Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 1 of 34
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`JOSEPH SULLIVAN,
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`Defendant.
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`Case No. 20-cr-00337-WHO-1
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`FINAL JURY INSTRUCTIONS
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`I plan to give the following instructions, which are reordered a bit from the government’s
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`filing (Dkt. No. 210) but otherwise are unchanged. I will not give defendant’s proposed “character
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`evidence” instruction (Dkt. No. 212), consistent with the Ninth Circuit guidance and the
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`government’s argument, nor the revised “duty” instruction (Dkt. No. 211), for the reasons stated
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`earlier. If there are any additional concerns, they should be raised at 8:00 a.m. on September 29,
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`2022.
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`Dated: September 27, 2022
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`_________________________
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`United States District Judge
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 2 of 34
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`DUTIES OF JURY TO FIND FACTS AND FOLLOW THE LAW
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`No. 1
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`Members of the jury, now that you have heard all the evidence, it is my duty to instruct
`you on the law that applies to this case. A copy of these instructions will be available in the jury
`room for you to consult.
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`It is your duty to weigh and to evaluate all the evidence received in the case and, in that
`process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as
`you find them, whether you agree with the law or not. You must decide the case solely on the
`evidence and the law. You will recall that you took an oath promising to do so at the beginning of
`the case. You should also not be influenced by any person’s race, color, religious beliefs, national
`ancestry, sexual orientation, gender identity, gender, or economic circumstances. Also, do not
`allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public
`opinion, or biases, including unconscious biases. Unconscious biases are stereotypes, attitudes, or
`preferences that people may consciously reject but may be expressed without conscious
`awareness, control, or intention.
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`You must follow all these instructions and not single out some and ignore others; they are
`all important. Please do not read into these instructions or into anything I may have said or done
`any suggestion as to what verdict you should return—that is a matter entirely up to you.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 3 of 34
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`No. 2
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`CHARGE AGAINST DEFENDANT NOT EVIDENCE—PRESUMPTION OF INNOCENCE—
`BURDEN OF PROOF
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`The indictment is not evidence. The defendant has pleaded not guilty to the charges. The
`defendant is presumed to be innocent unless and until the government proves the defendant guilty
`beyond a reasonable doubt. In addition, the defendant does not have to testify or present any
`evidence. The defendant does not have to prove innocence; the government has the burden of
`proving every element of the charges beyond a reasonable doubt.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 4 of 34
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`No. 3 [IF APPLICABLE]
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`DEFENDANT’S DECISION NOT TO TESTIFY
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`A defendant in a criminal case has a constitutional right not to testify. In arriving at your
`verdict, the law prohibits you from considering in any manner that the defendant did not testify.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 5 of 34
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`No. 3 [IF APPLICABLE]
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`DEFENDANT’S DECISION TO TESTIFY
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`The defendant has testified. You should treat this testimony just as you would the
`testimony of any other witness.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 6 of 34
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`No. 4
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`REASONABLE DOUBT—DEFINED
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`Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is
`guilty. It is not required that the government prove guilt beyond all possible doubt.
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` reasonable doubt is a doubt based upon reason and common sense and is not based
`purely on speculation. It may arise from a careful and impartial consideration of all the evidence,
`or from lack of evidence.
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`If after a careful and impartial consideration of all the evidence, you are not convinced
`beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not
`guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are
`convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the
`defendant guilty.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 7 of 34
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`No. 5
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`WHAT IS EVIDENCE
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`The evidence you are to consider in deciding what the facts are consists of:
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`First, the sworn testimony of any witness;
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`Second, the exhibits that are received in evidence; and
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`Third, any facts to which the parties agree.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 8 of 34
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`No. 6
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`WHAT IS NOT EVIDENCE
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`In reaching your verdict you may consider only the testimony and exhibits received in
`evidence. The following things are not evidence, and you may not consider them in deciding what
`the facts are:
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`1. Questions, statements, objections, and arguments by the lawyers are not evidence. The
`lawyers are not witnesses. Although you must consider a lawyer’s questions to
`understand the answers of a witness, the lawyer’s questions are not evidence.
