Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 1 of 30 PageID #:941
`FILED
`JANUARY 19, 2023
`Honorable Manish S. Shah
`United States District Court
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`UNITED STATES OF AMERICA
`
`Plaintiff,
`
`v.
`
`CHRISTOPHER KLUNDT and DAVID
`SARGENT,
`
`Defendants.
`
`No. 22 CR 15
`
`Judge Manish S. Shah
`
`JURY INSTRUCTIONS
`
`
`FILED
`JANUARY 19, 2023
`Honorable Manish S. Shah
`United States District Court
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`UNITED STATES OF AMERICA
`
`Plaintiff,
`
`v.
`
`CHRISTOPHER KLUNDT and DAVID
`SARGENT,
`
`Defendants.
`
`No. 22 CR 15
`
`Judge Manish S. Shah
`
`JURY INSTRUCTIONS
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`
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 2 of 30 PageID #:942
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`Members of the jury, I will now instruct you on the law that you must follow
`in deciding this case. I will give you a copy of these instructions to use in the jury
`room. You must follow all of my instructions about the law, even if you disagree with
`them. This includes the instructions I gave you before the trial, any instructions I
`gave you during the trial, and the instructions I am giving you now.
`
`As jurors, you have two duties. Your first duty is to decide the facts from the
`evidence that you saw and heard here in court. This is your job, not my job or anyone
`else’s job.
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`Your second duty is to take the law as I give it to you, apply it to the facts, and
`decide if the government has proved the defendant guilty beyond a reasonable doubt.
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`You must perform these duties fairly and impartially. Do not let sympathy,
`prejudice, fear, or public opinion influence you. In addition, do not let any person’s
`race, color, religion, national ancestry, or gender influence you.
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`You must not take anything I said or did during the trial as indicating that I
`have an opinion about the evidence or about what I think your verdict should be.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 3 of 30 PageID #:943
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`The charges against the defendants are in a document called an indictment.
`You will have a copy of the indictment during your deliberations.
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`The indictment in this case charges that the defendants committed the crimes
`of conspiracy to commit insider trading, willfully engaging in insider trading, and
`securities fraud. The defendants have pled not guilty to the charges.
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`The indictment is simply the formal way of telling the defendants what crimes
`they are accused of committing. It is not evidence that the defendants are guilty. It
`does not even raise a suspicion of guilt.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 4 of 30 PageID #:944
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`Each defendant is presumed innocent of each and every one of the charges.
`This presumption continues throughout the case,
`including during your
`deliberations. It is not overcome unless, from all the evidence in the case, you are
`convinced beyond a reasonable doubt that the particular defendant you are
`considering is guilty as charged.
`
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`The government has the burden of proving each defendant’s guilt beyond a
`reasonable doubt. This burden of proof stays with the government throughout the
`case.
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` defendant is never required to prove his innocence. He is not required to
`produce any evidence at all.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 5 of 30 PageID #:945
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`You must make your decision based only on the evidence that you saw and
`heard here in court. Do not consider anything you may have seen or heard outside of
`court, including anything from the newspaper, television, radio, the Internet, social
`media, or any other source.
`
`The evidence includes only what the witnesses said when they were testifying
`under oath, the exhibits that I allowed into evidence, and the stipulations that the
`lawyers agreed to. A stipulation is an agreement that certain facts are true or that a
`witness would have given certain testimony.
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`Nothing else is evidence. The lawyers’ statements and arguments are not
`evidence. If what a lawyer said is different from the evidence as you remember it, the
`evidence is what counts. The lawyers’ questions and objections likewise are not
`evidence.
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` A
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` lawyer has a duty to object if he thinks a question is improper. If I sustained
`objections to questions the lawyers asked, you must not speculate on what the
`answers might have been.
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`If, during the trial, I struck testimony or exhibits from the record, or told you
`to disregard something, you must not consider it.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 6 of 30 PageID #:946
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`Give the evidence whatever weight you decide it deserves. Use your common
`sense in weighing the evidence, and consider the evidence in light of your own
`everyday experience.
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`People sometimes look at one fact and conclude from it that another fact exists.
`This is called an inference. You are allowed to make reasonable inferences, so long as
`they are based on the evidence.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 7 of 30 PageID #:947
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`You may have heard the terms “direct evidence” and “circumstantial evidence.”
