Sheila Hill Proposed Final Jury Instructions

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA Plaintiff, v. SHEILA D. FARRINGTON (03) a/k/a “Sheila Hill,” et al. Defendant.

§ § § § § CRIMINAL ACTION NO. § § 3:07-CR-289-M § § §

DEFENDANT SHEILA HILL’S PROPOSED FINAL JURY INSTRUCTIONS Pursuant to the Court’s order, Defendant Sheila Hill files these Proposed Final Jury Instructions. She may seek to revise these instructions based on the positions developed by the parties at trial.

June 26, 2009

Respectfully submitted,

/s/ Victor D. Vital Victor D. Vital State Bar No. 00794798 Jon Mureen State Bar No. 24060313 BAKER BOTTS L.L.P. 2001 Ross Avenue Dallas, Texas 75201-2980 Telephone: (214) 953-6500

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GENERAL FINAL INSTRUCTIONS DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 1. INTRODUCTION TO FINAL INSTRUCTION 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 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. Authority:

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Fifth Circuit Pattern Jury Instruction 1.03

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 2. DUTY TO FOLLOW INSTRUCTIONS You, as jurors, are the judges of the facts. But in determining what actually happened— that is, in reaching your decisions as to the facts—it is your sworn duty to follow all of the rules of law as I explain them to you. 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. You also have the duty not to allow any prejudices you may have toward public officials or any other form of prejudice to influence your decision. It is also your duty to base your verdict solely upon 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. Authority:

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Fifth Circuit Pattern Jury Instruction 1.04 (adapted)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 3. 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 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. Authority:

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Fifth Circuit Pattern Jury Instruction 1.05

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 4. EVIDENCE—EXCLUDING WHAT IS NOT EVIDENCE As I told you earlier, it is your duty to determine the facts. In doing so, you must consider only the evidence presented during the trial, including the sworn testimony of the witnesses and the exhibits. Remember that any statements, objections, or 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 upon 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. 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 the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts. Authority:

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Fifth Circuit Pattern Jury Instruction 1.06

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 5. EVIDENCE—INFERENCES--DIRECT AND CIRCUMSTANTIAL While you should consider only the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in 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. Some of you have heard the phrases “circumstantial evidence” and “direct evidence.” In considering the evidence you may make deductions and reach conclusions which reason and common sense lead you to make; and you should not be concerned about whether the evidence is direct or circumstantial. “Direct evidence” is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness. “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 you may give to either direct or circumstantial evidence. Authority:

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Fifth Circuit Pattern Jury Instruction 1.07

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 6. 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. You are the sole judges of the credibility or “believability” of each witness and the weight to be given 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 or any part 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 person impress you as honest? Did the witness have a 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. 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. Authority:

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Fifth Circuit Pattern Jury Instruction 1.08

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 7. IMPEACHMENT BY PRIOR INCONSISTENCIES The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial. Earlier statements of a witness are not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness. If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight (or no weight at all) you think it deserves. Authority:

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Fifth Circuit Pattern Jury Instruction 1.10

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 8. ACCOMPLICE—INFORMER—IMMUNITY You have heard from witnesses who have been promised or given immunity by the government. You have also heard from witnesses who have received compensation for providing evidence against a defendant as an informer for pay. The testimony of an alleged accomplice, and the testimony of one who provides evidence against a defendant as an informer for pay or for immunity from punishment or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness’s testimony has been affected by any of those circumstances, or by the witness’s interest in the outcome of the case, or by prejudice against the defendant, or by the benefits that the witness has received either financially or as a result of being immunized from prosecution. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt. Authority:

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Fifth Circuit Pattern Jury Instruction 1.14 (adapted)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 9. ACCOMPLICE—PLEA AGREEMENT In this case, the government called as one of its witnesses an alleged accomplice, named as a co-defendant in the indictment, with whom the government has entered into a plea agreement providing for the dismissal of some charges and/or a lesser sentence than the codefendant would otherwise be exposed to for the offense to which the co-defendant plead guilty. Such plea bargaining, as it is called, has been approved as lawful and proper, and is expressly provided for in the rules of this court. An alleged accomplice, including one who has entered into a plea agreement with the government, is not prohibited from testifying. On the contrary, the testimony of such a witness may alone be of sufficient weight to sustain a verdict of guilty. You should keep in mind that such testimony is always to be received with caution and weighted with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt. You may consider the alleged accomplice’s guilty plea only to assess his credibility as a witness and not to create an inference of guilt against the defendant. The fact that an alleged accomplice has entered a plea of guilty to the offense charged is not evidence of the guilt of any other person and may not be used as substantive evidence of the guilt of another. Authority:

Fifth Circuit Pattern Jury Instruction 1.15 United States v. King, 505 F.2d 602, 607 (5th Cir. 1974) (holding a codefendant’s “...guilty plea or conviction may not be used as substantive evidence of the guilt of another.”)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 10. MULTIPLE DEFENDANTS—MULTIPLE COUNTS A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may fund one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration as to each defendant. The indictment that you will consider as to these defendants has eleven separate counts, charging five separate conspiracies. While all of the defendants are being tried together, it is as if each of the defendants is being separately tried. You must find that the government has proven its case beyond reasonable doubt as to each separate charge as to each separate defendant. Authority:

Fifth Circuit Pattern Jury Instruction 1.23 United States v. Faulkner, 17 F.3d 745, 762 (5th Cir. 1994)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 11. SIMILAR ACTS You have heard evidence of acts of the defendant 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 on the basis of 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 a motive or the opportunity to commit the acts charged in the indictment; or whether the defendant acted according to a plan or in preparation for commission of a crime; or whether the defendant committed the acts for which he is on trail by accident or mistake. The limited purposes I just articulated are the only purposes for which any evidence of other similar acts may be considered. Authority:

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Fifth Circuit Pattern Jury Instruction 1.30

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 12. SUMMARIES AND CHARTS NOT RECEIVED IN EVIDENCE Certain charts and summaries have been shown to you solely to help explain the facts disclosed by the books, records, and other documents which are in evidence in the case. These charts and summaries are used for convenience. They are not themselves evidence or proof of any facts. You should determine the facts from the evidence. Authority:

