is that the defendant did corruptly obstruct or impede, or endeavor to obstruct or impede the proceeding. As I explained earlier, the word corruptly means simply having the improper motive or purpose of obstructing justice. As I also told you, success of the endeavor is not an element of the crime. The term endeavor is designed to reach all conduct which is aimed at influencing, intimidating and impeding the proceedings. Thus, it is sufficient to satisfy this element if you find that the defendant made any effort or did any act for the purpose of obstructing or impeding the proceeding. 18 U.S.C. 1505 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-12.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 10 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 43 (Act to Prevent Pollution on Ships) The Indictment and the Statute The MARPOL Protocol is an international treaty referring to the 1973 International Convention for the Prevention of Pollution from Ships, and revisions to that Convention. The Act to Prevent Pollution from Ships, Title 33, United States Code, Sections 1901 thru 1915, is the United States law that implements the provisions of the MARPOL Protocol. Title 33, United States Code, Section 1908(a), states that: A person who knowingly violates the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder [shall be guilty of a crime]. The regulations promulgated under Title 33, United States Code, Section 1903(b) apply to vessels operated under the authority of other nations when they are present within the navigable waters, ports, or terminals of the United States. Title 33, Code of Federal Regulations, Section 151.25 is a regulation promulgated under Title 33, United States Code, Section 1903(b). During the period of charged conduct, it required that "each ship of 400 gross tons and above... shall maintain an Oil Record Book" for its machinery space operations. The regulation also required that: Entries shall be made in the Oil Record Book on each occasion, on a tank to tank basis if appropriate, whenever any of the following machinery space operations take place on any ship to which this section applies: (1) Ballasting or cleaning of fuel oil tanks; (2) Discharge of ballast containing an oily mixture or cleaning water from fuel oil tanks; (3) Disposal of oil residue; (4) Discharge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces. In addition, the regulations require that, "In the event of an emergency, accidental or other exceptional discharge of oil or oily mixture, a statement shall be made in the Oil Record Book of the circumstances of, and the reasons for, the discharge."

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 11 of 32 Further, Section 151.25 specified that each operation described, "shall be fully recorded without delay in the Oil Record Book so that all the entries in the book appropriate to that operation are completed. Each completed operation shall be signed by the person or persons in charge of the operations concerned and each completed page shall be signed by the master or other person having charge of the ship." Finally, Section 151.25 requires, "The Oil Record Book shall be kept in such a place as to be readily available for inspection at all reasonable times and shall be kept on board the ship." The United States Coast Guard ("U.S. Coast Guard"), is charged with enforcing the laws of the United States, and has legal authority to board vessels and to conduct inspections and investigations of potential violations. Through those inspections and investigations, the U.S. Coast Guard determines a vessel's compliance with MARPOL, APPS, and related regulations. In conducting inspections, U.S. Coast Guard personnel rely on statements made by a vessel's crew as well as documents, including Oil Record Books and records of waste tank soundings. The U.S. Coast Guard is specifically authorized to examine a vessel's Oil Record Book to determine, among other things, whether the vessel has operable pollution prevention equipment and appropriate procedures, whether it poses any danger to United States ports and waters, and whether the vessel discharged any oil or oily mixtures in violation of MARPOL, APPS, or any other applicable federal regulation. The term "oil" means "petroleum whether in solid, semi-solid, emulsified, or liquid form, including but not limited to, crude oil, fuel oil, sludge, oil refuse, oil residue, and refined products." The term "discharge" means "any release however caused from a ship, including any escape, disposal, spilling, leaking, pumping, emitting, or emptying."

