Standing Order - Courtesy Copies; Standing Order - Related Actions; Standing Order - Default Protective Order; Standing Order - Briefing Page Limits in Patent Cases; Standing Order - Criminal and Civil Hearings Commencing in Court as of June 21, 2021; Civil Jury and Non-Jury Trials Commencing as of

=== Standing Order - Courtesy Copies ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS STANDING ORDER RE: ELECTRONIC FILING IN CASES FILED BEFORE STEARNS, D.J. May 19, 2008 STEARNS, D.J. Litigants must comply with the District Court’s rules and procedures for Electronic Case Filing. In addition, parties will submit paper courtesy copies of electronic documents relating to Markman filings, discovery disputes, or dispositive motions, oppositions, replies or sur-replies (including all affidavits and exhibits) that exceed twenty pages in length. The courtesy copy shall be stamped “Courtesy Copy for the Court: DO NOT SCAN.” The term “dispositive motion” means a motion to dismiss, a motion for summary judgment, a motion to suppress, a motion for preliminary relief, a motion for judgment as a matter of law, and a motion in limine. The term “discovery motion” includes motions to compel and motions for protective orders. SO ORDERED. s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE

=== Standing Order - Related Actions ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS STANDING ORDER RE: NOTICE OF RELATED ACTIONS IN CASES FILED BEFORE STEARNS, D.J. April 16, 2014 STEARNS, D.J. Counsel of record (including pro se litigants) shall have a continuing duty to inform this Court of related actions before any court or administrative agency. Counsel shall submit, along with the joint statement pursuant to Local Rule 16.1(d), a Notice of Related Actions identifying all known related actions, the forum, the date of commencement, the parties thereto, a brief description of the action, and the current status or disposition (if any). Thereafter, counsel shall, within 14 days of the commencement or termination of any related action, file a Supplemental Notice of Related Actions with this Court. If necessary, parties may seek the Court’s permission to file a Notice of Related Actions under seal. SO ORDERED. /s/ Richard G. Stearns _____________________________________ UNITED STATES DISTRICT JUDGE

=== Standing Order - Default Protective Order ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS STANDING ORDER RE: DEFAULT PROTECTIVE ORDER IN COMPLEX CASES FILED BEFORE STEARNS, D.J. STEARNS, D.J. June 1, 2017 In complex (such as patent, trade secret, securities fraud) cases where the parties reasonably believe a protective order is necessary to preserve the confidentiality of documents and information produced in discovery, until such a time that the parties propose and the court adopts a stipulated protective order (or present competing proposals for the court’s decision), the court will impose the following the default protective order. Documents and information that either party in good faith believes is confidential may be produced in discovery with the designation “Confidential Pursuant to the Court’s Default PO,” and until such a time the designation is altered or removed by the parties’ agreement or by court order, a so-designated document may only be accessed by the parties’ outside counsel and the court and their personnel. SO ORDERED. /s/ Richard G. Stearns ___________________________ UNITED STATES DISTRICT JUDGE

=== Standing Order - Briefing Page Limits in Patent Cases ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS STANDING ORDER RE: BRIEFING PAGE LIMITS IN PATENT CASES BEFORE STEARNS, D.J. STEARNS, D.J. June 3, 2021 Absent the court’s prior approval in exceptional circumstances, parties in patent cases shall be subject to the following briefing page limits. Summary Judgment: each party shall be limited to 30 pages total in moving brief(s), 30 pages total in opposition brief(s), and 10 pages total in reply brief(s). Daubert Motions: each party shall be limited to 20 pages total in moving brief(s), 20 pages total in opposition brief(s), and 5 pages total in reply brief(s). Motions in Limine: each motion in limine shall not exceed 5 pages in length. The court may or may not request a formal response to a motion, or may reserve the issue for trial. SO ORDERED. /s/ Richard G. Stearns ___________________________ UNITED STATES DISTRICT JUDGE

=== Standing Order - Criminal and Civil Hearings Commencing in Court as of June 21, 2021; Civil Jury and Non-Jury Trials Commencing as of July 1, 2021 ===

STANDING ORDER re: Criminal and Civil hearings commencing in court as of June 21, 2021; Civil Jury and Non-Jury Trials commencing as of July 1, 2021 Beginning June 21, 2021, this session’s criminal hearings will be held in Courtroom 21. The court will permit non-evidentiary hearings (Rule 11 proceedings and sentencings) to be conducted by video conference if a criminal defendant, with the advice of his or her counsel, is willing to waive personal presence in the courtroom. For civil hearings, the parties may jointly elect to proceed in-person or by video conference. In the event of a dispute, the parties shall submit brief position statements (of no more than 1 page) to the court. The court shall consider, inter alia, the benefit of an in-person hearing and whether such a hearing poses an undue hardship for either party. The parties’ election (or position statements) shall be filed on the docket no later than 5 days prior to the scheduled hearing. In all civil trials until further notice, the court will permit witness testimony by Zoom (or other live video link): (1) by agreement of the parties; (2) on a showing by a party that travel to the court entails undue expense or poses personal hardship or health risks for the witness; or (3) if for reasons of convenience the court so orders. UNITED STATES DISTRICT JUDGE /s/ Richard G. Stearns Dated: July 1, 2021