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Fifth Circuit Pattern Jury Instruction 1.43

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 13. CAUTION – CONSIDER ONLY CRIME CHARGED You have heard evidence in this trial about the Texas Local Government Code, the City Charter, the City Code of Ethics, the City Council Rules of Procedure, and the Texas Penal Code. The state and municipal disclosure rules do not apply to all of the defendants. Specifically, the rules governing disclosure and public official conduct only apply to defendants Donald Hill and D’Angelo Lee and do not apply to defendants Sheila Farrington, Brian Potashnik, Cheryl Potashnik, Rick Robertson, and Darren Reagan. The defendants are not charged with violations of these state laws or any other state or local law, rule or regulation. For example, if a Dallas City Council member failed to properly recuse himself from voting on a matter that would likely affect his own, or a family member’s, financial interests, that failure does not make any of the defendants guilty of the federal crimes charged in the indictment. You are here to decide whether the government has proved beyond a reasonable doubt that the defendants are guilty of the federal crimes charged. The defendants are not on trial for any act, conduct, or offense not charged in the indictment. For example, if two of the defendants engaged in an extramarital affair, that does not mean that those defendants, or any other defendant, are guilty of the federal crimes of conspiracy, aiding and abetting, bribery of an agent of a local government, extortion, honest services fraud or money laundering. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed. Therefore, these Texas state and municipal disclosure laws may only be considered by you to the extent that they relate, if at all, to the federal crimes charged in the indictment. You are only to decide whether the government has met its burden in proving the federal charges as to each defendant’s guilt beyond a reasonable doubt.

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Authority:

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Fifth Circuit Pattern Jury Instruction 1.19 United States v. Christo, 614 F.2d 486, 492 (5th Cir. 1980) (holding that government could not “bootstrap a series of ... civil regulatory violation[s] into an equal amount of [felonies]” as that would “impermissibly infect[] the very purpose for which the trial was being conducted [and is] legally irrelevant”)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 14. MULTIPLE DEFENDANTS--MULTIPLE COUNTS A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. For example, Count 18 alleges certain payments and activities involving an entity called “The LKC” which were not alleged to be a basis of Count 10’s conspiracy to commit bribery charge. Accordingly, you cannot consider evidence of these payments and activities when deciding whether defendants are guilty of conspiracy to commit bribery under Count 10. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant. And of course, any statement of confession of guilt by one individual should not be considered in any way whatsoever as evidence with respect to any other defendant on trial. Authority:

Fifth Circuit Pattern Jury Instruction 1.23 (adapted) Fifth Circuit Pattern Jury Instruction 1.27 (last sentence) United States v. Hoover, 467 F.36 496, 500-501 (5th Cir. 2006) (explaining that an unconstitutional “constructive amendment” occurs when a defendant is allowed “to be convicted . . . on a materially different theory or set of facts than that with which she was charged[.]”); see also United States v. Smith, 44 F.3d 1259, 1264-65 (4th Cir. 1995) (“If an indictment contains multiple counts, each count is viewed as a separate indictment[.]” (citing Dunn v. United States, 284 U.S. 390, 393 (1932)).

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 15. Cautionary Instruction During Trial – Transcript of Tape Recorded Conversation Certain exhibits have been identified as typewritten transcripts of English speaking oral conversations. The transcripts also purport to identify the speakers engaged in such conversation. I have admitted the transcripts for the limited and secondary purpose of aiding you in following the content of the conversations as you listen to the recordings, and also to aid you in identifying the speakers. You are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine based upon your own evaluation of the testimony you have heard concerning the preparation of the transcript, and from your own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent. Authority:

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Fifth Circuit Pattern Jury Instruction 1.42

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 16. SUMMARIES AND CHARTS RECEIVED IN EVIDENCE Certain charts and summaries have been received into evidence. Charts and summaries are valid only to the extent that they accurately reflect the underlying supporting evidence. You should give them only such weight as you think they deserve. Authority:

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Fifth Circuit Pattern Jury Instruction 1.44

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 17. CONSPIRACY 18 U.S.C. § 371 Title 18, United States Code, Section 371, makes it a crime for anyone to conspire with someone else to commit an offense against the laws of the United States. Count 10 of the indictment charges Sheila Hill with conspiring to bribe an agent of a local government receiving federal benefits. 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 becomes the agent of every other member. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: that the defendant and at least one other person made an agreement to commit and at least one other person made an agreement to commit the crime of bribery concerning an agent of local government receiving federal benefits. This is the crime alleged in Counts 11 through 14 of the indictment, and I will explain the elements of the offense shortly. Second: that the defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose; and Third: that one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in Count 10 of the indictment, in order to accomplish some object or purpose of the conspiracy. The first element of the crime of conspiracy requires the existence of an agreement. The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work

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together to achieve the overall objective of the conspiracy to commit bribery of a local government. 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 alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. The indictment charges a conspiracy to commit several federal crimes. The government does not have to prove that the alleged conspirators agreed to commit all of these crimes. It must, however, prove that they agreed to commit at least one of the object crimes, and you must unanimously agree on which crime. You cannot find Sheila Hill guilty of conspiracy unless you unanimously agree that the same federal crimes were the objective of the conspiracy. It is not enough if some of you agree that one of the charged crimes was the objective of the conspiracy and others agree that a different crime was the objective of the conspiracy. If you find that a criminal agreement or conspiracy existed, then in order to find Sheila Hill guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that she knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that Sheila Hill knew the goals or objectives of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goals or objectives and to work together with the other alleged conspirators toward those goals or objectives.

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One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. But Sheila Hill’s 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 membership in a conspiracy. Evidence which shows that Sheila Hill only knew about the conspiracy, or only kept “bad company” by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that Sheila Hill was a member of the conspiracy even if she approved of what was happening and did not object to it. Likewise, evidence showing that Sheila Hill happened to assist a conspiracy does not necessarily prove that she joined the conspiracy. Authority:

Third Circuit Model Criminal Jury Instruction § 6.18.371A-D (2009) (adapted)1 Fifth Circuit Pattern Jury Instruction § 2.20 (2001) (adapted)

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Defendant has relied in part on the Third Circuit model instructions because they are the most updated jury instructions among the circuits (being published in 2009, compared with the Fifth Circuit’s 2001 publication date), contain a more detailed discussion of the elements of the crimes charged in this case, and appear consistent with Fifth Circuit law.