`Direct evidence is evidence that directly proves a fact. Circumstantial evidence is
`evidence that indirectly proves a fact.
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`You are to consider both direct and circumstantial evidence. The law does not
`say that one is better than the other. It is up to you to decide how much weight to
`give to any evidence, whether direct or circumstantial.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 8 of 30 PageID #:948
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`Do not make any decisions simply by counting the number of witnesses who
`testified about a certain point.
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`You may find the testimony of one witness or a few witnesses more persuasive
`than the testimony of a larger number. You need not accept the testimony of the
`larger number of witnesses.
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`What is important is how truthful and accurate the witnesses were and how
`much weight you think their testimony deserves.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 9 of 30 PageID #:949
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`A defendant has an absolute right not to testify. You may not consider in any
`way the fact that a defendant did not testify. You should not even discuss it in your
`deliberations.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 10 of 30 PageID #:950
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`Part of your job as jurors is to decide how believable each witness was, and how
`much weight to give each witness’s testimony. You may accept all of what a witness
`says, or part of it, or none of it.
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`Some factors you may consider include:
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`the intelligence of the witness;
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`the witness’s ability and opportunity to see, hear, or know the
`things the witness testified about;
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`the witness’s memory;
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`the witness’s demeanor;
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`whether the witness had any bias, prejudice, or other reason to
`lie or slant the testimony;
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`the truthfulness and accuracy of the witness’s testimony in light
`of the other evidence presented; and
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`inconsistent or consistent statements or conduct by the witness.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 11 of 30 PageID #:951
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`It is proper for an attorney to interview any witness in preparation for trial.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 12 of 30 PageID #:952
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`You have heard witnesses, namely, R. Kevin Barrett and Joseph Jinmoon
`Bernstein, who gave opinions and testimony about options contracts and stocks. You
`do not have to accept these witnesses’ opinions or testimony. You should judge these
`witnesses’ opinions and testimony the same way you judge the testimony of any other
`witness. In deciding how much weight to give to these opinions and testimony, you
`should consider the witnesses’ qualifications, how they reached their opinions and
`conclusions, and the factors I have described for determining the believability of
`testimony.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 13 of 30 PageID #:953
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`Certain summaries and charts were admitted in evidence. The underlying
`documents are available to you so you may determine whether the summaries and
`charts are accurate. It is up to you to decide how much weight to give to the
`summaries and charts.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 14 of 30 PageID #:954
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`Certain slides or demonstrative exhibits were shown to you during the
`testimony of Mr. Barrett and Mr. Bernstein. Those demonstrative exhibits are not
`themselves evidence or proof of any facts, so you will not have those exhibits during
`your deliberations.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 15 of 30 PageID #:955
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`If you have taken notes during the trial, you may use them during
`deliberations to help you remember what happened during the trial. You should use
`your notes only as aids to your memory. The notes are not evidence. All of you should
`rely on your independent recollection of the evidence, and you should not be unduly
`influenced by the notes of other jurors. Notes are not entitled to any more weight than
`the memory or impressions of each juror.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 16 of 30 PageID #:956
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`The indictment charges that the crimes happened “on or about” certain dates.
`The government must prove that the crimes happened reasonably close to the dates.
`The government is not required to prove that the crimes happened on those exact
`dates.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 17 of 30 PageID #:957
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`The defendants have been accused of more than one crime. The number of
`charges is not evidence of guilt and should not influence your decision.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 18 of 30 PageID #:958
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`Even though the defendants are being tried together, you must consider each
`defendant separately. Your decision concerning one defendant, whether it is guilty or
`not guilty, should not influence your decision concerning the other defendant.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 19 of 30 PageID #:959
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`Count One of the indictment charges defendants with conspiracy to commit
`insider trading. In order for you to find a defendant guilty of this charge, the
`government must prove each of the three following elements beyond a reasonable
`doubt:
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`1. The conspiracy as charged in Count One existed;
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`2. The defendant knowingly became a member of the conspiracy with an
`intent to advance the conspiracy; and
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`3. One of the conspirators committed an overt act in an effort to advance a
`goal of the conspiracy.
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`A “conspiracy” is an express or implied agreement between two or more persons
`to commit a crime, in this case: willfully engaging in “insider trading.” A conspiracy
`may be proven even if its goals were not accomplished. In deciding whether the
`charged conspiracy existed, you may consider all of the circumstances, including the
`words and acts of each of the alleged participants.