=== Order Setting Civil Case for Jury Trial ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Plaintiff(s) V. CIVIL ACTION NO. Defendant(s) ORDER SETTING CIVIL CASE FOR JURY TRIAL STEARNS, DJ. THE ABOVE-CAPTIONED ACTION IS HEREBY SET FOR JURY TRIAL ON , 2021 at 9:00 AM IN COURTROOM # 21, JOHN JOSEPH MOAKLEY UNITED STATES COURTHOUSE, BOSTON, MA. ON OR BEFORE , 2021, COUNSEL SHALL FILE ELECTRONICALLY THE FOLLOWING MATERIALS WITH THE COURT: 1. Any stipulated or admitted facts in a form suitable for presentation to the Court or jury; 2. A list of prospective witnesses, including names, city or town of residence, or business institutional address; 3. The parties shall designate deposition testimony and/or discovery responses to be offered at trial, as follows: A. Each party shall designate any portions of depositions or interrogatory responses to be offered at trial and shall identify the testimony, by inclusive page and line, in YELLOW HIGHLIGHTER. The parties shall include the cover page for each designation (identifying date, name of witness, and type of submission. B. On or before , 2021 the parties shall exchange hard copies of such identifications. C. Each party shall then identify any objections to be offered testimony and shall mark the objected-to portions, by inclusive page and line, in PINK HIGHLIGHTER, indicating the basis for each objection in the margin next to each objected-to portion. D. On or before , 2021, each party shall submit a hard copy to the court* containing the YELLOW HIGHLIGHTED designations sent to the party by the opposing side, along with PINK HIGHLIGHTED objections and margin notations the party has made to the proposed testimony. 4. A "Joint List of Exhibits" as to which there is NO objection, IDENTIFIED AND MARKED BY A SINGLE SEQUENCE OF NUMBERS, regardless of which party is the proponent of an exhibit (such exhibits are deemed ADMITTED and need NOT be independently offered at trial; 5. A "List of Exhibits to be Offered at Trial", as to which a party reserves the right to object, IDENTIFIED AND MARKED BY A SINGLE SEQUENCE OF CAPITAL LETTERS, regardless of which party is the proponent of an exhibit; 6. Motions in Limine or other requests regarding foreseeable disputes concerning evidentiary issues, including authority for the ruling requested; 7. A TRIAL MEMORANDUM addressing those items as to which there are foreseeable disputes concerning issues of law; 8. An informed estimate of the probable length of the trial, based on a trial schedule of 9:00 A.M. to 4:00 P.M. on the day of impanelment and 9:00 A.M. to 1:00 P.M. thereafter, until closings. Each side is taxed for the time it spends on cross-examination of witnesses. The time allotted by the court for opening statements and closing arguments is not included in the total. In any case exceeding one week's duration, the Court will impose time limits on the parties which will be STRICTLY ENFORCED; 9. In cases to be tried by a jury: A. REQUESTS FOR SUBSTANTIVE INSTRUCTIONS WITH CITATION TO SUPPORTING AUTHORITY; ** B. ANY PROPOSED OR SPECIAL VERDICT QUESTIONS; C. ANY PROPOSED QUESTIONS FOR THE VOIR DIRE EXAMINATION; D. A SUCCINCT AND NEUTRAL STATEMENT SUMMARIZING THE PRINCIPAL CLAIMS AND DEFENSES OF THE PARTIES TO BE READ TO THE VENIRE DURING EMPANELMENT. 10. All trial exhibits must be reclaimed by the end of the first business day following the day of the verdict. This policy is strictly enforced by the Court as there is no space at the Courthouse to store exhibits after a trial has ended. Exhibits not reclaimed by counsel will be discarded. 11. In all civil trials until further notice, the court will permit witness testimony by Zoom (or other live video link): (1) by agreement of the parties; (2) on a showing by a party that travel to the court entails undue expense or poses personal hardship or health risks for the witness; or (3) if for reasons of convenience the court so orders. *To the attention of the Courtroom Clerk. **Counsel need not submit boilerplate instructions; see model Civil and Criminal Pattern Instructions on Court's website SO ORDERED. RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE BY: /s/ Timothy R. Maynard Deputy Clerk DATE: 2021

=== Order Setting Criminal Case for Jury Trial ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA V. CRIMINAL NO. - RGS ORDER SETTING CRIMINAL CASE FOR JURY TRIAL STEARNS, DJ. THE ABOVE-CAPTIONED CASE IS SCHEDULED FOR TRIAL IN COURTROOM #21 7th FLOOR, JOHN JOSEPH MOAKLEY UNITED STATES COURTHOUSE, BOSTON, MA ON at 9:00 AM. ON OR BEFORE COUNSEL FOR THE PARTIES SHALL FILE, JOINTLY OR SEPARATELY, THE FOLLOWING MATERIALS WITH THE COURT: (1) (2) (3) (4) (5) ANY STIPULATED OR ADMITTED FACTS IN A FORM SUITABLE FOR PRESENTATION TO THE JURY; A LIST OF PROSPECTIVE GOVERNMENT WITNESSES, IDENTIFIED BY CITY OR TOWN OF RESIDENCE, OR BY AN INSTITUTIONAL ADDRESS, AND THE NAME OF THE CASE AGENT, IF ANY, WHO IS TO SIT AT GOVERNMENT COUNSEL TABLE; A LIST OF PROSPECTIVE ALIBI WITNESSES; A LIST OF ANY OTHER WITNESSES DEFENDANT WISHES BROUGHT TO THE ATTENTION OF THE JURY DURING VOIR DIRE, IDENTIFIED BY CITY OR TOWN OF RESIDENCE, OR BY AN INSTITUTIONAL ADDRESS; A STATEMENT OF THE QUALIFICATIONS OF ANY GOVERNMENT EXPERT WITNESS, AND ANY SUMMARY OF TESTIMONY PRODUCED PURSUANT TO FED. R. CRIM. P. 16(a)(1)(E) AND ANY RECIPROCAL DISCLOSURE PRODUCED BY THE DEFENDANT PURSUANT TO FED. R. CRIM. P. 16(b)(1)©; A LIST OF GOVERNMENT EXHIBITS TO BE INTRODUCED AT TRIAL. THE EXHIBITS ARE TO BE PRE-MARKED IN A NUMERICAL SEQUENCE AND LABELED "GOVERNMENT EXHIBIT"; (6) A LIST OF DEFENSE EXHIBITS TO BE OFFERED AT TRIAL. THE EXHIBITS ARE TO BE PRE-MARKED IN A NUMERICAL SEQUENCE AND LABELED "DEFENDANT EXHIBIT"; ANY MOTIONS IN LIMINE OR OTHER REQUESTS REGARDING FORESEEABLE DISPUTES CONCERNING EVIDENTIARY ISSUES, INCLUDING AUTHORITY FOR THE RULING REQUESTED; A TRIAL MEMORANDUM ADDRESSING THOSE MATTERS AS TO WHICH THERE ARE FORESEEABLE DISPUTES CONCERNING ISSUES OF LAW; AN INFORMED ESTIMATE OF THE PROBABLE LENGTH OF THE TRIAL (BASED ON A TRIAL SCHEDULE OF 9:00 AM TO 4:00 PM ON MONDAY AND 9:00 AM TO 1:00 PM TUESDAY - FRIDAY); (7) (8) (9) (10) REQUESTS FOR SUBSTANTIVE JURY INSTRUCTIONS WITH CITATION TO SUPPORTING AUTHORITY; * (11) ANY PROPOSED QUESTIONS FOR THE VOIR DIRE EXAMINATION; (12) ANY REQUEST TO USE SPECIAL AUDIO-VISUAL OR OTHER ELECTRONIC EQUIPMENT DURING THE TRIAL. A FINAL PRE-TRIAL CONFERENCE WITH THE COURT WILL BE HELD ON at 3:00 PM. *Counsel need not submit boilerplate instructions; see Model Civil and Criminal Pattern Instructions on Court's website. SO ORDERED. RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE BY: /s/ gxÜÜ| fxxÄçx Deputy Clerk DATED: REVISED FEB 2014