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 18. SOLICITATION OR ACCEPTANCE OF A BRIBE BY AN AGENT OF A LOCAL GOVERNMENT RECEIVING FEDERAL BENEFITS 18 U.S.C. § 666(a)(1)(B) Title 18, United States Code, Section 666(a)(1)(B) makes it a crime for an agent of local government receiving federal funds to solicit or accept bribes. Counts 11 and 12 of the indictment allege that Donald W. Hill and D’Angelo Lee, corruptly solicited a bribe while acting as agents for a local government that received federal assistance. In order to find either Donald Hill or D’Angelo Lee guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt as to that defendant: First: that the defendant was an agent of the City of Dallas; Second: that the City of Dallas received federal benefits in excess of $10,000 in the oneyear period alleged in the indictment pursuant to a federal program involving grants or other forms of assistance; Third: that during such one year period the defendant knowingly solicited, demanded, accepted or agreed to accept a thing of value from Brian Potashnik and Cheryl Potashnik; Fourth: that the defendant acted corruptly with the intent to be influenced or rewarded in connection with some business, transaction, or series of transactions of the City of Dallas; and Fifth: that the value of the transaction or series of transactions to which the payment related was at least $5,000. The fourth element requires proof beyond reasonable doubt that the defendant acted corruptly and with the intent to be influenced in connection with some business, transaction, or DAL01:1053067.3

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series of transactions of the City of Dallas. To act corruptly means to act knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the receipt of the thing of value. To find that the defendants committed this offense, you must find beyond a reasonable doubt that they had the specific intent to receive something in exchange for an official act. In other words, there must be a quid quo pro. If the Defendants accepted a gift, but they did not intend that the gift be given in exchange for an official act, the Defendants are not guilty of this offense. Not every gift, favor or contribution to a government or political official constitutes bribery. It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent. “Bribery” imports the notion of some more or less specific quid pro quo for which the gift or contribution is offered or accepted. Authority:

Third Circuit Model Criminal Jury Instruction § 6.18.371A1B-2 (adapted) United States v. Sun-Diamond Growers of California, 526 U.S. 398, 40405 (1999) (“[F]or bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act”). United States v. Tomblin, 46 F.3d 1369, 1379-80 (5th Cir. 1995) (“Under the bribery statutes, the government must prove a quid pro quo, that is, that the official took money in return for an exercise of his official power . . . Intending to make a campaign contribution does not constitute bribery, even though many contributors hope that the official will act favorably because of their contributions.”). United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (“Not every gift, favor or contribution to a government or political official constitutes bribery. It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent . . . “Bribery” imports the notion of some more or less specific quid pro quo for which the gift or contribution is offered or accepted.”)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 19. AIDING AND ABETTING (AGENCY) Sheila Hill is charged with aiding and abetting the offenses alleged under Counts 11 through 14. The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct. But before Sheila Hill may be held criminally responsible for the acts of others it is necessary that she deliberately associate herself in some way with the crime and participate in it with the intent to bring about the crime. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that Sheila Hill either directed or aided and abetted the crime unless you find beyond a reasonable doubt that she was a deliberate participant and not merely a knowing spectator. You may not find Sheila Hill guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law. For you to find Sheila Hill guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

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First: That the offenses of bribery as alleged in Counts 11 and 12 were committed by Donald Hill and D’Angelo Lee; Second: That Sheila Hill associated with the criminal venture; Third: That Sheila Hill purposefully participated in the criminal venture; and Fourth: That the defendant sought by action to make that venture successful. "To associate with the criminal venture" means that the defendant shared the criminal intent of the person who committed the crime. This element cannot be established if the defendant had no knowledge of the person’s criminal venture. "To purposefully participate in the criminal venture" means that the defendant intentionally engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime. Unknowing participation in the venture is not a crime. Authority:

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Fifth Circuit Pattern Jury Instruction 2.06 (adapted)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 20. BRIBERY OF AN AGENT OF A LOCAL GOVERNMENT RECEIVING FEDERAL BENEFITS 18 U.S.C. § 666(a)(2) Title 18, United States Code, Section 666(a)(2) makes it a crime to pay bribes to an agent of local government receiving federal funds. Counts 13 and 14 of the indictment charge the defendants Brian L. Potashnik and Cheryl L. Potashnik2 with bribing an agent of a local government. In order to find one of the defendants guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt as to that defendant: First: That during the one-year period beginning October 1, 2003, Donald W. Hill and D’Angelo Lee were agents of the City of Dallas; Second: That the City of Dallas received federal benefits in excess of $10,000 in a oneyear period; Third: That the defendant gave, agreed to give, or offered something of value to Donald W. Hill and D’Angelo Lee; Fourth: That the defendant acted corruptly with the intent to influence or reward Donald W. Hill and D’Angelo Lee with respect to the business, a transaction, or a series of transactions of the City of Dallas; and Fifth: That the value of the business, transaction, or series of transactions to which the payment related was at least $5,000. Regarding the fourth element, the government must prove beyond a reasonable doubt that the defendant gave, agreed to give, or offered something of value to Donald W. Hill and

2

The Government’s proposed charge lists Sheila Farrington as one of the principal’s in the crime charged, but the indictment only alleeges that she aided and abetted the crime. See Indictment at 91.

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D’Angelo Lee, knowingly and corruptly and with the intent to influence or reward his actions in connection with some business, transaction, or series of transactions of the City of Dallas. To act corruptly in this context means to act knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result by influencing or rewarding Donald W. Hill’s or D’Angelo Lee’s actions. To find that the defendants committed this offense, you must find beyond a reasonable doubt that they had the specific intent to give something in exchange for an official act. In other words, there must be a quid quo pro. If the Defendants gave a gift to an official, but did not intend that the gift to be given in exchange for an official act, the Defendants are not guilty of this offense. Not every gift, favor or contribution to a government or political official constitutes bribery. It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent. “Bribery” imports the notion of some more or less specific quid pro quo for which the gift or contribution is offered or accepted. Authority:

Third Circuit Model Criminal Jury Instruction § 6.18.371A1B-2 (adapted) United States v. Sun-Diamond Growers of California, 526 U.S. 398, 40405 (1999) (“[F]or bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act”). United States v. Tomblin, 46 F.3d 1369, 1379-80 (5th Cir. 1995) (“Under the bribery statutes, the government must prove a quid pro quo, that is, that the official took money in return for an exercise of his official power . . . Intending to make a campaign contribution does not constitute bribery, even though many contributors hope that the official will act favorably because of their contributions.”). United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (“Not every gift, favor or contribution to a government or political official constitutes bribery. It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent . . .

