UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦

UNITED STATES OF AMERICA,

03-CR-64 (NAM)
v.

RAFIL A. DHAFIR,

Defendant.

✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦✦

JURY CHARGE

ROLE OF THE COURT
Members of the Jury:
You have now heard all of the evidence in the case as well as the final arguments of the lawyers for the parties. Thank you for the very close attention which you have given the Court, the attorneys, and the witnesses during this lengthy trial.
It has been my duty to preside over the trial and decide what testimony and evidence is relevant and proper for your consideration. It is now my duty to instruct you as to the law. Your duty is to accept these instructions of law and apply them to the facts as you determine them.
You should not be concerned about the wisdom of any rule of law that I state. Regardless of any opinion that you may have as to what the law may be — or ought to be — it would violate your sworn duty to base a verdict upon any other view of the law than that which I give you.
Additionally, you should not single out any instruction as alone stating the law, but you should consider my instructions as a whole when you retire to deliberate in the jury room.

ROLE OF THE JURY
You, the members of the jury, are the sole and exclusive judges of the facts. You pass upon the weight of the evidence; you determine the credibility of the witnesses; you resolve such conflicts as there may be in the testimony; and you draw whatever reasonable inferences you find from the facts as you have determined them.
In determining the facts, you must rely upon your own recollection of the evidence. The evidence before you consists of the testimony given by the witnesses, the exhibits that were received in evidence, and any stipulations entered into between the parties. You may not consider any testimony that I directed you to disregard or that I struck from the record.
You may consider any stipulations of the parties as evidence.
What the lawyers have said in their opening statements, in their closing arguments, in their objections, or in their questions is not evidence. Furthermore, a question asked of a witness is not evidence. It is only the witness’ answer which is evidence.
Nor does anything I say constitute evidence. Nothing I may have said during the trial or may say during these instructions with respect to a factual matter should be taken in substitution for your own independent recollection. Since you are the sole and exclusive judges of the facts, I do not mean to indicate any opinion as to the facts or what your verdict should be. The rulings I have made during the trial are not any indication of my views of what your decision should be.
I also ask you to draw no inference from the fact that upon occasion I have asked questions of certain witnesses. These questions were only intended for clarification or to expedite matters and were not intended to suggest any opinions on my part as to the verdict you should render or whether any of the witnesses may have been more credible than any other witnesses.

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
The defendant has pleaded not guilty to the Fourth Supeseding Indictment. As a result, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty of every element of the crimes charged. The burden of proof never shifts to the defendant. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.
The law presumes the defendant to be innocent of the charges against him. Therefore, you must presume the defendant to be innocent throughout your deliberations until such time, if ever, you as a jury are satisfied that the government has proven him guilty beyond a reasonable doubt.
The defendant begins the trial here with a clean slate. This presumption of innocence alone is sufficient to acquit the defendant unless you as jurors are unanimously convinced beyond a reasonable doubt of his guilt after a careful and impartial consideration of all of the evidence in this case. If the government fails to sustain its burden, you must find the defendant not guilty.

REASONABLE DOUBT
I have said that the burden is at all times upon the government to prove each of the elements of the crimes charged beyond a reasonable doubt. The question naturally is what is a reasonable doubt? The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence.
A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion. Rather, it is a doubt which 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 must, therefore, be 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.
The requirement of proof beyond a reasonable doubt is not an excuse to avoid the performance of an unpleasant duty of rendering a verdict of guilty. And it does not permit you to act from prejudice or sympathy. Nor does the law require that the government prove guilt beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict.
If, after fair and impartial consideration of all of the evidence or lack of evidence you have a reasonable doubt, it is your duty to acquit the defendant. On the other hand, if after fair and impartial consideration of all the evidence you are satisfied of the defendant’s guilt beyond a reasonable doubt, it is your duty to vote to convict.

INDICTMENT IS NOT EVIDENCE
The Fourth Superseding Indictment describes the charges made against the defendant. You will be given a copy of the indictment to assist you in your deliberations.
It is important to remember that the indictment is not evidence. It is simply a set of accusations, a statement of what the government intends to prove by offering evidence at trial. It gives the defendant notice of the charges against him and informs the court and the public of the nature of the accusation. Obviously you cannot convict him of any crimes that are not charged in the indictment.
You may not consider the fact that there has been an indictment as any evidence of the guilt of the defendant. Since the indictment is not evidence and since it does not purport to prove or even indicate evidence against the defendant, you are to give it no weight. As I said, the defendant begins trial with an absolutely clean slate and without any evidence against him. In reaching your verdict, you may consider only the evidence, or lack thereof, that you have heard or seen in this trial.

THE GOVERNMENT AS A PARTY
The case is important to the government, because the just enforcement of criminal laws is a matter of prime concern to the community. This case is equally important to the defendant, who is charged with serious crimes.
The fact that the case is brought in the name of the United States of America entitles the government to no greater consideration than that accorded to the defendant. By the same token, it is entitled to no less consideration. Both parties, whether the government or the defendant, stand as equals at the bar of justice.
The question before you can never be: will the government win or lose the case. The government always wins when justice is done, regardless of whether the verdict is guilty or not guilty.

CONDUCT OF COUNSEL
It is the duty of the lawyer for one side to object when he believes that testimony or other evidence offered by the other side is not properly admissible. Lawyers have the right and duty to ask the court to make rulings of law and to request conferences at the side bar out of the hearing of the jury. All those questions of law must be decided by the judge. You should not be prejudiced against an attorney or his client because the attorney objected to the admissibility of evidence, asked for a conference out of the hearing of the jury or asked the court for a ruling on the law.

IMPROPER CONSIDERATIONS: SYMPATHY,
RACE, RELIGION, NATIONAL ORIGIN, SEX, OR AGE

Your verdict must be based solely upon the evidence in this case. Under your oath as jurors, you are not to be swayed by sympathy.
Likewise, it would be improper for you to consider, in reaching your verdict, any personal feelings you may have about the defendant’s race, religion, national origin, sex or age. Nor should you allow any feelings you might have about the nature of the crime charged to interfere with your decision making process.
If you let fear, prejudice, bias or sympathy interfere with your thinking there is a risk that you will not arrive at a just verdict.
It is your responsibility to decide whether the government has proven that the defendant is guilty of the crimes charged solely on the basis of the evidence and subject to the law as I charge you. If you have a reasonable doubt as to the defendant’s guilt, you should not hesitate for any reason to acquit him. But, on the other hand, if you should unanimously find that the government has met its burden of proving guilt beyond a reasonable doubt, you should not hesitate because of sympathy or any other reason to render a verdict of guilty.

DIRECT AND CIRCUMSTANTIAL EVIDENCE
As I explained to you at the beginning of this trial, in deciding whether the defendant is guilty or not guilty, you may rely on both direct evidence and circumstantial evidence.
Direct evidence is a witness’ testimony about what he or she saw, heard or observed.
Circumstantial evidence is evidence which tends to prove a fact by proof of other facts. At the beginning of this trial I gave you the example of snow after 11 pm. Circumstantial evidence is of no less value than direct evidence, and the law makes no distinction between the two.

REDACTION OF EVIDENTIARY ITEMS
We have, among the exhibits received in evidence, some documents which are redacted. “Redacted” means that, at my direction, part of the document or conversation was cut out. You are to concern yourself only with the part of a document or conversation that is in evidence. Do not concern yourself with why I might have ordered other parts to be removed.

“ON OR ABOUT” — EXPLAINED
The Fourth Superseding Indictment charges that certain offenses were committed “on or about” certain dates. The proof need not establish with certainty the exact dates of the alleged offenses. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offenses were committed on dates reasonably near the dates alleged.

