Case 1:14-cr-00175-RJA-MJR Document 300 Filed 12/03/21 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK
_______________________________________________

UNITED STATES OF AMERICA,

v. 14-cr-00175

LISA MILLER,

Defendant.
_______________________________________________

GOVERNMENT’S PROPOSED JURY CHARGE

THE UNITED STATES OF AMERICA, by and through its attorney, Trini E. Ross,

United States Attorney for the Western District of New York, and the undersigned, of

counsel, hereby submit the attached Government’s Proposed Jury Charge in the above-

entitled case.

DATED: Buffalo, New York, December 3, 2021.

TRINI E. ROSS
United States Attorney

BY: s/PAUL J. VAN DE GRAAF

Special Assistant U.S. Attorney
MICHAEL DIGIACOMO
Assistant U.S. Attorney
United States Attorney’s Office
138 Delaware Avenue
Buffalo, New York 14202
paul.van.de.graaf@usdoj.gov
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INDEX

REQUEST NO. PAGE NO.

Request No. 1 All Counts: Knowledge, Willfulness, Intent………………………….…1

Request No. 2 All Counts: Role of The Court…………………………………………...3

Request No. 3 All Counts: Role of The Jury……………………………….……………4

Request No. 4 All Counts: Sympathy……………………………………………………8

Request No. 5 All Counts: Direct and Circumstantial Evidence……………………….9

Request No. 6 All Counts: Testimony, Exhibits, Stipulations and Judicial Notice In
General…………………………………………………………………..11

Request No. 7 All Counts: Stipulation of Facts………………………………………..13

Request No. 8 All Counts: Stipulation of Testimony……………..............................14

Request No. 9 All Counts: Charts And Summaries (Admitted As Evidence)………..15

Request No. 10 All Counts: Charts And Summaries (Not Admitted As Evidence)…...16

Request No. 11 Witnesses………………………………………………………………..17

Request No.12 Expert Witnesses………………………………………………………..22

Request No. 13 Burden of Proof……………………………………………………….…23

Request No. 14 Count 1: The Indictment and The Statute ……………………………..29

Request No. 15 Count 1: Purpose of The Statute ……………………………………….31

Request No. 16 Counts 1: Elements of Conspiracy……………………………………..32

Request No. 17 Counts 1: First Element-Existence of Agreement……………………..33

Request No. 18 Counts 1: Second Element-Membership in The Conspiracy……….…36

Request No. 19 Counts 1: Third Element-Commission of Overt Act…………………39

Request No. 20 Counts 1: Fourth Element-Commission of Overt Act in Furtherance of

The Conspiracy…………………………………………………………41
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Request No. 21 Counts 1: Acts and Declarations of Co-Conspirators………………...42

Request No. 22 Counts 1 and 2: The Indictment and The Statute…………………….44

Request No. 23 Counts 1 and 2: Elements of the Offense……………………………...46

Request No. 24 Counts 1 and 2: First Element-Child Previously Resided in The United
States…………………………………………………………………….47

Request No. 25 Counts 1 and 2: Second Element-Taking Child From The United
States or Retaining Outside The United States………………….……48

Request No. 26 Counts 1 and 2: Third Element-Intent to Obstruct Parental

Rights…...……………………………………………………………….49

Request No. 27 Count 2: Aiding and Abetting…………………..………………….….50

Request No. 28 Affirmative Defense……………………………………………….……53

Request No. 29 Concluding Remarks………………….……………………………..…56

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REQUEST NO. 1 ALL COUNTS: KNOWLEDGE, WILLFULLNESS, INTENT

Medical science has not yet devised an instrument that can record what is in one’s

mind in the distant past. Rarely is direct proof available to establish that -- what is one’s state

of mind, but a state of mind may be inferred from what a person says or does, her words, her

actions and her conduct at the time of the occurrence of certain events. The state of mind in

which an act is done is often more clearly and conclusively shown by the act itself or by a

series of acts than by words or explanations or acts uttered long after its occurrence.

Accordingly, intent, willfulness and knowledge are usually established by surrounding

facts and circumstances as of the time the acts in question occurred or the events took place

and a reasonable inference to be drawn from them. You will need to consider, for certain

elements of each charge, whether the defendant acted knowingly, willfully, or intentionally.

I’ll now define each of those terms for you.

A person acts knowingly if she acts intentionally and voluntarily and not because of

ignorance, mistake or accident or carelessness. Whether the defendant acted knowingly may

be proven by fact -- by the defendant’s conduct and all the facts and circumstances

surrounding the case.

A person acts willfully when she acts with knowledge that her conduct is unlawful and

with intent to do something that the law forbids, that is to say, with a bad purpose to disobey
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or disregard the law. By contrast, a person’s conduct was not willful if it was due to

negligence, inadvertence or mistake.

Finally, the last state of mind that you will need to consider is intent. Before you can

find the defendant acted intentionally, you must be satisfied beyond a reasonable doubt that

the defendant acted deliberately and purposely. That is, the defendant’s acts must be the

product of the defendant’s conscious objective, rather than a product of mistake or accident.

You have also heard the attorneys refer to motive. Intent and motive are related

concepts, but they are also different in several ways that are important for you to understand.

Proof of motive is not a necessary element of the crimes which the defendant is charged. Proof

of motive does not establish guilt, nor does lack of proof of motive establish the defendant is

not guilty. If the guilt of the defendant is shown beyond a reasonable doubt, it is immaterial

what the motive for the crime may be or whether any motive be shown. However, the

presence or absence of motive is a circumstance that you may consider as bearing on the intent

of the defendant.

1-6 Modern Federal Jury Instructions-Criminal ¶ 6.06, No. 6-17

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REQUEST NO. 2 ALL COUNTS: ROLE OF THE COURT

You have now heard all the evidence in the case, as well as final arguments from the

lawyers for the parties. My duty at this point is to instruct you on the law. It is your duty to

accept these instructions on the law and apply them to the facts as you determine them, just

as it’s been my duty to preside over the trial and decide what testimony and evidence is

relevant under the law for your consideration.

You should not single out any instruction as alone stating the law, but you should

consider my instructions as a whole when you retire to deliberate in the jury room.

You should not, any of you, be concerned about the wisdom of any rule that I state.

Regardless of any opinion that you may have as to what the law may be, or ought to be. It

would violate your sworn duty to base a verdict upon any other view of the law from that

which I give you.

1-2 Modern Federal Jury Instructions-Criminal ¶ 2.01, No. 2-2

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REQUEST NO. 3 ALL COUNTS: ROLE OF THE JURY

Your final role is to pass upon and decide the fact issues that are in the case. You, the

members of the jury, are the sole and exclusive judges of the facts. In carrying out this role,

you pass upon the weight of the evidence. You determine the credibility of the witnesses. You

resolve such conflicts as there may be in the testimony, and you draw whatever reasonable

inferences you decide to draw from the facts as you have determined them. I shall later discuss

with you how to pass upon the credibility or believability of the witnesses.

In determining the facts, you must rely upon your own recollection of the evidence.