=== Order Regulating Non-Jury Trial ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS V. CIVIL ACTION NO.: 1:- RGS ORDER REGULATING NON-JURY TRIAL BEFORE STEARNS, DJ. STEARNS, DJ THE ABOVE-CAPTIONED ACTION IS SCHEDULED FOR A NON-JURY TRIAL COMMENCING ON at 9:30 AM IN COURTROOM #21, 7th Floor, JOHN JOSEPH MOAKLEY UNITED STATES COURTHOUSE, BOSTON, MA. ON OR BEFORE COUNSEL SHALL FILE THE FOLLOWING DOCUMENTS WITH THE CLERK: TO BE JOINTLY FILED BY COUNSEL: 1. A STIPULATION OF FACTS AGREED TO BY THE PARTIES; 2. A LIST OF EXHIBITS TO BE INTRODUCED WITHOUT OBJECTION, IDENTIFIED BY A SINGLE SEQUENCE OF NUMBERS, REGARDLESS OF WHICH PARTY IS THE PROPONENT OF AN EXHIBIT; 3. A LIST OF MARKED ITEMS TO BE OFFERED AT TRIAL AS TO WHICH AN OPPOSING PARTY HAS RESERVED THE RIGHT TO OBJECT, IDENTIFIED BY A SINGLE SEQUENCE OF CAPITAL LETTERS, REGARDLESS OF WHICH PARTY IS THE PROPONENT OF AN EXHIBIT; 4. A LIST OF PROSPECTIVE WITNESSES; 5. A LIST OF DEPOSITIONS TO BE USED AT TRIAL BY EACH PARTY IDENTIFYING THE PORTIONS TO BE USED BY PAGE AND LINE NUMBERS, AND ANY OBJECTIONS. IF OBJECTIONS ARE TO BE PRESERVED, RULINGS MUST BE SOUGHT PRIOR TO TRIAL; 6. MOTIONS IN LIMINE OR OTHER REQUESTS REGARDING FORESEEABLE DISPUTES CONCERNING EVIDENTIARY ISSUES, INCLUDING AUTHORITY FOR THE RULING REQUESTED; 7. AN INFORMED ESTIMATE OF THE PROBABLE LENGTH OF THE TRIAL, BASED ON A TRIAL SCHEDULE OF 9:30 AM TO 1:00 PM DAILY. IN ANY CASE EXCEEDING ONE WEEK’S DURATION, THE COURT WILL IMPOSE TIME LIMITS ON THE PARTIES WHICH WILL BE STRICTLY ENFORCED; ____________________________________________________________________________________________ TO BE FILED BY EACH COUNSEL, SEPARATELY, AFTER TRIAL: A STATEMENT OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, WHICH ARE TO BE FILED WITH THE COURT ACCORDING TO THE "BRIEFING SCHEDULE " WHICH WILL BE ESTABLISHED AT THE CONCLUSION OF THE TRIAL. EACH PROPOSED FINDING AND CONCLUSION IS TO BE SET OUT IN A SEPARATELY NUMBERED PARAGRAPH. FAILURE OF COUNSEL TO COMPLY WITH THIS ORDER MAY RESULT IN SANCTIONS TO BE IMPOSED. RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE BY: /s/ gxÜÜ| fxxÄçx Deputy Clerk SO ORDERED. DATED: Revised FEB. 2014

=== Notice of Scheduling Conference ===

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS v. CIVIL ACTION NO. - RGS NOTICE OF SCHEDULING CONFERENCE STEARNS, D.J.: An initial scheduling conference will be held on at in accordance with Fed.R.Civ.P.16(b) and LR 16.1 and 16.6 (for patent cases). The court prefers the attendance of senior counsel. If senior counsel is unavailable because of a conflict with other court appearances or travel constraints and wishes to be excused from personal attendance, co-counsel or local counsel familiar with the case instead may attend as long as substitute counsel has the authority to make binding litigation decisions. Out of state attorneys, or attorneys whose offices are located in the Western Division (Massachusetts), may contact the Deputy Clerk by telephone at 617-748-9162 for permission to participate in the conference by telephone. Failure to comply fully with this notice and with sections (B),(C) and (D) of LR 16.1 and section (A) of LR 16.6 for patent cases may result in sanctions. See LR 1.3. Counsel for plaintiff is responsible for ensuring that all parties and/or their attorneys who have not filed an answer or appearance with the Court are notified of the scheduling conference date and any discovery order entered at the conference. DATED: RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE BY: /s/ gxÜÜ| fxxÄçx Deputy Clerk LR 16.1 PROVIDES: ****************************************** (B) OBLIGATION OF COUNSEL TO CONFER: Counsel for the parties MUST, pursuant to Fed. R. Civ.P. 26(f) confer at a reasonable time prior to the date of the conference TO PLAN FOR DISCOVERY AND INITIAL DISCLOSURES. COUNSEL ARE TO: (1) Prepare an agenda of matters to be discussed at the conference. (2) Prepare a proposed pretrial schedule for the case that includes a plan for discovery, and (3) Consider whether they will consent to trial by a magistrate judge, or agree to mediation through the ADR program sponsored by the Court; (C) SETTLEMENT PROPOSALS: Plaintiff shall present written settlement proposals to all defendants no later than (14) days before the date of the conference. Defense counsel shall have conferred with their clients on the subject of settlement before the conference and be prepared to respond to the proposals at the conference. (D) JOINT STATEMENT: The parties are ORDERED TO FILE, 7 DAYS BEFORE THE CONFERENCE, a JOINT STATEMENT containing a proposed pretrial schedule, WHICH SHALL INCLUDE: (1) A joint discovery plan scheduling the time and length for all discovery events that shall: Fed.R.Civ.P.26(b); (a) conform to the obligation to limit discovery set forth in (b) take into account the desirability of conducting phased discovery in which the first phase is limited to developing information needed for a realistic assessment of the case and, if the case does not settle, the second phase is directed to information needed to prepare for trial; (2) If appropriate, a proposed agreement governing the preservation and production of electronically stored information (ESI), including but not limited to, the extent and duration of the preservation obligation and the format in which relevant ESI will be produced (native, tagged image file format (TIFF), or portable document format (PDF . (3) A proposed schedule for the filing of motions; and (4) Certifications signed by counsel and an authorized representative of each party affirming that each party and that party's counsel have conferred: (a) with a view to establishing a budget for the costs of conducting the full course--and various alternative courses--of the litigation; (b) to consider the resolution of the litigation through the use of alternative dispute resolution programs such as those outlined in LR 16.4; and (5) If the proposed plan for discovery extends beyond 270 days, a statement of any exceptional circumstances justifying an enlargement of the time the Court will ordinarily permit for discovery and, where appropriate, the filing of dispositive motions. (6) In all patent cases, the parties are to consult the "Model Scheduling Order for Patent Cases" set out in LR 16.6. To the extent that all parties are able to reach agreement on a proposed pretrial schedule, they shall so indicate. To the extent that the parties differ on the pretrial schedule, they shall set forth separately the items on which they differ and indicate the nature of the disagreement. One purpose of the parties' proposed pretrial schedule or schedules is to advise the judge of the parties' best estimates of the amounts of time they will need to accomplish specified pretrial steps. THE PARTIES SHOULD BE AWARE THAT IT IS THE COURT'S PRACTICE NOT TO GRANT ENLARGEMENTS OF THE PRESCRIBED PRETRIAL SCHEDULE BEYOND THE DATE MANDATED FOR TRIAL OR FOR THE FILING OF DISPOSITIVE MOTIONS. The parties' proposed agenda for the scheduling conference, and their proposed pretrial schedule or schedules, will be considered by the Court as advisory only. FAILURE TO COMPLY WITH THE ABOVE ORDER MAY RESULT IN THE IMPOSITION OF SANCTIONS. SO ORDERED. /s/ Richard G. Stearns United States District Judge Revised 10 June 2016