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“Bribery” imports the notion of some more or less specific quid pro quo for which the gift or contribution is offered or accepted.”)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 21. AIDING AND ABETTING (AGENCY) Sheila Hill is charged with aiding and abetting the offenses alleged under Counts 11 through 14. The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct. But before Sheila Hill may be held criminally responsible for the acts of others it is necessary that she deliberately associate herself in some way with the crime and participate in it with the intent to bring about the crime. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that Sheila Hill either directed or aided and abetted the crime unless you find beyond a reasonable doubt that she was a deliberate participant and not merely a knowing spectator. You may not find Sheila Hill guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

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For you to find Sheila Hill guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: That the offenses of bribery as alleged in Counts 13 and 14 were committed by Brian Potashnik and Cheryl Potashnik; Second: That Sheila Hill associated with the criminal venture; Third: That Sheila Hill purposefully participated in the criminal venture; and Fourth: That the defendant sought by action to make that venture successful. "To associate with the criminal venture" means that the defendant shared the criminal intent of the person who committed the crime. This element cannot be established if the defendant had no knowledge of the person’s criminal venture. "To purposefully participate in the criminal venture" means that the defendant intentionally engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime. Unknowing participation in the venture is not a crime. Authority:

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Fifth Circuit Pattern Jury Instruction 2.06 (adapted)

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 22. CONSPIRACY TO COMMIT EXTORTION 18 U.S.C. § 1951 Title 18, United States Code, Section 1951, makes it a crime for anyone to conspire with someone else to engage in extortion which affects commerce. Defendants Donald W. Hill, D’Angelo Lee, Darren L. Reagan and Rickey E. Robertson are charged in Count 15 of the indictment with Conspiracy to Commit Extortion in violation of 18 U.S.C. § 1951. 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 becomes the agent of every other member. For you to find any defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: that two or more persons, directly or indirectly, reached an agreement to wrongfully obtain and attempt to wrongfully obtain property from another person induced by wrongful use and threat of use of economic harm or under the color of official right. I will explain the elements of this crime to you shortly, when I discuss Count 16; Second: that the defendant knew of the unlawful purpose of the agreement; and Third: that the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose. The first element of the crime of conspiracy requires the existence of an agreement. The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work

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together to achieve the overall objective of the conspiracy to commit bribery of a local government. 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 alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. If you find that a criminal agreement or conspiracy existed, then in order to find Sheila Hill guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that she knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that Sheila Hill knew the goals or objectives of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goals or objectives and to work together with the other alleged conspirators toward those goals or objectives. One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. But Sheila Hill’s 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 membership in a conspiracy. Evidence which shows that Sheila Hill only knew about the conspiracy, or only kept “bad company” by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove

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that Sheila Hill was a member of the conspiracy even if she approved of what was happening and did not object to it. Likewise, evidence showing that Sheila Hill happened to assist a conspiracy does not necessarily prove that she joined the conspiracy. Authority:

Third Circuit Model Criminal Jury Instruction § 6.18.371A-D (2009) (adapted) Fifth Circuit Pattern Jury Instruction § 2.20 (2001) (adapted) 18 U.S.C. § 1951

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 23. EXTORTION BY FEAR OF ECONOMIC HARM/EXTORTION UNDER COLOR OF OFFICIAL RIGHT 18 U.S.C. § 1951(a) Title 18, United States Code, Section 1951(a), makes it a crime for anyone to obstruct commerce by extortion. Count 16 of the indictment charges Donald W Hill and D’Angelo Lee with extortion.3 In order to convict of the defendants for this crime, the government must prove the following three essential elements beyond a reasonable doubt as to that defendant: First: That the defendant took from Bill Fisher the property described in the indictment; Second: That the defendant did so knowingly and willfully by extortion; and Third: That as a result of the defendant’s actions, interstate commerce or an item moving in interstate commerce was obstructed, delayed, or affected. “Extortion” means the obtaining of property from another, with his consent, by wrongful use of actual or threatened force, violence, or fear, or under color of official right. You must determine whether Don Hill and D’Angelo Lee obtained Bill Fisher’s property by any of these unlawful means, as set forth in the indictment. The government need not prove that all of these methods were used, but you must all agree on the particular method used before you can find Don Hill and D’Angelo Lee guilty of this crime. In considering whether Don Hill and D’Angelo Lee used or threatened to use force, violence, or fear, you should give those words their common and ordinary meaning, and understand them as you normally would. Fear exists if a victim experiences anxiety, concern, or worry over expected personal or economic harm.

3

The fear must be reasonable under the

The indictment does not charge Sheila Hill as a principal in the crime. She is charged only with aiding and abetting. See Indictment at 125.

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circumstances existing at the time of the defendant’s actions. This requires you to make a decision about Bill Fisher’s state of mind at the time of Don Hill’s and D’Angelo Lee’s actions. It is obviously impossible to prove directly a person’s subjective feeling. You cannot look into a person’s mind to see what his state of mind is or was. But a careful consideration of the circumstances and evidence should enable you to decide whether Bill Fisher was in fear and whether this fear was reasonable. A public official commits "extortion under color of official right" if he uses the power and authority of his office in order to obtain money, property, or something of value from another to which neither that public official nor that government office has an official right. Extortion under color of official right means that a public official induced, obtained, accepted, or agreed to accept a payment to which he or she was not entitled, knowing that the payment was made in return for taking, withholding, or influencing official acts.

The

government may show that the benefit was meant to be given to the public official directly, or to a third party who is not a public official but who was acting in concert with the public official. The government must prove beyond a reasonable doubt that each defendant knowingly and deliberately used his official position in order to obtain something of value, to which he had no right. Where the thing of value is not a campaign contribution, this type of extortion can be established by proof that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.

