Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 1 of 86
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------x
`
`UNITED STATES OF AMERICA
`
`- v. -
`
`SCOTT TUCKER and
`TIMOTHY MUIR,
`
`:
`
`:
`
`:
`
`:
`
`Defendants.
`
`:
`-------------------------------------------------------x
`
`S1 16 Cr. 91 (PKC)
`
`THE GOVERNMENT’S PROPOSED REQUESTS TO CHARGE
`
`PREET BHARARA
`United States Attorney for the
`Southern District of New York
`Attorney for the United States of America
`
`Niketh Velamoor
`Hagan Scotten
`Sagar K. Ravi
`Assistant United States Attorneys
`Of Counsel
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 2 of 86
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------x
`
`UNITED STATES OF AMERICA
`
`- v. -
`
`SCOTT TUCKER and
`TIMOTHY MUIR,
`
`:
`
`:
`
`:
`
`:
`
`Defendants.
`
`:
`-------------------------------------------------------x
`
`S1 16 Cr. 91 (PKC)
`
`GOVERNMENT’S PROPOSED REQUESTS TO CHARGE
`
`Pursuant to Rule 30 of the Federal Rules of Criminal Procedure, the Government
`
`respectfully requests that the Court include the following in its instructions to the jury.
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 3 of 86
`
`Table of Contents
`
`
`REQUEST NO. 1 General Requests ............................................................................................. 5
`
`REQUEST NO. 2 The Indictment ................................................................................................ 6
`
`REQUEST NO. 3 Summary of the Indictment ............................................................................. 3
`
`REQUEST NO. 4 Multiple Counts and Defendants ..................................................................... 5
`
`REQUEST NO. 5 Conspiracy Generally ...................................................................................... 7
`
`REQUEST NO. 6 Count One: RICO Conspiracy....................................................................... 12
`
`REQUEST NO. 7 Counts Two Through Four: Substantive RICO Charges............................... 18
`
`REQUEST NO. 8 Counts One Through Four: RICO – Knowledge of State Laws Not Required
` .......................................................................................................................................................... 21
`
`REQUEST NO. 9 Counts One Through Four: RICO – Relevant Law Pertaining to Tribal
`Sovereign Immunity ......................................................................................................................... 22
`
`REQUEST NO. 10 Count Five: Conspiracy to Commit Wire Fraud ........................................... 23
`
`REQUEST NO. 11 Count Six: Wire Fraud .................................................................................. 24
`
`REQUEST NO. 12 Count Six: Elements of the Offense .............................................................. 25
`
`REQUEST NO. 13 Count Six: First Element – Existence of Scheme or Artifice to Defraud ...... 26
`
`REQUEST NO. 14 Count Six: Second Element – Participation in Scheme with Intent to Defraud
` .......................................................................................................................................................... 28
`
`REQUEST NO. 15 Count Six: Third Element – Uses of Interstate Wires ................................... 31
`
`REQUEST NO. 16 Count Six: Aiding and Abetting .................................................................... 34
`
`REQUEST NO. 17 Counts Five and Six: Good Faith .................................................................. 38
`
`REQUEST NO. 18 Counts Five and Six: Wire Fraud No Ultimate Harm ................................... 40
`
`REQUEST NO. 19 Counts Five and Six: Negligence of Victim Not a Defense .......................... 41
`
`REQUEST NO. 20 Count Seven: Consipracy to Commmite Mondey Laundering ..................... 42
`
`REQUEST NO. 21 Count Eight: Promotion Money Laundering Elements ................................. 44
`
`REQUEST NO. 22 Count Eight: First Element ............................................................................ 45
`
`REQUEST NO. 23 Count Eight: Second Element ....................................................................... 47
`
`REQUEST NO. 24 Count Eight: Third Element .......................................................................... 48
`
`REQUEST NO. 25 Count Eight: Fourth Element ........................................................................ 49
`
`REQUEST NO. 26 Count Nine: Concealment Money Laundering Elements .............................. 50
`