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`An “overt act” is any act done to carry out a goal of the conspiracy. The
`government is not required to prove all of the overt acts charged in the indictment.
`The overt act may itself be a lawful act.
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`If you find from your consideration of all the evidence that the government has
`proved each of these elements beyond a reasonable doubt as to the defendant you are
`considering, then you should find that defendant guilty of Count One.
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`If, on the other hand, you find from your consideration of all the evidence that
`the government has failed to prove any one of these elements beyond a reasonable
`doubt as to the defendant you are considering, then you should find that defendant
`not guilty of Count One.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 20 of 30 PageID #:960
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`To be a member of a conspiracy, a defendant does not need to join it at the
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`beginning, and he does not need to know all of the other members or all of the means
`by which the illegal goals of the conspiracy were to be accomplished. The government
`must prove beyond a reasonable doubt that the defendant you are considering was
`aware of the illegal goals of the conspiracy and knowingly joined the conspiracy.
`
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`In deciding whether a defendant joined the charged conspiracy, you must base
`your decision only on what that defendant did or said. To determine what that
`defendant did or said, you may consider that defendant’s own words or acts. You may
`also use the words or acts of other persons to help you decide what the defendant did
`or said.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 21 of 30 PageID #:961
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`Counts Two through Four of the indictment charge the defendants with
`willfully engaging in insider trading. In order for you to find a defendant guilty of
`willfully engaging in insider trading, the government must prove each of the three
`following elements beyond a reasonable doubt:
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`1.
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`That in connection with the purchase or sale of a security, the defendant
`committed “insider trading” with the intent to defraud; and
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`The defendant acted willfully; and
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`The defendant knowingly used, or caused to be used, the Internet, which
`is a means and instrumentality of interstate commerce, in furtherance
`of the fraudulent conduct. You must find that a defendant knew the
`Internet use would actually occur, or that a defendant knew that it
`would occur in the ordinary course of business, or that a defendant knew
`facts from which that use could reasonably have been foreseen. In
`furtherance of fraudulent conduct means to carry out or attempt to carry
`out the insider trading.
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`2.
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`3.
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`If you find from your consideration of all the evidence that the government has
`proved each of these elements beyond a reasonable doubt as to the charge and
`defendant you are considering, then you should find that defendant guilty of that
`charge.
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`If, on the other hand, you find from your consideration of all the evidence that
`the government has failed to prove any one of these elements beyond a reasonable
`doubt as to the charge and defendant you are considering, then you should find that
`defendant not guilty of that charge.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 22 of 30 PageID #:962
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`Counts Five through Seven charge the defendants with securities fraud.
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`In order for you to find a defendant guilty of securities fraud, the government
`must prove each of the four following elements beyond a reasonable doubt:
`
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`1.
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`2.
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`3.
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`4.
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`there was a scheme to defraud as charged in the indictment, specifically,
`“insider trading”; and
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`the defendant knowingly executed the scheme; and
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`the defendant acted with the intent to defraud; and
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`the scheme was in connection with any security of an issuer with a class
`of securities registered under Section 12 of the Securities Exchange Act
`of 1934 or that is required to file reports under Section 15(d) of the
`Securities Exchange Act of 1934.
`If you find from your consideration of all the evidence that the government has
`proved each of these elements beyond a reasonable doubt as to the charge and
`defendant you are considering, then you should find that defendant guilty of that
`charge.
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`If, on the other hand, you find from your consideration of all the evidence that
`the government has failed to prove any one of these elements beyond a reasonable
`doubt as to the charge and defendant you are considering, then you should find that
`defendant not guilty of that charge.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 23 of 30 PageID #:963
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`Stock and stock options are securities.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 24 of 30 PageID #:964
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`“Insider trading” requires proof beyond a reasonable doubt that:
`
`A corporate insider, or tipper, obtained material, non-public information
`under a duty of trust and confidence to keep that information
`confidential. Information is “material” if there is a substantial likelihood
`that a reasonable investor would have considered it significant in
`deciding whether to purchase or sell securities. Information is non-
`public if it is not available to the public through sources such as press
`releases, Securities and Exchange Commission filings, analyst reports,
`magazines, newspapers, television, radio, websites, Internet chat rooms,
`or online message boards. To constitute non-public information,
`information must be specific and more private than general rumor; and
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`In violation of that duty of trust and confidence, the insider disclosed
`the material, non-public information to an individual, or tippee, so that
`the tippee could trade using the information; and
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`The tipper personally benefitted in some way, directly or indirectly, from
`the disclosure of the material, non-public information; and
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`The tippee received the material, non-public information and knew that
`the information had been disclosed in violation of a duty of trust and
`confidence; and
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`The tippee knew that the tipper personally benefitted in some way,
`directly or indirectly, from the disclosure of the material, non-public
`information; and
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`The tippee used the material, non-public information to purchase
`securities using a means and instrumentality of interstate commerce, in
`this case, the Internet.