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 12 of 32 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 13 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 44 (Act to Prevent Pollution on Ships) Elements of the Offense In order to prove the defendant guilty of the charge in the Indictment, the government must prove each of the following elements beyond a reasonable doubt: First, that the M/V Capitola was a ship of 400 or more gross tons that was registered in a country other than the United States; M/V Capitola; Second, the defendant was in charge of the handling and disposal of oil waste aboard the Third, the defendant, knowingly failed to maintain Oil Record Book that fully and accurately recorded ship operations involving oil, oily mixtures or oily residue; and Fourth, that the failure to maintain the oil record book occurred while the M/V Capitola was in the navigable waters of, or at a port terminal of, the United States. 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 14 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 45 (Act to Prevent Pollution on Ships) First Element Gross Tonnage The first element the government must prove beyond a reasonable doubt is that the M/V Capitola was a ship of 400 or more gross tons that was registered in a country other than the United States and was not an oil tanker. 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 15 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 46 (Act to Prevent Pollution on Ships) Second Element In Charge of The second element the government must prove beyond a reasonable doubt is that the defendant was in charge of the handling and disposal of oil waste aboard the M/V Capitola. This means that the defendant had the authority to direct the handling and disposal of oily waste aboard the M/V Capitola. It does not mean the defendant personally carried out all the tasks related to handling and disposal of oil waste. It is sufficient if the defendant had the authority to give orders to or direct others regarding the handling and disposal of oil waste. 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 16 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 47 (Act to Prevent Pollution on Ships) Third Element Knowingly Failed to Maintain the Oil Record Book The third element that the Government must prove beyond a reasonable doubt is that the defendant acted knowingly in not accurately maintaining the M/V Capitola s Oil Record Book with entries for each required operation, specifically, all disposals of oil-contaminated waste. The Government must prove that the defendant s failure to accurately maintain the Oil Record Book was done knowingly. An act or omission is done knowingly if done intentionally and voluntarily, and not because of ignorance, mistake, accident, or carelessness. Whether the defendant acted knowingly may be proven by their conduct and by all of the facts and circumstances in evidence. 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 17 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 48 (Act to Prevent Pollution on Ships) Second Element United States Waters The fourth element that the Government must prove beyond a reasonable doubt is that the failure to maintain the Oil Record Book occurred while the M/V Capitola was in the navigable waters of, or a port or terminal of, the United States. 33 U.S.C. 1901, et seq. 33 C.F.R. 151.25