`REQUEST NO. 27 Count Nine: Fourth Element ......................................................................... 51
`
`REQUEST NO. 28 Counts Eight and Nine: Aiding and Abetting ............................................... 53
`
`REQUEST NO. 29 Counts Ten Through Fourteen: Truth in Lending Act Violations General ... 54
`
`REQUEST NO. 30 Venue ............................................................................................................ 56
`
`REQUEST NO. 31 Conscious Avoidance .................................................................................... 58
`
`REQUEST NO. 32 Particular Investigative Techniques Not Required ........................................ 60
`
`REQUEST NO. 33 Defendant’s Testimony ................................................................................. 61
`
`REQUEST NO. 34 Defendants’ Right Not To Testify ................................................................. 62
`
`REQUEST NO. 35 Law Enforcement Witnesses ......................................................................... 63
`
`REQUEST NO. 36 Cooperating Witnesses .................................................................................. 64
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 4 of 86
`
`REQUEST NO. 37 Character Witnesses ...................................................................................... 67
`
`REQUEST NO. 38 Stipulations of Fact ....................................................................................... 68
`
`REQUEST NO. 39 Stipulations of Testimony ............................................................................. 69
`
`REQUEST NO. 40 Variance in Amounts ..................................................................................... 70
`
`REQUEST NO. 41 Limiting Instruction: Similar Act Evidence .................................................. 71
`
`REQUEST NO. 42 Uncalled Witnesses: Equally Available ........................................................ 73
`
`REQUEST NO. 43 Charts and Summaries: Admitted As Evidence ............................................ 74
`
`REQUEST NO. 44 Summary Charts: Not Admitted As Evidence .............................................. 75
`
`REQUEST NO. 45 Preparation of Witnesses ............................................................................... 76
`
`REQUEST NO. 46 Redaction of Evidentiary Items ..................................................................... 77
`
`REQUEST NO. 47 Improper Considerations: Race, Religion, National Origin, Sex, or Age ..... 78
`
`REQUEST NO. 48 Persons Not On Trial ..................................................................................... 79
`
`REQUEST NO. 49 Sympathy: Oath as Juror ............................................................................... 80
`
`REQUEST NO. 50 Conclusion ..................................................................................................... 81
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 5 of 86
`
`REQUEST NO. 1
`
`General Requests
`
`The Government respectfully requests that the Court give its usual instructions to the jury
`
`on the following matters:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`k.
`
`l.
`
`Function of Court and Jury
`
`Indictment not Evidence
`
`Statements of Court and Counsel Not Evidence
`
`Burden of Proof and Presumption of Innocence
`
`Rulings on Evidence and Objections
`
`Reasonable Doubt
`
`Jury’s Recollection Controls
`
`Government Treated Like Any Other Party
`
`Definitions and Examples of Direct and Circumstantial Evidence
`
`Credibility of Witnesses
`
`Interest in Outcome
`
`Inferences
`
`m.
`
`Right to See Exhibits and Have Testimony Read During Deliberations
`
`n.
`
`o.
`
`p.
`
`Punishment Is Not to Be Considered by the Jury
`
`Verdict of Guilt or Innocence Must be Unanimous
`
`Duties of Foreperson and Return of Verdict Form
`
`1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 6 of 86
`
`REQUEST NO. 2
`
`The Indictment
`
`The defendant is formally charged in an Indictment. As I instructed you at the outset of
`
`this case, the Indictment is a charge or accusation. It is not evidence. The Indictment in this case
`
`contains fourteen counts against SCOTT TUCKER and TIMOTHY MUIR, the defendants.
`
`Before you begin your deliberations, you will be provided with a copy of the Indictment
`
`containing these charges. Therefore, I will not read the entire Indictment to you at this time.
`
`Rather, I will first summarize the offenses charged in the Indictment. Then I will explain in
`
`detail the elements of the offenses.