`Similarly, what the lawyers have said in their opening statements, will say in their
`closing arguments, and have said at other times is intended to help you interpret the
`evidence, but it is not evidence. If the facts as you remember them differ from the way
`the lawyers state them, your memory of them controls.
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`2. Any testimony that I have excluded, stricken, or instructed you to disregard is not
`evidence. In addition, some evidence was received only for a limited purpose; when I
`have instructed you to consider certain evidence in a limited way, you must do so.
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`3. Anything you may have seen or heard when the court was not in session is not
`evidence. You are to decide the case solely on the evidence received at the trial.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 9 of 34
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`No. 7
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`DIRECT AND CIRCUMSTANTIAL EVIDENCE
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`Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as
`testimony by a witness about what that witness personally saw or heard or did. Circumstantial
`evidence is indirect evidence, that is, it is proof of one or more facts from which you can find
`another fact.
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`You are to consider both direct and circumstantial evidence. Either can be used to prove
`any fact. The law makes no distinction between the weight to be given to either direct or
`circumstantial evidence. It is for you to decide how much weight to give to any evidence.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 10 of 34
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`No. 8
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`STIPULATIONS OF FACT
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`The parties have agreed to certain facts that have been stated to you. Those facts are now
`conclusively established.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 11 of 34
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`No. 9
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`CREDIBILITY OF WITNESSES
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`In deciding the facts in this case, you may have to decide which testimony to believe and
`which testimony not to believe. You may believe everything a witness says, or part of it, or none
`of it.
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`In considering the testimony of any witness, you may take into account the following:
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`First, the opportunity and ability of the witness to see or hear or know the things testified
`to;
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`Second, the witness’s memory;
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`Third, the witness’s manner while testifying;
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`Fourth, the witness’s interest in the outcome of the case, if any;
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`Fifth, the witness’s bias or prejudice, if any;
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`Sixth, whether other evidence contradicted the witness’s testimony;
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`Seventh, the reasonableness of the witness’s testimony in light of all the evidence; and
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`Eighth, any other factors that bear on believability.
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`Sometimes a witness may say something that is not consistent with something else he or
`she said. Sometimes different witnesses will give different versions of what happened. People
`often forget things or make mistakes in what they remember. Also, two people may see the same
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 12 of 34
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`event but remember it differently. You may consider these differences, but do not decide that
`testimony is untrue just because it differs from other testimony.
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`However, if you decide that a witness has deliberately testified untruthfully about
`something important, you may choose not to believe anything that witness said. On the other
`hand, if you think the witness testified untruthfully about some things but told the truth about
`others, you may accept the part you think is true and ignore the rest.
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`The weight of the evidence as to a fact does not necessarily depend on the number of
`witnesses who testify. What is important is how believable the witnesses were, and how much
`weight you think their testimony deserves.
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`No. 10
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`IMPLICIT BIAS
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`We all have feelings, assumptions, perceptions, fears, and stereotypes about others. Some
`biases we are aware of, and others we might not be fully aware of, which is why they are called
`implicit or unconscious biases. No matter how unbiased we think we are, our brains are hardwired
`to make unconscious decisions. We look at others and filter what they say through our own
`personal experience and background. Because we all do this, we often see life and evaluate
`evidence in a way that tends to favor people who are like ourselves, or who have had life
`experiences like our own. We can also have biases about people like ourselves. One common
`example is the automatic association of male with career and female with family. Bias can affect
`our thoughts, how we remember what we see and hear, whom we believe or disbelieve, and how
`we make important decisions.
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`As jurors, you are being asked to make an important decision in this case. You must one,
`take the time you need to reflect carefully and thoughtfully about the evidence.
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`Two, think about why you are making the decision you are making and examine it for bias.
`Reconsider your first impressions of the people and the evidence in this case. If the people
`involved in this case were from different backgrounds, for example, richer or poorer, more or less
`educated, older or younger, or of a different gender, gender identity, race, religion or sexual
`orientation, would you still view them, and the evidence, the same way?
