3.Supplemental-Charge Conference on Internet Use and Interstate Commerce
61 linesCOURT CLERK: All Rise.
THE COURT: Please be seated in the back.
COURT CLERK: Case on trial.
THE COURT: All right. Court's Exhibit 5 is a note from the jury: "Does the use of the World Wide Web for any purpose" -- underscoring purpose -- "fall under the umbrella of affecting interstate or foreign commerce. Do e-mail chat communications within" -- underscore -- "stay qualify, does research online e.g. Wikipedia qualify."
MR. AGNIFILO: Your Honor, I don't know that we were able to answer these questions as raised, except for the second one. I think we have a jury instruction as to the question, Do e-mail chats and communications within a state qualify.
I think the way that we answered that question, your Honor, on page 124 of our instructions where we say, The interstate or foreign -- the interstate or foreign requirement means that the wire communications must pass between two or more statements, as for example, a telephone call, a wire transfer, of funds between banks in different states or e-mail or electronic message that was transmitted over interstate wires.
I think that's the only place in the instructions where we addressed that issue. We addressed it in the wire fraud context, but I don't think we addressed the other two questions, as I understand them, in our jury instructions. I don't know that there is any evidence in the record that addresses those questions. I don't know that we can answer the other two questions.
MS. HAJJAR: Your Honor, the part that Mr. Agnifilio read relates to wire fraud, is unique to wire fraud.
Our read of this note, it is not clear, but our read of this is that it relates to Racketeering Act 5, at best we can tell, which is the interstate nexus portion of that charge, which requires the transfer possession of use of means of identification occurred in or affected interstate commerce, or the means of identification, here the username or password, was transported in the mail. We could direct the jury to that portion of the charge and add something additional if your Honor thinks that is appropriate.
There is a little more in the Sand instruction, but certainly if what they are referring to is Racketeering Act 5, the identity theft portion of the charge, then any means of identification that is transmitted via the web would qualify and we can craft something to that effect, if that's what the jury is requesting.
THE COURT: What do you propose the response to be?
MS. HAJJAR: We would want to think about it for a moment, but we could propose language. I think the language could be something like, The fifth element --
THE COURT: I don't want to -- let me tell you what I don't want to do. I don't want to direct their attention to something. I would rather ask them, In connection with which charge or charges do you seek this information?
MS. HAJJAR: That would be very helpful, your Honor.
MR. AGNIFILO: That's right, your Honor, I don't think we want to guess. The prosecution might be right it's Racketeering Act 5, but we don't know.
THE COURT: Do you want to work out language between you or I could do it.
MR. AGNIFILO: I think what makes the most sense is the interstate element that they are asking about is slightly different for various of the charges. We don't want to guess and guess wrong. So I think what makes the most sense is to ask them something along the lines, if they are asking these questions in connection with a particular charge, and if so, which charge, something along those lines.
THE COURT: Why don't I just ask them that question.
MS. HAJJAR: Yes, that makes sense, your Honor.
THE COURT: But you know, generally speaking, the law of the Second Circuit is clear that any wire communication is considered interstate commerce.
MS. HAJJAR: Yes.
THE COURT: I've got United States V. Le 902 F.3d 104. I've got United States V. Konn 634 F. Appendix 818.
We just spent two minutes upstairs looking into it. But it would be better if we could give them a more focused answer than something like that.
MR. AGNIFILO: That's fine.
THE COURT: "We have your questions, please identify which charge or charges in the Indictment."
MR. AGNIFILO: "If any you're asking about."
THE COURT: Obviously.
MR. AGNIFILO: Right, but they could be asking --
THE COURT: A general question?
MR. AGNIFILO: No, they could be asking about the enterprise within the RICO section. The way, your Honor --
THE COURT: "If any, raise these issues."
MR. AGNIFILO: Fine.
MS. HAJJAR: "To which charges are you referring to? Which charges do you want more instruction," and then we can respond to there. They clearly are thinking of a charge.
THE COURT: "To the jury, we have your questions please advise the Court as to which charge or charges these questions relate."
MS. PENZA: That's fine, your Honor.
THE COURT: It may be that we've already answered their questions or some of them as to specific charges.
What I have, "To the jury, we have your questions. Please advise the Court as to which charge or charges these questions specifically relate."
MR. AGNIFILO: Perfect.
THE COURT: Is that okay?
MR. AGNIFILO: Yes.
THE COURT: We'll make copies for everybody. We'll wait to hear from them.
(Brief break.)
MS. PENZA: Your Honor, we have some proposed language.
THE COURT: Yes.
MS. HAJJAR: "I instruct you, that use of the Internet is an activity that affects interstate commerce. The answer to your second and third questions is yes."
We have some case as well if your Honor wants.
THE COURT: The use of the Internet is not --
MR. AGNIFILO: I don't think that's the question they are asking. If we're talking about the fifth element, which they say they are, then the fifth element we read to the jury is that the transfer or possession or use of the means of identification. So what we're talking about is identity theft, so we're talking about the means of identification specifically, the transfer or possession or use of that has to have occurred in or affecting interstate or foreign commerce, or is the means identification was transported in the mail. So we're not talking about -- I'm on page 73, Judge. So we're not talking in the fifth element of this Racketeering Act, generally about Internet commerce in a general way, the way that they put it in their first question in terms of any purpose, which they underlined. Because what the element is confined to is specifically the means of identification and whether the means of identification was transferred, possessed or used and that occurred in interstate or foreign commerce.