`
`2
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 7 of 86
`
`REQUEST NO. 3
`
`Summary of the Indictment
`
`Count One of the Indictment charges that from at least in or about 1997 until at least in or
`
`about August 2013, defendants SCOTT TUCKER and TIMOTHY MUIR agreed or conspired
`
`together and with others to conduct or to participate in the conduct of the affairs of an enterprise,
`
`specifically the Tucker Payday Lending Organization, through the collection of unlawful debt.
`
`Counts Two, Three and Four of the Indictment charge that from at least in or about 2003
`
`(or, in the case of Count Four, 2005) until at least in or about August 2013, defendants SCOTT
`
`TUCKER and TIMOTHY MUIR, the defendants, and others committed the actual crime of
`
`conducting or participating in the conduct of the affairs of an enterprise, that is the Tucker
`
`Payday Lending Organization, through the collection of unlawful debt.
`
`Count Five charges that, from at least in or about 2004 through in or about August 2013,
`
`SCOTT TUCKER and TIMOTHY MUIR, the defendants, conspired together and with others to
`
`commit wire fraud by misrepresenting the terms and lenders of the loans extended by the Tucker
`
`Payday Lending Organization.
`
`Count Six charges that, from at least in or about 2004 through in or about August 2013,
`
`SCOTT TUCKER and TIMOTHY MUIR, the defendants, committed the actual crime of wire
`
`fraud by misrepresenting the terms and lenders of the loans extended by the Tucker Payday
`
`Lending Organization.
`
`Count Seven charges that, from at least in or about 2004 through in or about August
`
`2013, SCOTT TUCKER and TIMOTHY MUIR, the defendants, conspired together and with
`
`others to commit money laundering, and charges that this conspiracy to commit money
`
`3
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 8 of 86
`
`laundering had two objects: (i) to conduct financial transactions with the proceeds of the wire
`
`fraud charged in Count Six in order to promote that wire fraud, and (ii) to conduct financial
`
`transactions with the proceeds of the same wire fraud in order to conceal and disguise the nature,
`
`location, source, ownership, or control of the proceeds of that wire fraud.
`
`Count Eight charges that from at least in or about 2004 through in or about August 2013,
`
`SCOTT TUCKER and TIMOTHY MUIR, the defendants, and others, committed the actual
`
`crime of money laundering by conducting financial transactions with the proceeds of the wire
`
`fraud charged in Count Six in order to promote that wire fraud.
`
`Count Nine charges that from at least in or about 2004 through in or about August 2013,
`
`SCOTT TUCKER and TIMOTHY MUIR, the defendants, and others, committed the actual
`
`crime of money laundering by conducting financial transactions with the proceeds of the wire
`
`fraud charged in Count Six in order to conceal and disguise the nature, location, source,
`
`ownership, and control of the proceeds of that wire fraud.
`
`Counts Ten through Fourteen charge that from at least in or about 2004 through in or
`
`about 2012, SCOTT TUCKER and TIMOTHY MUIR, the defendants, and others, gave false and
`
`inaccurate information, and failed to provide information they were required to provide under
`
`federal law, and used a chart or table so as to consistently understate the annual percentage rate
`
`of loans, by making disclosures that materially understated the true cost of loans extended by
`
`each of the Tucker Payday Lenders.
`
`
`
`4
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 9 of 86
`
`REQUEST NO. 4
`
`Multiple Counts and Defendants
`
`A few observations are in order following my summary of the Indictment. As you could
`
`tell from the summary, the Indictment contains several charges against each defendant.
`
`In your deliberations and in reaching your verdict, you must consider each count
`
`separately, and you must weigh the evidence as to each charged defendant separately for each
`
`count in which that defendant is charged, and determine whether the Government has carried its
`
`burden of proof with respect to that defendant and that charge. I will provide you with a verdict
`
`form, and you will need to report the results of your deliberations on each count on the verdict
`
`form. To do so, you will need to keep track during your deliberations of which defendant and
`
`which charge you are considering and the legal elements applicable to the charge.