=== Special Order re: Proposed Jury Instructions ===

SPECIAL ORDER REGARDING PROPOSED JURY INSTRUCTIONS IN CIVIL AND CRIMINAL CASES Counsel complying with the court’s Pretrial Order to submit Proposed Jury Instructions will find posted on this page copies of the court’s generic jury instructions in civil and criminal cases. It is not necessary in filing Proposed Instructions to duplicate those that are posted unless counsel have case-specific reasons why the court should materially deviate from its standard instructions. SO ORDERED. s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE

=== Form Jury Instructions (Civil) ===

JOE JONES v. OCTOPUS OIL, INC., SUE SMITH CIVIL ACTION NUMBER 00-00000-RGS JURY INSTRUCTIONS Members of the jury: Now that the closing arguments of the lawyers have been presented, the time has come for me to instruct you on the law. My instructions will be in four parts: first, some instructions on the general rules that define and control the duties of a jury in a civil case; second, some instructions that you may find of use in evaluating the evidence that has been presented; third, I will explain the rules of law that you must apply to the facts as you find them, and finally I have some brief guidelines that will govern the conduct of your deliberations. In defining the duties of the jury, let me first give you a few general rules. It is your duty to find the facts from all of the evidence in the case. To the facts as you find them you must apply the law as I explain it to you. And you must follow the law as I describe it, whether you personally agree with the wisdom of the law or not. You must do your duty as jurors regardless of any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you and according to the law. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. And you must not read into these instructions, or into anything that I may have said or done during the course of the trial, any suggestion from me as to the verdict you should return. Whatever opinion I might have as to what your verdict should be is utterly irrelevant. The verdict is yours alone, as the finders of fact, 1 to render. While I intend to be as helpful as I can in providing you with the knowledge of the law that you will require to render an intelligent verdict, you will, when I am finished, be surprised – even astonished – at the extent to which the law commits this case to your sole determination as the judges of the facts. Plaintiff, you will recall, is the name we give to the person who brings a lawsuit. We refer to the person sued as the defendant. As I explained at the outset of the trial, a plaintiff or defendant in a civil suit may be a legal entity, such as a municipality or a partnership, or, as is the case with Octopus Oil, Inc., a corporation formed to market gasoline and other motor vehicle products. Under our law, a legal entity has the same rights and the same obligations as a natural person and is due the same conscientious consideration that is accorded to any party to a lawsuit. As a matter of law, a corporation like Octopus Oil, Inc. can act only through its agents and employees. [Consequently, when an action is taken within the scope of an employee’s employment, his state of mind as well as the state of mind of those who supervise him or who make decisions with regard to his actions is imputed to the employer for purposes of liability.] BURDEN OF PROOF In a civil trial, a plaintiff bears the burden of proving his case by a preponderance of the evidence. This means that the plaintiff must produce evidence which, when considered in the light of all of the evidence in the case, leads you to believe that his claims are more likely true than not. [In this case, as I will explain, there is an aspect of the case that requires the plaintiff to satisfy a higher burden of proof – clear and convincing evidence – that I will define in a moment.] If the plaintiff fails to meet either of these burdens, your verdict must be for the defendants. 2 CLEAR AND CONVINCING EVIDENCE STANDARD The burden of clear and convincing proof is sustained if the evidence induces in your minds a reasonable belief that the facts asserted are highly probably true, and that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. If you believe upon consideration and comparison of all the evidence in the case that there is a high degree of probability that the facts are true, you must find that the facts have been proven. Clear and convincing evidence is a burden of proof more strict than a preponderance of the evidence but less strict than the standard of proof beyond a reasonable doubt applied in criminal cases. EVIDENCE AT TRIAL Let me briefly review with you what is and is not evidence in a civil case. Evidence is typically presented at a trial in one of three ways. First, through the sworn testimony of witnesses, both on direct and cross- examination. Second, through physical objects, like documents and photographs, that are identified by a witness, and admitted as exhibits during the trial. Third, by stipulation, or agreement between the parties that certain facts are true and need not be independently proven as such at trial. You will recall that the parties have stipulated that [ ]. Certain things are not evidence and should have no influence on your verdict. 1. Arguments and statements by lawyers, as I have cautioned several times, are not evidence. What the lawyers have said over the course of the trial you may find helpful, even persuasive, in reaching a verdict, but the facts are to be determined from your own 3 evaluation of the testimony of the witnesses, the exhibits, and any reasonable inferences that you choose to draw from the facts as you find them. 2. Questions to the witnesses are not evidence. They can only be considered in the sense that they give context or meaning to a witness’s answer. 3. Objections to questions are not evidence. Attorneys, as I explained, have a duty to their clients to object when they believe that a question is improper under the rules of evidence. You should not be influenced by the fact that an objection was made or by the way I ruled on it. If I sustained the objection, you should ignore the lawyer’s question, and any assertion of fact that it might have contained. If I overruled the objection, you should treat the witness’s answer like any other. 4. Testimony that I excluded, struck, or that I instructed you to disregard is not evidence. You should also, as I have cautioned, ignore editorial comments made by the attorneys during their presentations, particularly those intended to characterize the testimony of witnesses. Whether or not a witness’s testimony was believable on any particular point is a determination that only you can make. 5. Occasionally an item was marked in the record for identification. If that item was not later admitted as an exhibit and given an exhibit number in lieu of a letter, that item is not evidence and should play no part in your verdict. 6. If you have kept notes, as most of you have, remember that your notes are not evidence. They are a personal memory aid to be used to refresh your recollection of the evidence during the deliberations. 4 7. Finally, anything you may have seen or heard outside the courtroom during the course of the trial is not evidence. You must decide the case based solely on the evidence offered and received during the trial. Regardless of the way in which evidence is presented, it comes in one of two forms, as either direct or circumstantial evidence. Direct evidence is direct proof of a fact, usually presented through the testimony of a person who claims to have been an eyewitness to an event or a participant in a conversation. When you evaluate direct testimony your decision is fairly straightforward. Do you believe that what the witness has told you is accurate? Circumstantial evidence, on the other hand, is the proof of a chain of circumstances, or a set of facts, from which you could infer or conclude that another fact is true, even though you have no direct evidence of that fact. For instance, if you were to awake in the morning and, even though the day was bright and clear, see puddles of water on the street, you might draw the inference that it had rained during the night even though your sleep had been uninterrupted. In other words, the fact of rain is an inference that could be drawn from the presence of water on the street. An inference may be drawn, however, only if it is reasonable and logical, and not if it is speculative or based on conjecture. If for example, you observed puddles of water on your street, but not on any other street in your neighborhood, other facts, like a broken water main, or if you live in the suburbs, a neighbor’s malfunctioning sprinkler system, might explain the presence of water. In deciding whether to draw an inference, you must look at and consider all of the facts in the case in the light of reason, common sense, and your own life experience. 