Case 3:18-cr-04683-GPC Document 427-2 Filed 05/17/22 PageID.6543 Page 1 of 5
`
`United States v. Bychak, et al. – Preliminary Jury Instruction Comparison Chart
`
`
`Jury
`Instruction
`1.2 Preamble
`
`Prop.
`Def.
`Instr. No. 1
`
`
`Defense
`Proposal
`
`
`Mr. Bychak, Mr. Manoogian, Mr. Qayyum and
`Mr. Pacas have pled not guilty to the charges and
`are presumed innocent unless and until the jury
`unanimously finds that the government has
`proven each of them guilty beyond a reasonable
`doubt. In addition, Mr. Bychak, Mr. Manoogian,
`Mr. Qayyum and Mr. Pacas have the right to
`remain silent and never have to prove innocence
`or to present any evidence.
`
`[Modified Pattern Instr. Modifications as
`indicated.]
`
`of
`
`1.2
`Elements
`Conspiracy
`
`Prop.
`Def.
`Instr. No. 1
`
`
`
`Ninth Circuit Model Jury Instruction 11.5
`[Withdrawal from Conspiracy]
`
`
`[Defendants cite to a Pattern Instruction, but not
`for the elements of the conspiracy charge.]
`
`of
`
`1.2
`Elements
`18 USC
`§1037(d)(5)
`
`Def. Prop.
`Instr. No. 1
`
`
`To convict Mr. Bychak, Mr. Manoogian, Mr.
`Qayyum, and Mr. Pacas of electronic mail fraud
`in violation of
`the CAN SPAM Act,
`the
`government must prove, beyond a reasonable
`doubt, that:
`
`
`Government
`Proposal
`
`
`Mr. Bychak, Mr. Manoogian, Mr. Qayyum and
`Mr. Pacas have pled not guilty to the charges and
`are presumed innocent unless and until the
`government has proven each of them guilty
`beyond a reasonable doubt. In addition, Mr.
`Bychak, Mr. Manoogian, Mr. Qayyum and Mr.
`Pacas have the right to remain silent and never
`have to prove innocence or to present any
`evidence.
`
`
`[Pattern Instr.]
`
`
`Ninth Circuit Model Jury Instruction 11.1
`[Elements of Conspiracy]
`
`
`
`[Pattern Instr.]
`
`
`The defendant is charged in Counts 6 through 10
`with electronic mail fraud, in violation of Section
`1037(a)(5) of Title 18 of the United States Code.
`For the defendant to be found guilty of that charge,
`the government must prove each of the following
`elements beyond a reasonable doubt:
`
`
`Legal
`Basis
`
`
`2021
`9th Cir.
`Model
`Crim. J.
`Instr. 1.2
`
`
`2021 9th Cir
`Model Jury
`Instruction
`11.1
`
`
`18 U.S.C.
`§1037(a)(5),
`and
`(b)(2)(D)
`
`United
`States v.
`
`Preliminary Jury Instruction Comparison Chart
`United States v. Bychak, et al., 18cr4683-GPC
`
`
`

`

`Case 3:18-cr-04683-GPC Document 427-2 Filed 05/17/22 PageID.6544 Page 2 of 5
`
`First, each defendant knowingly and falsely
`represented themselves to be the registrant and the
`legitimate successor in interest to the registrant of
`five or more Internet Protocol Addresses;
`
`Second, each defendant intentionally initiated the
`transmission of multiple commercial electronic
`mail messages from such addresses;
`Third, the volume of commercial electronic email
`messages exceeded 2,500 during any 24-hour
`period, 25,000 during any 30-day period, and
`250,000 during and one year period;
`
`Fourth, there was no right for the recipient of the
`electronic mails to decline to receive additional
`electronic mail from the same source, and
`
`Fifth, each defendant knowingly used, or caused
`to be used, electronic mails affecting interstate
`commerce.
`
`[No Pattern Instr. Highlighted portions are
`language objected to by the government.]
`
`Sending unsolicited commercial electronic mail
`messages, colloquially known as “spam,” is not
`illegal. Sending advertisements by email is an
`established and worthwhile device in the toolbox
`of accepted marketing practices, one which
`Congress did not intend to ban.
`
`
`
`
`
`
`Preliminary Jury Instruction Comparison Chart
`United States v. Bychak, et al., 18cr4683-GPC
`
`
`Prop.
`Def.
`Instr. No. 2
`
`Sending Spam
`is Not Illegal
`
`
`Kilbride,
`584 F. 3d
`1240 (9th
`Cir. 2009)
`
`
`FRE 403
`
`(1) The defendant knowingly falsely represented
`himself to be the registrant or the legitimate
`successor in interest to the registrant of five or
`more Internet Protocol addresses;
`
`(2) The defendant intentionally initiated the
`transmission of multiple commercial electronic
`mail messages from those Internet Protocol
`addresses;
`
`(3) The volume of the electronic mail messages
`transmitted in furtherance of the offense exceeded
`2,500 during any 24-hour period, 25,000 during
`any 30-day period or 250,000 during any 1-year
`period; and
`
`(4) The electronic mail messages were transmitted
`in or affecting interstate commerce.
`
`
`
`
`[No Pattern Instr.]
`
`The government objects to defendants’ proposed
`instructionNeither the jury instructions in United
`States v. Kilbride, 2007 WL 7570562 (May 31,
`2007), nor the opinion itself, 507 F.Supp.2d 1051
`(D.Az. 2007) contain any instruction remotely
`resembling defendants’ proposed instruction. The
`habeas petition at issue in Livingston v. United
`States, 2020 WL 5525536 (D.N.J. Sept. 15, 2020)
`similarly offers no
`justification
`for
`this
`instruction.
`
`
`