But where a campaign

contribution is involved, the standard is different, because election campaigns are and always have been financed by private contributions, and serving constituents and advancing initiatives of supporters is the everyday business of a public official. Accordingly, if the thing of value is a campaign contribution, the Government can establish extortion only by proving that there was an

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explicit agreement to perform a particular official act or series of acts in exchange for the payment. Regardless of what the ethical considerations and appearances may indicate, public officials do not commit the crime of extortion simply by taking action to benefit campaign donors, even if they do so shortly before or after they solicit or receive a contribution. And campaign contributions given merely with anticipation of favorable future action are not illegal—even if the Defendant knew that there was such an expectation—without an explicit promise of performance in return. The third element requires that the government prove beyond a reasonable doubt that Don Hill’s and D’Angelo Lee’s conduct affected or could have affected interstate commerce. Conduct affects interstate commerce if it in any way interferes with, changes, or alters the movement or transportation or flow of goods, merchandize, money, or other property in commerce between or among the states. The effect can be minimal. Authority:

Third Circuit Model Criminal Jury Instructions §§ 6.18.1951-2 – 6.18.1951-6 (adapted) McCormick v. United States, 500 U.S. 257, 273 (1991) (“The receipt of [campaign] contributions is . . . vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” (emphasis added)). McCormick, 500 U.S. at 272 (“Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of can-didates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those

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beneficiaries, is an unrealistic assessment of what Congress could have meant[.]”). McCormick, 500 U.S. at 276 (Scalia, J. concurring) (“[F]or the reasons the Court discusses[,] [extortion under color of official right] should not[] be interpreted to cover campaign contributions with anticipation of favorable future action, as opposed to campaign contributions in exchange for an explicit promise of favorable future action.”). United States v. Ganim, 510 F.3d 134, 142-43 (2d Cir. 2007) (“[P]roof of an express promise is necessary when the payments are made in the form of campaign contributions[.]” (emphasis added)) United States v. Abbey, ___F.3d___, 2009 WL 874487, at *3 (6th Cir. 2009) (explaining that proof of quid quo pro in non-campaign contribution cases, unlike in the campaign context, can be shown by “something short of a formalized and thoroughly articulated contractual arrangement”) U.S. v. Taylor, 993 F.2d 382, 385 (4th Cir. 1993) (making similar distinction) U.S. v. Delle Donna, 2008 WL 3821774, at *2 (D.N.J. Aug. 12, 2008) (“McCormick requires an overt quid pro quo as a necessary proof in the context of campaign contributions. Thus, to prove extortion based on campaign contributions, the Government must show that Defendants made an explicit promise of a quid pro quo.” (internal quotation marks and citation omitted)).

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 24. AIDING AND ABETTING (AGENCY) Sheila Hill is charged with aiding and abetting the offense alleged under Count 16. The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct. But before Sheila Hill may be held criminally responsible for the acts of others it is necessary that she deliberately associate herself in some way with the crime and participate in it with the intent to bring about the crime. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that Sheila Hill either directed or aided and abetted the crime unless you find beyond a reasonable doubt that she was a deliberate participant and not merely a knowing spectator. You may not find Sheila Hill guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

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For you to find Sheila Hill guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: That the offenses of bribery as alleged in Count 16 were committed by Donald Hill or D’Angelo Lee; Second: That Sheila Hill associated with the criminal venture; Third: That Sheila Hill purposefully participated in the criminal venture; and Fourth: That the defendant sought by action to make that venture successful. "To associate with the criminal venture" means that the defendant shared the criminal intent of the person who committed the crime. This element cannot be established if the defendant had no knowledge of the person’s criminal venture. "To purposefully participate in the criminal venture" means that the defendant intentionally engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime. Unknowing participation in the venture is not a crime. Authority:

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 25. CONSPIRACY TO COMMIT DEPRIVATION OF HONEST SERVICES BY WIRE FRAUD Count 18 charges Sheila Hill with conspiracy to commit deprivation of honest services by wire fraud. 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 becomes the agent of every other member. The crime of conspiracy requires the existence of an agreement. The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work together to achieve the overall objective of the conspiracy to commit bribery of a local government. 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 alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives. If you find that a criminal agreement or conspiracy existed, then in order to find Sheila Hill guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that she knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that Sheila Hill knew the goals or objectives of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goals or objectives and to work together with the other alleged conspirators toward those goals or objectives. DAL01:1053067.3

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One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. But Sheila Hill’s 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 membership in a conspiracy. Evidence which shows that Sheila Hill only knew about the conspiracy, or only kept “bad company” by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that Sheila Hill was a member of the conspiracy even if she approved of what was happening and did not object to it. Likewise, evidence showing that Sheila Hill happened to assist a conspiracy does not necessarily prove that she joined the conspiracy. For you to find any defendant guilty of conspiracy, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: that two or more persons, directly or indirectly, reached an agreement to devise a scheme or artifice to deprive the residents of Dallas, the Dallas City Council and the Dallas City Plan and Zoning Commission of their right to honest services owed them by Donald Hill and D’Angelo Lee. I will explain the meaning of this to you shortly; Second: that the defendant knew of the unlawful purpose of the agreement; and Third: that the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose.

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DEPRIVATION OF HONEST SERVICES WIRE FRAUD For you to find the defendant guilty of conspiracy to commit a deprivation of honest services by wire fraud, you must be convinced that the defendant has conspired to deprivation of honest services wire fraud, the elements of which are as follows: First: that the defendant devised a scheme or artifice to deprive the residents of Dallas, the Dallas City Council and the Dallas City Plan and Zoning Commission of their right to services owed them by Don Hill and D’Angelo Lee under state law. Second: that the defendant acted with a specific intent to defraud; Third: that the defendant or a co-conspirator advanced, furthered, or carried out the scheme by transmitting or causing to be transmitted any writing, signal, or sound by means of a wire, radio, or television communication in interstate commerce; and Fourth: that the scheme to defraud employed false material representations. 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 half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. 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. It is important to note that you cannot find any defendant guilty of this offense if you do not find, beyond reasonable doubt, that a public official was a member of the conspiracy, and that the same public official was conspiring to defraud the public of his own honest services. In other words, the public official whose honest services were allegedly withheld from the public must also be a member of the conspiracy, or else there can be no deprivation of honest services

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wire fraud. It is not enough for a public official to be involved with the conspiracy if his only object is to deprive the public of another official’s honest services.4 The first element requires that the government prove beyond a reasonable doubt that the Sheila Hill conspired to cause Donald Hill or D’Angelo Lee to breach a duty owed under state criminal law.5 Here, the government alleges that the defendant conspired to have Hill and Lee breach Texas Penal Code § 36.02(a), which provides: (a)

A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another: (1)

any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter ....

