USA V Calk Doc # 255-8

Case 1:19-cr-00366-LGS Document 255-8 Filed 07/13/21 Page 1 of 28
Court Exhibit No. 8
JURY INSTRUCTIONS
July 12, 2021
United States v. Stephen Calk

19-cr-366
COURT DRAFT – July 8, 2021

TABLE OF CONTENTS
Page
GENERAL INTRODUCTORY instructions 3

A. Introductory Remarks 3
B. Role of the Jury 3
C. Equality of the Parties 4
D. Presumption of Innocence 4
E. Proof Beyond a Reasonable Doubt 5
F. The Nature of the Evidence 6
G. Direct and Circumstantial Evidence 6
H. Rulings on Evidence and Objections 8
I. Credibility of Witnesses 8
J. Prior Perjury 10
K. Sympathy: Oath as Juror 10
L. Duty Not to Consider Possible Punishment 11
M. Duty To Deliberate And Reach A Unanimous Verdict 11
SUBSTANTIVE INSTRUCTIONS 12
A. Summary of the Charge 12
B. Count One: Financial Institution Bribery [18 U.S.C. § 215(a)(2)] 13
Element #1 – Defendant Was a Financial Institution 13
Element #2 – Solicited or Accepted Something of Value 14
Element #3- Corrupt Intent To Be Influenced 14
Element #4 – Value Greater Than $1,000 15
C. Count Two: Conspiracy 16
Element #1- Existence of the Conspiracy 17
Element #2 – Membership in the Conspiracy 18
Element #3 – Overt Act 19
D. Venue 20
FINAL GENERAL INSTRUCTIONS 21