What the lawyers have said in their opening statements and in their closing arguments, in

their objections or in their questions, is not evidence. In this regard, you should bear in mind

that a question put to a witness is never evidence. It is the answer which is in evidence. Nor

is anything I may have said during the trial or may say during these instructions, with respect

to a factual matter, to be taken in substitution for your own independent recollection. What I

say is not evidence.

The evidence before you consists of the answers given by witnesses, obviously in

conjunction with the question; the testimony they gave as you recall it and the exhibits that

were received in evidence. The evidence does not include the attorneys’ questions. Only the

witnesses’ answers are evidence. However, you may not consider any answer that I directed

you to disregard or that I directed to be struck from the record. You are simply not to consider

those answers.

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Because you are the sole and exclusive judges of the facts, I do not mean to indicate

any opinion as to the facts or what your verdict should be. The rulings I have made during

the trial are not any indication of my views of what your decision should be as to whether or

not the guilt of the defendant has been proven beyond a reasonable doubt.

I also ask you not to draw any inference from the fact that upon occasion I asked

questions of certain witnesses. These questions were only intended for clarification or to

expedite matters. They certainly were not intended to suggest any opinions on my part as to

the verdict you should render or whether any of the witnesses may have been more credible

than any other witness. You are expressly to understand that the court has no opinion as to

the verdict you should render in this case.

As to the facts, ladies and gentlemen, you are the exclusive judges. You are to perform

the duty of finding the facts without bias or prejudice as to any party. In determining the facts,

I would like to remind you that before each of you were accepted and sworn to act as jurors,

you were asked questions concerning competency, qualifications, fairness and freedom from

prejudice and bias.

On the faith of those answers, each of you were accepted by the parties as a juror in

this case. Therefore, those answers are as binding on each of you now as they were then and

should remain so until you are discharged from consideration of this case. You are to perform

the duty of finding the facts without bias or prejudice as to any party. You are to perform your

duty with an attitude towards complete fairness and impartiality. The case is important to the

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government for the enforcement of criminal laws as a matter of prime concern to the

community. Equally, it’s important to the defendant who is charged with serious crimes. The

fact that the prosecution is brought in the name of the United States of America entitles the

government to no greater consideration than that accorded to any other party to a litigation.

By the same taken, it is entitled to no less consideration. All parties, whether the government

or individuals, are equal before the law. It is the duty of the attorneys for each side of the case

to object when the other side offers testimony or other evidence which the attorney believes

is not properly admissible. Counsel also have a right and a duty to ask the Court to make

rulings of law and to request conferences out of the hearing of the jury. All those questions of

law must be decided by me, the Court. You should not show any prejudice against an attorney

or her client because the attorney objected to the admissibility of evidence or asked for a

conference out of the hearing of the jury or asked for the Court for a ruling on the law.

As I have already indicated, my rulings on the admissibility of evidence do not indicate

any opinion about the weight or effect of such evidence. You are the sole judges of the

credibility of all the witnesses and the weight and effect of all the evidence.

Your verdict must be based solely upon the evidence developed at trial or the lack of

evidence. It would be improper for you to consider, in reaching your decision as to whether

the government has sustained its burden of proof, any personal feelings that you may have

about the defendant's race, religion, national origin, sex or age.

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It would equally be improper for you to allow any feelings that you may have about

the nature of the crimes to interfere with your decision-making process. To repeat, your

verdict must be based exclusively upon the evidence or lack of evidence in the case as to both

counts that are set forth in the indictment.

1-2 Modern Federal Jury Instructions-Criminal ¶ 2.01, No. 2-3

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REQUEST NO. 4 ALL COUNTS: SYMPATHY

Under your oath as jurors you are not to be swayed by sympathy. You are to be guided

solely by the evidence in this case, and the crucial question that you must ask yourselves as

you sift through the evidence is: Has the government proven the guilt of the defendant beyond

a reasonable doubt?

It is for you alone to decide whether the government has proven that the defendant is

guilty of the crimes charged solely on the basis of the evidence and subject to the law as I am

instructing you. It must be clear to you that once you let fear or prejudice or bias or sympathy

interfere with your thinking there is a risk that you will not arrive at a true and just verdict.

If you have a reasonable doubt as to a defendant’s guilt, you should not hesitate for

any reason to find a verdict of not guilty on the count or counts that you are considering. But

on the other hand, if you should find that the government has met its burden of proving a

defendant’s guilt beyond a reasonable doubt, you should not hesitate because of sympathy or

any other reason to render a verdict of guilty on the count or counts you are considering.

1-2 Modern Federal Jury Instructions-Criminal ¶ 2.01, No. 2-12

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REQUEST NO. 5 ALL COUNTS: DIRECT AND CIRCUMSTANTIAL EVIDENCE

In a moment, I will instruct you on the evidence that you may consider in your

deliberations. Before I do that however, I must first remind you that, as I’ve stated throughout

the course of the trial, that your verdict must be based solely on the evidence presented in this

courtroom in accordance with these instructions. You must completely disregard any report

that you have read in the press, heard on the radio, or seen on television.

Now, there are two kinds of evidence that you may properly consider in deciding

whether the defendant is guilty or not guilty. One type of evidence is called direct evidence.

Direct evidence is where a witness testifies to what he or she saw, heard or observed. In other

words, when a witness testifies about what is known to him or her of her or her own

knowledge, by virtue of her or her own senses; what he or she sees, feels, touches or hears;

that is called direct evidence. I saw John Jones walking down the street. That’s an example.

The other type of evidence you may consider is circumstantial evidence.

Circumstantial evidence is evidence which tends to prove a disputed fact by proof of other

facts. And there is a simple example of circumstantial evidence which I use here often.

Assume that when you came into the courthouse this morning the sun was shining and it was

a nice day. Assume the courtroom blinds are drawn, and you cannot see outside. And as

you’re sitting here, someone walked in here with an umbrella that was dripping wet. Shortly

thereafter, somebody else walked in with a raincoat that was also dripping wet.

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Now, you cannot see outside of the courtroom and you cannot see whether or not it is

raining, so you have no direct evidence of that fact. But on the combination of the facts about

the umbrella and the raincoat which I asked you to assume, it would be reasonable, it would

be logical, for you to conclude that it has been raining.

That is all there is to circumstantial evidence. You infer on the basis of reason and

experience and common sense that an established fact exists, somebody walked in with a wet

umbrella, a wet raincoat, or the non-existence of some other fact.

Circumstantial evidence is of no less value than direct evidence because the law makes

no distinction between direct and circumstantial evidence. Instead, the law simply requires

that before convicting a defendant, the jury must be satisfied of the defendant’s guilt beyond

a reasonable doubt, from all the evidence based on direct and circumstantial evidence in the

case.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.01, No. 5-2

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REQUEST NO. 6 ALL COUNTS: TESTIMONY, EXHIBITS, STIPULATIONS AND

JUDICIAL NOTICE IN GENERAL

I want to emphasize that a lawyer’s questions are not evidence. At times a lawyer, on

cross-examination, may have incorporated into a question a stated fact that assumes facts to

be true and asked the witness if the statement was true. Now, if the witness denies the truth

of the statement and if there's no evidence in the record proving that the assumed fact to be

true, you may not consider the fact to be true, simply because it was contained in the lawyer's

question. The famous example of this is the lawyer's question of a married witness: When did

you stop beating your wife? Now, you would not be permitted to consider the assumed fact

that he ever beat her wife, unless the witness himself indicated that he had, or unless there is

some other evidence in the record that he had beaten her wife. In short, questions are not

evidence, answers are. However, answers, obviously, must be considered in conjunction with

the question that’s being asked.