5 Neither type of evidence, direct or circumstantial, is considered superior or inferior to the other. Either or both types of evidence may be considered in reaching your verdict and may be given whatever weight you as the finders of fact deem the evidence to be worth. WITNESS CREDIBILITY Most evidence received at trial is offered through the testimony of witnesses. As the jury, you are the sole judges of the credibility of these witnesses. If there are inconsistencies in the testimony, it is your function to resolve any conflicts, and decide where the truth lies. You may choose to believe everything that a witness said, or only part of it, or none of it. If you do not believe a witness’s testimony that something happened, that of course is not evidence that it did not happen. It simply means that you must put aside that testimony and look elsewhere for credible evidence before deciding where the truth lies. Often it may not be so much what a witness says, but how he or she says it that might give you a clue whether or not to accept his version of an event as believable. You may consider a witness’s character, his or her appearance and demeanor on the witness stand, his or her frankness or lack of frankness in testifying, whether the witness was contradicted by anything that he or she said before the trial, and whether his or her testimony is reasonable or unreasonable, probable or improbable in light of all the other evidence in the case. You may take into account how good an opportunity the witness had to observe the facts about which he or she testifies, the degree of intelligence the witness shows, and whether his or her memory seems accurate. You may also consider the witness’s motive for testifying, whether he or she displays any bias in doing so, and 6 whether he or she has any interest in the outcome of the case. Now simply because a witness has an interest in the outcome of the case does not mean that the witness is not trying to tell you the truth as he or she recalls it or believes it to have been. But a witness’s interest in the case is a factor that you may consider along with everything else. You may also consider the fact that a witness may be perfectly sincere in his or her account of an event and simply be mistaken as to the truth. EXPERT WITNESSES As a rule a witness is not permitted to offer an opinion about the facts to which he or she testifies, unless it concerns a matter falling within our common experience. An exception is made for those who are asked to testify as experts, as was the case with Ms. E, the forensic economist. These are witnesses, who by education and experience, have acquired specialized knowledge about which they are permitted to give opinions, as well as the reasons for their opinions. This type of testimony is allowed in the belief that the knowledge of certain experts is so specialized that the facts which they have mastered are beyond the collective knowledge of the court and the jury. The credibility of the testimony of an expert witness is judged like that of any other witness. Simply because the law allows a witness to give an opinion does not mean that you must accept that opinion. If you decide that the opinion of an expert witness is not based on sufficient education or experience, or if you conclude that the reasons given for the opinion are not convincing or are outweighed by other evidence in the case, you may disregard the opinion entirely. 7 The weight of the evidence does not depend on the number of witnesses testifying for one side or the other. You must determine the credibility of each witness who testified, and then reach a verdict based on all of the believable evidence in the case. In deciding whether or not to believe a witness, keep in mind that people sometimes forget things, or get confused, or remember an event differently. Memory is not always reliable, and when someone recounts a story twice, it will seldom be identical in every aspect, unless it is a memorized lie or the witness is possessed of extraordinary perception and recall. It is for you to decide whether any contradictions in a witness’s testimony are innocent lapses of memory or intentional falsehoods. That may depend on whether important facts or small details are at issue, and how important the facts might have appeared to the witness at the time they were perceived. THE LEGAL CLAIMS Let me turn now to the legal standards that you will apply to the facts as you find them. I will first instruct you on the law governing Mr. Jones’s claims against Octopus Oil, Inc. and Sue Smith. I will then discuss the issue of damages. [SUBSTANTIVE CLAIMS TO BE INSERTED HERE] INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS In this case, Mr. Jones claims that Octopus Oil, Inc. intentionally or recklessly caused him to suffer emotional distress by [ ]. To recover on this claim, Mr. Jones must prove four elements by a fair preponderance of the evidence. First, that Octopus Oil, Inc. either intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of its conduct; 8 Second, that the conduct in question was extreme and outrageous, that is, beyond all possible bounds of decency, and was utterly intolerable in a civilized community; Third, that the actions of Octopus Oil, Inc. were the cause of Mr. Jones’s distress; and Fourth, that the distress was severe and of such a nature that no reasonable person could be expected to have endured it. Extreme and outrageous conduct is more than just mere insult, or hurt feelings from bad manners, annoyances, or petty oppressions. “Outrageousness” means a high order of recklessness, ruthlessness, or deliberate malevolence. In the alternative, Mr. Jones claims that Octopus Oil, Inc. negligently caused him to suffer emotional distress. A plaintiff may recover on a claim of negligent infliction of emotional distress by showing: (1) negligence on a defendant’s part; (2) that he suffered emotional distress as a result of that negligence; (3) that his emotional distress caused physical harm manifested by objective symptomatology; and (4) that a reasonable person would have suffered emotional distress under the same circumstances. Negligence is doing something that a reasonably prudent person would not do, or failing to do something that a reasonably prudent person would do, in similar circumstances. Here the negligence alleged is [ ]. In the context of this case, negligence would consist of the failure to exercise the degree of care and diligence that an ordinarily prudent [ ] would have used in a similar situation. A medical expert’s testimony is not necessary to establish a claim of emotional distress. The plaintiff must, however, provide sufficient evidence to support his claim of 9 physical harm, such as symptoms of depression, anger, anxiety, loss of concentration, crying spells, stomach pains, and nightmares. DAMAGES Let me now discuss damages. As a caution, let me remind you that when I discuss the law of damages, I am not attempting to suggest what your verdict should be on this or any other contested issue. It is simply easier that I instruct you now on the law of damages, rather than interrupt your deliberations later with additional instructions should they become necessary. If you return a verdict for Mr. Jones on his [ ] claim, you should award him a sum of money that you believe will fairly and justly compensate him for any injuries that he may have sustained as a result of the [defendants’ actions]. You must remember, in calculating these damages, that Mr. Jones is entitled to be compensated only for the injuries he actually suffered. Thus, if a defendant were to violate more than one of a plaintiff’s rights, but the resulting injury were to be no greater than it would have been had the defendant violated but one of those rights, you should award an amount of compensatory damages no greater than you would award if you were to find that the defendant violated only one such right. If, on the other hand, a defendant were to violate more than one of a plaintiff’s rights and you can identify separate injuries resulting from the separate violations, you should award an amount of compensatory damages equal to the total of the damages that you believe will fairly and justly compensate the plaintiff for the separate injuries he has suffered. Compensatory damages are intended to compensate an injured party for the losses that he or she suffers because of another's wrongs. The object of the law, as best as 10 money can accomplish it, is to restore the injured person to the position she would have been in had the wrong not occurred. Compensatory damages may include actual out-of- pocket expenses, pain and suffering, and the loss of the ordinary enjoyments of life. There is no special formula for assessing these kinds of damages. You must use your wisdom and common sense in translating into dollars an amount that will fairly and reasonably compensate Mr. Jones for his injuries. Bear in mind that the party asking for damages has the burden of proving her loss by a fair preponderance of the evidence. [You should also know that any compensatory award you make is free of any state or federal taxes. Consequently you should not attempt to factor tax consequences into your verdict. Interest, too, is a factor calculated by the court.] DELIBERATIONS Finally, let me say a few words about your deliberations. Each of you must decide the case for yourself, but you should do so only after considering all of the evidence, after discussing it fully with the other jurors, and after listening to the views of your fellow jurors. Do not be afraid to change your opinion if, after hearing the opinions of your fellow jurors, you are convinced that your initial conclusion was wrong. But do not come to a decision simply because other jurors insist that it is right, nor surrender an honest belief about the weight and effect of the evidence simply for the expediency of reaching a verdict. Although the trial has been relatively short, as you will appreciate, this case has taken a great deal of time and effort on the part of the attorneys involved. There is no reason to think that the case could have been better tried or that another jury would be better qualified to decide it. It is important therefore that you reach a verdict if you can do 11 so conscientiously. Your verdict must be unanimous as to each of the special questions I am going to ask you to answer. Your answers will be recorded on the verdict slip by the juror I appoint as your foreperson. [APPOINT FOREPERSON]. As foreperson, you will have the same voice and the same vote as the other deliberating jurors. You will act as the moderator of the discussion and will serve as the jury’s spokesperson. Your most important obligation is to insure that any juror who wishes to be heard on any material issue has a full and fair opportunity to be heard by his or her fellow jurors. When the jury has reached a verdict, you will fill in the appropriate answers, sign and date the verdict slip, and inform the court officer that the jury is ready to return to the courtroom. If it becomes necessary during your deliberations to communicate with me, you may do so by sending a note through the court clerk signed by your foreperson. No member of the jury should ever attempt to communicate with me except by such a signed writing. 12