`

`
`2021 9th Cir
`Model Jury
`Instruction
`1.5
`
`Case 3:18-cr-04683-GPC Document 427-2 Filed 05/17/22 PageID.6545 Page 3 of 5
`
`[No pattern instruction.]
`
`1.5
`and
`Direct
`Circumstantial
`Evidence
`
`Prop.
`Def.
`Instr. No. 3
`
`
`Evidence may be direct and circumstantial. Direct
`evidence is direct proof of a fact, such as
`testimony of a witness about what that witness
`personally saw or heard or did. Circumstantial
`evidence is indirect evidence, that is, proof of one
`or more facts from which one can find another
`fact. You are to consider both direct and
`circumstantial evidence. The law makes no
`distinction between direct or circumstantial
`evidence. It is for you to decide how much weight
`to give to any evidence
`
`Before you may rely on circumstantial evidence
`to conclude that a fact necessary to prove a
`defendant guilty has been proved, you must be
`convinced that the government has proved each
`fact essential
`to
`that conclusion beyond a
`reasonable doubt. Also, before you may rely on
`circumstantial evidence to find the defendant
`guilty, you must be convinced that the only
`reasonable
`conclusion
`supported
`by
`the
`circumstantial evidence is that the defendant is
`guilty. If you can draw two or more reasonable
`conclusions from the circumstantial evidence, and
`one of those reasonable conclusions points to the
`defendant’s innocence and another to guilty, you
`must accept the one that points to innocence.
`However, when
`considering
`circumstantial
`evidence, you must accept only reasonable
`conclusions and reject any that are unreasonable.
`
`Preliminary Jury Instruction Comparison Chart
`United States v. Bychak, et al., 18cr4683-GPC
`
`
`The court instructs the jury regarding the elements
`of the offense charged, and should refrain from
`instructing regarding other provisions of law.
`
`
`Evidence may be direct and circumstantial. Direct
`evidence is direct proof of a fact, such as
`testimony of a witness about what that witness
`personally saw or heard or did. Circumstantial
`evidence is indirect evidence, that is, proof of one
`or more facts from which one can find another
`fact.
`
`You are to consider both direct and circumstantial
`evidence. The law makes no distinction between
`direct or circumstantial evidence. It is for you to
`decide how much weight to give to any evidence.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`[Pattern Instr.]
`
`

`

`1.7
`Credibility of
`Witnesses
`
`Prop.
`Def.
`Instr. No. 4
`
`
`2021 9th Cir
`Model Jury
`Instruction
`1.7
`
`Case 3:18-cr-04683-GPC Document 427-2 Filed 05/17/22 PageID.6546 Page 4 of 5
`
`Instr. Modifications as
`
`[Modified Pattern
`indicated.]
`
`
`In deciding the facts of this case, you may have to
`decide which testimony to believe and which
`testimony not to believe. You may believe
`everything a witness says, or part of it, or none of
`it.
`
`In considering the testimony of any witness, you
`may take into account:
`(1) the witness’s opportunity and ability to see or
`hear or know the things testified to;
`(2) the witness’s memory;
`(3) the witness’s manner while testifying;
`(4) the witness’s interest in the outcome of the
`case, if any:
`(5) the witness’s bias or prejudice, such as
`whether the witness is receiving any benefits for
`their testimony, if any;
`(6) whether other evidence contradicted the
`witness’s testimony;
`(7) the reasonableness of the witness’s testimony
`in light of all the evidence;
`(8) whether
`the witness made any prior
`inconsistent statements; and
`(9) any other factors that bear on believability.
`
`You must avoid bias, conscious or unconscious,
`based on a witness’s race, color, religious beliefs,
`national ancestry, sexual orientation, gender
`identity, gender or economic circumstances in
`your determination of credibility
`
`
`
`In deciding the facts of this case, you may have to
`decide which testimony to believe and which
`testimony not to believe. You may believe
`everything a witness says, or part of it, or none of
`it.
`
`In considering the testimony of any witness, you
`may take into account:
`(1) the witness’s opportunity and ability to see or
`hear or know the things testified to;
`(2) the witness’s memory;
`(3) the witness’s manner while testifying;
`(4) the witness’s interest in the outcome of the
`case, if any:
`(5) the witness’s bias or prejudice;
`(6) whether other evidence contradicted the
`witness’s testimony;
`(7) the reasonableness of the witness’s testimony
`in light of all the evidence; and
`(8) any other factors that bear on believability.
`
`You must avoid bias, conscious or unconscious,
`based on a witness’s race, color, religious beliefs,
`national ancestry, sexual orientation, gender
`identity, gender or economic circumstances in
`your determination of credibility.
`
`The weight of the evidence as to a fact does not
`necessarily depend on the number of witnesses
`who testify. What is important is how believable
`the witnesses were, and how much weight you
`think their testimony deserves.
`
`Preliminary Jury Instruction Comparison Chart
`United States v. Bychak, et al., 18cr4683-GPC
`
`
`

`

`Case 3:18-cr-04683-GPC Document 427-2 Filed 05/17/22 PageID.6547 Page 5 of 5
`
`The weight of the evidence as to a fact does not
`necessarily depend on the number of witnesses
`who testify. What is important is how believable
`the witnesses were, and how much weight you
`think their testimony deserves.
`
`[Modified Pattern
`indicated.]
`
`
`Instr. Modifications as
`
`
`
`
`
`
`[Pattern Instr.]
`
`
`
`Preliminary Jury Instruction Comparison Chart
`United States v. Bychak, et al., 18cr4683-GPC
`
`
`