DEFENDANT’S RIGHT NOT TO TESTIFY
Rafil Dhafir did not testify in this case. You may not draw an adverse inference against him because he did not take the witness stand. Indeed, you may not attach any significance whatever to the fact that he did not testify. It would be improper for you even to consider this in your deliberations.
Under our constitution, the defendant has no obligation to testify or to present any evidence. It is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. That burden remains with the prosecution throughout the entire trial and never shifts to the defendant. The defendant is never required to prove that he is not guilty.

ADMISSION BY DEFENDANT
There has been evidence that Rafil Dhafir made certain statements to government agents. In deciding what weight to give such statements, you should first examine with great care whether each statement was made and whether it was voluntarily and understandingly made. You are to give the statements such weight as you feel they deserve in light of all the evidence.

KNOWLEDGE, WILFULNESS AND INTENT
Knowledge, wilfulness and intent involve the state of a person’s mind. Accordingly, this is a fact you are called upon to decide.
Medical science has not yet devised an instrument that can record what was in one’s mind in the distant past. Rarely is direct proof available to establish a person’s state of mind. Rather it may be inferred from what the person says or does: his or her words, actions and conduct, as of the time of the occurrence of certain events.
The state of mind with which an act is done is often more clearly and conclusively shown by the act itself, or by a series of acts, than by words or explanations of the act uttered long after its occurrence. Accordingly, knowledge, wilfulness and intent are often established by surrounding facts and circumstances as of the time the acts in question occurred, or the events took place, and the reasonable inferences to be drawn from them.

GUILTY KNOWLEDGE FROM CLANDESTINE BEHAVIOR AND/OR
FROM FAILURE TO KEEP RECORDS
Wilful intent or guilty knowledge may be inferred from the secretive or irregular manner in which a transaction is carried out. Wilful intent or guilty knowledge may also be inferred from such conduct as the handling of one’s affairs so as to avoid making records or issuing documents which are usually kept in transactions of a particular kind; or from the failure to keep records; or, in fact, any conduct the likely effect of which would be to mislead others and/or conceal information.
However, such conduct does not necessarily show wilful intent or guilty knowledge, and an innocent person might engage in such conduct for reasons of his own. As the jury, you alone must decide whether such conduct, if proven, is indicative of a wilful intent or guilty knowledge.

EVIDENCE OF UNCHARGED CONDUCT
If there is any evidence which you feel suggests that the Rafil Dhafir engaged in criminal conduct not charged in this Indictment, I remind you that he is not on trial for any conduct not alleged in the Indictment. You may not consider any evidence of other conduct as a substitute for proof that he committed the crimes charged. Nor may you consider such evidence as proof that he had a criminal personality or bad character. The evidence of the other conduct and statements was admitted for a much more limited purpose and you may consider it only for that limited purpose.
Evidence of other conduct of Rafil Dhafir may be relevant to establish his state of mind in carrying out the acts alleged in the indictment. If you determine that he committed the acts charged in the indictment and engaged in the other conduct as well, then you may, but you need not consider this other conduct in deciding whether he acted knowingly, intentionally, and/or fraudulently, and not because of some innocent reasons in doing the acts charged in the indictment.
You may not consider evidence of other conduct for any purpose other than assessing Rafil Dhafir’s state of mind in committing the acts charged in the indictment which you independently find he has committed. You may not use this evidence to conclude that because he engaged in the other conduct, he must also have committed the acts charged in the indictment.

NUMBER OF WITNESSES AND CUMULATIVE EVIDENCE
There is no requirement that elements of an offense be proven by any particular number of witnesses. Further, no party need call a witness whose testimony is likely to be merely cumulative.
The fact that one party called more witnesses or introduced more evidence than the other does not mean that you should necessarily find the facts in favor of that party. It is the quality of the testimony that is controlling, not the number of witnesses who testify. Remember that Rafil Dhafir has no obligation to prove or disprove anything.

WITNESS CREDIBILITY–GENERAL INSTRUCTION
You are the sole judges of the credibility of each witness and of the importance of his or her testimony.
Your decision whether or not to believe a witness may depend on how that witness impressed you. Was the witness candid, frank and forthright? Or, did the witness seem to be hiding something, evasive or suspect in some way? How did the way the witness testified on direct examination compare with how the witness testified on cross-examination? Was the witness’ testimony consistent or were there contradictions? Did the witness appear to know what he or she was talking about? Did the witness strike you as someone who was trying to report his or her knowledge accurately?
How much you choose to believe a witness may be influenced by whether you think the witness is biased. Does the witness have a relationship with the defendant or the government which may affect how he or she testified? Does the witness have some incentive, loyalty or motive that might cause him or her to shade the truth; or, does the witness have some bias, prejudice or hostility that may have caused the witness — consciously or not — to give you something other than a completely accurate account of the facts testified to?
Even if the witness was impartial, you should consider whether the witness had an opportunity to observe the facts he or she testified about. You should also consider the witness’ ability to express himself or herself. Ask yourselves whether the witness’ recollection of the facts stands up in light of all other evidence.
You do not have to accept the testimony of any witness just because he or she has not been contradicted or impeached, if you find the witness not to be credible.
In other words, in deciding the credibility of each witness, you should use your common sense, your good judgment, and your experience, just as you would in any important matter where you are trying to decide if a person is truthful, straightforward and accurate in his or her recollection.

INTEREST IN OUTCOME
There may be evidence that a particular witness may benefit in some way from the outcome of this case. An interest in the outcome of the case may create a motive to testify falsely and may sway the witness to testify in a way that advances his or her own interests. Therefore, if you find that a witness has such an interest, you should bear that factor in mind when evaluating his or her testimony and accept it with great care.
This is not to suggest that every witness who has an interest in the outcome of a case will testify falsely. It is for you to decide to what extent, if at all, the witness’ interest has affected his or her testimony.

GOVERNMENT WITNESSES — ALLEGED ACCOMPLICES
You have heard witnesses who testified that they were actually involved in planning and/or carrying out crimes charged in the indictment. The law allows the use of these so-called accomplice witnesses. Often the government has no choice. After all, the government must rely upon witnesses to transactions, whoever they are; otherwise in many instances it would be difficult to detect and prosecute wrongdoers.
If you conclude that an alleged accomplice witness has given reliable testimony, you are required to act upon it exactly as you would act on any other testimony you find to be reliable. There is no requirement that the testimony of such a witness be corroborated or supported by other evidence; a conviction may rest upon such testimony alone, if you believe it.
However, it is also the case that this type of testimony is of such nature that it must be scrutinized with great care and viewed with particular caution when you decide how much of that testimony to believe. You should ask yourselves whether the alleged accomplices would benefit more by lying, or by telling the truth. Was their testimony made up in any way because they believed or hoped that they would somehow receive favorable treatment by testifying falsely or by tailoring their testimony in some manner? Or did they believe that their interests would be best served by testifying truthfully? If you believe that such witnesses were motivated by hopes of personal gain, was the motivation one which would cause them to lie, or was it one which would cause them to tell the truth? Did this motivation color their testimony?
In sum, you should look at all of the evidence in deciding what credence and what weight, if any, you will want to give to such evidence.

GOVERNMENT WITNESSES AND CO-OPERATION AGREEMENTS
You have also heard evidence that several witnesses for the government have criminal charges pending against them and hope to receive reduced sentences in return for their cooperation with the government. Each of these witnesses has entered into a plea agreement with the government which provides that, if the prosecutor concludes that the witness provided substantial assistance, the prosecutor will make a motion in the court where the charges are pending, to reduce his sentence below the statutory minimum. The determination as to whether a witness has provided substantial assistance is within the sole discretion of the prosecution. The Court has no power to reduce a sentence for substantial assistance unless the government files a motion asking the Court to do so. The prosecution may not, however, unfairly refuse to make the motion. If the government does make the motion, then it is up to the Court to decide whether to reduce the sentence at all, and if so, how much to reduce it. I will tell you, however, that I have never denied a motion by the government for a reduced sentence for substantial assistance.
You may give the testimony of these witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by his hope of receiving a reduced sentence is for you to decide.