(4)

any benefit that is a political contribution as defined by Title 15, Election Code, or that is an expenditure made and reported in accordance with Chapter 305, Government Code, if the benefit was offered, conferred,

4

There can be no honest services fraud in the absence of an employee who owes a state law duty to his employer. United States v. Brumley, 116 F.3d 728, 734-35 (5th Cir. 1997) (“Honest services are those an employee must provide the employer under state law.”); see also United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006) (defining “honest services” as those “owed to an employer under state law, including fiduciary duties defined by the employer-employee relationship”). And if such an employee is not a party to the alleged agreement, there can be no conspiracy to commit honest services fraud, either. See United States v. Freedman, 568 F. Supp. 450, 451, 453-56 (N.D. Ill. 1983) (dismissing honest services charge against two lawyers accused of conspiring to bribe a judge, because the judge was not a party to their conspiracy, and they cannot be convicted of “a scheme to defraud the citizenry of good government if they were in no way connected in that scheme to a public official”); accord United States v. Alexander, 741 F.2d 962, 964 (7th Cir. 1984) (“[A]n intangible rights scheme is only cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity.”); United States v. Turner, 465 F.3d 667, 676 (6th Cir. 2006) (holding that campaign employees could not be convicted for conspiring with political candidates to commit honest services fraud because the political candidates, not yet having office, did not have the required status of a public fiduciary). 5 United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997) (holding that a public official does not commit deprivation of honest services without first violating a state statute, and declining to decide whether a state civil statute will ever suffice); United States v. Brown, 459 F.3d 509, 523 (5th Cir. 2006) (“Given our repeated exhortation against expanding criminal jurisdiction beyond specific federal statutes to the defining of common-law crimes, we resist the incremental expansion of a statute that is vague and amorphous on its face and depends for its constitutionality on the clarity divined from a jumble of disparate cases. Instead, we apply the rule of lenity and opt for the narrower, reasonable interpretation.”)

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solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion if such exercise of official discretion would not have been taken or withheld but for the benefit; notwithstanding any rule of evidence or jury instruction allowing factual inferences in the absence of certain evidence, direct evidence of the express agreement shall be required in any prosecution under this subdivision. When considering whether Don Hill or D’Angelo Lee violated this statute, keep two important points in mind. First, the mere receipt of a gift by a public official does not violate the statute. There must be a specific intent to exchange public acts in return for the gift.6 Second, if the public official received a campaign contribution, there can be no violation of this statute without an express agreement to perform a specific exercise of official discretion that would not have otherwise been performed without the contribution. “Campaign contribution,” as defined by Title 15, Election Code, means a contribution to a candidate or political committee that is offered or given with the intent that it be used in connection with a campaign for elective office or on a measure. Whether a contribution is made before, during, or after an election does not affect its status as a campaign contribution.7 The other duty that Hill and Lee allegedly conspired to breach is that established by Texas Penal Code § 39.06(a)(1), which provides:

6

McCallum v. State, 686 S.W.2d 132 (Tex. Cr. App. 1985) (“[W]e construe the offense . . . as requiring a bilateral arrangement—in effect an illegal contract to exchange a benefit as consideration for the performance of an official function.”). 7 Tex. Election Code § 251.001.

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(a)

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A public servant commits an offense if, in reliance on information to which he has access by virtue of his office or employment and that has not been made public, he: (1)

acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by the information ....

To find that the defendant conspired to commit a deprivation of honest services by wire fraud, you must find that the defendant conspired for Hill and Lee to breach one or both of these state laws. You must unanimously agree on the particular state law under which the duties allegedly breached were owed. You may find that the defendant conspired to have Hill and Lee breach more than one of these state or local laws as long as your decision as to each state or local law is unanimous. But even if you find that the defendants conspired to cause Hill or Lee to breach one of these duties, this is not by itself sufficient to support a conviction for conspiracy to commit deprivation of honest services. The violation of a duty owed under state law is only the first element of honest services fraud, and you still must determine whether the Government has proved beyond reasonable doubt that the defendants conspired to commit the remaining elements. The phrase "intent to defraud" means that the acts charged were done knowingly with the intent to deceive or cheat the residents of Dallas, the Dallas City Council, and the Dallas City Plan and Zoning Commission and deprive them of services owed them by Don Hill and D’Angelo Lee under state law. To prove "deprivation of honest services" the government must prove that the public official committed fraud either in employing his official powers or in carrying out his core duties. If the alleged fraudulent act was extraneous to the defendant's duties

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as a public official, or was carried out only in the official's personal capacity, there can be no honest services fraud—even if the official misused the prestige of his public office in order to accomplish his act.8 The inquiry in an honest services charge is whether the public official has been faithful in his capacity as an employee of the city; not whether he used his status as a city employee to benefit himself in other ways.9 If the acts of Don Hill or D’Angelo Lee were believed to be in the best interests of the City of Dallas and would have been taken even without the payments that were allegedly made to them, there can be no intent to defraud. This is true even if receipt of the benefits would have otherwise constituted an ethical violation, or even if the gift was expressly given in response to an official act. Further, benefits conferred solely for the purpose of cultivating goodwill or gaining access to a public official are not a basis for conviction under this statute. Rather, you must find that the public official specifically intended to take a particular public action in return for the benefits he received. In other words, there must be a quid quo pro. Moreover, the receipt of campaign contributions cannot support a conviction for an intent to defraud unless the public official expressly promised to provide to take this public action in return. This is because