=== Form Jury Instructions (Criminal) ===

UNITED STATES v. MR. SMITH AND MS. JONES CRIMINAL NUMBER 00-00000-RGS JURY INSTRUCTIONS Members of the Jury: Now that you have heard the evidence in the case and the closing arguments of the lawyers, the time has come for me to instruct you on the law. My instructions will be in four parts; first, some instructions on the general rules that define the duties of the jury in a criminal case; second, a brief review of what is and what is not evidence in a criminal trial, together with some guidelines that may assist you in evaluating the evidence that has been presented; third, I will give instructions defining the elements, or components, of the crimes charged; and finally, I will explain the rules that will guide the conduct of your deliberations. In defining the duties of the jury, let me first remind you of the general rules. It is your duty to find the facts from all of the evidence in the case. To the facts as you find them you must apply the law as I will explain it to you. You must follow the law as I describe it, whether you personally agree with the wisdom of the law or not. You must do your duty as jurors regardless of any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case based solely on the evidence that is before you. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. And you must not read into these instructions, or into anything that I may have said or done during the course of the trial, any suggestion from me as to the verdict you should return – that is a matter committed entirely to your discretion. Even if I were to have an opinion as to what your verdict should be, my opinion would be utterly irrelevant. The verdict is yours, and yours alone, to render as the sole judges of the facts. At the beginning of the case, I explained some important rules that govern criminal trials. I will restate them for you now in more detail. There are three basic rules. PRESUMPTION OF INNOCENCE The first rule is that a defendant is presumed innocent unless and until proven guilty, and this presumption alone is sufficient to acquit him or her. The indictment brought by the United States against Mr. Smith and Ms. Jones is an accusation, and only that; it is not proof of anything at all. A defendant is innocent in the eyes of the law, unless and until you, the jury, decide, by a unanimous vote, that the government has proved his or her guilt beyond a reasonable doubt. BURDEN OF PROOF That brings me to the second rule. In a criminal case, the burden of proving guilt is on the government. It has that burden throughout the trial. A defendant never has the burden of proving his or her innocence. The right of a defendant to put the government to its burden of proof is one of the most fundamental guarantees of our Constitution. This means that a defendant has no obligation to produce evidence, to call witnesses, nor can he be required to testify. A defendant has an absolute right not to testify and Mr. Smith has chosen to exercise that right. You may not draw an inference of guilt from the fact that he did not testify, or even discuss that fact in your deliberations. The burden rests on the government and the government alone to prove each and every element of the crimes charged beyond a reasonable doubt, and a defendant has a right to rely upon the failure or inability of the government to meet its burden in establishing any essential element of the crimes with which he or she is charged. REASONABLE DOUBT Now, what is proof beyond a reasonable doubt? The term is often used, and is probably pretty well understood intuitively, although it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, or proof to a mathematical certainty, for almost everything in our common experience is open to some 2 possible or imaginary doubt. It does, however, mean that the evidence must exclude any reasonable doubt as to the defendant’s guilt. A reasonable doubt may arise not only from the evidence produced but also from the lack of relevant evidence. Reasonable doubt exists when, after weighing and considering all of the evidence in the case using your reason and common sense, you cannot say that you have a firm and settled conviction that a charge is true. A defendant is never to be convicted on suspicion or conjecture. If, for example, you were to view the evidence in the case as reasonably permitting either of two conclusions – one that a defendant is guilty of any one or more of the crimes charged, the other that he or she is not guilty of any one or more of these crimes – then it follows that you would be required to find him or her not guilty as to the particular charge at issue. It is not enough for the government to establish a probability, even a strong probability, that a defendant is more likely guilty than not. That is not enough. Proof beyond a reasonable doubt must be proof of such a convincing character that you can, consistent with your oath as jurors, conscientiously base your verdict upon it. If you so find as to any charge against either defendant, you will return a verdict of guilty on that charge. If, on the other hand, you think there is a real possibility that a defendant is not guilty of a charge, you must give him or her the benefit of that doubt and find him or her not guilty of that charge. EVIDENCE AT TRIAL Next I want to review with you what is meant by evidence in the context of a criminal trial. Evidence is produced at a criminal trial in one of three ways, all of which you have seen illustrated during the trial of this case. First, through the sworn testimony of witnesses, both on direct and cross- examination. 3 Second, through physical objects, or exhibits, identified by a witness, and admitted as such during the trial. Third, by stipulation, or agreement between the parties that certain facts are true and need not be independently proven as such at trial. The stipulations entered between the government and the defendants will be found in the instructions and verdict slip book that I will give to your foreperson. Certain things are not evidence and are not to be treated as such in your deliberations. 1. Arguments and statements by lawyers, as I have previously cautioned, are not evidence. What the lawyers have said over the course of the trial you may find helpful, or even persuasive in reaching a verdict, but the facts are to be determined from your own evaluation of the credibility of the testimony of the witnesses, the exhibits, and any reasonable factual inferences you choose to draw from the evidence that is before you. 2. Questions to witnesses are not evidence. They can only be considered in the sense that they give context or meaning to a witness’s answer. 3. Objections to questions are not evidence. Attorneys, as I explained at the outset of the trial, have a duty to their clients to object when they believe that a question is improper under the rules of evidence. You should not be influenced by the fact that an objection was made or by the way I ruled on it. If I sustained the objection, you should ignore the lawyer’s question, and any assertion of fact that the question might have contained. If the objection was overruled, you should treat the question and the witness’s answer like any other. 4. Testimony that I excluded, struck, or instructed you to disregard is not evidence and should not be considered in your deliberations. 4 5. Anything you may have seen or heard outside the courtroom during the course of the trial is not evidence. You must decide the case solely on the evidence that was offered and received in open court. 