GOVERNMENT WITNESS — IMMUNITY
You have heard the testimony of a witness who has been promised that in exchange for testifying truthfully, completely, and fully, he will not be prosecuted for any crimes which he may have admitted either here in court or in interviews with the prosecutors. This promise was not a formal order of immunity by the court, but was arranged directly between the witness and the government.
The government is permitted to make these kinds of promises and is entitled to call as witnesses people to whom these promises are given. You may convict the defendant on the basis of such a witness’ testimony alone, if you find that his testimony proves each and every element of the offenses charged beyond a reasonable doubt.
You have also heard the testimony of a witness who has testified under a grant of immunity from this court. What this means is that the testimony of the witness may not be used against him in any criminal case, except a prosecution for perjury or for otherwise failing to comply with the immunity order. The government is entitled to call, as a witness, a person who has been granted immunity, and you may convict the defendant on the basis of such a witness’ testimony alone, if you find that the testimony proves the defendant’s guilt beyond a reasonable doubt.
However, in any instance, the testimony of a witness who has been promised that he will not be prosecuted 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’ 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 received by you with suspicion and you may give it such weight, if any, as you believe it deserves.

GOVERNMENT WITNESS -
NOT PROPER TO CONSIDER GUILTY PLEA
You have heard testimony from government witnesses who pleaded guilty to charges arising out of the same facts as this case. You are to draw no conclusions or inferences of any kind about the guilt of the defendant from the fact that someone else pleaded guilty to similar charges. That witness’ decision to plead guilty was a personal decision about his own guilt. You may not consider it as evidence against or unfavorable to Rafil Dhafir.
Likewise, you may not consider the fact that a witness sought or obtained immunity from the government as evidence against or unfavorable to the defendant.

LAW ENFORCEMENT WITNESSES
You have heard the testimony of law enforcement officials. The fact that a witness may be employed as a law enforcement official does not mean that his or her testimony is deserving of more or less consideration or greater or lesser weight than that of an ordinary witness.
It is for you to decide, after reviewing all the evidence, whether or not to accept the testimony of the law enforcement witnesses and how much weight, if any, to give it. You should consider the testimony of each law enforcement witness separately, as you should with each civilian witness.

INTERVIEW OF WITNESSES
There was testimony at trial that the attorneys for the government interviewed witnesses when preparing for and during the course of the trial. You should not draw any unfavorable inference from that conduct. To the contrary, the attorneys were obliged to prepare this case as thoroughly as possible and might have been derelict in the performance of their duties if they failed to interview witnesses before this trial began and as necessary throughout the course of the trial.

DISCREPANCIES IN TESTIMONY
Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; an innocent mis-recollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.
After making your own judgment, you will give the testimony of each witness such credibility, if any, as you think it deserves.

FALSUS IN UNO
If you find that any witness has wilfully testified falsely as to any material fact, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about other important matters. You are not required, however, to consider such a witness as totally unworthy of belief. You may accept so much of his or her testimony as you deem true and disregard what you feel is false.

UNDERCOVER INVESTIGATION
Keep in mind in connection with the activities of the government that the law does not forbid undercover activity. In fact, to the contrary, undercover activity is recognized as a legitimate and valuable police tool and there is nothing improper in and of itself in engaging in undercover activity.
The government has the right to use deception for this is often a necessary part of
undercover work and without such undercover activity it would be difficult for the government to investigate criminal activity. Likewise, the fact that conversations were recorded is not improper.

PUNISHMENT
The question of possible punishment of the defendant is of no concern to 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 defendant is guilty beyond a reasonable doubt, solely upon the basis of such evidence. Under your oath as jurors, you cannot allow a consideration of the punishment which may be imposed upon the defendant, if he is convicted, to influence your verdict, in any way, or, in any sense, enter into your deliberations.

OVERVIEW OF FOURTH SUPERSEDING INDICTMENT
With these preliminary instructions in mind, we now turn to the charges against the defendant in the Fourth Superseding Indictment. The indictment alleges that the defendant participated in several types of interrelated criminal activities in the Northern District of New York beginning sometime before February 1995 and continuing until February 2003. The alleged criminal activities fall into six basic categories, which I will explain in more detail later. Briefly, these categories are:
(1) conspiracies to defraud the United States or to violate its laws;
(2) money laundering, that is, engaging in financial transactions which were unlawful because they were conducted to promote Iraqi Sanctions violations;
(3) tax offenses;
(4) health care fraud;
(5) using false documents or making false statements to the government; and
(6) mail and wire fraud.
The Fourth Superseding Indictment, which you will have with you to refer to, contains sixty counts. First I will summarize the counts, then explain them in more detail.
The first count charges that Rafil Dhafir participated in a conspiracy to wilfully and knowingly commit an offense against the United States by sending money into Iraq when it was illegal to do so.
Count two charges that Rafil Dhafir participated in a money-laundering conspiracy, specifically, knowingly and intentionally conspiring to transmit funds from places in the United to places outside the United States, including Amman, Jordan and Iraq, with the intent to promote the carrying on of specified unlawful activity. The specified unlawful activity is the violation of the Iraqi sanctions.
Counts three through fourteen charge Rafil Dhafir with money laundering, that is, with knowingly and intentionally transmitting funds from places in the United States to places outside the United States, including Amman, Jordan and Iraq, with the intent to promote the carrying on of specified unlawful activity, that is, the violation of the Iraqi sanctions.
Count fifteen charges that Rafil Dhafir participated in a conspiracy to defraud the United States by obstructing the Internal Revenue Service in its function of computing and collecting income taxes from donors who improperly deducted contributions to Help the Needy and Help the Needy Endowment, Inc. on their federal income tax returns, even though those organizations had not been recognized by IRS as tax exempt organizations.
Count sixteen charges that Rafil Dhafir wilfully aided in the preparation and presentation to IRS of a materially fraudulent and false document, that is, the IRS Form 1023 Application for Recognition of Exemption submitted by Help the Needy Endowment, Inc. in August 2002.
Counts seventeen through twenty-two charge that Rafil Dhafir wilfully attempted to evade a large part of the federal income tax due and owing by him and his spouse for the calendar years 1996 through 2001, by preparing and causing to be prepared false and fraudulent joint U.S. Individual Income Tax Returns, Form 1040, which deducted contributions to Help the Needy when it was not a recognized charity.
Count twenty-three charges that Rafil Dhafir knowingly caused to be presented to the Immigration and Naturalization Service an application for Ayman Jarwan’s H-1B1 visa, which contained a false material statement, specifically, the amount that Jarwan would be paid.
Counts twenty-four through forty-nine charge that Rafil Dhafir executed a scheme and artifice to defraud Medicare, a health care benefit program, by means of false and fraudulent representations in connection with the delivery of and payment for health care benefits by billing for services claiming the defendant was present in the suite when, in fact, he was away.
Count fifty charges that Rafil Dhafir knowingly and wilfully made a false statement about a material fact in a matter within the jurisdiction of the Department of Health and Human Services, in that, during an interview with a benefit integrity specialist for a Medicare carrier who was auditing his medical practice, he said that he was always present when a nurse practitioner performed chemotherapy and that he had not been away from his practice that year.
Counts fifty-one through fifty-seven charge that Rafil Dhafir used the United States mails in the execution of a scheme to defraud donors to Help the Needy and Help the Needy Endowment, Inc. and to obtain their money by falsely representing that the money would aid starving children in Iraq.
Counts fifty-eight through sixty charge that Rafil Dhafir executed the same fraudulent scheme through the use of wire communications in interstate and foreign commerce.

I will now give you specific instructions on each crime charged.