Now, the evidence in this case consists of the sworn testimony of the witnesses and

the exhibits that were received in evidence and any stipulations that you heard. Exhibits

which have been marked for identification, but were not received, may not be considered by

you as evidence. Only the exhibits received may be considered as evidence.

Similarly, you are to disregard any testimony that I have ordered to be stricken. As

I've indicated before, only the witnesses’ answers are evidence and you are not to consider a

question as evidence. Similarly, statements by counsel are not evidence. You should consider

the evidence in light of your own common sense and experience, and you may draw

reasonable inferences from the evidence.

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Finally, as I've told you many times, anything you may have seen or heard about this

case outside the courtroom is not evidence and must be totally disregarded.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.02, No. 5-4

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REQUEST NO. 7 ALL COUNTS: STIPULATION OF FACTS

During the course of this trial, you have heard the attorneys read several stipulations.

A stipulation is an agreement among the parties that certain facts are true. You should regard

such agreed facts as true.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.01, No. 5-6

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REQUEST NO. 8 ALL COUNTS: STIPULATION OF TESTIMONY

A stipulation of testimony is an agreement among the parties that, if called, a witness

would have given certain testimony. You must accept as true the fact that the witness would

have given that testimony in court. However, it is for you to determine the effect to be given

to that testimony.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.01, No. 5-7

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REQUEST NO. 9 ALL COUNTS: CHARTS AND SUMMARIES (ADMITTED AS

EVIDENCE)

The parties have presented exhibits in the form of charts and summaries. I admitted

these charts and summaries in evidence to the underlying documents that they represent in

order to save time and avoid unnecessary inconvenience. You should consider these charts

and summaries as you would any other evidence in the case.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.05, No. 5-12

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REQUEST NO. 10 ALL COUNTS: CHARTS AND SUMMARIES (NOT ADMITTED

AS EVIDENCE)

The government has presented exhibits in the form of charts and summaries. These

charts and summaries were shown to you in order to make the other evidence more

meaningful and to aid you in considering the evidence. They are no better than the testimony

or the documents upon which they are based, and are not themselves independent evidence.

Therefore, you are to give no greater consideration to these schedules or summaries than you

would give to the evidence upon which they are based.

It is for you to decide whether the charts, schedules or summaries correctly present the

information contained in the testimony and in the exhibits on which they were based. You

are entitled to consider the charts, schedules and summaries if you find that they are of

assistance to you in analyzing and understanding the evidence.

1-5 Modern Federal Jury Instructions-Criminal ¶ 5.05, No. 5-13

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REQUEST NO. 11 WITNESSES

The fact that one party called most of the witnesses or may have introduced more

evidence than the other does not mean that you should necessarily find in favor of the side

offering more witnesses.

By the same token, you do not have to accept the testimony of any witness who has

been contradicted or impeached if you find the witness not to be credible. You also have to

decide which witnesses to believe and which witnesses not to. To do this, you must look at

all the evidence, drawing upon your common sense and personal experience. After examining

all the evidence, you may decide that a party calling more witnesses has not persuaded you

because you do not believe the witnesses.

I will discuss with you the criteria for evaluating credibility. You should keep in mind

that the burden of proof is always on the government and the defendant is not required to call

any witnesses or offer any evidence since he is presumed to be not guilty.

You have had an opportunity to observe all of the witnesses. It is now your job to

decide how believable each witness was in his or her testimony. You are the sole judges of

the credibility of each witness and the importance of his or her testimony.

In assessing credibility, you should carefully scrutinize all the testimony of each

witness, the circumstances under which each witness testified and any other matter in

evidence which may help you decide the truth and the importance of each witness' testimony.

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Your decision whether or not to believe a witness may depend upon a number of

factors. For instance, was a witness candid? Was a witness frank and forthright or did a

witness seem as if he or she was hiding something, being evasive or suspect in some way?

How did the witness testify on direct examination, compared to how the witness testified on

cross-examination? Was the witness consistent in his or her testimony or did he or she

contradict himself or herself? Did the witness appear to know what he or she was talking

about and did the witness strike you as someone who is trying to report her or her knowledge

accurately?

How much you choose to believe a witness may be influenced by the witness's bias.

Does the witness have a relationship with the government or the defendant which may affect

how he or she testified? Does the witness have some incentive, loyalty or motive that might

cause him or her to shade the truth or does the witness have some bias, prejudice, or hostility

that may have caused the witness, consciously or not, to give you something other than a

completely accurate account of the facts the witness is testifying about?

Even if the witness was impartial, you should consider whether the witness had an

opportunity to observe the facts about what he or she is testifying about. You should consider

the witness' ability to express himself or herself. Ask yourselves whether the witness's

recollection of the facts stands up in light of all the other evidence in the case.

In other words, what you must try to do in deciding credibility is to size up the witness

in light of his or her demeanor, the explanations given and in light of all the other evidence in

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the case, just as you would in any important matter that you are trying to decide if a person

is being truthful, straightforward and accurate in his or her recollection. In deciding the

question of credibility, remember that you should use your common sense, your good

judgment and your experience.

You have heard the testimony of an agent from the Federal Bureau of Investigation,

the F.B.I. The fact that a witness may be employed as a law enforcement officer does not

mean that her testimony is necessarily deserving of more or less consideration or greater or

lesser weight than any other ordinary witness.

At the same token, it is quite legitimate for defense counsel to try to attack the

credibility of a law enforcement witness on the grounds that her testimony may be colored by

personal or professional interest in the outcome of the case.

It is your decision, after reviewing all of the evidence, whether to accept the testimony

of a law enforcement witness and to give that testimony whatever weight, if any, you find it

deserves.

In connection with your evaluation of credibility of witnesses, you should specifically

consider evidence of resentment or anger, which some witness may have had. Evidence of

witness's bias, prejudice or hostility requires you to view that witness's testimony with caution,

to weigh it with care and subject it to close and searching scrutiny.

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In evaluating the credibility of witnesses, you should take into account any evidence

the witness who testified may benefit in some way from the outcome of the case. Such an

interest in the outcome creates a motive to testify falsely. It may sway the witness to testify in

a way that advances her or her own interests.

Therefore, if you find any witness whose testimony you are considering may have an

interest in the outcome of the trial, then you should bear that factor in mind when evaluating

the credibility of her or her testimony and accept it with great care; however, this is not to

suggest that every witness who has an interest in the outcome of the case will testify falsely.

It is for you to decide to what extent, if at all, the witness's interest has affected or colored his

or her testimony.

You’ve heard, on several occasions, evidence that a witness may have made a

statement on an earlier occasion which counsel would argue is inconsistent with the witness's

testimony at trial. If you found that a witness made an earlier statement that conflicts with his

or her trial testimony, you may consider that fact in deciding how much of his or her trial

testimony, if any, to believe. In making this determination, you may consider whether the

witness purposely made a false statement or whether it was an innocent mistake; whether the

inconsistency concerned an important fact or whether it had to do with small details; whether

the witness had an explanation for the inconsistency, and whether that explanation appealed

to your common sense. It is exclusively your duty, based upon all the evidence and your own

good judgement, to determine whether the prior statement was inconsistent and if so, how

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much, if any, weight to be given to the inconsistent statement in determining whether to

believe all or part of the witness's testimony at trial.