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`Three, listen to one another. You must carefully evaluate the evidence and resist, and help
`each other resist, any urge to reach a verdict influenced by bias for or against any party or witness.
`Each of you have different backgrounds and will be viewing this case in light of your own
`insights, assumptions and biases. Listening to different perspectives may help you to better
`identify the possible effects these hidden biases may have on decision making.
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`Northern District of California
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`United States District Court
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 13 of 34
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`And four, resist jumping to conclusions based on personal likes or dislikes, generalizations,
`gut feelings, prejudices, sympathies, stereotypes, or unconscious biases. The law demands that
`you make a fair decision based solely on the evidence, your individual evaluations of that
`evidence, your reason and common sense, and these instructions.
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`No. 11
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`TESTIMONY OF WITNESS INVOLVING SPECIAL CIRCUMSTANCES—IMMUNITY
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`You have heard testimony from Craig Clark, a witness who received immunity. That
`testimony was given in exchange for a promise by the government that the testimony will not be
`used in any case against the witness.
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`For this reason, in evaluating the testimony of Mr. Clark, you should consider the extent to
`which or whether his testimony may have been influenced by this factor. In addition, you should
`examine the testimony of Mr. Clark with greater caution than that of other witnesses.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 14 of 34
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`No. 12
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`GOVERNMENT AS A PARTY
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`You are to perform the duty of finding the facts without bias or prejudice as to any party.
`You are to perform your final duty in an attitude of complete fairness and impartiality.
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`The fact that the prosecution is brought in the name of the United States of America
`entitles the government to no greater consideration than that accorded to any other party to a
`litigation. By the same token, it is entitled to no less consideration. All parties, whether
`government or individuals, stand as equals at the bar of justice
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 15 of 34
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`No. 13
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`ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES
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`In order to encourage and support the confidential relationship between attorneys and their
`clients, the law protects from disclosure particular types of confidential communications between
`attorneys and their clients. That is what you may have heard called the “attorney-client privilege.”
`The law also sometimes protects from disclosure work done by attorneys on behalf of their clients,
`which is known as the “attorney work product privilege.” In both instances, protected information
`is often referred to as “privileged.” Under the law, both individuals and corporations, such as
`Uber Technologies, are entitled to such protections.
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`During the course of this trial, you have seen certain documents admitted into evidence
`that have been redacted to protect Uber Technologies’ privileged information. You have also
`heard and seen evidence of other documents that were withheld in their entirety to protect Uber
`Technologies’ privileged information. Further, the testimony of certain witnesses was limited to
`protect Uber Technologies’ privileged information.
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`The existence of such privileged or protected information and the assertion of such
`privileges and protections by Uber Technologies is not relevant to your consideration of the
`charges against the defendant. Do not speculate about the contents of any information that has
`been redacted, withheld, or limited.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 16 of 34
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`No. 14
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`ACTIVITIES NOT CHARGED
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`You are here only to determine whether the defendant is guilty or not guilty of the charges
`in the indictment. The defendant is not on trial for any conduct or offense not charged in the
`indictment.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 17 of 34
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`No. 15
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`OBSTRUCTION OF PROCEEDINGS BEFORE
`A DEPARTMENT OR AGENCY OF THE UNITED STATES
`(18 U.S.C. § 1505)
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`The defendant is charged in Count One of the Superseding Indictment with obstructing a
`pending agency proceeding before the Federal Trade Commission or FTC, in violation of Section
`1505 of Title 18 of the United States Code. For the defendant to be found guilty of that charge,
`the government must prove each of the following elements beyond a reasonable doubt:
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`First, there was a proceeding pending before a department or agency of the United
`States;
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`Second, the defendant was aware of the proceeding; and
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`Third, the defendant intentionally endeavored corruptly to influence, obstruct, or
`impede the pending proceeding.
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`The FTC is an agency of the United States, and an open or ongoing FTC investigation or
`matter constitutes a “pending proceeding” for the purposes of Title 18, United States Code,
`Section 1505.