6. If you have kept notes, as most of you have, remember that your notes are not evidence. They are only an aid to be used during the deliberations to refresh your recollection of the actual evidence offered during the trial. 7. Finally, as I have mentioned before, an indictment is not evidence. It is merely a charging document notifying a defendant that he must stand trial on the charges that it specifies. Regardless of the way in which evidence is presented, it comes in one of two forms, either as direct or as so-called circumstantial evidence. Direct evidence is direct proof of a fact, usually offered through the testimony of a person who claims to have been an eyewitness to an event or a participant in a conversation. Circumstantial evidence is proof of a fact, or a set of facts, from which you could infer or conclude that another fact is true, even though you have no direct evidence of that fact. For instance, if you were to awake in the morning and, even though the day was bright and clear, see puddles of water on the street, you might draw the inference that it had rained during the night, even though your sleep had been uninterrupted by the familiar sounds of rain. In other words, the fact of rain is an inference that can be drawn from the presence of water on a street. An inference may be drawn, however, only if it is reasonable and logical, and not if it is speculative or based on conjecture. If, for example, you observed puddles of water on your street, but not on any other street in your neighborhood, other facts, like a broken water main, or if you live in the suburbs, a neighbor’s malfunctioning sprinkler system, might explain the presence of water. In deciding whether to draw an inference, you must look at and consider all of the facts in the case in the light of reason, common sense, and your own life experience. 5 Neither type of evidence, direct or circumstantial, is considered superior or inferior to the other. Both types of evidence may be considered in reaching your verdict and may be given whatever weight you as the finders of fact deem that evidence to be worth. CREDIBILITY OF WITNESSES Most evidence received at trial is offered through the testimony of witnesses. As the jury, you are the sole judges of the credibility of these witnesses. If there are inconsistencies in the testimony, it is your function to resolve these conflicts and to determine where the truth lies. You may choose to believe everything that a witness said, or only part of it, or none of it. If you do not believe a witness’s testimony that something happened, that of course is not evidence that it did not happen. It simply means that you must put aside that testimony and look elsewhere for credible evidence. Often it may not be so much what a witness says, but how he or she says it that might give you a clue whether or not to accept his or her version of an event as believable. You may consider a witness’s character, his or her demeanor on the witness stand, his or her frankness or lack of frankness in testifying, whether the witness was contradicted by anything that he or she said before the trial, and whether his or her testimony appears reasonable or unreasonable, probable or improbable, in light of all the other evidence in the case. You may take into account how good an opportunity the witness had to observe the facts about which he or she testified, his or her mental and physical state at the time the observations were made, the degree of intelligence the witness shows, and whether his or her memory seems accurate. You may consider a witness’s motive for testifying in a particular way, whether he or she displays any bias in doing so, and whether as a result he or she has an interest in the outcome of the case. Now simply because a witness has an interest in the outcome of the case does not mean that the witness is not trying to tell you the truth as he or she recalls it or believes it to have been. But a witness’s interest in 6 the case is a factor that you may consider along with everything else. You may also consider the fact that a witness may be perfectly sincere in his or her account of an event and simply be mistaken as to the truth. Several times it has been pointed out to you that certain witnesses have testified previously under oath about the subject matter of this trial in ways that you might find consistent or inconsistent with their testimony during the trial. Because these statements were made under oath, you may consider them as if they were made here in the courtroom in evaluating the credibility of what the witness said during both direct and cross- examination. The weight of the evidence obviously does not depend on the number of witnesses testifying for one side or the other. You must determine the credibility of each witness who testified, and then reach a verdict based on all of the believable evidence in the case. COMPLICITOUS WITNESSES You have heard testimony from one witness, Mr. Doe, who testified that he pled guilty to committing crimes related to the criminal activity charged in the indictment. The fact that Mr. Doe entered a guilty plea is not a factor that you may consider in assessing the guilt or innocence of the defendants. Mr. Doe may be presumed to have acted after an assessment of his own best interest, for reasons that are personal to him, but that fact has no bearing on any other party to this case. The guilty plea may only be considered by you in assessing the credibility of Mr. Doe’s testimony. A witness who admits to committing a crime and testifies against others pursuant to a plea agreement with the government usually does so in the expectation of more lenient treatment because of his or her cooperation. A witness testifying in such circumstances may, of course, be completely truthful. Still, you should consider the testimony of a witness testifying pursuant to a plea agreement with particular caution and you should scrutinize the testimony closely to determine whether it is colored in such a way so as to protect or 7 further the witness’s own interests. The testimony of a cooperating witness should be received by you with great care, and should be given the weight, if any, that you believe it deserves. EXPERT WITNESSES As a rule a witness is not permitted to offer an opinion about the facts to which he or she testifies, unless it concerns a matter falling within our common experience. An exception is made for those who are asked to testify as experts, as was the case with the forensic examiners from whom we heard. These are witnesses, who by education and experience, have acquired specialized knowledge about which they are permitted to give opinions, as well as the reasons for their opinions. This type of testimony is allowed in the belief that the knowledge of certain experts is so specialized that the facts which they have mastered are beyond the collective knowledge of the court and the jury. The credibility of the testimony of an expert witness is judged like that of any other witness. Simply because the law allows a witness to give an opinion does not mean that you must accept that opinion. If you decide that the opinion of an expert witness is not based on sufficient education or experience, or if you conclude that the reasons given for the opinion are not convincing or are outweighed by other evidence in the case, you may disregard the opinion entirely. In deciding whether or not to believe a witness, keep in mind that people sometimes forget things, or get confused, or remember an event differently. Memory is not always reliable, and when someone recounts a story twice, it will seldom be identical in every respect, unless it is a memorized lie or the witness is possessed of extraordinary perception and recall. It is for you to decide whether any contradictions in a witness’s testimony are innocent lapses of memory or intentional falsehoods. That may depend on whether important facts or small details are at issue, and how important the facts might have appeared to the witness at the time they were perceived. 