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REQUEST NO.12 EXPERT WITNESSES

Several witnesses in this case were permitted to testify as experts (list witnesses). A

witness may be permitted to testify to an opinion on those matters which he or she has special

knowledge, skill, experience, and training. Such testimony is presented to you under the

theory that someone who is experienced and knowledgeable in the field can assist you in

understanding the evidence or in reaching an independent decision on the facts.

In weighing this opinion testimony, you may consider the witness’s qualifications, her

opinions, the reasons for testifying as well as all the other considerations that ordinarily apply

when you are deciding whether or not to believe a witness's testimony. You may give the

opinion testimony whatever weight, if any, you find it deserves in light of all the other

evidence in the case. You should not, however, accept the opinion testimony merely because

I allowed the witness to testify concerning her opinion. Nor should you substitute it for your

own reason, your judgement, your common sense.

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REQUEST NO. 13 BURDEN OF PROOF

The determination of the facts in the case rests solely with you, the jury. You may not

infer a defendant is guilty of participating in criminal conduct merely from the fact that she

was present at the time a crime was being committed and she had knowledge that it was being

committed. Similarly, you may not infer that a defendant was guilty of participating in

criminal conduct merely from the fact that she associated with other people who are guilty of

wrongdoing.

Now, the defendant has pleaded not guilty to the charges in the indictment. To convict

the defendant, the burden is on the government to prove the defendant's guilt on each element

on each charge beyond a reasonable doubt. This burden never shifts to the defendant for the

simple reason that the law presumes the defendant to be innocent and never imposes upon a

defendant in a criminal case the burden or duty of calling any witnesses or producing any

evidence.

In other words, the defendant starts with a clean slate and is presumed innocent on

each charge until such time, if ever, that you, as a jury, are satisfied that the government has

proven the defendant guilty of a given charge beyond a reasonable doubt.

The defendant did not testify in this case and under our Constitution, she has no

obligation to testify or to present any other evidence, because it is the government's burden to

prove the defendant guilty beyond a reasonable doubt. That burden remains with the

government throughout the entire trial and never shifts to a defendant. The defendant is never

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required to prove that she is not guilty. You may not attach any significance to the fact that

the defendant did not testify. No adverse inference against her may be drawn by you because

she did not take the witness stand. You may not consider this against the defendant in any

way in your deliberations in the jury room.

With these instruction in mind, let's turn to the charges against the defendant, as

contained in the indictment. I remind you that an indictment is not evidence. It merely

describes the charges made against the defendant. It's an accusation. It may not be considered

by you as evidence of guilt of the defendant.

In reaching your determination of whether or not the government has proven the

defendant guilty beyond a reasonable doubt, you may only consider the evidence introduced

or lack of evidence and only what is charged in the indictment.

The defendant has denied that she is guilty of the charges set forth in the indictment.

The indictment contains two counts. Each count charges the defendant with a different crime.

You must consider each count separately and return a separate verdict of guilty or not guilty

for each. Whether you find the defendant guilty or not guilty as to one count should not affect

your verdict as to the other offense charged.

The defendant is not charged with committing any other crime other than the offenses

that are committed – that are set forth in the indictment. I want to emphasize to you now that

you are only to return a verdict as to the charges that are contained in the indictment.

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You have heard some witnesses testify that the defendant has character traits of law-

abidingness, charity and unconditional generosity. As I will describe to you momentarily, this

evidence is relevant only to the defendant's motive and therefore, her intent.

The government must prove beyond a reasonable doubt the defendant acted with

intent to obstruct the parental rights of Janet Jenkins which arose by court order. You may,

therefore, consider proof of the defendant's character traits in deciding whether the

government has proven the defendant's intent beyond a reasonable doubt. You may not,

however, consider evidence about a defendant's character for any other purpose.

The defendant has called witnesses who have testified to her reputation in the

community, to the character traits of law-abidingness, unconditional generosity and charity.

You are not to take this testimony as a witness's opinion as to whether or not the defendant

is guilty or not guilty. That question is for you alone to determine. You should, however,

consider this character evidence, together with all of the other facts and all the other evidence

in the case, in determining whether the defendant is guilty or not guilty of the charges.

Specifically, as I have instructed you a few moments ago, you may consider this

character evidence in your determination of the defendant's intent. Such character evidence

alone may indicate to you that it is improbable that the person with the reputation for law-

abidingness, unconditional generosity and charity would commit the offenses charged.

Accordingly, if after considering the questions of the defendant's reputation for these character

traits, you find a reasonable doubt that has been created, you must acquit her on those charges.

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On the other hand, if, after considering all the evidence, including the defendant's reputation,

you are satisfied beyond a reasonable doubt that she is guilty, you should not acquit her

merely because you believe he is a person of good reputation.

The defendant has called witnesses who may have also offered their opinion as to the

defendant has a character trait of law-abidingness, unconditional generosity and charity. The

instructions that I've just given to you as to the defendant's reputation apply equally here. You

are not to take the testimony regarding the witness's opinion of the defendant's character as

the defendant as the witness's opinion as to whether or not the defendant is guilty or not guilty.

Once again, that question is for you to determine. You should, however, consider this

character evidence, together with all the other facts and all the other evidence in the case in

determining whether the defendant is guilty or not guilty of the charges. Specifically, as I've

instructed you a few moments ago, you may consider this character evidence in your

determination of the defendant's intent. Accordingly, if after considering all the evidence,

including testimony about a defendant's character, law-abidingness, unconditional generosity

and charity, you find that a reasonable doubt is created, you must acquit her of those charges.

On the other hand, if after considering all of the evidence, including that of the defendant's

character of law-abidingness, generosity and charity, you are satisfied beyond a reasonable

doubt she is guilty, you should not acquit him merely because you believe her to be a person

of good character.

You may not draw any inference, favorable or unfavorable, towards the government

or the defendant from the fact that certain persons were not named in the defendant's

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indictment, or that certain persons were named as co-conspirators but not indicted. The

circumstances of these persons who were not indicted must play no part in your deliberations.

Whether a person should be named as a co-conspirator or indicted as the defendant is a matter

within the sole discretion of the United States Attorney and the Grand Jury. Therefore, you

may not consider it in any way in reaching your verdict as to the defendant on trial.

In reaching the verdict, you must bear in mind that the guilt is individual. Your verdict

as to the defendant must be determined separately with respect to her, solely on the evidence

or lack of evidence presented against her, without regard to the guilt or innocence of any other

person.

Now, as I have said a few times, that the government must prove the defendant's guilt

beyond a reasonable doubt and you've heard this from counsel many, many, many times. The

question, actually, is, what is a reasonable doubt? The words almost define themselves. It is a

doubt based upon reason and common sense. It is a doubt that a reasonable person has after

carefully weighing all the evidence or lack of evidence.