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 18 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 49 (Witness Tampering) The Indictment and the Statute The defendant is charged in the Indictment with tampering with a witness ( or victim or informant). The Indictment reads: [Read Indictment] The relevant statute on this subject is 18 U.S.C. 1512(a)(2). It provides: Whoever uses... intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person) with intent to... (C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense... shall be [guilty of a crime]. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-28.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 19 of 32 GOVERNMENT S REQUESTED JURY INSTRUCTION NO. 50 (Witness Tampering) Elements of the Offense In order to prove the defendant guilty of the charge in the Indictment, the government must prove each of the following elements beyond a reasonable doubt: First, that on or about the date charged, the defendant knowingly used intimidation, threatened, or corruptly persuaded subordinate crewmembers, or attempted to do so. Second, that the defendant acted knowingly and with intent to influence the testimony of subordinate crewmembers in an official federal proceeding or hinder, delay or prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a federal offense. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-30.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 20 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 51 (Witness Tampering) First Element--Defendant Used Intimidating Force or Threats, or Corruptly Persuades The first element the government must prove beyond a reasonable doubt is that the defendant used intimidation, threatened, or corruptly persuaded subordinate crewmembers, or attempted to do so. Intimidation includes frightening a person, inspiring or affecting him by fear or deterring him by threats. It does not matter whether or not the person alleged as the object of the threat is actually frightened or thinks he is in physical danger. It is enough that the threat had a reasonable tendency to make the person fearful. As I indicated, this element may be satisfied if the defendant actually used intimidation, threats, or corrupt persuasion, or if he attempted to do so. A defendant may be found to have attempted to use intimidation or corrupt persuasion if his conduct constituted a substantial step towards committing the crime. The act which constitutes a substantial step must corroborate the actor's criminal purpose. To "corruptly persuade" means to act knowingly with a wrongful, immoral or evil purpose to convince or induce another person to engage in certain conduct. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 46-31.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 21 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 52 (Witness Tampering) Second Element--Knowledge and Specific Intent The second element the government must prove beyond a reasonable doubt is that the defendant acted knowingly and with the specific intent to induce any person to withhold evidence from an official proceeding or to hinder, delay or prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a federal offense. mistake. An act is done knowingly if it is done voluntarily and purposely, and not by accident or By specific intent, I mean that the defendant must have acted knowingly and with the unlawful intent to induce subordinate crewmembers to withhold evidence from an official proceeding or to hinder, delay or prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a federal offense. In order to satisfy this element, it is not necessary for the government to prove that the defendant knew he was breaking any particular criminal law. Nor need the government prove that the defendant knew that the law enforcement officer was a federal law enforcement officer. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 19-4.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 22 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 53 (False Statements) The Indictment and the Statute The defendant is charged with four counts of knowingly and willfully making false statements to the United States Coast Guard. The Indictment reads as follows: [Read Indictment] You will observe that the Indictment charges that the defendant knowingly and willfully made a materially false, fictitious or fraudulent statement or representation, or used a false writing or document, knowing the same to contain a materially false, fictitious or fraudulent statement or entry. The relevant statute on this subject is 18 U.S.C. 1001(a). It provides: [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-- (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry shall be [guilty of a crime]. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No.36-1.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 23 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 54 (False Statements) Elements of the Offense In order to prove the defendant guilty of the crime charged, the government must prove beyond a reasonable doubt: material fact; First, that on or about the date specified in the Indictment, the defendant falsified a Second, that the fact falsified was material; Third, that defendant did so by trick, scheme or device; Fourth, that defendant acted knowingly and willfully; and Fifth, that the falsification, concealment or coverup was with respect to a matter within the jurisdiction of the government of the United States. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No.36-3.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 24 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 55 (False Statements) First Element--Falsified, Concealed or Covered Up a Fact The first element the government must prove beyond a reasonable doubt is that the defendant falsified a fact. These words almost define themselves. To "falsify" means to make an untrue statement which is untrue at the time made and is known to be untrue at the time made. To "conceal" means to withhold from another. It requires some act to prevent detection of some fact the defendant was required to reveal. To "cover up" means to hide from another. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No.36-4.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 25 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 56 (False Statements) Second Element--Materiality The second element the government must prove beyond a reasonable doubt is that the fact falsified was material. A fact is material if it was capable of influencing the government's decisions or activities. However, proof of actual reliance on the statement by the government is not required. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No.36-5.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 26 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 57 (False Statements) Third Element--Trick, Scheme, or Device The third element the government must prove beyond a reasonable doubt is that the defendant falsified by trick, scheme or device. This language is almost self explanatory. A scheme is a plan for the accomplishment of an object. A trick or device is a deceptive act or strategy calculated to deceive other persons. Whether defendant's behavior amounted to a trick, scheme or device is a question for you, as finders of the facts to decide. It is the government's burden with respect to this element to prove beyond a reasonable doubt that the defendant falsified a material fact by trick, scheme or device. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No.36-6.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 27 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 58 (False Statements) Fourth Element--Knowing and Willful Conduct The fourth element which the government must prove beyond a reasonable doubt is that the defendant acted knowingly and willfully. An act is done knowingly if it is done purposely and voluntarily, as opposed to mistakenly or accidentally. An act is done willfully if it is done with an intention to do something the law forbids, a bad purpose to disobey the law. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 36-7.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 28 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 59 (False Statement) Fifth Element--Matter Within the Jurisdiction of the United States Government The fifth element which the government must establish beyond a reasonable doubt is that the document or statement or concealment be or made or undertaken with regard to a matter within the jurisdiction of the government of the United States. I charge you that the United States Coast Guard is a department of the United States government. To be within the jurisdiction of the government of the United States means that the statement must concern an authorized function of that department or agency. It is not necessary for the government to prove that the defendant had actual knowledge that the false statement was to be utilized in a matter which was within the jurisdiction of the government of the United States. It is sufficient to satisfy this element if you find that the false statement was made with regard to a matter within the jurisdiction of the government of the United States. 18 U.S.C. 1512 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 36-8 (modified).