8

United States v. Urciuoli, 513 F.3d 290, 296 (1st Cir. 2008) (reversing honest services conviction for a state senator’s lobbying efforts of local officials, where “there [was] no indication that [the official] invoked any purported oversight authority or threatened to use his official powers in support of his advocacy,” even though he never disclosed his financial interest in the subject matter and sometimes used official stationary in his communications); see also United States v. Rabbitt, 583 F.2d 1014, 1020-26 (8th Cir. 1978) (finding that honest services fraud is not established where dishonest conduct by public official does not “directly implicate[] the functions and duties of that official’s public office”); United States v. Czubinski, 106 F.3d 1069, 1076 (“The government must not merely indicate wrongdoing by a public official, but must also demonstrate that the wrongdoing at issue is intended to prevent or call into question the proper or impartial performance of that public servant’s official duties.”). 9 See supra notes 4 and 8; United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997) (en banc) (“[I]f the employee renders all the services his position calls for, and if these and all other services rendered by him are just the services which would be rendered by a totally faithful employee . . . there has been no deprivation of honest services.”); United States v. Sawyer, 85 F.3d 713, 725 (1st Cir. 1996) (“[Although] a public official might engage in reprehensible misconduct related to an official position, the conviction of that official for honest-service fraud cannot stand where the conduct does not actually deprive the public of its right to her honest services.”).

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campaign contributions are common and essential to our political system, and the law takes great care before allowing a person to be convicted for receiving them.10 Authority:

Third Circuit Model Criminal Jury Instructions §§ 6.18.1951-2 (adapted) See supra footnotes 4-10. United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997) (holding that conviction for honest services fraud requires that, “in rendering some particular service or services, the defendant was conscious of the fact that his actions were something less than in the best interests of the employer—or that he consciously contemplated or intended such actions. For example, something close to bribery. If the employee renders all the services his position calls for, and if these and all other services rendered by him are just the services which would be rendered by a totally faithful employee, and if the scheme does not contemplate otherwise, there has been no deprivation of honest services.” (emphasis added)). United States v. Kemp, 500 F.3d 257, 281-82 (3rd Cir. 2007) (holding that deprivation of honest services requires a specific intent to give or receive something of value in exchange for an official act,” explaining that deprivation of honest services is not committed by (a) giving “generalized gifts provided in an attempt to build goodwill,” (b) giving a gratuity “which may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken,” or (c) giving a gift to a public official merely “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.”) United States v. Sawyer, 85 F.3d 713, 728-29 (1st Cir. 1996) (reversing conviction for honest services fraud where defendant was convicted based on violation of gift statute; explaining that such a violation “does not necessarily entail any improper motive to influence, or otherwise affect, the official duties of the recipient,” and explaining that “it is possible for a lobbyist to give a legislator items falling within the statute’s definition of ‘gift,’ or for a legislator to accept such gifts, without an accompanying intent to cause the legislator to deviate from the honest performance of official duties”); id. at 730 (indicating that, although it may violate a gratuity statute, it would not violate honest services statute to give a gift “because of an official

10

Regarding campaign contributions, see authority for Proposed Instruction 22. Regarding the rest of this paragraph, see authorities cited below.

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act . . . [absent] a corrupt intent to influence that act” (emphasis added)) United States v. Washington, 688 F.2d 953, 958 (5th Cir. 1982) (reversing conviction of county official when trial court refused to instruct jury that receiving unsolicited gifts does not constitute honest services fraud).

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DEFENDANT SHEILA HILL'S PROPOSED JURY INSTRUCTION NO. 26. CONSPIRACY TO COMMIT MONEY LAUNDERING Count 19 charges Sheila Hill with conspiracy to commit money laundering.

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 becomes the agent of every other member. For you to find any defendant guilty of this conspiracy, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: That the defendant and at least one other person made an agreement to commit the offenses alleged in the indictment. I will explain the elements of these offenses shortly. Second: that the defendant knew of the unlawful purpose of the agreement; and Third: that the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose. The first element of the crime of conspiracy requires the existence of an agreement. The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work together to achieve the overall objective of the conspiracy to commit bribery of a local government. 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. If you find that a criminal agreement or conspiracy existed, then in order to find Sheila Hill guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that she knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that Sheila Hill knew the goals or objectives of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goals or objectives and to work together with the other alleged conspirators toward those goals or objectives. One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. But Sheila Hill’s 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 membership in a conspiracy. Evidence which shows that Sheila Hill only knew about the conspiracy, or only kept “bad company” by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that Sheila Hill was a member of the conspiracy even if she approved of what was happening and did not object to it. Likewise, evidence showing that Sheila Hill happened to assist a conspiracy does not necessarily prove that she joined the conspiracy. Authority:

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Fifth Circuit Pattern Jury Instruction § 2.20 (2001) (adapted) 18 U.S.C. § 1951 MONEY LAUNDERING CRIMES CHARGED Count 19 charges a conspiracy to commit multiple money laundering crimes.

The

government does not have to prove that the alleged conspirators agreed to commit all of these crimes. It must, however, prove that they agreed to commit at least one of the object crimes, and you must unanimously agree on which crime. You cannot find Sheila Hill guilty of conspiracy unless you unanimously agree that the same federal crimes were the objective of the conspiracy. It is not enough if some of you agree that one of the charged crimes was the objective of the conspiracy and others agree that a different crime was the objective of the conspiracy. The first offense that the indictment charges Sheila Hill with conspiring to commit is to conduct a financial transaction with the proceeds of a specified unlawful activity with the intent to promote the carrying on of that activity, or with knowledge that the transaction was designed to conceal the nature of the proceeds, or with knowledge that it was designed to avoid a transaction reporting requirement.