It is a doubt that would cause a reasonable person to hesitate to act in a matter of

importance in his or her personal life. Proof beyond a reasonable doubt must therefore be

proof of such a convincing character that a reasonable person would not hesitate to rely and

act upon it in the most important of his or her own affairs. A reasonable doubt is not a caprice

or a whim. It is not speculation or suspicion. It is not an excuse to avoid the performance of

an unpleasant duty and it is not sympathy.

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In a criminal case, the burden is at all times upon the government to prove guilt beyond

a reasonable doubt as to each crime charged. The law does not require the government to

prove guilt beyond all possible doubt. Proof beyond a reasonable doubt is sufficient to convict.

However, the burden never shifts to a defendant, which means that it's always the

government’s burden to prove each of the elements of the crimes charged beyond a reasonable

doubt. If, after fair and impartial consideration of all the evidence, you have a reasonable

doubt, it’s your duty to find the defendant not guilty. On the other hand, if, after fair and

impartial consideration of all of the evidence, you are satisfied of the government proved the

elements of the offense beyond a reasonable doubt, you should turn to the defendant’s

affirmative defense of fleeing an incident or pattern of domestic violence, which I will describe

after I describe the elements of the offense.

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REQUEST NO. 14 COUNT 1: THE INDICTMENT AND THE STATUTE

The defendant is charged with conspiracy to violate federal law. The Superseding

Indictment reads:

COUNT 1
(Conspiracy)
The Grand Jury Charges That:

From in or about September 2009 to in or about April 24, 2015, in the Western District

of New York, and elsewhere, the defendants, LISA MILLER, PHILIP ZODHIATES, and

TIMOTHY MILLER, did knowingly, willfully and unlawfully combine, conspire and agree

together and with Kenneth Miller and others, known and unknown to the Grand Jury, to

commit an offense against the United States, that is, to remove a child, I.M.J., from the

United States and to retain that child, who had been in the United States, outside the United

States, with intent to obstruct the lawful exercise of parental rights, in violation of Title 18,

United States Code, Section 1204.

Overt Acts

In order to effect the object of the conspiracy, the following acts were committed by

the defendants and others in the Western District of New York and elsewhere:

1. On or about September 21, 2009, defendant LISA MILLER, I.M.J., and defendant

PHILIP ZODHIATES travelled from Virginia to the Buffalo, New York, area.

2. On or about September 21, 2009, defendant PHILIP ZODHIATES had telephone

contact from the Buffalo, New York area with Kenneth Miller.

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3. On or about September 21, 2009, defendant PHILIP ZODIATES had telephone

contact from the Buffalo, New York area with an individual in Canada who had

agreed to help transport defendant LISA MILLER in Canada.

4. On or about September 22, 2009, defendant LISA MILLER and I.M.J. travelled

across the Rainbow Bridge from Niagara Falls, New York, to Canada.

5. On or about September 22, 2009, defendant PHILIP ZODIATES had telephone

contact from the Buffalo, New York area with an individual in Canada who helped

transport defendant LISA MILLER in Canada.

6. On or about September 22, 2009, defendant PHILIP ZODHIATES had telephone

contact from the Buffalo, New York area with Kenneth Miller.

All in violation of Title 18, United States Code, Section 371.

The relevant statute on this subject is 18 U.S.C. § 371. It provides:

If two or more persons conspire … to commit any offense against the United States …
, and one or more of such persons do any act to effect the object of the conspiracy,
each [is guilty of an offense against the United States].

1-19 Modern Federal Jury Instructions—Criminal, § 19.01

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REQUEST NO. 15 COUNT 1: PURPOSE OF THE STATUTE

In this case, the defendant is accused in Count 1of having been a member of a

conspiracy to violate federal law. A conspiracy is a kind of criminal partnership, a

combination or agreement of two or more persons to join together to accomplish some

unlawful purpose. The crime of conspiracy to violate a federal law is an independent offense.

It is separate and distinct from the actual violation of any specific federal laws, which the law

refers to as “substantive crimes.”

Congress has deemed it appropriate to make conspiracy, standing alone, a separate

crime even if the conspiracy is not successful. This is because collective criminal activity poses

a greater threat to the public’s safety and welfare than individual conduct, and increases the

likelihood of success of a particular criminal venture.

1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-2

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REQUEST NO. 16 COUNT 1: ELEMENTS OF CONSPIRACY

In order to satisfy its burden of proof with respect to Count 1, the government must

establish each of the following four essential elements beyond a reasonable doubt:

First, that two or more persons entered the unlawful agreement to remove a child from

the United States and to retain that child, who had been in the United States, outside the

United States with an intent to obstruct the lawful exercise of parental rights.

Second, that the defendant knowingly and willfully became a member of the

conspiracy.

Third, that one of the members of the conspiracy knowingly committed at least one of

the overt acts charged in the indictment.

And fourth, that the overt acts which you find to have been committed were

committed to further some objective of the conspiracy.

1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-3

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REQUEST NO. 17 COUNT 1: FIRST ELEMENT – EXISTENCE OF AGREEMENT

The first element which the government must prove beyond a reasonable doubt to

establish the offense of conspiracy is that two or more persons entered the unlawful agreement

charged in the indictment, namely an agreement to remove a child, I.M.J., from the United

States with intent to obstruct the lawful exercise of parental rights of Janet Jenkins or to retain

I.M.J., who had been in the United States, outside the United States, with intent to obstruct

the lawful exercise of parental rights of Janet Jenkins.

The parental rights at issue in the first alleged objective are Janet’s rights to visit I.M.J.

as that right was defined by the laws and courts of Vermont. Specifically, as of September 21,

2009, Vermont law gave Janet Jenkins the right to visit I.M.J..

It’s important to remember that by defining the term parental rights, I am only

instructing you, as a matter of law, on what parental rights Janet Jenkins had and when she

had those rights. I am not instructing you on what the defendant knew or intended with regard

to those rights. That is a question of fact that you must decide and which the government

must prove beyond a reasonable doubt.

The second alleged objective of the conspiracy is retaining I.M.J. outside of the United

States with intent to obstruct the lawful exercise of Janet Jenkins' parental rights. The parental

rights at issue in the second alleged objective are Janet’s rights, custodial rights, to I.M.J., as

those rights were defined by the laws and courts of Vermont. Specifically, on November 20,

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2009, a Vermont Family Court Judge transferred custody of I.M.J. to Janet Jenkins, effective

January 1st, 2010.

I emphasize again, I am only instructing you on what the parental rights were, the

rights that Janet Jenkins had and when she had those rights. What the defendant knew or

intended with regard to those rights is a question of fact which you must decide and which

the government must prove beyond a reasonable doubt.

To find the government has proven this first element of the conspiracy charged, you

must be unanimous that the government has proven beyond a reasonable doubt that an

agreement existed with regard to at least one of the two alleged unlawful objectives of the

conspiracy. In order for the government to satisfy this element, you need not find that the

alleged members of the conspiracy met together and entered into any express or formal

agreement. Similarly, you need not find that the alleged conspirators stated, in words or

writings, what the scheme was, its object or purpose or every precise detail of the scheme or

the means by which its object or purpose was to be accomplished. You may, of course, find

that the existence of an agreement to disobey or disregard the law has been established by

direct proof. However, since a conspiracy is, by its very nature, characterized by secrecy, you

may also infer its existence from the circumstances of the case and the conduct of the parties

involved. In a very real sense, then, in the context of conspiracy cases, actions often speak

louder than words. In this regard you may, in determining whether an agreement existed here,

consider the actions and statements of all those you find to have participated as proof that a

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common design existed on the part of the persons charged to act together for the

accomplishment of the unlawful purposes.