`
`In a few moments, I will instruct you on the elements of each of the charged offenses. I
`
`will provide you with all relevant definitions and all relevant legal principles. In other words, I
`
`will provide you with all the instructions you need to decide whether the Government has proven
`
`beyond a reasonable doubt each of the necessary elements on each of the charges in the
`
`Indictment for each defendant.
`
`As I indicated earlier, the Indictment contains fourteen counts. Each count constitutes a
`
`separate offense or crime. You must consider each count of the Indictment separately, and you
`
`must return a separate, unanimous verdict as to each count and to each defendant separately.
`
`You may only find a defendant guilty of a particular count if the Government has proven each
`
`element of the offense charged with respect to that count beyond a reasonable doubt against that
`
`5
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 10 of 86
`
`defendant. Your verdict as to one count or one defendant should not control your decision as to
`
`any other count or any other defendant.
`
`During your deliberations, you will have a copy of the Indictment to reference as you
`
`deem necessary. You also will have a copy of my instructions.
`
`I make these observations to ensure that you understand the structure of the charges
`
`against each defendant and your obligation to consider the charges against each defendant
`
`separately and under each statute and theory of liability alleged in the Indictment.
`
`Before I describe the specific elements of the alleged offenses, I should draw your attention to
`
`the fact that it does not matter if the Indictment charges that a specific act occurred on or about a
`
`certain date, and the evidence indicates that, in fact, it was on another date. It is also not
`
`essential that the Government prove that a conspiracy started and ended on any specific date.
`
`The law requires only a substantial similarity between the dates alleged in the Indictment and the
`
`dates established by the evidence. Further, it is not required that the defendant you are
`
`considering committed a charged crime throughout the entire time period charged in a particular
`
`count; it is sufficient for the Government to prove beyond a reasonable doubt that at some time
`
`during the period charged in the Indictment, the defendant participated in the charged crime.
`
`Hon. Leonard B. Sand, Modern Federal Jury Instructions, Instr. 3-
`6. Honorable Michael B. Mukasey in United States v. Bello, 91 Cr.
`571 (MBM), aff’d mem., 990 F.2d 622 (2d Cir. 1993);
`Honorable Robert W. Sweet in United States v. Antonio Guerrero
`et al., 09 Cr. 339 (S.D.N.Y. 2010).
`
`
`
`6
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 11 of 86
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`REQUEST NO. 5
`
`Conspiracy Generally
`
`Now, I’m going to begin by charging you on the law of conspiracy, and you will apply
`
`this instruction where any charge requires proof of a conspiracy and a defendant’s membership
`
`in that conspiracy.
`
`A conspiracy is kind of a criminal partnership, an agreement of two or more persons to
`
`join together to accomplish some unlawful purpose. The crime of conspiracy, which simply
`
`means agreement 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.” Indeed, you may find the defendant guilty of the crime of conspiracy even if you find
`
`that the substantive crimes which were the objects of the conspiracy were never committed.
`
`Congress has deemed it appropriate to make conspiracy, standing alone, a separate crime even if
`
`the conspiracy is not successful.
`
`To sustain its burden of proof with respect to an allegation of conspiracy, the
`
`Government must prove beyond a reasonable doubt the following:
`
`First, the existence of the conspiracy charged in the Indictment; that is, the existence of
`
`any agreement or understanding to commit the unlawful objects of each conspiracy.
`
`Second, the Government must prove that the defendant knowingly became a member of
`
`the conspiracy with intent to further its illegal purpose; that is, with the intent to commit the
`
`object of the charged conspiracy.
`
`I’ll separately discuss each of these elements.
