Day 44 - December 10, 2021

Judge Davila and counsel worked through final jury instructions on reasonable doubt, charged conduct, conspiracy, intent, good faith, derivative liability, wire fraud, regulatory evidence, trade secrets, and witness credibility. The court rejected the defense's multiple-conspiracies instruction, approved a separate good-faith instruction, adopted model-based aiding-and-abetting language with modifications, and accepted a revised coschemer formulation. The government withdrew its request for a pure-omissions wire-fraud instruction, although the possible relevance of omissions to knowledge remained under discussion. The court also directed the parties to refine language explaining that regulatory violations were not themselves the charged crimes. In a separate evidentiary dispute, the government said it would not use admitted portions of the CMS report for their truth but had intended to use the accompanying cover letter for its truth. The defense sought clarification or a limiting instruction, and the court deferred a ruling pending review of the earlier transcript. When the charge conference resumed, the court rejected the defense's proposed trade-secrets instruction as too broad while permitting narrower language focused on Holmes's conduct and intent. The CMS-report and knowingly instructions also remained deferred, and counsel were directed to revise the instruction draft and verdict form.