A. Stipulations 21
B. Law Enforcement and Government Employee Witnesses 22
C. OCC Testimony 22
D. Witnesses Testifying Pursuant to Grant of Immunity 22
E. Persons Not on Trial 23
F. Preparation of Witnesses 23
G. Uncalled Witnesses -- Equally Available or Unavailable to Each Side 24
H. Defendant’s Right Not to Testify [If Applicable] 24
I. Defendant’s Testimony [If Applicable] 25
J. Use of Electronic Communications 25
K. Summary Exhibits 26
L. Excerpts and Redactions 26
M. Closing Arguments 27
GENERAL INTRODUCTORY INSTRUCTIONS
A. Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case. We have
reached the point where you are about to undertake your final function as jurors. You have paid
careful attention to the evidence, and I am confident that you will act together with fairness and
impartiality to reach a just verdict in this case.
My duty at this point is to instruct you on the law. It is your duty to accept these
instructions of law and to apply them to the facts as you determine them, just as it has been my
duty to preside over the trial and to decide what testimony and evidence were proper under the
law for your consideration.
On these legal matters, you must take the law as I give it to you. If any attorney or
witness has stated a legal principle different from any that I state to you in my instructions, it is
my instructions that you must follow. You are to consider these instructions together as a whole;
in other words, you are not to isolate or give undue weight to any particular instruction.
To the extent there are any differences between these instructions and the preliminary
instructions I gave you at the beginning of trial, the instructions I am giving you now control,
meaning that these instructions are the ones you must follow in your deliberations.
B. Role of the Jury1
As members of the jury, you are the sole and exclusive judges of the facts. You pass
upon the evidence. You determine the credibility of the witnesses. You determine the reliability
of the evidence. You resolve such conflicts as there may be in the testimony. You draw
whatever reasonable inferences you decide to draw from the facts as you have determined them,
1
Adapted from the charge delivered in United States v. Saunders, No. 19 Cr. 679 (S.D.N.Y. May 6, 2021) (LGS).
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and you determine the weight of the evidence or lack of evidence. It is your sworn duty, and you
have taken the oath as jurors, to determine the facts and to follow the law as I give it to you. You
must not substitute your own notions or opinions of what the law is or ought to be.
C. Equality of the Parties2
I remind you that in reaching your verdict, you are to perform your duty of finding the
facts without bias or prejudice as to any party. You must remember that all parties stand as
equals before a jury in the courts of the United States. You must also remember that it would be
improper for you to allow any feelings you might have about the nature of the crimes charged to
interfere with your decision-making process.
The fact that the prosecution is brought in the name of the United States does not entitle
the government or its witnesses to any greater consideration than that accorded to any other
party. By the same token, the government is entitled to no less consideration. The government
and Mr. Calk stand as equals at the bar of justice. Your verdict must be based solely on the
evidence or the lack of evidence.
D. Presumption of Innocence3
Now, I will instruct you on the presumption of innocence and the government’s burden of
proof in this case. Mr. Calk has pleaded not guilty. In so doing, he has denied every allegation
against him. As a result of Mr. Calk’s plea of not guilty, the burden is on the prosecution to
prove Mr. Calk’s guilt beyond a reasonable doubt. This burden never shifts to Mr. Calk for the
simple reason that the law never imposes upon a defendant in a criminal case the burden or duty
of calling any witness or producing any evidence.
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The law presumes Mr. Calk to be innocent of the charges against him. I therefore instruct
you that Mr. Calk is to be presumed by you to be innocent throughout your deliberations. Mr.
Calk began the trial here with a clean slate. This presumption of innocence alone requires you to
acquit Mr. Calk unless you as jurors are unanimously convinced beyond a reasonable doubt of
Mr. Calk’s guilt, after a careful and impartial consideration of all the evidence in this case. If the
prosecution fails to sustain its burden as to Mr. Calk, then you must find him not guilty. This
presumption was with Mr. Calk when the trial began, remains with him even now as I speak to
you, and will continue with him during your deliberations unless and until you are convinced that
the prosecution has proven the elements of each offense beyond a reasonable doubt.
E. Proof Beyond a Reasonable Doubt4
Now, the next question is, what is reasonable doubt? It is a doubt that a reasonable
person has after carefully weighing all of the evidence or 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 is 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.
In a criminal case, the burden is at all times upon the prosecution to prove guilt beyond a
reasonable doubt. The law does not require that the prosecution prove guilt beyond all possible
doubt; rather, proof beyond a reasonable doubt is sufficient to convict. The burden never shifts
to Mr. Calk, which means that it is always the prosecution’s burden to prove each of the
elements of the crimes charged against Mr. Calk beyond a reasonable doubt. Even though Mr.
Calk presented evidence in his defense, it is not his burden to prove himself innocent.
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If, after fair and impartial consideration of all the evidence, or the lack of evidence, you
are satisfied of the guilt of Mr. Calk beyond a reasonable doubt, then you must convict Mr. Calk.
On the other hand, if after fair and impartial consideration of all the evidence, you have a
reasonable doubt as to the either of the charges you are considering as to Mr. Calk, then you
must acquit Mr. Calk on that charge.
F. The Nature of the Evidence5
In determining the facts, you must rely upon your own recollection of the evidence.
Evidence consists of the testimony of witnesses and the exhibits of the parties. The statements
and arguments made by the lawyers are not evidence. Their arguments are intended to convince
you what conclusions you should draw from the evidence or lack of evidence. You should
weigh and evaluate the lawyers’ arguments carefully, but you must not confuse them with the
evidence. As to the evidence presented at trial, it is your recollection that governs, not the
statements of the lawyers. You should also bear in mind that a question put to a witness is never
evidence. It is the answer to the question that is evidence. However, if a witness affirms the
facts in a question by answering “yes,” you may consider the facts in that question to be
evidence.
G. Direct and Circumstantial Evidence6
There are two types of evidence that you may properly use in deciding whether Mr. Calk
is guilty or not guilty of the crimes with which he is charged. One type of evidence is called
direct evidence. Direct evidence of a fact in issue is presented when a witness testifies to that
fact based on what he or she personally saw, heard, or observed. In other words, when a witness
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testifies about a fact in issue on the basis of that witness’ own knowledge -- by virtue of what he