COUNT ONE – CONSPIRACY TO VIOLATE IRAQI SANCTIONS
Count One of the indictment charges that, beginning sometime before February 1995 and continuing through February 2003, Rafil Dhafir conspired with other persons to commit offenses against the United States, that is, knowingly and wilfully to violate and evade, and attempt to violate and evade, the Iraqi Sanctions by transferring, directly and indirectly, funds and other financial and economic resources to one or more persons in the Country of Iraq.
This conspiracy, if proven, violates 18 U.S.C. § 371, which states: “If two or more persons conspire … to commit any offense against the United States … in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each commits an offense against the United States.”
I will now explain in greater detail the elements of a conspiracy. Then, I will tell you about the specific offense against the United States which is the object of the conspiracy alleged — that is, the violation of the Iraqi Sanctions.

CONSPIRACY
A conspiracy is a criminal partnership — a combination or agreement of two or more persons to join together to accomplish some unlawful object. The crime of conspiracy 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.” Thus, you may find the defendant guilty of conspiracy to commit an offense against the United States even if the offense which was the object of the conspiracy was not actually committed.
Congress has deemed it appropriate to make conspiracy, standing alone, a separate crime even if the conspiracy is not successful. This is because collective criminal activity poses a greater threat to the public’s safety and welfare than individual conduct, and increases the likelihood of success of a particular criminal venture.
In order to satisfy its burden of proof with respect to Count One, the government must establish each of the following essential elements of conspiracy beyond a reasonable doubt:
First: That two or more persons entered into the unlawful agreement charged in the indictment;
Second: That Rafil Dhafir knowingly and wilfully joined the conspiracy;
Third: That one of the members of the conspiracy knowingly committed at least one
of the overt acts charged in the indictment; and
Fourth: That at least one of the overt acts which you may find to have been committed was committed to further some objective of the conspiracy.
Also, you must find either that the agreement was formed or that an overt act was
committed in the Northern District of New York, which includes all of Upstate New York between and including Auburn and Albany and between Pennsylvania and Canada.

FIRST ELEMENT — EXISTENCE OF AGREEMENT
The first element which the government must prove beyond a reasonable doubt to establish the offense of conspiracy is that two or more persons entered into the unlawful agreement charged in the indictment.
To find that the government has satisfied this element, you need not find that the alleged members of the conspiracy met together and entered into any express or formal agreement. Similarly, you need not find that the alleged conspirators stated, in words or writing, what the scheme was, its object, or every precise detail of the scheme or the means by which its object was to be accomplished. What the government must prove is that there was a mutual understanding, either spoken or unspoken, between two or more people, to cooperate with each other to accomplish an unlawful act.
You may find that the existence of such an agreement has been established by direct proof. However, since conspiracy is, by its very nature, characterized by secrecy, you may also rely on circumstantial evidence to find that the unlawful agreement charged has been established. In a very real sense, then, in the context of conspiracy cases, actions often speak louder than words. In this regard, in determining whether an agreement existed here, you may consider the actions and statements of all of those you find to be participants as proof that a common design existed on the part of the persons charged to act together for the accomplishment of an unlawful purpose.

SECOND ELEMENT – MEMBERSHIP IN THE CONSPIRACY
The second element which the government must prove beyond a reasonable doubt to establish the offense of conspiracy is that the Rafil Dhafir knowingly, willfully and voluntarily became a member of the conspiracy.
If you are satisfied that the conspiracy charged in the indictment existed, you must next ask yourselves who the members of that conspiracy were. In deciding whether Rafil Dhafir was, in fact, a member of the conspiracy, you should consider whether he knowingly and willfully joined the conspiracy. Did he participate in it with knowledge of its unlawful purpose and with the specific intention of furthering its business or objective?
As I mentioned a moment ago, before the defendant can be found to have been a conspirator, you must first find that he knowingly joined in the unlawful agreement or plan. The key question, therefore, is whether the defendant joined the conspiracy with an awareness of at least some of the basic aims and purposes of the unlawful agreement.
You may find that the defendant had knowledge of the conspiracy’s unlawful objectives if you find proof beyond a reasonable doubt that he was aware of a high probability that the unlawful objectives existed, but deliberately kept himself ignorant of the relevant facts, unless you find that he actually believed that such illegal objectives did not exist.
It is important for you to note that the defendant’s participation in the conspiracy must be established by independent evidence of his own acts or statements, as well as those of the other alleged co-conspirators, and the reasonable inferences which may be drawn from them.
The defendant’s knowledge is a matter of inference from the facts proved. In that connection, I instruct you that to become a member of the conspiracy, the defendant need not have known the identities of each and every other member, nor need he have been apprised of all of their activities. Moreover, the 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.
The extent of the defendant’s participation has no bearing on the issue of whether he is guilty or not. A conspirator’s liability is not measured by the extent or duration of his participation. Indeed, each member may perform separate and distinct acts and may perform them at different times. Some conspirators may play major roles, while others may play minor parts in the scheme. An equal role is not what the law requires. In fact, even a single act may be sufficient to draw the defendant within the ambit of the conspiracy.
I want to caution you, however, that the defendant’s mere presence at the scene of the alleged crime does not, by itself, make him a member of the conspiracy. Similarly, mere association with one or more members of the conspiracy does not automatically make the defendant a member. A person may know, or be friendly with, someone engaged in criminal activity, without being a criminal himself. Mere similarity of conduct or the fact that they may have assembled together and discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy.
I also want to caution you that 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 happen to further the purposes or objectives of the conspiracy, does not make him a member. More is required under the law. What is necessary is that 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.
In sum, the 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 the unlawful agreement–that is to say, a conspirator.
THIRD ELEMENT — COMMISSION OF OVERT ACT
The third element which the government must prove beyond a reasonable doubt to establish the offense of conspiracy is that at least one of the overt acts charged in the indictment was knowingly committed by at least one of the conspirators. The indictment sets forth a number of alleged overt acts. I will not state them here — rather, I refer you to the indictment.
In order for the government to satisfy this element, it is not required to prove all of the overt acts alleged. You need not find that this particular defendant in this case committed an overt act. It is sufficient for the government to show that any one of the conspirators knowingly committed any one overt act in furtherance of the conspiracy, since such an act becomes, in the eyes of the law, the act of all of the members of the conspiracy.
The overt act need not have been committed at precisely the time alleged, provided that you are convinced that it occurred at or about the time and place stated. You must find, however, that the overt act occurred while the conspiracy was still in existence.
Also, you must find beyond a reasonable doubt either that the agreement was formed or that an overt act was committed in the Northern District of New York, which includes all of Upstate New York between and including Auburn and Albany and between Pennsylvania and Canada.

FOURTH ELEMENT — FURTHERANCE OF THE CONSPIRACY
The fourth, and final, element which the government must prove beyond a reasonable doubt, is that the overt act was committed for the purpose of carrying out the unlawful agreement under consideration.
In order for the government to satisfy this element, it must prove that at least one overt act was knowingly and wilfully done, by at least one conspirator, in furtherance of some object or purpose of the conspiracy, as charged in the count of the indictment that you are considering. In this regard, you should bear in mind that the overt act, standing alone, may be an innocent, lawful act. Frequently, however, an apparently innocent act sheds its harmless character if it is a step in carrying out, promoting, aiding or assisting a conspiratorial scheme. 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.

ACTS AND DECLARATIONS OF CO-CONSPIRATORS
You will recall that I have admitted into evidence the acts and statements of others because these acts and statements were committed by persons who, the government charges, were defendant’s co-conspirators. The reason for allowing this evidence to be received has to do with the nature of the crime of conspiracy. A conspiracy is often referred to as a partnership in crime. Thus, as in other types of partnerships, when people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy.
Accordingly, the reasonably foreseeable acts, declarations, statements and omissions of any member of the conspiracy done or made in furtherance of the common purpose of the conspiracy, are deemed, under the law, to be the acts of all of the members, and all of the members are responsible for such acts, declarations, statements and omissions.
If you find, beyond a reasonable doubt, that Rafil Dhafir was a member of the conspiracy charged in the indictment, then, any acts done or statements made in furtherance of the conspiracy by persons also found by you to have been members of that conspiracy, may be considered against the defendant. This is so even if such acts were done and statements were made in the defendant’s absence and without his knowledge.
However, before you may consider the statements or acts of an alleged co-conspirator in deciding whether the government has proven the defendant’s guilt, you must first determine that the acts and statements were made during the existence, and in furtherance, of the unlawful scheme. If the acts were done or the statements made by someone whom you do not find to have been a member of the conspiracy or if they were not done or said in furtherance of the conspiracy, they may be considered by you as evidence only against the member who did or said them and not against Rafil Dhafir.

