Day 41 - December 3, 2021
The court reviewed disputed conspiracy and wire-fraud instructions, directed further research and shorter proposals, and left most issues unresolved. The government also disclosed that dismissed Count Nine remained on its proposed verdict form by mistake.
Full day summary
1. Charge Conference on Conspiracy and Wire-Fraud Instructions
A preliminary charge conference addressed disputed conspiracy and wire-fraud instructions, with most issues left for further research and revised proposals.
Highlights
Charge Conference on Conspiracy and Wire-Fraud InstructionsconfrontationThe defense requested separate conspiracy and wire-fraud instructions for the investor and paying-patient theories, warning against mixing the two; the government favored brief model instructions and disputed any meaningful risk of confusion.Charge Conference on Conspiracy and Wire-Fraud InstructionsconfrontationThe parties disputed whether conspiracy membership required a defined willfulness standard. The court directed them to research the issue and meet and confer on an agreed definition or competing proposals.Charge Conference on Conspiracy and Wire-Fraud Instructions“THE INSTRUCTIONS SHOULD INFORM AND NOT CONFUSE.”— Edward J. DavilaThe court identified jury comprehension and brevity as central criteria for resolving the competing proposals.Charge Conference on Conspiracy and Wire-Fraud InstructionsconfrontationThe defense sought specific-unanimity, multiple-conspiracies, and count-specific Pinkerton language. The government opposed expanded instructions but accepted possible count-specific clarification, while the court invited shorter proposals rather than the defense's lengthy versions.Charge Conference on Conspiracy and Wire-Fraud InstructionsconfrontationThe parties contested proposed language stating that a scheme to defraud need not involve specific false statements, that the wire itself need not be false, and that success or loss was unnecessary. The court asked the government to reconsider whether the first statement fit the charged case and whether it required modification.Charge Conference on Conspiracy and Wire-Fraud InstructionsconfrontationThe defense requested a good-faith instruction or, alternatively, a puffery instruction; the government maintained that a proper intent-to-defraud instruction made good-faith language unnecessary and objected to the defense's proposed formulation.