or she sees, feels, touches, or hears -- that is direct evidence.
The second type of evidence is circumstantial evidence. Circumstantial evidence is
evidence that tends to prove a disputed fact indirectly by proof of other facts. There is a simple
example of circumstantial evidence that I gave you on the first day of trial, and I will repeat it
now.
Assume that when you came into the courthouse this morning the sun was shining and it
was a nice day outdoors. Assume that the courtroom shades were drawn and you could not look
outside. Assume further that as you were sitting here, someone walked in with an umbrella that
was dripping wet and then, a few moments later, somebody else walked in with an umbrella that
was also wet.
Now, because you could not look outside the courtroom and you could not see whether it
was raining, you would have no direct evidence of that fact. But, on the combination of facts
that I have asked you to assume, it would be reasonable and logical for you to conclude that it
was raining.
That is all there is to circumstantial evidence. You infer on the basis of your reason,
experience, and common sense from one established fact the existence or the nonexistence of
some other fact. Drawing inferences is not the same as guesswork or speculation. An inference
is a logical, factual conclusion that you might reasonably draw from other facts that have been
proven.
It is sometimes difficult to prove material facts by direct evidence. Usually such facts are
established by circumstantial evidence and the reasonable inferences you draw. Circumstantial
evidence may be given as much weight as direct evidence.
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H. Rulings on Evidence and Objections7
You should draw no inference or conclusion for or against any party on the basis of the
lawyers’ objections or my rulings on objections. Counsel have a right and a duty to make legal
objections.
Nothing I say is evidence. If I commented on the evidence at any time, do not accept my
statements in place of your recollection or your interpretation. It is your recollection and
interpretation that govern. Also, do not draw any inference from any of my rulings, which do not
indicate any view on my part. You should not speculate about what I may think.
At times I may have asked a witness to keep his or her voice up or directed a witness to
be responsive to questions. At times I may have asked a question myself. Any questions that I
asked, or instructions that I gave, were intended only to clarify the presentation of evidence.
You should draw no inference or conclusion of any kind, favorable or unfavorable, with respect
to any comment, question, or instruction of mine. Nor should you infer that I have any views as
to the credibility of any witness, the weight of the evidence, or how you should decide any issue
that is before you. That is your role.
Finally, the personalities and the conduct of counsel are not in any way at issue. If you
formed opinions of any kind about any of the lawyers in the case, favorable or unfavorable, those
opinions should not enter into your deliberations.
I. Credibility of Witnesses8
I am going to give you a few general instructions about how you may determine whether
witnesses are credible and reliable and whether the witnesses told the truth at this trial. It is
really just a matter of using your common sense, your judgment and your experience.
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First, consider how well the witness was able to observe or hear what he or she testified
about. The witness may be honest, but mistaken. How did the witness’s testimony impress you?
Did the witness appear to be testifying honestly and candidly? Were the witness’s answers direct
or were they non-responsive? Consider the way the witness acted, his or her way of testifying
and the strength and accuracy of his or her recollection. Consider whether any outside factors
might have affected a witness’s ability to perceive events.
Consider the substance of the testimony. How does the witness’s testimony compare
with other proof in the case? Is it corroborated or is it contradicted by other evidence? If there is
a conflict, does any version appear reliable, and, if so, which version seems more reliable?
In addition, you may consider whether a witness had any possible bias or relationship
with a party or any possible interest in the outcome of the case. Such a bias or relationship does
not necessarily make the witness unworthy of belief, but these are factors that you may consider.
If a witness made statements in the past that are inconsistent with his or her testimony
during the trial concerning facts that are at issue here, you may consider that fact in deciding how
much of the 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.
You may also consider whether the inconsistency concerns an important fact or merely a small
detail, as well as whether the witness had an explanation for the inconsistency, and, if so,
whether that explanation appealed to your common sense.
If you find that a witness has testified falsely as to any material fact or if you find that a
witness has been previously untruthful when testifying under oath or otherwise, you may reject
that witness’s testimony in its entirety or you may accept only those parts that you believe to be
truthful or that are corroborated by other independent evidence in the case.
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J. Prior Perjury9
There has been evidence that a witness who testified at this trial lied under oath at other
proceedings. I must warn you that the testimony of such witnesses should be viewed cautiously
and weighed with great care. It is, however, for you to determine how much of the witness’s
testimony, if any, you wish to believe.
K. Sympathy: Oath as Juror10
Under your oath as jurors, you are not to be swayed by sympathy. You are to be guided
solely by the evidence or lack of evidence in this case in determining whether or not the
prosecution has proved Mr. Calk’s guilt beyond a reasonable doubt.
It is for you and you alone to decide whether or not the prosecution has proved beyond a
reasonable doubt that Mr. Calk is guilty of the crimes charged, solely on the basis of the
evidence, and subject to the law as I have instructed you. It must be clear to you that if you let
fear, prejudice, 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 Mr. Calk’s guilt on either charge, then you must
render a verdict of not guilty on that charge. On the other hand, if you find that the prosecution
has met its burden of proving the guilt of Mr. Calk beyond a reasonable doubt on either charge,
then you must not hesitate because of sympathy or any other reason to render a verdict of guilty
on that charge.
9
United States v. Calk, No. 19 Cr. 366, Joint Requests to Charge, Dkt. No. 186, 19/64 (S.D.N.Y. May 20, 2021).
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L. Duty Not to Consider Possible Punishment11
The question of possible punishment of the defendant is of no concern to you, the
members of the jury, and should not, in any sense, enter into or influence your deliberations.
The duty of imposing sentence rests exclusively upon the Court.
Your function is to weigh the evidence in the case and to determine whether or not the
government has proved that Mr. Calk is guilty beyond a reasonable doubt, solely upon the basis
of such evidence.
M. Duty To Deliberate And Reach A Unanimous Verdict12
Your verdict must be unanimous as to each charge. Each juror is entitled to his or her
opinion, but you are required to exchange views with your fellow jurors and discuss the