`
`7
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 12 of 86
`
`
`
`
`
`
`In order to show that a conspiracy existed, the Government must prove that two or more
`
`people in some way or manner, spoken or unspoken, came to a mutual understanding to violate
`
`the law and to accomplish an unlawful plan. If you find that two or more persons came to an
`
`understanding, express or implied, to violate the law and to accomplish an unlawful plan, then
`
`the Government will have sustained its burden of proof as to this element of conspiracy.
`
`When people enter into a conspiracy, they become agents and partners of one another in
`
`carrying out the conspiracy. In determining whether there has been an unlawful agreement as
`
`alleged, you may consider the acts and conduct of the alleged coconspirators that were done to
`
`carry out the apparent criminal purpose.
`
`In determining whether such an agreement existed, you may consider direct as well as
`
`circumstantial evidence. The old adage, actions speak louder than words, applies here. Often the
`
`only evidence that is available with respect to the existence of a conspiracy is that of
`
`disconnected acts and conduct on the part of the individual conspirators, when taken together and
`
`considered as a whole. However, these acts in conduct may warrant the inference that a
`
`conspiracy existed
`
`The object of a conspiracy is the illegal purpose the coconspirators agree or hope to
`
`achieve. As I mentioned, the Indictment here charges several different conspiracies with
`
`different objects. The second element is that the defendant willfully and knowingly became a
`
`member of the conspiracy. The Government must prove that beyond a reasonable doubt. The
`
`terms willfully and knowingly mean that you must be satisfied beyond a reasonable doubt that in
`
`8
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 13 of 86
`
`joining the conspiracy, the defendant knew what he was doing, and that he did it deliberately and
`
`voluntarily.
`
`An act is done willfully and knowingly if it is done deliberately and purposely; that is, the
`
`defendant’s actions must have been his conscious objective, rather than a product of mistake or
`
`accident or mere negligence or some other innocent reason. A defendant’s knowledge is a matter
`
`of inference from the facts proved.
`
`The defendant need not have known the identities of each and every other member of the
`
`conspiracy, nor need he have been apprised of all of their activities. A defendant need not have
`
`been fully informed as to all of the details or the scope of the conspiracy in order to justify an
`
`inference of knowledge on his part.
`
`Furthermore, the defendant need not have joined in all of the conspiracy’s unlawful
`
`objectives for you to find that he joined the conspiracy. The extent of the defendant’s
`
`participation in the conspiracy has no bearing on the defendant’s guilt. He may have joined it at
`
`any time in its progress, and he may still be held responsible for all that was done before he
`
`joined and all that was done during the conspiracy’s existence while he was a member, as long as
`
`you find that he joined the conspiracy with knowledge as to its general scope and purpose.
`
`Each member of the conspiracy may perform separate and distinct acts and may perform
`
`them at different times. Some conspirators play major roles, while others play minor parts in a
`
`scheme. An equal role is not what the law requires. Even a single act may be sufficient to draw
`
`a defendant into the conspiracy.
`
`A defendant’s mere presence at the scene of the alleged crime does not, by itself, make
`
`him a member of the conspiracy. A person may know, assemble with or be friendly with one or
`
`
`
`9
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 14 of 86
`
`more members of a conspiracy without being a conspirator himself. Mere similarity of conduct
`
`or the fact that a defendant may have discussed common aims and interest does not necessarily
`
`establish proof of the existence of a conspiracy.
`
`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 purposes or objectives of the conspiracy does not make the defendant a member.
`
`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 accomplishment of those
`
`unlawful ends.
`
`Once you find a conspiracy existed and that the defendant was a member, you may take
`
`into account against the defendant any acts or statements made by any of his coconspirators,
`
`even though such acts or statements were not made in the presence of the defendant or even if
`
`they were made without his knowledge.
`
`Once a conspiracy is formed, it is presumed to continue until either its objective is
`
`accomplished or there is some affirmative act of termination by the members. So too once a
`
`person is found to be a member of a conspiracy, he is presumed to continue as a member of the
`
`conspiracy until the conspiracy is terminated, unless it is shown by some affirmative proof that
`
`the person withdrew and disassociated himself from it.