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`24
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 25 of 30 PageID #:965
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`A tipper’s personal benefit need not be pecuniary in nature. You may find a
`personal benefit for a tipper if the relationship between the tipper and tippee suggests
`that the tip was made with the intent to benefit the particular recipient or was made
`as a gift of confidential information to a trading friend or relative.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 26 of 30 PageID #:966
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`A person acts “knowingly” if he realizes what he is doing and is aware of the
`nature of his conduct, and does not act through ignorance, mistake, or accident. In
`deciding whether a defendant acted knowingly, you may consider all of the evidence,
`including what that defendant did or said.
`
` A
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` person acts with “intent to defraud” if he acts knowingly and with the intent
`to deceive or cheat in order to cause a gain of money or property to the defendant or
`another.
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` person acts “willfully” if he acts knowingly and with the intent to do
`something that he knows is against the law. The government is not required to prove
`that the defendant knew that his actions violated any particular law.
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` A
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 27 of 30 PageID #:967
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`In deciding your verdict, you should not consider the possible punishment for
`the defendants. If you decide that the government has proved a defendant guilty
`beyond a reasonable doubt, then it will be my job to decide on the appropriate
`punishment.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 28 of 30 PageID #:968
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`Once you are all in the jury room, the first thing you should do is choose a
`foreperson. The foreperson should see to it that your discussions are carried on in an
`organized way and that everyone has a fair chance to be heard. You may discuss the
`case only when all jurors are present.
`
`Once you start deliberating, do not communicate about the case or your
`deliberations with anyone except other members of your jury. You may not
`communicate with others about the case or your deliberations by any means. This
`includes oral or written communication, as well as any electronic method of
`communication, such as phone, computer, text messaging, instant messaging, the
`Internet, social media, or any other method of communication.
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`If you need to communicate with me while you are deliberating, send a note
`through the court security officer. The note should be signed by the foreperson, or by
`one or more members of the jury. To have a complete record of this trial, it is
`important that you do not communicate with me except by a written note. I may have
`to talk to the lawyers about your message, so it may take me some time to get back
`to you. You may continue your deliberations while you wait for my answer. Please be
`advised that transcripts of trial testimony are not available to you. You must rely on
`your collective memory of the testimony.
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`If you send me a message, do not include the breakdown of any votes you may
`have conducted. In other words, do not tell me that you are split 6–6, or 8–4, or
`whatever your vote happens to be.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 29 of 30 PageID #:969
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`Verdict forms have been prepared for you. You will take these forms with you
`to the jury room.
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`[Read the verdict forms.]
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`When you have reached unanimous agreement, your foreperson will fill in,
`date, and sign the verdict forms. Each of you will sign it.
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`Advise the court security officer once you have reached a verdict. When you
`come back to the courtroom, I will read the verdicts aloud.
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`Case: 1:22-cr-00015 Document #: 80 Filed: 01/19/23 Page 30 of 30 PageID #:970
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`The verdict must represent the considered judgment of each juror. Your
`verdict, whether it is guilty or not guilty, must be unanimous.
`
`You should make every reasonable effort to reach a verdict. In doing so, you
`should consult with each other, express your own views, and listen to your fellow
`jurors’ opinions. Discuss your differences with an open mind. Do not hesitate to re-
`examine your own view and change your opinion if you come to believe it is wrong.
`But you should not surrender your honest beliefs about the weight or effect of
`evidence just because of the opinions of your fellow jurors or just so that there can be
`a unanimous verdict.
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`The twelve of you should give fair and equal consideration to all the evidence.
`You should deliberate with the goal of reaching an agreement that is consistent with
`the individual judgment of each juror.
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`You are impartial judges of the facts. Your sole interest is to determine
`whether the government has proved its case beyond a reasonable doubt.
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`30
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