United States District Court, E.D. California
ORDER RE PROPOSED (DISPUTED) JURY INSTRUCTIONS (ECF
NOS. 40, 45)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
Court has received and reviewed the Government's proposed
(disputed) jury instruction, ECF No. 40, and Defendants'
objection thereto, ECF No. 47, as well as Defendants'
proposed (disputed) jury instructions, ECF. No. 45, and the
Government's objections thereto, ECF No. 46. For the
reasons set forth below, the Government's request to
include the proposed jury instruction regarding co-schemer
liability is GRANTED. Defendants' request to include the
three proposed jury instructions is GRANTED IN PART AND
DENIED IN PART.
GOVERNMENT'S PROPOSED JURY INSTRUCTION
Government proposes that the Court include an instruction
regarding co-schemer liability. The proposed instruction
reads in full:
Each member of a scheme to defraud is responsible for the
actions of other co-schemers performed during the course of
and in furtherance of the scheme.
Before you may consider the statements or the acts of a
co-schemer, you must first determine whether the acts or
statements were made during the exercise of and in
furtherance of the unlawful scheme.
If you have decided that the defendant was a member of a
scheme to defraud and had the intent to defraud, that
defendant is responsible for what the other co-schemers said
or did to carry out the scheme even if the defendant did not
know what they said or did.
For the defendant to be found guilty of an offense allegedly
committed by a co-schemer as part of the scheme, the offense
must be one which would reasonably have been foreseen to be a
necessary and natural consequence of the scheme to defraud.
Gov't's Proposed (Disputed) Instruction No. 1, ECF
do not object to the inclusion of this instruction per se,
but argue that it may not be relevant and argue that the
“life of the scheme” should only include those
acts and dates alleged in the Indictment. ECF No. 47 at 2-3.
United States v. Stapleton, the court upheld a
nearly identical co-schemer liability instruction in a case
involving multiple defendants accused of wire fraud. 293 F.3d
1111, 1115-18 (9th Cir. 2000); see also United States v.
Anekwu, 695 F.3d 967, 986-87 & n.4 (9th Cir. 2012)
(approving a similar instruction as an accurate statement of
the law). Under federal fraud statutes, a defendant is liable
for acts committed by a co-schemer in furtherance of the
scheme to defraud while the defendant is a knowing
participant in the fraud. 293 F.3d at 1118 (“[t]he
instructions limited vicarious liability to acts of
co-schemers during the life of the scheme and acts that were
reasonably foreseeable as a necessary and natural consequence
of the fraudulent scheme.”).
the instruction may not be necessary depending on
Defendants' theory of the case, the Court agrees with the
Government that a co-schemer liability instruction may be
appropriate if one or both defendants disclaim responsibility
for preparing or submitting the claims and the United States
presents evidence that the claims were submitted in
furtherance of a scheme during the time that both defendants
were participating in the scheme. See Stapleton, 293
F.3d at 1117-18. As to Defendants' concern about the time
frame, the instruction sufficiently limits the time frame to
the “life of the scheme” as written. See
Id. Therefore, the Court GRANTS the Government's
request to include the proposed instruction regarding
co-schemer liability, subject to a later determination of
whether it is relevant in light of the testimony elicited at
DEFENDANTS' PROPOSED JURY INSTRUCTIONS
Proposed Instruction No. 1: Character Evidence -