`
`In sum, a defendant with an understanding of the unlawful character of the conspiracy
`
`must have intentionally engaged, advised or assisted in it for the purpose of furthering the illegal
`
`undertaking. He, thereby, becomes a knowing and willing participant in an unlawful agreement,
`
`that is to say, a conspirator.
`
`
`
`10
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 15 of 86
`
`Adapted from the charge given by this Court in United States v.
`Fusco, 09 Cr. 1239 (PKC) (2009).
`
`
`
`11
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 16 of 86
`
`REQUEST NO. 6
`
`Count One: RICO Conspiracy
`
`Count One charges both defendants with conspiring to conduct or participate in the
`
`conduct of the affairs of an enterprise through the collection of unlawful debt, in violation of the
`
`federal racketeering laws commonly referred to as “RICO.” RICO laws make it a crime to
`
`conspire to conduct and participate, directly and indirectly, in the affairs of an enterprise through
`
`collection of unlawful debt.
`
`Let me stop here and note that the words racketeer and racketeering have certain
`
`connotations and implications. However, the use of that term in the law and in this courtroom
`
`should not be regarded as having anything to do with your determination of whether the guilt of
`
`the defendant has been proven. The term is used by Congress to describe the statute.
`
`In order to convict the defendant you are considering of a RICO conspiracy, the
`
`Government must prove beyond a reasonable doubt each of the following elements:
`
`First, that the enterprise alleged in the Indictment, referred to as the Tucker
`
`Payday Lending Organization, existed.
`
`Second, that the Tucker Payday Lending Organization affected interstate
`
`commerce.
`
`Third, that the defendant was employed by or associated with the Tucker Payday
`
`Lending Enterprise.
`
`Fourth, that the defendant willfully and knowingly conspired with at least one
`
`other person to participate in the conduct of the affairs of that enterprise through the collection of
`
`unlawful debt.
`
`12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 17 of 86
`
`Count One: First Element
`
`The first element the Government must prove beyond a reasonable doubt is that the
`
`enterprise alleged in the Indictment existed.
`
`Such an enterprise does not have to have a particular name, or for that matter, have any
`
`name at all. Nor must it be registered or licensed as an enterprise. It does not have to be a
`
`commonly recognized legal entity, such as a corporation, a trade union, a partnership, or the like.
`
`Thus, the enterprise may be a group of people informally associated together for a common
`
`purpose of engaging in a course of conduct. This group may be organized for a legitimate and
`
`lawful purpose, or it may be organized for an unlawful purpose. In addition to having a common
`
`purpose, this group of people must have a core of personnel who function as a continuing unit.
`
`Furthermore, the enterprise must continue to exist in substantially similar form throughout the
`
`period charged. This does not mean that the membership must remain exactly identical, but the
`
`enterprise must have a recognizable core that continues during a substantial time period within
`
`the time frame charged in the Indictment.
`
`In summary, if you find that there was, in fact, a group of people characterized by
`
`(1) a common purpose or purposes, (2) an ongoing formal or informal organization or structure,
`
`and (3) core personnel who function as a continuing unit during a substantial time period within
`
`the time frame charged in the Indictment, then you may find that an enterprise existed.