I think there is a limiting clause that limits the applicability of interstate commerce generally to specifically the means of identification. And then, your Honor -- when you're done with that I'll go on.
THE COURT: Go ahead.
MR. AGNIFILO: On page 75, in that middle paragraph, your Honor specifically charged them that as to the fifth element, "I instruct that you interstate or foreign commerce simply means the movement of goods, services, money and individuals between any two or more states, and a state and a foreign country."
So we charged them that it's more than two states.
MS. HAJJAR: Your Honor, the sentence goes on to say, "To satisfy this element the Government must prove the defendant's conduct affected interstate or foreign commerce in any way, no matter how minimal."
The case law is clear that using the Internet is one of those ways. And so the transfer or possession or use of the means of identification is simply the other elements of that crime. It simply refers to the other two, the defendant's conduct or a co-conspirator's conduct.
THE COURT: Tell me what you had proposed again.
MS. HAJJAR: "I instruct you that use of the Internet is an activity that affects interstate commerce. Then the answer to your second and third question is yes."
THE COURT: "I instruct you that the use of the Internet" --
MS. HAJJAR: "Is an activity that affects interstate commerce."
MR. AGNIFILO: We object to that, Judge, because --
THE COURT: Because it's legally incorrect?
MR. AGNIFILO: Because it's not what they are asking. Because what they are asking is they underline any purpose.
And it's not true, that use of the Internet affects interstate -- it might be true that's interstate commerce, but that's irrelevant in terms of the specific charge.
They were very particular that this is in regard to a specific charge as a Racketeering Act. And so it's not for any purpose.
What we have is we have a language that I cited on page 73 as the fifth element. And the language that I cited on page 75 where your Honor further explains the fifth element. And your Honor explained the fifth element as clear as a bell, that it has to be more than two states. That's what we charged them. And if you read that sentence and the sentence after it, what you're left with is that it has to be involving two or more states but the affect can be minimal.
It doesn't undo the two or more state language. We have the two or more state language in there as an affirmative factual statement. It wouldn't make sense to say that and then to undue it in the next sentence. The next sentence, I submit, tells the jury that once we have interstate commerce involving two or more states, the nature of that can be very minimal, but it doesn't undue the two or more states part of it. And then here we charge them as to the fifth element on page 73 has to relate specifically to the means of identification.
And so I think we have to capture that in whatever your Honor intends to tell the jury, because the jury has been now specific that it's in regard to this particular Racketeering Act that we've already given them language on.
MS. HAJJAR: Your Honor, the jury is only asking about the fifth element. The other four elements of this crime relate to the defendant's conduct and the means of identification. This is a legally correct instruction from the Second Circuit case law. We think it's appropriate to instruct the jury that way.
MR. AGNIFILO: And I think we're watering down what we agreed upon as the appropriate charge on this element.
THE COURT: "To the jury, I instruct you that the use of the Internet is an activity that affects interstate commerce. The answer to your second and third questions is yes. Please apply this instruction to the instructions you received in the jury charge."
So I'm not saying this is in place of it, this augments it. And that way they still have to go back and look at the jury charge and follow the jury charge. But the basic law, and I don't want them coming back to me every time they take a look at one of the charges and there is the use of the wires or there is a use of the Internet, the fact is, the use of the Internet is by definition an activity that affects interstate commerce. That's the law of the Circuit; that's the law of the United States.
And the fact that we didn't include it shouldn't create a problem for them, that's our problem. We should have caught it. But now that they've asked the question, and the question they asked, the initial question, does the use of the World Wide Web for any purpose fall under the umbrella of affecting interstate or foreign commerce. And the answer basically is yes. And we have plenty of case law to that affect.
You have your objection, obviously, but I'm here to help the jury understand what the law is. And to the fact that we confused them, shame on us. We have to fix it.
MR. AGNIFILO: But I don't think -- I think that they are trying to figure out by putting any purpose, it's very possible that they are doing is someone might have used the World Wide Web but not for something in regards to the crime. Why else would they put any purpose and underline it?
THE COURT: I don't know. I'm not in the jury room.
MR. AGNIFILO: Of course not. But without knowing the answer to that question, I think we're ignoring their any purpose underlining language and we're assuming something about their note that I don't know that we know. They are obviously concerned about the any purpose language, that's why they underlined it. We're not addressing that.
MS. HAJJAR: Your Honor is not proposing to instruct that their answer to all of their questions is yes. The instruction as your Honor just read it, is that use of the Internet is an activity that affects interstate commerce. And they can apply that definition as they look at the fifth element as instructed, which makes sense, they reflect each other. But they still have to go through each element. We think that's a perfectly appropriate instruction.
THE COURT: All right, you have your objection. I'm sure we'll hear from the jury soon.
(Judge exits courtroom.)
(Brief recess.)