UNCHARGED CO-CONSPIRATORS
You may not draw any inference, favorable or unfavorable, towards the government or the defendant on trial from the fact that certain persons were not named as defendants in the indictment. The fact that these persons were not indicted must play no part in your deliberations and you may not consider it in any way in reaching your verdict.

PURPOSE OF CONSPIRACY
The government alleges that the purpose of the conspiracy in Count One was to commit an offense against the United States, specifically the violation or evasion of the Iraqi Sanctions by wilfully transferring or attempting to transfer, directly or indirectly, funds or other financial or economic resources to persons in Iraq. The elements of this offense as charged are:
ONE: That the defendant or one of his co-conspirators is a United States person;
TWO: That the defendant or one of his co-conspirators transferred or attempted to transfer, directly or indirectly, funds or other financial or economic resources to persons in Iraq; and
THREE: That the defendant acted wilfully.

With respect to the first element, I charge you as a matter of law that, as a United States citizen, Rafil Dhafir is a “United States person” within the meaning of the sanctions.
As used here, the term “wilfully” means acting voluntarily and with the specific intent to do something the law forbids — that is, with bad purpose either to disobey or disregard the law.
The phrase “transferring funds or other financial or economic resources” includes the transfer of money through checks, wire transfers, or cash by any U.S. person to any person in Iraq.
The Iraqi Sanctions prohibited both “direct” and “indirect” transfers to Iraq. Therefore, if funds or other resources were transferred to a third country for the later delivery to Iraq, that would constitute “indirect” transfers.
The pertinent sections of the regulations known as the “Iraqi Sanctions” are set forth in the indictment and I will not repeat them here. Briefly, they were part of the International Emergency Economic Powers Act which, among other things, authorizes the President of the United States to deal with certain threats to the security of the United States by declaring a national emergency and regulating or prohibiting various financial transactions.
In August 1990, the President issued two Executive Orders in which he found that the policies and actions of the government of Iraq constituted a threat to the United States, declared a national emergency to deal with that threat, and generally prohibited trade with Iraq. The President further prohibited certain activities relating to Iraq, including any transfer of funds or other financial or economic resources by any United States person to the Government of Iraq or any other person in Iraq.
Under these Executive Orders, which continued in effect through the time of the indictment, the Office of Foreign Assets Control of the Treasury Department enacted the “Iraqi Sanctions” regulations, which prohibited the transfer, direct or indirect, of funds or other financial or economic resources to the Government of Iraq or any person in Iraq, and required individuals and organizations to obtain a specific license from the Office of Foreign Assets Control before providing humanitarian aid to Iraq.
The Iraqi Sanctions further prohibited any transaction having the purpose or effect of evading the sanctions. They also prohibited any attempt to violate the sanctions and any conspiracy formed with the object of engaging in a prohibited transaction.

COUNT TWO — MONEY-LAUNDERING CONSPIRACY
Count two of the indictment charges a money-laundering conspiracy in violation of 18 U.S.C. § 1956(a)(2)(A) and (h). Under these provisions, it is illegal to conspire to commit certain offenses, including the transmission or transfer of a monetary instrument or funds from a place in the United States to or through a place outside the United States with the intent to promote the carrying on of a specified unlawful activity.
Count two charges that, beginning sometime before February 1995 and continuing through February 2003, Rafil A. Dhafir and others knowingly and intentionally conspired in the knowing transfer of funds from places in the United States, including Syracuse, New York, to places outside the United States, including Amman, Jordan and Iraq, with the intent to promote the carrying on of specified unlawful activity, that is, the knowing and wilful violation and attempted violation of the Iraqi Sanctions, by, among other things, transferring, directly and indirectly, funds and other financial and economic resources to one or more persons in the Country of Iraq.
Therefore, the government must prove the following elements beyond a reasonable doubt:
First: That two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan to violate 18 U.S.C. § 1956, as charged in the indictment; and
Second: That the defendant, knowing the unlawful purpose of the plan, wilfully joined in it.
The general instructions that I gave previously in Count One with respect to the existence of an agreement and defendant’s participation also apply to this count, Count Two. With respect to Count Two, however, there is no requirement of an overt act in furtherance of the conspiracy. The alleged purpose of the conspiracy in this count was to transfer money to a place outside the United States in order to promote the violation of the Iraqi Sanctions. I have already discussed with you the specifics of the Iraqi Sanctions in connection with Count One.

COUNTS 3 THROUGH 14 – MONEY LAUNDERING
Counts 3 through 14 of the indictment charge the defendant with substantive counts of money laundering in violation of 18 U.S.C. § 1956(a)(2)(A), which provides in pertinent part:
Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States … with the intent to promote the carrying on of specified unlawful activity is guilty of an offense against the United States.

COUNTS 3 – 10
Counts 3 through 10 of the indictment charge that the defendant transferred and caused to be transferred funds from a place in the United States to a place outside the United States, with the intent to promote the carrying on of specified unlawful activity — that is, the knowing and wilful violation and attempted violation of the Iraqi Sanctions, by transferring, directly and indirectly, funds and other financial and economic resources to one or more persons in the Country of Iraq, by specified transfers of funds from accounts of Help the Needy at the banks in the United States to an account of Maher Zagha at the Jordan Islamic Bank.
The indictment then lists eight specific transactions, one for each count. Rather than repeat them here I refer you to the indictment.

COUNTS 11 – 14
Counts 11 through 14 of the indictment charge that the defendant transferred and caused to be transferred funds from a place in the United States to a place outside the United States, with the intent to promote the carrying on of specified unlawful activity — that is, the knowing and wilful violation and attempted violation of the Iraqi Sanctions, by transferring, directly and indirectly, funds and other financial and economic resources to one or more persons in the Country of Iraq by specified transfers of funds from accounts of Help the Needy at the banks in the United States to an account of Maher Zagha at the Jordan Islamic Bank.
The indictment then lists four specific transactions, one for each count. Rather than repeat them here I refer you to the indictment.

COUNTS 3 – 14, ELEMENTS
In connection with each of these counts three through 14, the government must establish beyond a reasonable doubt each of the following elements with respect to that count:
First: that the defendant transported, transmitted or transferred a monetary instrument or funds from the United States to places outside the United States; and
Second: that he did so with the intent to promote the violation of the Iraqi Sanctions.

FIRST ELEMENT — TRANSPORTATION OF A MONETARY
INSTRUMENT OR FUNDS TO OR FROM THE UNITED STATES

The first element which the government must prove beyond a reasonable doubt is that the defendant transported, transmitted or transferred a monetary instrument or funds from a place in the United States to places outside the United States.
The term ”monetary instrument” means coin or currency of the United States or of any other country, travelers’ checks, personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that title thereto passes upon delivery, and negotiable instruments in bearer form or otherwise in such form that title thereto passes upon delivery.
The term ”funds” refers to money or negotiable paper which can be converted into currency.
”Transports,” “transmits,” and “transfers” are not words which require a definition; they are words which have their ordinary, everyday meaning. They include all physical and non-physical means of sending, mailing, shipping, or moving funds. The government need not prove that the defendant physically carried the funds or monetary instrument in order to prove that he is responsible for transporting it. All that is required is proof that the defendant caused the funds or monetary instrument to be transported, transmitted or transferred.
There is no requirement that the funds be the proceeds of some distinct activity in order for liability to attach. In other words, the money need not be money that was illegally obtained.
The government must also prove beyond a reasonable doubt that the funds or monetary instruments were transported, transmitted or transferred from somewhere in the United States to someplace outside the United States.