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 29 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 60 (Aiding and Abetting) The Indictment and the Statute The Indictment also charges the defendant with aiding and abetting each of charged crimes. provides that: The aiding and abetting statute, section 2(a) of Title 18 of the United States Code Whoever commits an offense against the United States or aids or abets or counsels, commands or induces, or procures its commission, is punishable as a principal. Section 2(b) of the aiding and abetting statute reads as follows: Whoever willfully causes an act to be done which, if directly performed by him, would be an offense against the United States, is punishable as a principal. 18 U.S.C. 2 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 11-1.

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 30 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 61 (Aiding and Abetting) Aiding and Abetting Instruction Under the aiding and abetting statute, it is not necessary for the government to show that a defendant himself physically committed the crime with which he is charged in order for the government to sustain its burden of proof. A person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself. Accordingly, you may find a defendant guilty of the offense charged if you find beyond a reasonable doubt that the government has proven that another person actually committed the offense with which the defendant is charged, and that the defendant aided or abetted that person in the commission of the offense. As you can see, the first requirement is that you find that another person has committed the crime charged. Obviously, no one can be convicted of aiding or abetting the criminal acts of another if no crime was committed by the other person in the first place. But if you do find that a crime was committed, then you must consider whether the defendant aided or abetted the commission of that crime. In order to aid or abet another to commit a crime, it is necessary that the defendant knowingly associate himself in some way with the crime, and that he participate in the crime by doing some act to help make the crime succeed. The mere presence of a defendant where a crime is being committed, even coupled with knowledge by the defendant that a crime is being committed, or merely associating with others who were committing a crime is not sufficient to establish aiding and abetting. One who has no knowledge that a crime is being committed or is about to be committed but inadvertently does something that aids in the commission of that crime is not an aider and abettor. An aider and

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 31 of 32 abettor must know that the crime is being committed and act in a way which is intended to bring about the success of the criminal venture. To determine whether a defendant aided or abetted the commission of the crime with which he is charged, ask yourself these questions: Did he participate in the crime charged as something he wished to bring about? Did he knowingly associate himself with the criminal venture? Did he seek by his actions to make the criminal venture succeed? If he did, then the defendant is an aider and abettor, and therefore guilty of the offense. If, on the other hand, your answer to any one of these questions is "no," then the defendant is not an aider and abettor, and you must find him not guilty. Alternatively, the defendant is also guilty under 18 U.S.C. 2 if he willfully caused the offense. The meaning of the term "willfully caused" can be found in the answers to the following questions: First, did the defendant take some action without which the crime would not have occurred? Second, did the defendant intend that the crime would be committed by others? If you are persuaded beyond a reasonable doubt that the answer to both of these questions is "yes," then the defendant is guilty of the crime charged just as if he himself had actually committed it. Under part (b) of 18 United States Code, Section 2, it is immaterial whether the person who actually did the act is guilty or innocent. If you determine that the defendant neither aided or abetted the commission of an offense or willfully caused another to commit the offense, then the defendant is not guilty under this statute. 18 U.S.C. 2 Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 11-2 and 11-3 (modified).

Case 1:11-cr-00011-MJG Document 55 Filed 04/26/11 Page 32 of 32 GOVERNMENT'S REQUESTED JURY INSTRUCTION NO. 62 Unanimity of Theory Your verdict must also be unanimous in another sense. Count One of the Indictment charges that the defendant committed the crime of Obstructing an Agency Proceeding in eight different ways. Likewise, Count Two of the Indictment charges that the defendant violated the Act to Prevent Pollution from Ships in two different ways. Likewise, Count Three of the Indictment charges that the defendant committed the crime of Obstruction of Justice in three different ways. For each of these Counts, if the government fails to prove that the defendant committed the crime in at least one of the specified ways, then you must find the defendant not guilty on that Count. On the other hand, the government need not prove that the charged crime was committed in each of the charged ways. It is sufficient if you find beyond a reasonable doubt that the defendant committed the charged crime in any one of the ways specified in the Indictment. However, in order to convict the defendant on Count One, Count Two, or Count Three, all twelve of you must agree on the specific way in which the defendant committed the charged crime. Sand, Siffert, et al., Modern Fed. Jury Instructions, Instruction No. 9-7A (modified).