Blackwell gets up and says if you read the counts closely there is a difference in the counts that they chose not to include. Blackwell says they don't need to show that money flowed directly from Bobby to Kwame just that they aided and abetted each other.
Jim Thomas did not file a brief. Specifically addressing mail fraud counts. Thomas has no argument on the 5 extortion counts that Van Dusen was discussing.
Judge denies Ferguson's motions for acquittal of the 5 extortion counts.
Judge says she is comfortable with submitting those 5 counts to the jury so the motions under rule 29 are denied.
10:34AM Now Thomas is back on mail fraud counts 18 to 27 and wire fraud were 3 counts. Thomas says relates to Kwame's solicitation of funds and the video of Kwame's campaign speech. Says the counts were from 2006, 2007 and 2007 and the video of Kwame is from 2001.
Says there is no proof that Kwame sent those letters.
Blackwell says government obviously disagrees with Thomas. Talks about April Edgar's testimony of taking monies from the Kilpatrick Civic Fund and that Kwame was very aware that he was using money from the Civic Fund. Says that Kwame was at some fund-raising dinners that had been mentioned in the solicitation letters.
With respect to fraud, says government can show intent to defraud and there is sufficient evidence on record that Kwame was benefitting from Civic Fund. Points to testimony of Matt Allen and the misrepresentation to public on use of Civic Fund.
Judge denies these motions and feels there is sufficient evidence to submit to the jury.
10:39AM Judge says she wants to take up 2 substantive issues first. Subsciption instruction and the RICO conspiracy instruction.
Shea is up first. Says he has submitted an appropriate subscription instruction on 3rd party tax filing. Says he crafted some language and only did so in response to government's suggested language that a taxpayer could subscribe a return merely by authorizing a 3rd party.
Blackwell says with respect to definition of subscription they would ask for definition that explains electronically filing return.
Subscribe, means signing one's name to a document, and it's for all purposes the same as signing one's name to a piece of paper.
Judge agrees with the definition.
Now on to RICO conspiracy instruction.
Van Dusen says they object to entirety of RICO instruction they received yesterday. Says when they met on Wednesday, the position by all defense was that they objected to the government and thought there was another case that cites that had a greater degree of clarity.
Van Dusen says that they were "perplexed" by the instructions. Says she would like to return to square one and start over.
Judge says that the case cited never had any issue about proving the existence of an enterprise. Judge says that the government does need to prove existence of an enterprise in this case. Says she doesn't love government instruction because it puts conspiracy third instead of first or second but does place RICO as an initial offense. Says she couldn't massage "Highwayman" case into this one. Judge Edmunds was the judge on the case.
Says she likes the government's instruction better because it lays out elements better than the one from the 7th circuit that the defense proposed.
Van Dusen says she doesn't oppose elements per se. Says instructions are overbroad and non-specific and the definitions are vague.
Blackwell says she disagrees with judge's contention that they must prove enterprise. Says that the government feels that they have proven that an enterprise existed. Says this is obviously a conspiracy which is a meeting of the minds.
As it stands, the judge says that since she has displeased everyone, she is going to go with the instruction that she submitted yesterday.
Judge refers to other issues discussed in chambers' conference.
11:00AM Judge says that in originally submitted instructions there was disagreement on instructions on multiple defendants charged with different crimes.
Instruction on impartiality, defendants have asked for 3rd paragraph added asking if jury can't put their feelings aside, they have to inform the judge immediately. The judge says it's superfluous and she is not including it.