Adapted from 1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-4

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REQUEST NO. 18 COUNT 1: SECOND ELEMENT – MEMBERSHIP IN THE

CONSPIRACY

The second element which the government must prove beyond a reasonable doubt to

establish the offense of conspiracy is that the defendant acting knowingly, willfully and

voluntarily, became a member of the conspiracy.

If you are satisfied that the conspiracy charged in the indictment existed, you must

next ask yourselves who the members of that conspiracy were. In deciding whether the

defendant whom you are considering was, in fact, a member of the conspiracy, you should

consider whether the defendant knowingly and willfully joined the conspiracy. Did she

participate in it with knowledge of its unlawful purpose and with the specific intention of

furthering its business or objective as an associate or worker?

In that regard, it has been said that in order for a defendant to be deemed a participant

in a conspiracy, she must have had a stake in the venture or its outcome. You are instructed

that, while proof of a financial interest in the outcome of a scheme is not essential, if you find

that the defendant had such an interest, that is a factor which you may properly consider in

determining whether or not the defendant was a member of the conspiracy charged in the

indictment.

The defendant’s knowledge is a matter of inference from the facts proved. In that

connection, I instruct you that to become a member of the conspiracy, the defendant need not

have known the identity of each and every other member, nor need she have been apprised

of all their activities. Moreover, a defendant need not have been fully informed as to all the

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details, the scope of the conspiracy, in order to justify an inference of knowledge on her part.

Furthermore, a defendant need not have joined in all the conspirators’ unlawful objectives.

The extent of a defendant's participation has no bearing on the issue of a defendant's guilt. A

conspirator’s liability is not measured by the extent or the duration of her participation.

Indeed, each member may perform a separate and distinct act and may perform them at

different times. Some conspirators play major roles, while others play minor roles in a scheme.

An equal role is not what the law requires. In fact, even a single act may be sufficient to draw

a defendant within the ambit of the conspiracy.

I want to caution you, however, that the defendant’s mere presence at the scene of the

alleged crime does not, by itself, make her a member of the conspiracy. Similarly, mere

association with one or more members of the conspiracy does not automatically make the

defendant a member. A person may know or be friendly with a criminal without being a

criminal herself. Mere similarity of conduct or the fact that they have assembled together and

discussed common aims and interests does not necessarily establish proof of the existence of

a conspiracy.

I also want to caution you that mere knowledge or acquiescence, without participation

in the unlawful plan, is not sufficient. Moreover, the fact that the acts of the defendant,

without knowledge, merely happened to further the purpose or the objectives of a conspiracy

does not make the defendant a member. More is required under the law.

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What is necessary is that the defendant must have participated with knowledge of at

least some of the purposes or objectives of the conspiracy and with the intention of aiding in

the accomplishments of those unlawful ends. In sum, the defendant, with an understanding

of the unlawful character of the conspiracy, must have intentionally engaged, advised or

assisted with the purpose of furthering the illegal undertaking. She thereby becomes a

knowing and willing participant in the unlawful agreement, that is to say, a conspirator.

1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-6

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REQUEST NO. 19 COUNT 1: THIRD ELEMENT – COMMISSION OF OVERT ACT

The third element which the government must prove beyond a reasonable doubt to

establish the offense of conspiracy is that at least one of the overt acts charged in the

indictment was knowingly committed by at least one of the conspirators at or about the time

and place alleged.

The indictment charges that the following overt acts were committed in the Western

District of New York and elsewhere:

1. That on or about September 21, 2009, the defendant Lisa Miller and Philip Zodhiates

traveled from Virginia to the Buffalo, New York area;

2. That on or about September 21, 2009, Philip Zodhiates had telephone contact from

the Buffalo, New York area with Kenneth Miller;

3. That on or about September 21, 2009, the defendant, Philip Zodhiates had telephone

contact from the Buffalo, New York area with an individual in Canada who had

agreed to help transport Lisa Miller in Canada;

4. That on or about September 22, 2009, Lisa Miller and I.M.J. traveled across the

Rainbow Bridge from Niagara Falls, New York to Canada;

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5. That on or about September 22, 2009, Philip Zodhiates had telephone contact from

the Buffalo, New York area with an individual in Canada who helped transport Lisa

Miller in Canada;

6. That on or about September 22, 2009, Philip Zodhiates had telephone contact from

the Buffalo, New York area with Kenneth Miller.

Those are the overt acts that are set forth in the conspiracy count. In order for the

government to satisfy the element of a conspiracy charge, it's not required that all the overt

acts alleged in the indictment be proven. Similarly, you need not find the defendant herself

committed an overt act. It is sufficient for the government to show that one of the other

conspirators knowingly committed an overt act in furtherance of the conspiracy and such an

overt act becomes, in the eyes of the law, the act of all the members of the conspiracy. You

are further instructed that the overt act need not have been committed at precisely the time

alleged in the indictment. It is sufficient if you are convinced beyond a reasonable doubt that

it occurred at or about the time and place stated.

Finally, you must find that either the agreement was formed or that the overt act was

committed in the Western District of New York, which includes Niagara Falls, New York.

Adapted from 1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-7

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REQUEST NO. 20 COUNT 1: FOURTH ELEMENT – COMMISSION OF OVERT

ACT IN FUTHERANCE OF THE CONSPIRACY

The fourth and final element that the government must prove beyond a reasonable

doubt to prove the conspiracy charge is the overt act was committed for the purpose of

carrying out the unlawful agreement. In order for the government to establish this element, it

must be proved beyond a reasonable doubt that at least one overt act was knowingly and

willfully done by at least one conspirator in furtherance of some object or purpose of the

conspiracy.

As I previously instructed you, the indictment in this case alleges that the conspiracy

had two objectives; first, to remove a child, I.M.J., from the United States with intent to

obstruct the lawful exercise of Janet Jenkins’ parental rights and second, to retain I.M.J., who

had been in the United States, outside of the United States with the intent to obstruct the

exercise of Janet Jenkins' parental rights. In that regard, you should bear in mind that the

overt act standing alone may be an innocent, lawful act. Frequently, however, an apparently

innocent act sheds its harmless character if it is a step in carrying out, promoting, aiding or

assisting in a conspiratorial scheme. You are therefore instructed that the overt act does not

have to be an act which in and of it itself is criminal or constitutes an objective of the

conspiracy.