evidence. If you have a point of view and your discussion with other jurors changes your mind
on a particular point, you may change your mind if you are convinced that the opposite point of
view is really one that satisfies your judgment and conscience. You must not change your mind
simply because you are outnumbered or outweighed. You should vote with the others only if
you are convinced that it is the correct way to decide the case based on the evidence, the facts
and the law.
Remember at all times, you are not partisans. You are judges -- judges of the facts. Your
sole interest is to determine the facts from the evidence in the case. I will say a little more about
your duties in deliberating after closing arguments.
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SUBSTANTIVE INSTRUCTIONS
A. Summary of the Charge
This is a criminal case. It is brought in the name of the United States against Stephen M.
Calk. The fact that the prosecution is brought in the name of the United States does not entitle
the government to any greater consideration than that accorded to Mr. Calk. All parties stand as
equals here in court.13
Mr. Calk is charged with two crimes: (1) financial institution bribery and (2) conspiracy
to commit financial institution bribery. Each is a separate offense or crime. You must, therefore,
consider each charge separately and you must return a separate verdict on each charge.
The first charge is financial institution bribery; the government alleges that Mr. Calk,
while the Chairman and CEO of The Federal Savings Bank and National Bancorp, corruptly
solicited and received assistance in obtaining a volunteer position with the Donald J. Trump
presidential campaign and a senior14 position with the then-incoming Trump administration,
intending to be influenced and rewarded in connection with the extension of loans to Paul
Manafort.15 The second charge is a conspiracy charge; the government alleges that from around
July 2016, until around January 2017, Mr. Calk conspired to commit financial institution bribery,
meaning that he agreed with one or more other people to commit the first charge.16 Mr. Calk has
pleaded not guilty to both charges. You must remember that Mr. Calk is presumed innocent
unless the government meets its burden of proving that he is guilty beyond a reasonable doubt.
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See United States v. Calk, No. 19 Cr. 366, Superseding Indictment, Dkt. No. 175, 1/29 (S.D.N.Y. Mar. 4, 2021).
15
See Joint Proposed Examination of Prospective Jurors, Dkt. No. 187, 2/13 (S.D.N.Y. May 20, 2021).
16
See Joint Proposed Examination of Prospective Jurors, Dkt. No. 187, 2/13 (S.D.N.Y. May 20, 2021).
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B. Count One: Financial Institution Bribery [18 U.S.C. § 215(a)(2)]
The first charge against Mr. Calk is financial institution bribery. In order to find Mr.
Calk guilty of this crime, the government must prove four elements beyond a reasonable doubt:17
First, that at the time of the events alleged in the Indictment, Mr. Calk was an officer,
director, employee, or agent of a financial institution;
Second, that Mr. Calk accepted, solicited, or demanded, or accepted or agreed to accept,
solicit, or demand, something of value;
Third, that Mr. Calk did so corruptly and with the intent to be influenced or rewarded in
connection with18 any business or transaction of the financial institution; and
Fourth, that the value of the thing accepted by Mr. Calk had a value greater than $1,000.
Element #1 – Defendant Was a Financial Institution19
The first element the government must prove beyond a reasonable doubt is that at the
time of the events alleged in the Indictment, Mr. Calk was an officer, director, employee, or
agent of a financial institution.
To satisfy this element, the government must prove that the financial institution is one
whose deposits are insured by the Federal Deposit Insurance Corporation, or one that controls an
institution whose deposits are insured by the Federal Deposit Insurance Corporation,20 and that
Mr. Calk was an officer, director, employee or agent of the financial institution.21
17
Beginning with this sentence, these instructions are adapted from Sand, Modern Federal Jury Instructions, Instr.
16-5; and from the charge of Hon. Lewis A. Kaplan in United States v. Kaufman, 19 Cr. 504 (S.D.N.Y. 2021).
18
Adapted from Sand, Modern Federal Jury Instructions, Instr. 16-34; and the charge of Hon. Lewis A. Kaplan in
United States v. Kaufman, 19 Cr. 504 (S.D.N.Y. 2021).
19
Adapted from Sand, Modern Federal Jury Instructions, Instr. 16-34; and the charge of Hon. Lewis A. Kaplan in
20
See 18 U.S.C. § 20 (defining “financial institution” as including among other things, “(6) a depository institution
holding company (as defined in section 3(w)(1) of the Federal Deposit Insurance Act [12 USCS § 1813(w)(1)]”);
12 USCS § 1813(w)(1) (defining a “depository institution holding company,” as “a bank holding company or a
savings and loan holding company”).
21
The two possible financial institutions here are (1) The Federal Savings Bank and (2) the holding company of the
bank. See United States v. Calk, 19 Cr. 366, Joint Proposed Charge, Dkt. No. 186, 36/64 (S.D.N.Y. May 20, 2021)
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The parties have stipulated -- which means agreed -- that The Federal Savings Bank is a
financial institution whose deposits are insured by the Federal Deposit Insurance Corporation,
and that Mr. Calk was an officer, director, employee or agent of The Federal Savings Bank at the
time of the alleged events.
Element #2 – Solicited or Accepted Something of Value22
The second element the government must prove beyond a reasonable doubt is that Mr.
Calk accepted, or agreed to accept, or solicited or demanded something of value.
The law makes no distinction between accepting, agreeing to accept, or soliciting or
demanding a bribe. The mere soliciting or demanding of a bribe is just as much a violation of
the statute as actually receiving one.
Element #3- Corrupt Intent To Be Influenced23
The third element the government must prove beyond a reasonable doubt is that Mr. Calk
accepted, or agreed to accept, or solicited or demanded, something of value corruptly and with
intent to be influenced or rewarded in connection with any business or transaction of The Federal
Savings Bank.
To act corruptly means simply to act voluntarily and intentionally with an improper
motive or purpose to be influenced or rewarded. This involves conscious wrongdoing, or as it
sometimes has been expressed, a bad or evil state of mind. Because the government must prove
(“In this case, the government alleges that The Federal Savings Bank was a bank whose deposits were insured by the
Federal Deposit Insurance Corporation, and that the defendant was the Chairman and CEO of The Federal Savings
Bank at the time of the alleged events. The government also alleges that National Bancorp Holdings, Inc. was a
holding company that controlled the Federal Savings Bank, and that the defendant was the chairman and CEO of
National Bancorp Holdings, Inc. at the time of the alleged events.” Dkt. No. 186, 38/64).
22
Adapted from Sand, Modern Federal Jury Instructions, Instr. 16-36; the charge of Hon. Lewis A. Kaplan, United
States v. Kaufman, 19 Cr. 504 (S.D.N.Y. 2021); and the charge of Hon. Alison J. Nathan in United States v.
Lebedev, 15 Cr. 769 (S.D.N.Y. 2017).
23
Adapted from Sand, Modern Federal Jury Instructions, Instr. 16-37; and the charge of Hon. Alison J. Nathan in
United States v. Lebedev, 15 Cr. 769 (S.D.N.Y. 2017).