SECOND ELEMENT – INTENT TO PROMOTE IRAQI SANCTIONS VIOLATION
With respect to the second element, the government must prove beyond a reasonable doubt that the defendant acted with intent to promote the carrying on of the specified unlawful activity, namely the Iraqi Sanctions violation. I have already discussed the Iraqi Sanctions with you in connection with the first count.

THE DIFFERENCE BETWEEN THE CONSPIRACY
AND SUBSTANTIVE MONEY LAUNDERING COUNTS
Counts 3 through 14 charge Rafil Dhafir with the substantive offense of money laundering. I have already described the legal elements of money laundering, so I won’t repeat them. The difference between the conspiracy and the substantive offenses is, in essence, that in order to convict the defendant of conspiracy, the government must prove beyond a reasonable doubt that he and others knowingly and wilfully entered into an agreement to do something illegal — in this case, sending money to Jordan to promote the further transfer of the money to Iraq. The agreement to do something is the essence of the charge contained in the conspiracy count. Actually doing the transfer is the essence of the charges contained in the money laundering counts, 3 through 14. In order to find Rafil Dhafir guilty in Counts 3 through 14, you must find that the government has proved beyond a reasonable doubt that, either directly or indirectly or through others, he actually did something to make the charged transactions occur, that is, that he actually caused the money to be transferred from the United States to Jordan in order to promote the further delivery of money to Iraq.

COUNT 15 – CONSPIRACY TO DEFRAUD UNITED STATES
Count 15 charges the defendant with conspiring to defraud the United States in connection with the collection of federal income taxes. The indictment charges that, beginning sometime prior to January 1995, and continuing through February 2003, the defendant knowingly conspired with other persons to defraud the United States by impeding, impairing, obstructing and defeating the I.R.S. in its lawful and authorized function of ascertaining, computing, assessing, and collecting income taxes from donors who improperly deducted contributions to Help the Needy and Help the Needy Endowment, Inc. on their federal income tax returns, even though neither organization had been recognized by the I.R.S. as a tax exempt organization.
I have already described what a conspiracy is in Count One. Likewise, with respect to Count 15, the government must prove beyond a reasonable doubt that an agreement between Rafil Dhafir and at least one other person existed, that Rafil Dhafir knowingly entered into that agreement, and that at least one of the conspirators committed an overt act to accomplish the purpose of the conspiracy. As in Count 1, the government does not have to prove all of the overt acts in the conspiracy, but it must prove at least one.
In Count One, the purpose of the alleged conspiracy had to do with Iraq. In Count 15, the purpose of the alleged conspiracy has to do with the I.R.S. Specifically, in Count 15, the purpose is alleged to have been to impede, impair, obstruct and defeat the I.R.S. in its computation and collection of income tax by means that involve deceit, craft, chicanery or at least means that involve dishonesty. Count 15 alleges that Rafil Dhafir and others concealed Help the Needy’s ownership of bank accounts by reporting some of the income on the Somali Relief Network’s return, by concealing from the government that money was being sent to Iraq, by telling donors that Help the Needy was tax exempt when it was not, and by filing a false application for charitable status.
In order for the defendant to be convicted of Count 15, the government must prove each of the following elements beyond a reasonable doubt:
First, an agreement by Rafil Dhafir and at least one other person to achieve the unlawful objective;
Second, the intent to defraud the United States by impeding and obstructing the IRS in calculating and collecting tax revenues; and
Third, an overt act committed by one of the co-conspirators in furtherance of the agreement’s objective.

COUNT 16 — FRAUD AND FALSE STATEMENTS TO I.R.S.
Count 16 takes one of the acts charged in the tax-related conspiracy in Count 15, and charges it as a separate substantive crime. The indictment charges that, beginning in or about June 2002 through August 8, 2002, Rafil Dhafir wilfully aided and assisted in, and procured, counseled and advised the preparation and presentation of a document to the IRS which was fraudulent and false as to material matters, that is an IRS Form 1023 Application for Recognition of Exemption which:
(a) falsely described the activities of Help the Needy Endowment, Inc. by stating that “recently the concentration [on feeding the needy] is within the United States …. through volunteer work in cooperation with local civic organizations such as the Dunbar Center in Syracuse,” with an estimate that such domestic activity accounted for 98% of the organization’s time, when in fact the organization primarily solicited money to aid the needy in Iraq, and did in fact provide monies to individuals in Iraq;
(b) falsely asserted that Help the Needy Endowment, Inc. did not have a predecessor organization, when in fact the organization had operated as Help the Needy since at least 1995, and had used the Employer Identity Number of the Somali Relief Network; and
(c) falsely stated that Help the Needy Endowment, Inc. did not have any income or assets, when in fact it had over $372,000 on deposit in bank accounts in the United States and controlled over $800,000 in a bank account in Amman, Jordan as of the date the Form 1023 was signed.
The indictment charges that this conduct violated 26 U.S.C. § 7206(2), which provides that any person who “wilfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document” is guilty of an offense.
For you to find the Rafil Dhafir guilty of this charge, you must find that the government has proved each of the following elements beyond a reasonable doubt:
First, that he aided in, assisted in, procured, counseled, or advised the preparation of a tax document arising under, or in connection with any matter arising under the internal revenue laws;
Second, that this tax document was fraudulent or false in a material matter;
Third, that he knew that the tax document was fraudulent or false; and
Fourth, that he aided in, assisted in, procured, counseled, or advised the preparation of this tax document wilfully, that is, with intent to violate a known legal duty.
It is not necessary that the government prove that the falsity or fraud was known by the
person who ultimately presented such tax document to the IRS.

DEFINITIONS OF TERMS
There are several terms in this statute I will define for you:
A false tax document is one that, at the time it was made, was untrue and was known to be untrue by the person making it or causing it to be made.
A fraudulent tax document is a document made or caused to be made with the intent to deceive.
A statement is “material” if it has a natural tendency to influence, or is capable of influencing, the IRS in investigating or auditing a tax return or in verifying or monitoring the reporting of income by a taxpayer.
A person acts “wilfully” by voluntarily and intentionally assisting or advising another to do something that the person knows is unlawful.
A person does not act “wilfully” if the person acts as a result of a good faith misunderstanding of the requirements of the law.

COUNTS 17 – 22 — TAX EVASION
Counts 17 through 22 charge Rafil Dhafir with tax evasion on his own tax returns. Under 26 U.S.C. § 7201 it is a crime to willfully attempt to evade or defeat a federal income tax in any manner.
The indictment sets forth a separate charge for each calendar year from 1997 through 2002. Rather than repeat the specifics here for each year, I refer you to the indictment.
Generally, as to each year, it charges that Rafil Dhafir wilfully attempted to evade and defeat a large part of the federal income tax due from himself and his spouse by preparing, signing and filing, or causing to be prepared, signed and filed, a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, which falsely stated that they had made a certain amount in charitable contributions to Help the Needy, that their joint taxable income was a certain amount, and that the amount of tax due thereon was a certain amount; whereas, as he then and there well knew, contributions to Help the Needy were not deductible, their joint taxable income was a higher amount, and they owed an income tax in a higher amount.

TAX EVASION — THE ELEMENTS
Before Rafil Dhafir may be convicted of tax evasion, the government must prove each of the following elements beyond a reasonable doubt:
First, that he owed more federal income tax for the calendar year in question than was declared due on the his income tax return;
Second, that he knew that more federal income tax was owed than was declared due
on his income tax return;
Third, that he made an affirmative attempt to evade the income tax; and
Fourth, that, in attempting to evade such tax, he acted wilfully.

