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As someone with intimate first-hand knowledge of this part of the process, let me show how "Thomas" is off-base. First off, there's usually a massive wrestling

As someone with intimate first-hand knowledge of this part of the process, let me show how "Thomas" is off-base. First off, there's usually a massive wrestling match between prosecution and defense as to what the jury instructions will actually have and not have. There's a reason they call them "model"; they're not compulsorily relayed verbatim, and in fact, even the models vary by court circuit (often with substantial distinctions). Model instructions are also written by judges, and read like stereo instructions. A typical juror does not understand them, everybody knows this, and the judges who occasionally revise the model jury instructions are totally fine and dandy with this fact. "intent to defraud", if it is defined at all in a given set of jury instructions, is defined circularly, and doesn't rule in or rule out edge cases. "Beyond a reasonable doubt" is deliberately kept vague, and nearly every judge will expressly forbid defendants' defining it as a percentage of certainty (e.g. 95% sure, 99% sure). The famous technicolor thermometer in the OJ trial expressing different levels of doubt is also typically banned by judges. You have to sympathize with the jurors: they're trying to do a good job with the information they're given, and the system they have to work with is somewhere on the spectrum between being out of touch and giving the jury the finger. (BTW, most federal trial judges make more each day than the ENTIRE jury). I've gotten to the point of deep suspicion of anybody who points to jury instructions as an exemplar of anything other than how seriously messed up the system is.

bradleyjg 8y ago
On top of that almost cases don't go to trial. To defend against a high profile federal prosecution takes seven figures. And even before you get to the actual indictment stage you may have sealed your fate by lying to the FBI. I and many others have said that no one should ever talk to the FBI but somehow it happens again and again with people that should have very sophisticated counsel. The bottom line is that if the federal government decides to go after you, you are in for a very bad time. There is a heck of lot of fairly broad discretion placed in the hands of FBI field office directors and US attorneys (political appointees) to ruin lives.
- mchannon 8y ago
  When FBI agents point assault rifles at your head, you will find yourself talking to them in spite of that advice. Happened to my wife.
tptacek 8y ago
My point wasn't that the jury instructions themselves make wire fraud hard to prove; it's that they illustrate that Salmon's summary of the predicates for wire fraud were incorrect.
- mchannon 8y ago
  Actually, Salmon's summary of the predicates for wire fraud is spot-on. The data support this, and my anecdata support this. Seeing is believing. The jury instructions serve no purpose other than to frustrate jurors, and frustrated jurors (especially those that survive the venire) tend to convict. Sometimes the ends justify the means, and sometimes not. I'd like to see your source for "multiple mitigating factors for 'intent to defraud'", because other than a good-faith instruction, which is optional and the judge and prosecutor will fight to keep out, there aren't any in any model jury instruction I've read (and I've read many of them, multiple times). I really hope you have one, because in case I need to file a 2255, a missed jury instruction might help.
  - tptacek 8y ago
    It is simply not the case that "lie + wire = wire fraud". Salmon's summary is obviously not spot-on. You still don't seem to be following my point regarding jury instructions. My argument isn't that they protect defendants because juries receive them; it's simply that they offer a concise summary of the predicates for felony crimes. A jury's receipt of any given instruction is immaterial.
    - mchannon 8y ago
      I follow your point, but it's an inaccurate point. Take for example, the 9th circuit model jury instruction for Wire Fraud (18 USC 1343). Numerous legal experts find that it is not a concise summary, but one that leaves out multiple major points. For example, http://www.kmbllaw.com/intent-to-defraud-is-misdefined-in-the-ninth-circuit-model-instructions/ http://www.kmbllaw.com/intent-to-defraud-is-misdefined-in-th... My corresponding jury instruction omitted that a loss had to be caused, or explained, really explained, what "materially" actually meant, or how important it was. If you decided to tell a little fib at the corner store and told the cashier you were Barack Obama as you bought a gallon of milk, that would count as wire fraud according to these jury instructions. Not comprehensive -> Not concise.
pvg 8y ago
"Thomas"? You think he's some sort of ersatz Thomas? A figurative Thomas?

bradleyjg 8y ago

On top of that almost cases don't go to trial. To defend against a high profile federal prosecution takes seven figures. And even before you get to the actual indictment stage you may have sealed your fate by lying to the FBI. I and many others have said that no one should ever talk to the FBI but somehow it happens again and again with people that should have very sophisticated counsel. The bottom line is that if the federal government decides to go after you, you are in for a very bad time. There is a heck of lot of fairly broad discretion placed in the hands of FBI field office directors and US attorneys (political appointees) to ruin lives.

mchannon 8y ago
When FBI agents point assault rifles at your head, you will find yourself talking to them in spite of that advice. Happened to my wife.

tptacek 8y ago

My point wasn't that the jury instructions themselves make wire fraud hard to prove; it's that they illustrate that Salmon's summary of the predicates for wire fraud were incorrect.

mchannon 8y ago
Actually, Salmon's summary of the predicates for wire fraud is spot-on. The data support this, and my anecdata support this. Seeing is believing. The jury instructions serve no purpose other than to frustrate jurors, and frustrated jurors (especially those that survive the venire) tend to convict. Sometimes the ends justify the means, and sometimes not. I'd like to see your source for "multiple mitigating factors for 'intent to defraud'", because other than a good-faith instruction, which is optional and the judge and prosecutor will fight to keep out, there aren't any in any model jury instruction I've read (and I've read many of them, multiple times). I really hope you have one, because in case I need to file a 2255, a missed jury instruction might help.
- tptacek 8y ago
  It is simply not the case that "lie + wire = wire fraud". Salmon's summary is obviously not spot-on. You still don't seem to be following my point regarding jury instructions. My argument isn't that they protect defendants because juries receive them; it's simply that they offer a concise summary of the predicates for felony crimes. A jury's receipt of any given instruction is immaterial.
  - mchannon 8y ago
    I follow your point, but it's an inaccurate point. Take for example, the 9th circuit model jury instruction for Wire Fraud (18 USC 1343). Numerous legal experts find that it is not a concise summary, but one that leaves out multiple major points. For example, http://www.kmbllaw.com/intent-to-defraud-is-misdefined-in-the-ninth-circuit-model-instructions/ http://www.kmbllaw.com/intent-to-defraud-is-misdefined-in-th... My corresponding jury instruction omitted that a loss had to be caused, or explained, really explained, what "materially" actually meant, or how important it was. If you decided to tell a little fib at the corner store and told the cashier you were Barack Obama as you bought a gallon of milk, that would count as wire fraud according to these jury instructions. Not comprehensive -> Not concise.

pvg 8y ago

"Thomas"? You think he's some sort of ersatz Thomas? A figurative Thomas?