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beyond a reasonable doubt that Mr. Calk acted corruptly, it follows that good faith on the part of
Mr. Calk is a complete defense. Corrupt intent may be established by circumstantial evidence of
a person’s state of mind, including proof of a person’s words and conduct and the logical
inferences that can be drawn from that proof.
The government must prove that a bribe was sought or received by Mr. Calk, directly or
indirectly, in exchange for the promise or performance of action in connection with the business
or transactions of the financial institution. In considering this element, remember that it is Mr.
Calk’s intent to be influenced or rewarded that is important, not what actually happened later. So
the government does not have to prove that Mr. Calk received the bribe or that the bribe actually
influenced the final decision of The Federal Savings Bank. It is not even necessary that Mr. Calk
had the authority to perform the act sought.
It is not a defense that Mr. Calk may have been motivated by both proper and improper
motives. A defendant may be found to have the requisite intent even if he possesses a dual intent
– that is, an unlawful intent and also partly proper or neutral intent, such as generating revenue
for the bank.24
Also, if you find that Mr. Calk accepted, or agreed to accept, or solicited or demanded
something of value with the intent to be rewarded for a decision already made, it does not matter
that the bribe was not accepted until after the financial institution business or transaction
occurred.
Element #4 – Value Greater Than $1,00025
The fourth and final element the government must prove beyond a reasonable doubt is
24
Adapted from government proposal in United States v. Calk, No. 19 Cr. 366, Joint Requests to Charge, Dkt. No.
186, 54/64 (S.D.N.Y. May 20, 2021).
25
Adapted from Sand, Modern Federal Jury Instructions, Instr. 16-38; and the charge of Hon. Alison J. Nathan in
United States v. Lebedev, 15 Cr. 769 (S.D.N.Y. 2017).
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that the thing of value accepted, or agreed to be accepted, or solicited, or demanded by Mr. Calk
had a value greater than $1,000. The government need not prove the exact value of the thing of
value, as long as there is proof beyond a reasonable doubt that the value exceeded $1,000. The
value of the thing of value may be measured by its value to the defendant, the value of what it is
exchanged for or its market value.26
C. Count Two: Conspiracy27
Count Two charges Mr. Calk with conspiracy to commit financial institution bribery,
meaning that he is charged with agreeing with at least one other person to commit financial
institution bribery.
What is a conspiracy? 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. A
conspiracy to violate a federal law is itself a criminal offense. It does not matter if the
conspiracy succeeds. A conspiracy is a separate and distinct crime from the actual violation of
any specific federal laws, which the law refers to as “substantive crimes.” So a conspiracy to
commit financial institution bribery is an entirely distinct and separate crime from the
substantive crime of financial institution bribery. Under the law, an unlawful conspiracy can
exist even if it fails to accomplish its purpose.28
To prove the conspiracy charge, the government must prove each of the following three
elements beyond a reasonable doubt:
26
Adopted government proposal in United States v. Calk, 19 Cr. 366, Joint Proposed Charge, Dkt. No. 186; adapted
from the charge of Lewis A. Kaplan in United States v. Kaufman, 19 Cr. 504 (S.D.N.Y. 2021) (explaining that “[t]he
value of the thing in question may be measured by its value to the parties); see United States v. Williams, 705 F.2d
603, 620 (2d Cir. 1983) (in the context of a charge pursuant to 18 U.S.C. § 201, measuring the value of the alleged
bribe based on its value to defendants).
27
Adapted from Sand, Model Federal Jury Instructions, Instr. 19-3, but as the parties propose, condensing elements
3 and 4. See United States v. Lebedev, 15 Cr. 769, 27/94 (condensing elements 3 and 4 of conspiracy).
28
From United States v. Mathieu, 16 cr. 763 (S.D.N.Y. 2019) (LGS).
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First, that two or more persons agreed to violate the federal law prohibiting financial
institution bribery;
Second, that Mr. Calk knowingly and willfully became a member of this conspiracy; and
Third, that any member of the conspiracy committed an overt act in furtherance of the
conspiracy.29
Element #1- Existence of the Conspiracy30
The first element that the government must prove beyond a reasonable doubt is that a
conspiracy to violate federal law existed. In this case, that means that there was an agreement or
understanding between two or more people to violate the law that makes it illegal to commit
financial institution bribery, the crime I previously defined as the first charge.
The essence of the crime of conspiracy is the unlawful combination or agreement to
violate the law. The success or failure of conspiracy is not material to the question of guilt or
innocence of the conspirator, for a conspiracy is a crime entirely separate and distinct from the
substantive crime that may be the goal of the conspiracy. That is, a criminal agreement, standing
alone, is a separate crime, and the crime of conspiracy is complete once the unlawful agreement
is made.
To establish the existence of a conspiracy, the government is not required to show that
two or more persons sat around a table and entered into a solemn compact. Conspirators do not
usually reduce their agreements to writing, nor do they publicly broadcast their plans. Your
29
Adapted from Sand, Model Federal Jury Instructions, Instr. 19-3; and the charge of Hon. Lewis A. Kaplan in
30
Adapted from Defense proposal in United States v. Calk, 19 Cr. 366, Joint Proposed Charge, Dkt. No. 186; and
from the charge of Hon. Alison J. Nathan in United States v. Lebedev, 15 Cr. 769 (S.D.N.Y. 2017); see Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 567 (2007) (citing Kramer v. Pollock-Krasner Found., 890 F. Supp. 250, 256
(S.D.N.Y. 1995) for the proposition that an agreement to engage in actions “prompted by lawful independent goals”
does not constitute a conspiracy); United States v. Anderson, 747 F.3d 51, 61 (2d Cir. 2014) (“a defendant’s mere
presence at the scene of a crime, his general knowledge of criminal activity, or his simple association with others
engaged in a crime are not, in themselves, sufficient to prove the defendant’s criminal liability for conspiracy.”).
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common sense will tell you that when people undertake to enter a criminal conspiracy, much is
left to unexpressed understanding. Express language or specific words are not required to
indicate assent or attachment to a conspiracy. It is sufficient if two or more persons in some way
or manner, impliedly or tacitly, come to a common understanding to violate the law.
In determining whether the charged conspiracy actually existed, you may consider all the
evidence of the acts, conduct and declarations of the alleged co-conspirators and the reasonable
inferences to be drawn from such evidence. If upon consideration of all the evidence, direct and
circumstantial, you find that the government has proved beyond a reasonable doubt that there
was an agreement between two or more persons to commit financial institution bribery, then
proof of the existence of a conspiracy is established.
But mere discussions about crimes or mere knowledge of crimes without an agreement to