The elements of this offense are as follows:

First: The defendant knowingly conducted a financial transaction which affected interstate commerce; Second: The financial transaction involved the proceeds of an unlawful activity specified in the indictment, namely the activities alleged in Counts 11 through 14 of the indictment; Third: That the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity; and Fourth: That the defendant either (a) intended to promote the carrying on of the specified unlawful activity, or

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(b) knew that the transaction was designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the specified unlawful activity, or (c) knew that the transaction was designed to avoid a transaction reporting requirement under State or Federal law. With respect to the second element, the government must show that the property was in fact the proceeds of the activities alleged in Counts 11 through 14 which are specified unlawful activities under the statute. The term “proceeds” means any property, or any interest in property, that someone acquires or retains as a result of the commission of the specified unlawful conduct. Further, the money-laundering transaction involving the proceeds must be separate from and occur after the unlawful activity that generated the proceeds. Neither an offer or agreement to pay a bribe generates proceeds. It is the tendering and receipt of the bribe that generates unlawful proceeds. Thus, to be guilty of the charge in Count 19, the defendant must have conspired to engage in a money-laundering transaction which was separate from and occurred after the tendering and receipt of the bribe and involved the proceeds of that bribe.11 With respect to the third element, the government must prove that the defendant knew that the property involved in the transaction was the proceeds of some kind of crime that is a felony under federal or state law, although it is not necessary to show that the defendant knew exactly what crime generated the funds. I instruct you that the crimes of Counts 11 through 14 are felonies. 11

See United States v. Byrd, 1:07CR0005 (W.D. Va. Nov. 29, 2007) (Final Jury Instruction No. 17) (attached as Exhibit A) (“Neither an offer or agreement to pay a bribe generates proceeds. It is the tendering and receipt of the bribe that generates unlawful proceeds); United States v. Castellini, 392 F.3d 35, 38 (1st Cir. 2004) (“‘[P]roceeds’ used for money laundering must be ‘proceeds’ from a different illegal activity than the illegal activity of money laundering itself.”); United States v. Butler, 211 F.3d 826, 829 (4th Cir. 2000) (money laundering can be committed only “after proceeds have been obtained from the underlying unlawful activity”); United States v. Savage, 67 F.3d 1435, 1442 (9th Cir. 1995) (money-laundering proceeds are “funds obtained from prior, separate criminal activity”).

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Regarding the fourth element, in order to find that a defendant conspired to commit this offense, you must find that she had one of the mental states that I specified in subparagraphs (a), (b), and (c). To find that a defendant intended to promote the carrying on of these specified unlawful activities, you must find beyond reasonable doubt that he or she conducted the financial transaction for the purpose of advancing the criminal activity. A defendant is not guilty of this offense if he or she spends money on personal items or on legitimate business purposes, even if he or she knew that the money was obtained through criminal means. In other words, the defendant must intentionally spend money on a criminal activity; it is not enough merely to have known that the money came from a criminal activity. Also, remember that the defendant’s promotion of the criminal activity must be intentional. If a financial transaction just so happens to advance a criminal activity, but this was not the intent of the defendant when conducting the transaction, the defendant is not guilty of this offense. This is true even if he or she promoted the criminal activity in other ways, or was aware that the financial transaction would happen to promote the criminal activity.12 Similarly, to find that a defendant knew that the financial transaction was designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the specified unlawful activity, it is not enough for the defendant to have conspired to spend money which he or she knew had previously been laundered. Rather, you must find beyond reasonable doubt that he or she conspired to conduct a specific transaction that he or she knew would be designed to launder the proceeds of an unlawful activity.13 To find that a defendant knew that the financial transaction was designed to avoid a transaction reporting requirement under State or Federal law, the Government must first prove

12 13

See United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999) United States v. Burns, 162 F.3d 840, 848 (5th Cir. 1998)

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beyond a reasonable doubt that the defendant knew that State or Federal law required that the financial transaction be reported.14 Count 19 also alleges that Sheila Hill conspired to engage in a monetary transaction in criminally derived property of a value greater than than $10,000. In order to find her guilty of this offense, the government must prove the following 4 elements beyond a reasonable doubt: First: That the defendant conspired with at least one other person to engage in a monetary transaction in criminally derived property; Second: That the value of the property involved in that single transaction was greater than $10,000; Third: That the defendant knew the property was derived from criminal activity; Fourth: That the property was derived from the unlawful activity specified in Counts 11 through 14, and Count 18, of the indictment.

Authority:

Fifth Circuit Pattern Jury Instruction 2.77 (adapted) 18 U.S.C. § 1956(h) 18 U.S.C. § 1956(a)(1) 18 U.S.C. § 1957 See supra footnotes 11-14. United States v. Fuchs, 467 F.3d 889, 907 (5th Cir. 2006) (listing elements of § 1957 violation) United States v. Jenkins, 58 F.3d 611, 613 (11th Cir. 1995) (holding that section 1957 applies only to single transactions exceeding $10,000 and does not include a series of transactions totalling more than $10,000).

14

See United States v. Bowman, 235 F.3d 1113, 1118 (8th Cir. 2000); United States v. Morales, 108 F.3d 1213, 1221 (10th Cir. 1997).

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United States v. Brown, 186 F.3d 661, 668, 670 (5th Cir. 1999) (“Section 1956(a)(1)(A)(i) is not satisfied by a showing that a financial transaction involving the proceeds of specified unlawful activity merely promoted the carrying on of unlawful activity. The provision has a specific intent element: The government must show that the ‘dirty money’ transaction was conducted ‘with the intent to promote the carrying on of specified unlawful activity.’ This element is not satisfied by mere evidence of promotion, or even knowing promotion, but requires evidence of intentional promotion.”) United States v. Burns, 162 F.3d 840, 848 (5th Cir. 1998) (“Many financial transactions have the effect of concealing illegal proceeds by converting them into a more legitimate form, and by adding one more degree of separation between the illegal proceeds and the original unlawful activity. For that reason this Court has explained that merely engaging in a transaction with money whose nature has been con-cealed through other means is not itself a crime. The government must prove that the specific transactions in question were designed, at least in part, to launder money, not that the transac-tion involved money that was previously laundered through other means.” (citations and internal quotation marks omitted)).

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VERDICT OF THE JURY (Count 18) Special Findings Please check the state or local law or laws that served as the source for the duties owed by Donald Hill or D’Angelo Lee to the public (you may check more than one but your decision as to each one must be unanimous):15

Donald W. Hill: Texas Penal Code § 36.02:____ Texas Penal Code § 39.06:____

D’Angelo Lee: Texas Penal Code § 36.02:____ Texas Penal Code § 39.06:____

15

The indictment does not allege that Sheila Hill is a public official, and she did not owe duties to the public under state law.

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