COUNT 23 — VISA FRAUD
Count 23 charges that on or about August 17, 2001, Rafil Dhafir knowingly caused to be presented to the Immigration and Naturalization Service an application for an H-1B1 visa, which contained a false material statement, subscribed to as true under penalty of perjury, to wit, that Ayman Jarwan earned a salary of $63,669, which the defendant then and there knew was false, in that Jarwan was to be paid only $30,000 per year.
18 U.S.C. § 1546(a) states:
Whoever knowingly makes under oath, or … knowingly subscribes as true [under penalty of perjury], any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact –
shall be guilty of an offense. Under 18 U.S.C. § 2(a), one who aids and abets the commission of a crime is punishable as the principal.

VISA FRAUD — THE ELEMENTS
Before Rafil Dhafir may be convicted of visa fraud, the government must prove each of the following elements beyond a reasonable doubt:
First, that he knowingly caused someone else to make a material false statement under oath or subscribed to as true under penalty of perjury;
Second, that he caused the statement to be made voluntarily and intentionally; and
Third, that the statement was made in an immigration form, in this case the H-1B1 visa application signed by Ahmed Ali for Jarwan’s employment visa.

VISA FRAUD — DEFINITIONS OF TERMS
I will now define certain terms for you.
A statement is “false” if it is untrue when made.
A false statement is made “knowingly” if the defendant knew that it was false or demonstrated a reckless disregard for the truth with a conscious purpose to avoid learning the truth.
The statement is “material” if it has a natural tendency to influence or to be capable of
influencing the decision of the decision-maker to which it was addressed.

VISA FRAUD — AIDING AND ABETTING
A person may be found guilty of an offense even if he personally did not do every act constituting the offense charged, if he aided and abetted the commission of the offense. The elements of aiding and abetting are that defendant must have
(1) knowingly associated himself with the unlawful venture;
(2) participated in it as something he wished to bring about; and
(3) sought by his actions to make it succeed.
Before you may find that a person acted as an aider and abettor, it is necessary that there be evidence proving beyond a reasonable doubt that an offense was committed by another person and that that person was aided, abetted, counseled or commanded by the accused, although it is not necessary that the other person be convicted or even that the identity of that person be established.

COUNTS 24-49 – HEALTH CARE FRAUD
Counts 24 through 49 charge Rafil Dhafir with defrauding Medicare in violation of 18 U.S.C. § 1347. Under this statute, it is a crime to knowingly and wilfully execute, or attempt to execute:
(1) a scheme or artifice to defraud any health care benefit program; or
(2) a scheme or artifice to obtain, by means of false or fraudulent pretenses and representations, money or property owned by any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services.

The indictment lists 26 specific transactions, one for each count. Rather than repeat them here I refer you to the indictment. Briefly, with respect to each count, the indictment charges that Rafil Dhafir knowingly and wilfully executed and attempted to execute a scheme and artifice to defraud Medicare and to obtain money from Medicare by means of false and fraudulent representations, by submitting and causing employees to submit Medicare claims representing that Rafil Dhafir had rendered medical services when, in fact, a nurse practitioner or a laboratory technician had treated the patients with no physician present at the practice.

HEALTH CARE FRAUD — THE ELEMENTS
In order to establish the offenses charged in Counts 24 through 49, the government must prove the following four elements beyond a reasonable doubt:
First, that Rafil Dhafir knowingly and wilfully executed or attempted to execute a scheme to defraud any healthcare benefit program or the defendant executed or attempted to execute a scheme or artifice to obtain any of the money or property owned by, or under the custody or control of, any healthcare benefit program by means of false or fraudulent pretenses, representations, or promises;
Second, that he knowingly and wilfully participated in the scheme or artifice described in the first element;
Third, that the victim or intended victim was a “healthcare benefit program;” and
Fourth, that the scheme or artifice was executed in connection with the delivery or payment for healthcare benefits, items or services.

FIRST ELEMENT — EXISTENCE OF SCHEME
The first element that the government must prove beyond a reasonable doubt is that there was a scheme or artifice to defraud or to obtain money by means of false or fraudulent pretenses, representations, or promises.
“Scheme or artifice” means a plan to do something.
“Fraud” is a general term which embraces all the various means which human ingenuity can devise and which are resorted to by an individual to gain an advantage over another by false representations, suggestions, or suppression of the truth, or deliberate disregard of the truth. Thus, a “scheme to defraud” is a plan to obtain something of value by trick, deceit, deception, or swindle.
A statement, representation, claim, or document is false if it is untrue when made and then known to be untrue by the person making it or causing it to be made. Deceitful statements, or half-truths, or the concealment of material facts may also constitute false and fraudulent representations under the statute.
The false or fraudulent representation must relate to a material fact. A material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision.
In order to establish that Rafil Dhafir executed and attempted to execute a scheme and artifice, the government is not required to prove that he originated the scheme. Nor is it necessary that he actually realized any gain from the scheme, nor that the intended victims actually suffered any loss. What the government must prove beyond a reasonable doubt is that the scheme existed and that Rafil Dhafir participated in it.

SECOND ELEMENT — PARTICIPATION IN SCHEME WITH INTENT
The second element that the government must prove beyond a reasonable doubt is that defendant participated in the scheme knowingly, wilfully, and with intent to defraud.
Thus, the government must prove not only that Rafil Dhafir participated in the scheme, but that he did so with a particular state of mind — knowingly, wilfully, and with intent to deceive.
“Knowingly” means to act voluntarily and purposefully, with an intent to do something the law forbids, that is to say, with bad purpose either to disobey or to disregard the law.
“Intent to defraud” means to act knowingly and with the specific intent to deceive.
The question of whether a person had this state of mind is a question of fact for you to decide. Direct proof of knowledge and fraudulent intent — of what a person was thinking — is almost never available. But such direct proof is not required. The state of mind of the defendant may be proven by circumstantial evidence, based upon his outward manifestations, words, conduct, acts, and all surrounding circumstances disclosed by the evidence and by rational or logical inferences from the evidence.
Circumstantial evidence, if believed, is of no less value than direct evidence.
The government can meet its burden of proving fraudulent intent not only by showing that Rafil Dhafir knowingly lied, but also by proving that he acted with deliberate disregard of or reckless indifference to the truth or falsity of statements, or with a conscious purpose to avoid learning the truth.

THIRD ELEMENT — HEALTHCARE BENEFIT PROGRAM
Medicare is a “healthcare benefit program” within the meaning of the statute. Accordingly, the third element, which requires that the victim of the scheme be a “healthcare benefit program,” is satisfied as a matter of law.

FOURTH ELEMENT — DELIVERY OF SERVICES
The last element you must consider is whether the government has proved that the scheme or artifice was executed in connection with the delivery or payment for healthcare benefits, items or services.
In this regard, I instruct you that a laboratory technician who administers drugs intravenously is performing a medical act which is regulated and requires a license under New York law.

COUNT 50 – FALSE STATEMENT
Count 50 charges defendant with violation of 18 U.S.C. § 1001(2)(a), which makes it a crime to knowingly and wilfully make any materially false, fictitious, or fraudulent statement or representation in a matter within the jurisdiction of a governmental agency.
The indictment charges that on or about September 16, 2002, Rafil Dhafir knowingly and wilfully made a false statement and representation as to material facts in a matter within the jurisdiction of the Department of Health and Human Services, in that, during an audit of his medical practice by a benefit integrity specialist for a Medicare carrier, Rafil Dhafir falsely stated: (1) that he was always present in the when the nurse practitioner was onsite; and (2) that he had not needed to use a back up physician during the year 2002. In truth, as Rafil Dhafir then and there knew, nurse practitioners treated patients of his medical practice when he was not present in the suite, and he had traveled overseas three times in 2002 prior to September 16, 2002.