commit them is not a conspiracy. And an agreement to achieve a lawful goal is not the same as a
criminal conspiracy -- two or more individuals must have agreed to commit a crime, which here,
is financial institution bribery.
Element #2 – Membership in the Conspiracy31
The second element that the government must prove beyond a reasonable doubt is that
the defendant knowingly and willfully became a member of this conspiracy; in other words, that
he knowingly and willfully associated himself with the conspiracy and participated in the
conspiracy with knowledge of its unlawful purpose and with an intent to aid in the
accomplishment of its unlawful objective. However, a person’s mere association with a member
of a conspiracy does not make that person a member of the conspiracy, even when that
association is coupled with knowledge that a conspiracy exists. Knowledge without agreement
31
Adapted from the charge delivered in United States v. Williams, 16 cr. 526 (S.D.N.Y. 2018) (LGS).
18
and participation is not sufficient.
The terms “knowingly” and “willfully” mean that you must be satisfied beyond a
reasonable doubt that in joining the conspiracy (if you find that Mr. Calk did join the
conspiracy), Mr. Calk knew what he was doing and that he took the actions in question
deliberately and voluntarily, rather than by mistake, accident, mere negligence or some other
innocent reason.32
It is not necessary that Mr. Calk be fully informed as to all the details of the conspiracy to
justify an inference of knowledge on his part. To have guilty knowledge, Mr. Calk need not
have known the full extent of the conspiracy or all of its activities or all of its participants.33
In determining whether Mr. Calk knew of the illegal purpose of the conspiracy, you may
consider whether he deliberately closed his eyes to what otherwise would have been obvious. A
person may not willfully and intentionally remain ignorant of a fact that is material and
important to his or her conduct in order to escape the consequences of criminal law. That is what
the phrase “conscious avoidance” refers to.34
Element #3 – Overt Act35
The third and final element that the government must prove beyond a reasonable doubt is
that at least one member of the conspiracy, not necessarily Mr. Calk, committed at least one
overt act in furtherance of the conspiracy. In other words, there must have something more than
32
33
34
186, 55/64 (S.D.N.Y. May 20, 2021); see also United States v. Svoboda, 347 F.3d 471, 479 (2d Cir. 2003)
(affirming the use of a conscious avoidance charge in the context of a two-person conspiracy case and explaining
that “ ‘intent to participate’ is a shorthand phrase used to encompass both aspects of the joinder element of
conspiracy, i.e., a defendant’s knowledge or awareness of the illegal nature of the charged activity and his intent to
advance the illegal objective,” and that “[w]hether the conspiracy is among two members or more, a defendant’s
conscious avoidance of knowledge of its illegal purpose may substitute for knowledge of the illegal purpose.”).
35
Adapted from the charge of from the charge of Hon. Lewis A. Kaplan in United States v. Kaufman, 19 Cr. 504,
Dkt. No. 213, 152/173.
19
simply an agreement. There has to have been at least one overt step or action by at least one of
the conspirators in furtherance of the conspiracy. To put it another way, the law requires that the
agreement that was reached went beyond simply talking. The government must show that at
least one of the conspirators actually did something in furtherance of the agreement.
Although you must find unanimously that an overt act in furtherance of the conspiracy
has been proved, you do not have to be unanimous as to what that act was. It is not necessary
that the government prove that all the members of the conspiracy, or Mr. Calk himself,
participated in an overt act. It suffices if any member of the conspiracy performed an overt act in
furtherance of the conspiracy.
The overt act standing alone may be a totally innocent and lawful act. Frequently,
however, an innocent act sheds its harmless character if it is a step in carrying out or promoting
or aiding or assisting the conspiratorial agreement. You are therefore instructed that the overt act
does not have to be an act which in and of itself is criminal or constitutes an objective of the
conspiracy.
D. Venue
In addition to the elements of each of the two charges that I have just described for you,
you must consider the issue of venue, namely, whether any act in furtherance of the unlawful
activity occurred within the Southern District of New York, which includes Manhattan. The
government must prove venue by a preponderance of the evidence, unlike the elements I have
just described, which all must be proved beyond a reasonable doubt.
A “preponderance of the evidence” means more likely than not. The government has
satisfied its burden of proof as to venue if you conclude that it is more likely than not that some
act or communication in furtherance of each charged offense occurred in the Southern District of
20
New York. If, on the other hand, you find that the Government has failed to prove the venue
requirement as to a particular offense, then you must acquit Mr. Calk of that offense, even if all
other elements of an offense are proven.36
FINAL GENERAL INSTRUCTIONS
A. Stipulations37
You have heard evidence in the form of what are called “stipulations.” A stipulation of
fact is an agreement among the parties that a certain fact is true. You should regard such agreed
facts as true.
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 the testimony. However, it is for you to determine the effect or weight to give that
testimony.
36
186, 57-58/64 (S.D.N.Y. May 20, 2021).
37
21
B. Law Enforcement and Government Employee Witnesses38
You have heard the testimony of government employees and law enforcement agents.
The fact that a witness may be or may have been employed by the United States government,
including by the Office of the Comptroller of the Currency (“OCC”) or a law enforcement
agency, does not mean that his or her testimony deserves more or less consideration or greater or
lesser weight than that of any other witness.
As with all witnesses, it is your decision, after reviewing all the evidence, whether to
accept the testimony of a law enforcement or government employee witness, and to give to that
testimony the weight that you find it deserves.
C. OCC Testimony39
The testimony of OCC employees that you heard is admissible to provide you with
background and allow you to understand this witness’s role in the events at issue, which may
help you interpret other evidence in the case. You are not to infer from this testimony that the
OCC does or does not have any particular view of the loans in question of Mr. Calk. Any such
view would not be relevant to this case.
D. Witnesses Testifying Pursuant to Grant of Immunity40
You have heard the testimony of two bank employees — Mr. Brennan and Mr. Raico —
who testified under a grant of immunity from this Court. What this means is that the testimony
of those witnesses may not be used against them in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise failing to comply with the immunity order of this
38
39
United States v. Calk, No. 19 Cr. 366, Letter re: Proposed Limiting Instructions, Dkt. No. 167 (S.D.N.Y. Feb. 11,
2021).
40
United States v. Calk, No. 19 Cr. 366, Joint Requests to Charge, Dkt. No. 186, 26/64 (S.D.N.Y. May 20, 2021);
the full instruction is adapted from Sand, Modern Federal Jury Instructions, Instr. 7-8.
22
court. The Government is entitled to call as a witness a person who has been granted immunity