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`The government need not prove that the defendant’s sole or even primary intention was to
`obstruct justice so long as the government proves beyond a reasonable doubt that one of the
`defendant’s intentions was to obstruct justice. The defendant’s intention to obstruct justice must
`be substantial.
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`The government does not need to prove that the obstruction was successful. An endeavor
`does not need to be successful or achieve the desired result.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 18 of 34
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`No. 16
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`CORRUPTLY—DEFINED
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`Corruptly means acting with an improper purpose, personally or by influencing another,
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`including making a false or misleading statement, or withholding, concealing, altering, or
`destroying a document or other information.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 19 of 34
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`No. 17
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`MISPRISION OF FELONY
`(18 U.S.C. § 4)
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`The defendant is charged in Count Two of the Superseding Indictment with misprision of
`felony in violation of Section 4 of Title 18 of the United States Code. For the defendant to be
`found guilty of that crime, the government must prove each of the following elements beyond a
`reasonable doubt:
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`First, a federal felony was committed, that is, intentionally accessing a computer
`without authorization and thereby obtaining information from a protected
`computer, or conspiracy to extort money through a threat to impair the
`confidentiality of information obtained from a protected computer without
`authorization;
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`Second, the defendant had knowledge of the commission of that felony;
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`Third, the defendant had knowledge that the conduct was a federal felony;
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`Fourth, the defendant failed to notify a federal authority as soon as possible; and
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`Fifth, the defendant did an affirmative act to conceal the crime.
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` A
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` felony is a crime punishable by a term of imprisonment of more than one year.
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`The government does not have to prove that someone was prosecuted or convicted of the
`felony, only that the felony was committed. Mere failure to report a federal felony is not a crime.
`The defendant must also commit some affirmative act designed to conceal the fact that a federal
`felony has been committed. Such an act does not need to be made directly to an authority.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 20 of 34
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`No. 18
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`MISPRISION OF FELONY—ELEMENTS OF UNDERLYING FELONIES
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`As I just described to you, in order to prove the first element of Misprision of Felony
`against the defendant, the government must prove beyond a reasonable doubt that a federal felony
`was committed, specifically, the felony of obtaining information from a protected computer in
`violation of Section 1030(a)(2)(C) of Title 18 of the United States Code, or the felony of
`conspiracy to extort money through a threat to impair the confidentiality of information obtained
`from a protected computer without authorization in violation of Sections 1030(a)(7)(B) and
`1030(b) of Title 18 of the United States Code. The elements of these two felonies are as follows:
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`The elements of obtaining information from a protected computer in violation of Section
`1030(a)(2)(C) of Title 18 of the United States Code are:
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`First, one or more persons intentionally accessed a computer without authorization;
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`Second, by accessing a computer without authorization, this person or persons
`obtained information from a computer that was used in or affecting interstate or
`foreign commerce or communication; and
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`Third, the value of the information obtained exceeded $5,000.
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`The elements of conspiracy to extort money through a threat to impair the confidentiality
`of information obtained from a protected computer without authorization in violation of Section
`1030(a)(7)(B) and 1030(b) of Title 18 of the United States Code are:
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`First, beginning in or about October 2016, and ending in or about January 2017,
`there was an agreement between two or more persons to commit at least the crime
`of extorting money through a threat to impair the confidentiality of information
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 21 of 34
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`obtained from a protected computer without authorization, and
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`Second, at least one person became a member of the conspiracy knowing of at least
`one of its objects and intending to help accomplish it.
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`The elements of extorting money through a threat to impair the confidentiality of
`information obtained from a protected computer without authorization in violation of Section
`1030(a)(7)(B) of Title 18 of the United States Code are:
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`First, a person transmitted a communication in interstate or foreign commerce,
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`Second, that person acted with intent to extort money or any other thing of value
`from any individual, firm, corporation, or other entity,
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`Third, the communication contained a threat to impair the confidentiality of
`information from a computer without authorization, and
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`Fourth, the threat concerned a computer that was used in or affected interstate or
`foreign commerce or communication.