1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-8

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REQUEST NO. 21 COUNT 1: ACTS AND DECLARATIONS OF CO-

CONSPIRATORS

Now, I have admitted into evidence acts and statements of others because those acts

and statements were committed by persons who the government charges were co-conspirators

of the defendant. The reason for allowing this evidence to be received against the defendant

has to do with the nature of the crime of conspiracy. Conspiracy is often referred to as a

partnership in crime. Thus, as in other types of partnerships, when people enter into a

conspiracy to accomplish an unlawful end, each and every member becomes an agent of the

other conspirators in carrying out the conspiracy. Accordingly, the reasonably foreseeable

acts, declarations, statements and omissions of any member of the conspiracy, and in

furtherance of the common purpose of the conspiracy are deemed, under the law, to be the

acts of all the members and all the members are responsible for such acts, declarations,

statements and omissions. If you find beyond a reasonable doubt that the defendant was a

member of the conspiracy charged in the indictment, then any acts done or statements made

in furtherance of the conspiracy by persons also found by you to have been members of the

conspiracy may be considered against the defendant. This is so even if such acts were done

and statements were made in the defendant's absence and without her knowledge.

However, before you may consider the statements or acts of co-conspirators in

deciding the issue of the defendant’s guilt, you must first determine that the acts and

statements were made during the existence and in furtherance of the unlawful scheme. If the

acts were done or the statements made by someone who you do not find to have been a

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member of the conspiracy, or if they have not been done in furtherance of the conspiracy,

they may not be considered by you evidence against the defendant.

1-19 Modern Federal Jury Instructions-Criminal ¶ 19.02, No. 19-9

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REQUEST NO. 22 COUNTS 1 AND 2: THE INDICTMENT AND THE STATUTE

As noted above, the defendant is charged in Count 1 with conspiracy to remove I.M.J.

from the United States with the intent to obstruct the lawful exercise of parental rights of Janet

Jenkins and/or retain I.M.J. outside the United States with the intent to obstruct the lawful

exercise of parental rights of Janet Jenkins.

Count 2 charges a substantive offense of removing and aiding and abetting the removal

of I.M.J. from the United States. In other words, Count 2 charges the actual violation of the

International Kidnapping Crime Act, rather than the conspiracy to violate the Act.

Count 2 reads:

COUNT 2
(International Parental Kidnapping)
The Grand Jury Further Charges That:

On or about September 22, 2009, in the Western District of New York, and elsewhere,

the defendants, LISA MILLER, PHILIP ZODHIATES, and TIMOTHY MILLER, with

intent to obstruct the lawful exercise of parental rights, did knowingly remove, and aid and

abet the removal of, a child, I.M.J. from the United States.

Both Count 1 and Count 2 allege international parental kidnapping, all in violation

of Title 18, United States Code, Sections 1204 and 2.

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The relevant statute on this subject is Title 18, United States Code, section 1204, which

provides: Whoever removes a child from the United States with attempt to obstruct the lawful

exercise of parental rights shall be guilty of a crime.

Adapted from 2-42 Modern Federal Jury Instructions-Criminal ¶ 42.03, No. 42-16

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REQUEST NO. 23 COUNTS 1 AND 2: ELEMENTS OF THE OFFENSE

In order to prove the defendant guilty of the International Parental Kidnapping Act by

removing from the United States, the government must prove the following three elements

beyond a reasonable doubt: First, that I.M.J. was previously in the United States; second, that

the defendant took I.M.J. from the United States to another country and third, the defendant

acted with intent to obstruct the lawful exercise of the parental rights of Janet Jenkins.

Adapted from 2-42 Modern Federal Jury Instructions-Criminal ¶ 42.03, No. 42-17

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REQUEST NO. 24 COUNTS 1 AND 2: FIRST ELEMENT – CHILD PREVIOUSLY

RESIDED IN THE UNITED STATES

The first element the government must prove beyond a reasonable doubt is that the

I.M.J., was previously in the United States.

2-42 Modern Federal Jury Instructions-Criminal ¶ 42.03, No. 42-18

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REQUEST NO. 25 COUNTS 1 AND 2: THE SECOND ELEMENT – TAKING

CHILD FROM THE UNITED STATES OR RETAINING OUTSIDE THE UNITED
STATES

Second, what the government must prove beyond a reasonable doubt is that the

defendant took I.M.J. from the United States to another country. In order to prove this

element, the government must establish that the defendant moved the child from the United

States to another country and that the movement of the child from the United States had to

occur before the child reached the age of 16.

2-42 Modern Federal Jury Instructions-Criminal ¶ 42.03, No. 42-19

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REQUEST NO. 26 COUNTS 1 AND 2: THIRD ELEMENT – INTENT TO

OBSTRUCT PARENTAL RIGHTS

The third element that the government must prove beyond a reasonable doubt is that

the defendant acted with intent to obstruct the lawful exercise of Janet Jenkins’ parental rights.

The term parental rights means Janet Jenkins’ right to visit I.M.J., as the right was defined by

the law and courts of Vermont at the time I.M.J. was removed from the United States. It does

not matter whether the parental rights arose by court order, legally binding agreement of the

parties or by operation of law. As I previously stated, by defining the term parental rights, I’m

only instructing you, as a matter of law, on what the parental rights that Janet Jenkins had

and when she had those rights. I am not instructing you on what the defendant knew or

intended with regard to those rights. That is a question of fact that you must decide whether

the government has proven beyond a reasonable doubt.

To find the defendant acted with intent to obstruct the lawful exercise of parental

rights, you must find the defendant acted deliberately, with the purpose of interfering with

Janet Jenkins’ parental rights. You may consider all the evidence of the defendant's other acts

in determining whether the government has proven beyond a reasonable doubt that the

defendant acted with this intent.

Adapted from 2-42 Modern Federal Jury Instructions-Criminal ¶ 42.03, No. 42-20

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REQUEST NO. 27 COUNT 2: AIDING AND ABETTING

The indictment also alleges that the defendant aided and abetted in international

parental kidnapping. This is still Count 2. This is an alternative way of proving this. And

that’s for you to decide whether the government has proven it. The aiding and abetting statute,

Section 2(a) of Title 18 of the United States Code, provides that: Whoever commits an offense

against the United States or aids or abets or counsels, commands or induces or procures its

commission is punishable as a principal. Under the aiding and abetting statute, it's not

necessary for the government to show that the defendant herself physically committed the

crime for which she is charged with in order for the government to sustain its burden of proof

on Count 2. A person who aids or abets another to commit an offense is just as guilty of that

offense as if she committed it herself.

Accordingly, you may find the defendant guilty of international parental kidnapping

if you find beyond a reasonable doubt that the government has proven that another person

actually committed the offense of international parental kidnapping and the defendant aided

or abetted that person in the commission of the offense. As you can see, the first requirement

is that you find that another person has committed the crime of international parental

kidnapping. Obviously, no one can be convicted of aiding or abetting the criminal acts of

another if no crime was committed by the other person in the first place, but if you decide that

an international parental kidnapping occurred with respect to I.M.J., then you must consider

whether the defendant aided or abetted the commission of the crime.

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In order to aid or abet another to commit a crime, it is necessary that the defendant

knowingly associated herself, in some way, with the crime and that she participated in the

crime by doing some act to help make the crime succeed. To establish the defendant

knowingly associated herself with the crime of international parental kidnapping, the

government must establish that the defendant intended to obstruct Janet Jenkins' lawful

exercise of parental rights.