by Court order, and you may convict a defendant on the basis of such a witness’s testimony
alone, if you find that the testimony proves the defendant guilty beyond a reasonable doubt.
However, the testimony of a witness who has been granted immunity should be examined
by you with greater care than the testimony of an ordinary witness. You should scrutinize it
closely to determine whether or not it is colored in such a way as to place guilt upon the
defendant in order to further the witness’s own interests; for, such a witness, confronted with the
realization that he can win his own freedom by helping to convict another, has a motive to falsify
his testimony. Such testimony should be scrutinized by you with great care and you should act
upon it with caution. If you believe it to be true, and determine to accept the testimony, you may
give it such weight, if any, as you believe it deserves.
E. Persons Not on Trial41
You may not draw any inference, favorable or unfavorable, towards the Government or
Mr. Calk, from the fact that certain persons were not tried as defendants in this case. You also
may not speculate as to the reasons why other persons are not on trial. Those matters are wholly
outside your concern and have no bearing on your function as jurors.
F. Preparation of Witnesses42
You have heard evidence during the trial that witnesses have discussed the facts of the
case and their testimony with the government lawyers, the defense lawyers, or with their own
lawyers before the witnesses appeared in court.
Although you may consider that fact when you are evaluating a witness’s credibility,
there is nothing unusual or improper about a witness meeting with lawyers before testifying, so
41
42
23
that the witness can be aware of the subjects he or she will be questioned about, focus on those
subjects, and have the opportunity to review relevant exhibits before being questioned about
them. Such consultation helps conserve your time and the Court’s time.
Again, the weight you give to the fact or the nature of the witness’s preparation for his or
her testimony and what inferences you draw from such preparation are matters completely within
your discretion.
G. Uncalled Witnesses -- Equally Available or Unavailable to Each Side43
There are people who were described or whose names you may have heard during the
trial who did not appear to testify. I instruct you that each party had an equal opportunity or lack
of opportunity to call any of these witnesses. Therefore, you should not draw any inferences or
reach any conclusions about what they would have testified had they been called. Their absence
should not affect your judgment in any way. You should remember my instruction, however,
that the law does not impose on any defendant in a criminal case the burden or duty of calling
any witnesses or producing any evidence, and that it is the government’s burden to prove beyond
a reasonable doubt the charges against Mr. Calk.
H. Defendant’s Right Not to Testify [If Applicable]44
Mr. Calk did not testify in this case. Under our Constitution, a defendant has no
obligation to testify or to present any 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. A defendant is never required to prove
that he is innocent. You may not attach any significance to the fact that the defendant did not
testify. No adverse inference against him may be drawn by you because he did not take the
43
44
24
witness stand. You may not consider this against the defendant in any way in your deliberations.
I. Defendant’s Testimony [If Applicable]45
A defendant in a criminal case never has any duty to testify or come forward with any
evidence. This is because, as I have told you, the burden of proof beyond a reasonable doubt
remains on the government at all times, and the defendant is presumed innocent. In this case,
however, Mr. Calk did testify and he was subject to cross-examination like any other witness.
You should, therefore, examine and evaluate Mr. Calk’s testimony just as you would the
testimony of any other witness with an interest in the outcome of the case.
You should not disregard Mr. Calk’s testimony simply because he is charged in this case.
The fact that Mr. Calk elected to testify does not shift the burden of proof to him. The burden
remains at all times on the government to prove the elements of the offense beyond a reasonable
doubt. As I stated before, the law never imposes upon a defendant in a criminal case the burden
or duty of calling any witness or of producing any evidence.
J. Use of Electronic Communications46
Some of the evidence in this case consisted of electronic communications seized from
computers, cell phones or electronic accounts. Such evidence was properly admitted in this case,
and may be considered by you. Whether you approve or disapprove of the seizure of these
communications may not enter your deliberations.
Regardless of your personal opinions, you must give this evidence full consideration
along with all the other evidence in the case in determining whether the government has met its
burden of proof. However, as with the other evidence, it is for you to determine what weight, if
any, to give such evidence.
45
46
25
K. Summary Exhibits47
Some of the exhibits were charts, tables, or other forms of summary exhibits. These
exhibits are not direct evidence. They are graphic representations or other ways of summarizing
more voluminous information that was either described in the testimony of a witness or reflected
in documents admitted into evidence. It is often easier and more convenient to use charts, tables,
and summaries as opposed to placing all of the underlying documents in front of you. But it is
up to you to decide whether the summary exhibits fairly and correctly reflect the underlying
testimony and documents they purport to summarize. To the extent that the summary exhibits
conform to your understanding of the underlying evidence, you may accept them. To the extent
they do not, you should set them aside and rely on the underlying evidence instead. But one way
or the other, realize that the summary exhibits are not in and of themselves direct evidence.
They are merely intended to serve as aids in a party’s presentation of the evidence. They are
nothing more.
L. Excerpts and Redactions48
Some of the exhibits admitted into evidence consist of excerpts of longer documents that
were not admitted into evidence in their entirety. These excerpts are simply the portions of the
underlying documents considered to be most relevant to the case by the party introducing them.
There is nothing unusual or improper about the use of such excerpts, and you are not to speculate
from the use of such excerpts that any relevant portion of a document has been omitted.
Similarly, some of the exhibits admitted into evidence include redactions of certain
information. Again, there is nothing unusual or improper about such redactions, and you are not
to speculate from the use of such redactions that any relevant portion of a document has been
47
48
26
removed.
M. Closing Arguments
With these instructions in mind, you will now hear from the lawyers, who will give their
closing arguments. I remind you that arguments by lawyers are not evidence, because the
lawyers are not witnesses. If what they say differs from your recollection of the evidence, your
recollection controls. What they say to you in their closing arguments is intended to help you
understand the evidence and reach your verdict. Please pay careful attention to their arguments.
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Case 1:19-cr-00366-LGS Document 255-8 Filed 07/13/21 Page 1 of 28