FALSE STATEMENT — THE ELEMENTS
The first element that the government must prove beyond a reasonable doubt is that Rafil Dhafir made a false statement. I have already discussed the meaning of the term “false statements” in connection with previous counts.
The second element is that the false statements were made in a matter within the jurisdiction of the United States, specifically, the Department of Health and Human Services, which is an agency of the United States.
Third, the government must prove that Rafil Dhafir acted knowingly and wilfully, that is deliberately and with knowledge that the statement was untrue.
The fourth element is that the statement must be material to the activities or decisions of the Department of Health and Human Services. A statement is material if it could have influenced the agency’s decisions or activities.

COUNTS 51-57 — MAIL FRAUD
The indictment charges that from on or about February 1995 and continuing to on or about February 2003, Rafil Dhafir devised a scheme and artifice to defraud donors to Help the Needy and Help the Needy Endowment, Inc. and to obtain their money by means of false and fraudulent pretenses and representations. In particular, the government charges that Rafil Dhafir, directly and through others, solicited donations to Help the Needy and Help the Needy Endowment, Inc. by focusing primarily on the needs of starving children in Iraq, but then diverted those donations to support activities other than those identified in the solicitations, including his own private businesses and other commercial projects in the Middle East and the United States. The indictment further charges that, in executing this scheme, defendant knowingly used or caused the use of the United States mails to solicit contributions for unauthorized purposes, to operate Help the Needy and Help the Needy Endowment, Inc., to conceal the true nature and scope of the operations of the organizations from the public and from government regulators, and to conceal his own role in the organizations from government regulators.
The indictment describes in some detail the manner and means of the scheme and the use of the mails, and then lists seven specific mailings, one for each count. Rather than repeat them here I refer you to the indictment.

MAIL FRAUD – THE STATUTE
18 U.S.C. § 1341 provides:
Whoever, having devised … any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, … for the purpose of executing such scheme or artifice …, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service … or knowingly causes to be delivered by mail … according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be [guilty of an offense].
MAIL FRAUD – THE ELEMENTS
In order to establish each of the seven offenses charged in Counts 51 through 57, the government must prove the following three elements beyond a reasonable doubt:
First, that Rafil Dhafir knowingly created a scheme to defraud or to obtain money by false representations;
Second, that he acted with specific intent to commit fraud; and
Third, that he mailed something [or caused another person to mail something] through the United States Postal Service for the purpose of carrying out the scheme.
A “scheme to defraud” includes any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations or promises.
A representation may be “false” when it constitutes a half truth, or effectively conceals a material fact, provided it is made with the intent to defraud.
To “cause” the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary course of business or where such use can reasonably be foreseen even if the defendant did not intend or request the mails to be used.
It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme, or that the material mailed was itself false or fraudulent, or that the alleged scheme actually succeeded in defrauding anyone, or that the use of the mail was intended as the specific or exclusive means of accomplishing the alleged fraud.
What must be proved is that Rafil Dhafir knowingly devised a scheme that was substantially the same as the one alleged in the indictment; and that the use of the United States mails was closely related to the scheme, in that he either mailed something or caused it to be mailed in an attempt to executive or carry out the scheme.
Each separate use of the mails in furtherance of a scheme to defraud constitutes a separate offense.

COUNTS 58 – 60 — WIRE FRAUD
The final three counts of the indictment charge violations of the wire fraud statute. Referring to the same scheme and artifice that was the basis of the previous seven mail fraud charges, the indictment charges that, for the purpose of executing the scheme and artifice to defraud the donors to Help the Needy and Help the Needy Endowment, Inc., and to obtain their money by false representations, Rafil Dhafir used and caused to be transmitted by means of wire communications in interstate and foreign commerce, writing and signals on or about the dates listed in the chart detailing each separate count.

WIRE FRAUD – THE STATUTE
18 U.S.C. § 1343 provides:
Whoever, having devised … any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be [guilty of an offense].

WIRE FRAUD – THE ELEMENTS
In order to establish each of the three offenses charged in Counts 58 through 60, the government must prove the following three elements beyond a reasonable doubt:
First, that Rafil Dhafir knowingly created a scheme to defraud or to obtain money by false representations;
Second, that he acted with specific intent to commit fraud; and
Third, that he used interstate wire communications facilities [or caused another person to use interstate wire communications facilities] for the purpose of carrying out the scheme.
I have already defined most of these terms.
The third element, the use of interstate or foreign wires, can be satisfied by sending a facsimile or an email from New York either to another state or out of the country.
Again, it is not necessary that the government prove all of the details alleged in the
indictment concerning the precise nature and purpose of the scheme, or that the material transmitted by wire was itself false or fraudulent, or that the alleged scheme actually succeeded in defrauding anyone, or that the use of interstate wire communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud.
What must be proved is that Rafil Dhafir knowingly devised a scheme to defraud that was substantially the same as the one alleged in the indictment; and that the use of the interstate wire communications facilities was closely related to the scheme, in that he either wired something or caused it to be wired in interstate commerce in an attempt to execute or carry out the scheme.
Each separate use of the interstate wire communications facilities in furtherance of a scheme to defraud constitutes a separate offense.

CONCLUSION
GENERAL RULES GOVERNING DELIBERATIONS AND VERDICT
After you retire to the jury room, you should first select a foreperson who will preside over your deliberations and speak on your behalf here in court. Keep in mind, however, that the foreperson’s vote is entitled to no more weight than any other juror. Your verdict on each count in the indictment with which the defendant is charged with must be unanimous as to either guilty or not guilty. Your verdict must also represent the considered judgment of each juror. Each of you must decide the case for yourself, but it is your duty as jurors to consult with one another and deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.
You are expected to use your good sense, to consider the evidence in the case only for the purposes for which it has been admitted, and to give this evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.
Consider the charges against the defendant carefully. If you find that the government has failed to prove beyond a reasonable doubt each and every element of the count which you are considering, then you must find the defendant not guilty on that count. On the other hand, if you find that the government has proven beyond a reasonable doubt every element of the count which you are considering, then you must convict the defendant on that count.
During your deliberations, do not hesitate to re-examine your views and change your mind. Do not, however, surrender your honest convictions because of the opinion of a fellow juror or for the purpose of returning a verdict. Remember you are not partisans. Your duty is to seek the truth from the evidence presented to you. If any reference by the court or by counsel on matters of evidence does not coincide with your own recollection, it is your recollection that controls your deliberations.
If, in the course of your deliberations, your recollection of any part of the testimony should fail, or if you should find yourself in doubt concerning my instructions, you may return to the courtroom to have the testimony read back to you or have the instructions explained to you.
Should you desire to communicate with the court during your deliberations, please put your question in writing. The foreperson should sign the note, seal it in an envelope, and pass it on to the marshal who will bring it to my attention. I will then respond, either in writing or orally, by having you returned to the courtroom. I caution you, however, that in your communications with the court, you must never state your numerical division over an issue, if any.
Verdict sheets have been prepared for you. After you select a foreperson, you should review them. Once you have reached a unanimous verdict, your foreperson should fill in the verdict sheet, date and sign it, and inform the marshal that a verdict has been reached.

FINAL CHARGE – EXCLUDE SYMPATHY
In reaching your verdict you are not to be affected by sympathy for any of the parties, what the reaction of the parties or of the public to your verdict may be, whether it will please or displease anyone or will be popular or unpopular or, indeed, any consideration outside the case as it has been presented to you in this courtroom. You should consider only the evidence — both the testimony and the exhibits — find the facts from what you consider to be the believable evidence, and apply the law as I just gave it to you. Your verdict will be determined by the conclusion you reach, no matter whom the verdict helps or hurts.

END OF CHARGE
TO JURORS: NO TIME LIMIT ON DELIBERATIONS
REVIEW VERDICT SHEET
ARE THERE ANY EXCEPTIONS OR REQUESTS TO THE CHARGE?
SWEAR IN MARSHALS
ISOLATE ALTERNATE JURORS