8 THE INDICTMENT With these preliminary instructions in mind, let me turn to the charges against the defendants as set out in the Indictment. You will remember that the fact of an Indictment is not evidence. An Indictment is merely an accusation and may not be considered as evidence of a defendants’ guilt. The defendants have pled not guilty to each charge in the Indictment. When a defendant pleads not guilty, the government is put to the obligation of proving each material component of the offense charged. We commonly call these components the “elements” of the crime. The government has the burden of establishing each element of an offense by proof beyond reasonable doubt. An Indictment may allege more than one charge against a defendant. In that case, the different charges are stated separately in what are called counts. The Indictment in this case is comprised of a number of separate counts, some thirty-seven altogether, each of which names both defendants. The nature of each count being submitted for your verdict is set out in a table form in the verdict slip. You must make a determination as to whether either or both defendants has been proven guilty of each separate count. Bear in mind, however, that you may find that evidence pertaining to one offense is also relevant to your consideration of other alleged offenses. The Indictment charges that the offenses were committed “on or about” certain dates, rather than “on” a date certain. The proof need not establish the exact date of an alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on dates that were reasonably near those that are alleged. KNOWING AND WILLFUL A person acts knowingly if he or she was conscious and aware of his or her actions, realized what he or she was doing or what was happening around him or her and did not 9 act because of ignorance, mistake or accident. A person may also be held to have acted knowingly if he or she deliberately closed his or her eyes to a fact that would otherwise have been obvious to someone in identical circumstances. In order to infer knowledge under this principle, you must find that two things have been established. First, that a defendant was aware of a high probability of the fact in question. And second, that the defendant consciously and deliberately avoided learning of that fact. That is to say, the defendant made himself or herself blind to that fact. It is entirely up to you to determine whether he or she deliberately closed his or her eyes to the fact and, if so, what inference, if any, should be drawn. However, it is important to bear in mind that mere negligence or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant of the fact. Intent and knowledge may not ordinarily be proven directly because there is no way to directly scrutinize the inner working of the human mind. In determining what a defendant knew or intended at a particular time, you may consider any statements made or acts done or omitted by the defendant, and all other facts and circumstances received in evidence that may aid in your determination of the defendants’ knowledge or intent. An act or failure to act is “willful” if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. AIDING AND ABETTING To aid and abet means intentionally to help someone else commit a crime. To establish aiding and abetting, the government must prove beyond a reasonable doubt: (1) that someone else committed the charged crime; and (2) that a defendant willfully participated in it as he or she would in something that he or she wished to bring about. 10 This means that the government must prove that a defendant consciously shared the other person’s knowledge of the underlying criminal act, intended to help him or her, and willfully took part in the endeavor, seeking to make it succeed. The defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its execution to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting. An act, as I have previously instructed, is done willfully if done voluntarily and intentionally with the intent that something the law forbids be done – that is to say with bad purpose, either to disobey or disregard the law. I will now say a few words about your deliberations. DELIBERATIONS It is your duty to discuss the case with your fellow jurors for the purpose of reaching agreement if you can do so. Each of you must decide the case for yourself, but should do so only after considering all of the evidence, listening to the views of your fellow jurors, and discussing the case fully with the other jurors. This case has taken a great deal of time to prepare and try. There is no reason to think that it could have been better tried - in fact it was tried ably by both sides - or that another jury would be better qualified to render a decision. It is important therefore that you reach a verdict if you can do so conscientiously. You should not hesitate to reconsider your own opinions from time to time and to change them if you are convinced that they are wrong. However, do not surrender an honest conviction as to the weight and effect of the evidence simply for the expedience of arriving at a verdict. Your verdict must be unanimous as to whether the defendant is guilty or not guilty of each charge that has been submitted to you for a verdict. Each count must be 11 considered separately. You may find Mr. Smith and Ms. Jones guilty of every charge, you may find him or her not guilty of every charge, or you may find him or her guilty of some charges and not guilty of others. But remember that your verdict as to each count must be unanimous. You may not draw any inference, favorable or unfavorable to the government, from the fact that any other person was not named as a defendant or is not on trial before you. The question of possible guilt of others should not enter your thinking. Similarly you are not to consider whether a defendant might be guilty of some other crime that the government for whatever reason has not chosen to prosecute. Your task is to determine whether the government has proved beyond a reasonable doubt that the defendant committed the crimes that are actually charged. Remember also that your verdict must be based solely on the evidence in the case and the law as I have given it to you, and not on anything else. And finally, as I have instructed, bear in mind that the government has the burden of proof and that you must be convinced of a defendant’s guilt beyond a reasonable doubt to return a guilty verdict. If you find this burden has not been met, then you must return a verdict of not guilty. It is very important that you not communicate with anyone outside the jury room about your deliberations or anything touching this case. There is only one exception to this rule. If it becomes necessary during your deliberations to communicate with me, you may send a note through the court officer, signed by the juror I appoint as your foreperson. No member of the jury should ever attempt to communicate with the court except by means of a signed writing. If you send any notes to me, do not disclose anything about your deliberations. Specifically, do not disclose to anyone – not even to me – how the jury stands, numerically or otherwise, until you have reached a unanimous verdict. 12