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` person acts with the “intent to extort” if the person induces or intends to induce another
`to part with money or property by wrongful threat to impair the confidentiality of information
`obtained from a protected computer without authorization.
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`Computer means an electronic, magnetic, optical, electrochemical, or other high speed data
`processing device performing logical, arithmetic, or storage functions, and includes any data
`storage facility or communications facility directly related to or operating in conjunction with such
`device, but such term does not include an automated typewriter or typesetter, a portable hand held
`calculator, or other similar device.
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` A
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` person uses a computer “without authorization” when the person has not received
`permission from the entity which controls the right of access to the computer for any purpose, or
`when the entity which controls the right of access to the computer has withdrawn or rescinded
`permission to use the computer and the person uses the computer anyway.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 22 of 34
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`A conspiracy is a kind of criminal partnership—an agreement of two or more persons to
`commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful;
`it does not matter whether the crime agreed upon was committed.
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`For a conspiracy to have existed, it is not necessary that the conspirators made a formal
`agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that
`they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped
`one another. You must find that there was a plan to commit extortion involving computers in
`violation of Section 1030(a)(7)(B) as an object of the conspiracy with all of you agreeing as to the
`particular crime which the conspirators agreed to commit.
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`One becomes a member of a conspiracy by willfully participating in the unlawful plan with
`the intent to advance or further some object or purpose of the conspiracy, even though the person
`does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully
`joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who
`has no knowledge of a conspiracy, but happens to act in a way which furthers some object or
`purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not
`become a conspirator merely by associating with one or more persons who are conspirators, nor
`merely by knowing that a conspiracy exists.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 23 of 34
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`No. 19
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`AIDING AND ABETTING
`(18 U.S.C. § 2(a))
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`Alternatively, a defendant may also be found guilty of either of the crimes charged in
`Counts One and Two of the Superseding Indictment even if the defendant personally did not
`commit the act or acts constituting the crime but aided and abetted in its commission. To “aid and
`abet” means intentionally to help someone else commit a crime. To prove a defendant guilty of
`obstruction of proceedings before a department or agency of the United States or of misprision of
`felony by aiding and abetting, the government must prove each of the following beyond a
`reasonable doubt:
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`First, someone else committed the crime charged in that particular count of
`obstruction of proceedings before a department or agency of the United States or
`misprision of felony;
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`Second, the defendant aided, counseled, commanded, induced, or procured that
`person with respect to at least one element of the crime charged in that particular
`count of the Superseding Indictment;
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`Third, the defendant acted with the intent to facilitate the crime charged in that
`particular count of the Superseding Indictment; and
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`Fourth, the defendant acted before the crime was completed.
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`It is not enough that the defendant merely associated with the person committing the crime,
`or unknowingly or unintentionally did things that were helpful to that person or was present at the
`scene of the crime. The evidence must show beyond a reasonable doubt that the defendant acted
`with the knowledge and intention of helping that person commit obstruction of proceedings before
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 24 of 34
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`
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`a department or agency of the United States or misprision of felony.
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` A
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` defendant acts with the intent to facilitate the crime when the defendant actively
`participates in a criminal venture with advance knowledge of the crime and having acquired that
`knowledge when the defendant still had a realistic opportunity to withdraw from the crime.
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`The government is not required to prove precisely which person or defendant actually
`committed the crime and which person or defendant aided and abetted.
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`The failure to prosecute or to obtain a prior conviction of the person who committed the
`crime does not preclude the conviction of the aider and abettor.
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`Under the law, a corporation is considered a person.
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`Case 3:20-cr-00337-WHO Document 219 Filed 09/27/22 Page 25 of 34
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`No. 20
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`AIDING AND ABETTING
`(18 U.S.C. § 2(b))
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`Alternatively, a defendant may also be found guilty of either of the crimes charged in
`Counts One and Two of the Superseding Indictment even if the defendant did not personally
`commit the act or acts constituting the crime if the defendant willfully caused an act or acts to be
`done that if directly performed by him would be an offense against the United States. A defendant
`who puts in motion or causes the commission of an indispensable element of the offense may be
`found guilty as if he had committed