`
`Count One: Second Element
`
`The second element the Government must prove beyond a reasonable doubt with regard
`
`to the conspiracy charged in Count One is that the Tucker Payday Lending Organization was
`
`engaged in or had an effect upon interstate commerce. Interstate commerce includes the
`
`13
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 18 of 86
`
`movement of goods, services, money, and individuals between states. The Government must
`
`prove that the Tucker Payday Lending Organization engaged in interstate commerce or that its
`
`activities affected interstate commerce. All that is necessary is that the Tucker Payday Lending
`
`Organization, or the collection of an unlawful debt through which the affairs of the Tucker
`
`Payday Lending Organization were conducted, affected interstate commerce in some minimal
`
`way. The effect need not be substantial; even a minimal effect is enough. Nor is it necessary
`
`that the effect on interstate commerce have been an adverse or negative effect. It is not also
`
`necessary to prove that the acts of the defendant you are considering affected interstate
`
`commerce as long as the acts of the Tucker Payday Lending Organization itself had such an
`
`effect. Finally, the Government is not required to prove that the defendant knew he was
`
`affecting interstate commerce. All that is necessary is that you find beyond a reasonable doubt
`
`that the activities of the Tucker Payday Lending Organization affected interstate commerce in
`
`some minimal way.
`
`Count One: Third Element
`
`The third element the Government must prove beyond a reasonable doubt with respect to
`
`the conspiracy charged in Count One is that the defendant you are considering was associated
`
`with or was employed by the Tucker Payday Lending Organization. Here, the defendants are
`
`alleged to have been members of the Tucker Payday Lending Organization. It is not required
`
`that the defendant you are considering have been associated with or employed by the enterprise
`
`for the entire time that the Tucker Payday Lending Organization existed. It is required, however,
`
`that the Government prove beyond a reasonable doubt that at some time during the period
`
`14
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 19 of 86
`
`charged in the Indictment, the defendant was associated with or was employed by the Tucker
`
`Payday Lending Organization
`
`The Government must also show that the defendant’s association with the Tucker Payday
`
`Lending Organization was knowing – that is, made with knowledge of the existence of the
`
`Tucker Payday Lending Organization through a general awareness of some of its purposes,
`
`activities, and personnel. A person cannot be associated with or employed by an enterprise if he
`
`does not know of the enterprise’s existence or the nature of its activities. Thus, in order to prove
`
`this element, the Government must prove beyond a reasonable doubt that the defendant was
`
`connected to the Tucker Payday Lending Organization in some meaningful way, and that the
`
`defendant knew of the existence of the Tucker Payday Lending Organization and of the general
`
`nature of its activities.
`
`Count One: Fourth Element
`
`The fourth element the Government must prove beyond a reasonable doubt with respect
`
`to the conspiracy charged in Count One is that the defendant you are considering knowingly and
`
`willfully became a member of the conspiracy. In order to meet its burden of proof, the
`
`Government must show that the defendant agreed to participate, directly or indirectly, in the
`
`affairs of the Tucker Payday Lending Organization through collection of an unlawful debt.
`
`For purposes of this case, unlawful debt means a debt which is unenforceable under State
`
`or Federal law in whole or in part as to principal or interest because of the laws relating to usury,
`
`and which was incurred in connection with the business of lending money or a thing of value at a
`
`rate usurious under State or Federal law, where the usurious rate is at least twice the enforceable
`
`rate.
`
`15
`
`
`
`
`
`

`

`Case 1:16-cr-00091-PKC Document 127 Filed 01/18/17 Page 20 of 86
`
`Usury is the lending of money at an illegally high rate of interest. Usury laws can differ
`
`from one state to another, as can enforceable rates of interest. In New York, the enforceable rate
`
`of interest on consumer loans is no more than 25 percent per year, and loans above that rate are
`
`unenforceable.1 Some states other than New York also have interest rate limits on consumer
`
`loans that are either thirty-six percent per year or less. These states include Connecticut,
`
`Maryland, Massachusetts, Montana, New Hampshire, New Jersey, Pennsylvania, North Carolina,
`
`Ohio, Vermont, and Washington, D.C.2
`
`
`
`The focus of this element is on the defendant’s agreement to participate in the objective
`
`of the Tucker Payday Lending Organization to collect an unlawful debt, and not on the
`
`defendant’s agreement to commit any individual criminal acts. To prove the defendant’s
`
`agreement, the Government need not prove that the defendant actually engaged in the collection
`
`o