Court Exhibit No. 8

July 12, 2021

United States v. Stephen Calk

COURT DRAFT – July 8, 2021

GENERAL INTRODUCTORY instructions 3

FINAL GENERAL INSTRUCTIONS 21

COURT DRAFT – July 8, 2021

GENERAL INTRODUCTORY INSTRUCTIONS

impartiality to reach a just verdict in this case.

law for your consideration.

B. Role of the Jury1

COURT DRAFT – July 8, 2021

C. Equality of the Parties2

interfere with your decision-making process.

evidence or the lack of evidence.

of calling any witness or producing any evidence.

COURT DRAFT – July 8, 2021

E. Proof Beyond a Reasonable Doubt4

COURT DRAFT – July 8, 2021

must acquit Mr. Calk on that charge.

F. The Nature of the Evidence5

G. Direct and Circumstantial Evidence6

COURT DRAFT – July 8, 2021

or she sees, feels, touches, or hears -- that is direct evidence.

The second type of evidence is circumstantial evidence. Circumstantial evidence is

was also wet.

evidence may be given as much weight as direct evidence.

COURT DRAFT – July 8, 2021

H. Rulings on Evidence and Objections7

statements in place of your recollection or your interpretation. It is your recollection and

that is before you. That is your role.

opinions should not enter into your deliberations.

COURT DRAFT – July 8, 2021

might have affected a witness’s ability to perceive events.

whether that explanation appealed to your common sense.

truthful or that are corroborated by other independent evidence in the case.

COURT DRAFT – July 8, 2021

testimony, if any, you wish to believe.

K. Sympathy: Oath as Juror10

prosecution has proved Mr. Calk’s guilt beyond a reasonable doubt.

arrive at a true and just verdict.

COURT DRAFT – July 8, 2021

L. Duty Not to Consider Possible Punishment11

The question of possible punishment of the defendant is of no concern to you, the

The duty of imposing sentence rests exclusively upon the Court.

M. Duty To Deliberate And Reach A Unanimous Verdict12

and the law.

your duties in deliberating after closing arguments.

COURT DRAFT – July 8, 2021

A. Summary of the Charge

equals here in court.13

COURT DRAFT – July 8, 2021

B. Count One: Financial Institution Bribery [18 U.S.C. § 215(a)(2)]

director, employee, or agent of a financial institution;

solicit, or demand, something of value;

connection with18 any business or transaction of the financial institution; and

Element #1 – Defendant Was a Financial Institution19

agent of a financial institution.

COURT DRAFT – July 8, 2021

time of the alleged events.

Element #2 – Solicited or Accepted Something of Value22

Calk accepted, or agreed to accept, or solicited or demanded something of value.

The law makes no distinction between accepting, agreeing to accept, or soliciting or

the statute as actually receiving one.

Element #3- Corrupt Intent To Be Influenced23