I have previously instructed you on how the government must prove intent to obstruct

the lawful exercise of parental rights as to Count 2 and that instruction applies equally in the

context of aiding and abetting. To establish the defendant participated in the commission of

international parental kidnapping, the government must prove that she engaged in some

affirmative conduct or overt act with a specific purpose of bringing about the crime. The mere

presence of a defendant where the crime is being committed, or even coupled with knowledge

of a defendant that a crime is being committed, or merely associating with others who were

committing the crime, is not sufficient to establish aiding and abetting.

One who has no knowledge that a crime is being committed or is about to be

committed or inadvertently does something that aids in the commission of a crime is not an

aider or abettor. An aider and abettor must know that the crime is being committed and act

in a way in which intended to bring about success of the criminal venture. To determine

whether the defendant aided or abetted the commission of the crime of international

kidnapping, ask yourselves the following questions: Did she participate in the crime charged

as something that she wished to bring about? Did she knowingly associate herself with the

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criminal venture? Did she seek, by her actions, to make the criminal venture succeed? If the

government has proven beyond a reasonable doubt that the defendant did these three things,

then she is an aider and abettor and therefore, guilty of the offense. If, on the other hand, your

answer to any one of these questions is no, then she is not an aider and abettor and you must

find her not guilty.

1-11 Modern Federal Jury Instructions-Criminal ¶ 11.01, No. 11-2

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REQUEST NO. 28 AFFIRMATIVE DEFENSE

If you find that the government has proven the elements of Count 1 and/or Count 2

beyond a reasonable doubt, you must turn to the defendant’s affirmative defense. The

defendant in this case has raised a defense that at the time of the removal of the child from

the United States and the maintaining of the child outside the United States, the defendant

was fleeing an incident or pattern of domestic violence.

I instruct you that it is a defense to the charges in the indictment that the defendant

was fleeing an incident or pattern of domestic violence if the defendant proves that this was

the case by a preponderance of evidence.

In order to prove this affirmative defense, the defendant must satisfy two elements:

1. The defendant must prove by a preponderance that Janet Jenkins committed an

incident or pattern of domestic violence; and

2. The defendant must prove by a preponderance that she removed I.M.J. from the

United States and maintained her outside the United States, as charged in Count One,

and removed I.M.J. from the United States, as charged in Count Two, because of this

incident or pattern of domestic violence.

Incidence means an occurrence. Pattern means more than one occurrence. Domestic

violence means a criminal offense that has as an element, the use or attempted use of physical

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force, or the threatened use of deadly weapon, committed by a current or former spouse,

parent, or guardian of the victim, by a person with whom the victim shares a child in common,

by a person who has been cohabiting with the victim as a spouse, parent, or guardian, or by

a person similarly situated to a spouse, parent, or guardian. The defendant has alleged that

Janet Jenkins committed the offense of ____, which requires proof that Janet Jenkins ___.

As I told you, the defendant has the burden of proving this defense by a preponderance

of evidence. To prove something by a preponderance of evidence means to prove only that it

is more likely true than not true. It is determined by considering all of the evidence and

deciding which evidence is more convincing. In determining whether the defendant has

proven this defense, you may consider the relevant evidence of witnesses, regardless of who

may have called them, and all the relevant exhibits received in evidence, regardless of who

may have produced them. If the evidence appears equally balanced, or you cannot say upon

which side it weighs heavier, you must resolve this question against the defendant. However,

it is important to remember that the fact that the defendant has raised this defense does not

relieve the government of the burden of proving all of the elements of the crimes charged as I

have defined them earlier. These are things that the government must prove beyond a

reasonable doubt.

Finally, you should consider this affirmative defense as to each of the two counts

separately. That is, if the defendant has met her burden of proof with respect to both counts

you must find the defendant not guilty. But if you find that the defendant has met her burden

of proof with regard to only one count, you should find her not guilty on that count but you

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should find her guilty of the other count. If the defendant has failed to meet her burden of

proof on either count, you should convict on both counts.

Adapted from 2-42, Modern Federal Jury Instructions, ¶ 42.01, No. 42-22

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REQUEST NO. 29 CONCLUDING REMARKS

Now, as you consider the two charges that I have just discussed, it is important for you

to remember that you're being asked to decide whether or not the government has proven the

defendant guilty beyond a reasonable doubt. You are not being asked whether any other

persons have been proven guilty. Your verdict must be based solely on the evidence or lack

of evidence as to Ms. Miller in regard with the instructions and without regard to whether the

guilt of other persons has or has not been proven.

The question of possible punishment of a defendant is of no concern to the jury. It

should not, in any sense, enter into or influence your deliberations. The duty of imposing the

sentence rests solely and exclusively on the Court. Your function is to weigh the evidence in

the case and to determine whether or not a defendant is guilty beyond a reasonable doubt

solely on the basis of such evidence. Under your oath as jurors, you cannot allow

consideration of the punishment which may be imposed upon a defendant, if she is convicted,

to influence you in your verdict in any way or in any sense enter into your deliberations.

Now, during your deliberations, you should not discuss or provide any information

about the case with anyone. During deliberations you should not discuss or provide any

information about the case with anyone other than your fellow jurors. This includes, as we

talked about generally, use of your phone, don't do any research, follow any link or et cetera.

You are to find your verdict based upon the evidence presented here.

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When you get into the jury room, ladies and gentlemen and before you deliberate --

before you begin your deliberations, you should select someone to be your foreperson. The

foreperson will be responsible for signing all communications to the Court and for handing

them to the marshal during your deliberations. You're about to go to the jury room and begin

your deliberations.

I will be sending to you all the exhibits to you in the jury room for your consideration

and also, those photographs of the witnesses. I have found that it's very helpful for a jury, in

deliberations, to see the witnesses because as you can see there, there's been probably maybe

15 to 20 witnesses and it's just easier to remember who the witnesses are. You can see the

photograph of the person who testified and the name under the photograph. If you want any

testimony of any witnesses read back, that can be done, but please remember that it's not

always easy to locate what you might want, so you'll have to be as specific as possible if you

want any testimony read back.

Your request for testimony, in fact, any communication with the Court, should be

made to me in writing, signed by your foreperson, put in the envelope and given to the

marshal or the security officer. I will respond to any questions or requests you have as

promptly as I can, either in writing or by having you return to the courtroom so I can speak

with you in person.

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In any event, do not tell me or anyone else how the jury stands on the issue of the

defendant's guilt until after a unanimous verdict is reached and you are asked to return to the

court with your verdict.

I'll also be sending a copy of the indictment to you in the jury room. It is for you to

have during your deliberations. You may use it to read the crimes the defendant has been

charged with committing. You are reminded, however, that an indictment is merely an

accusation. It is not to be used by you as proof of any conduct charged.

I'll also be sending a copy of these instructions to you on the law in order to assist you

in your deliberations. You are to apply these instructions to the facts as you determine them

to be. I remind you, however, that you are to read these instructions as a whole and should

not single out any one instruction as alone stating the law.

A verdict form has also been prepared for your use, for you to report. The marshal will

take the form to the jury room and you will have to reach a unanimous agreement as to what

your verdict should be. You will have the foreperson fill it in, sign it, date it and state on the

verdict form that upon which you have unanimously agreed upon. You should then inform

the Court by a note, again sealed, that you have reached a verdict.

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