United States District Court, C.D. Illinois, Springfield Division
RICHARD MILLS, District Judge.
This matter is before the Court following the jury instruction conference on December 12, 2014.
The Court has reviewed the Parties' proposed instructions and considered their objections and arguments.
(1) The Court first considered Government Instruction No. 20 and Defendant's Instruction No. 19, which both instruct as to the elements of mail fraud. The Parties agreed that Defendant's No. 19 will be given as modified.
(2) The Court next considered Government's No. 21 and Defendant's No. 21. There are competing objections. The Government's proposed instruction includes a paragraph pertaining to "the omission or the concealment of material information, " while the Defendant's does not. The mail fraud statute does not include the words "omission" or "concealment." The Committee comment states that Seventh Circuit cases have suggested that an "omission-based fraud scheme must include an act of concealment." "[A] failure to disclose information may constitute fraud if the omission [is] accompanied by acts of concealment.'" United States v. Powell, 576 F.3d 482, 491 (7th Cir. 2009) (quoting United States v. Stephens, 421 F.3d 503, 507 (7th Cir. 2005)).
Because the third paragraph suggests that an omission alone is sufficient to constitute a scheme to defraud and that is not entirely consistent with Seventh Circuit authority, the Court will give Defendant's No. 21 which does not include the third paragraph. Certainly, the Government is free to argue about any omissions, misrepresentations or other acts of concealment which are part of the evidence.
(3) The Court next considered Defendant's No. 16, which relates to the Count 1 conspiracy charge and pertains to unanimity on specific acts. The proposed instruction is based on Seventh Circuit Nos. 4.04 and 5.08(A), in addition to United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009) and United States v. Davis, 471 F.3d 783, 791 (7th Cir. 2006). Defendant Karin Dingle agrees that this instruction should be given. The Government objects to the instruction.
The Committee Comment to No. 4.04 provides that, pursuant to Richardson v. United States, 526 U.S. 813, 817 (1999) and Schad v. Arizona, 501 U.S. 624, 631-32 (1991), unanimity would appear to be required when the government alleges more than one possibility for an element of the crime but not when the government contends that a defendant committed an element of the crime using one or more of several possible means. The Committee Comment provides that the Seventh Circuit has not addressed whether unanimity is required with respect to allegations regarding "multiple false statements, promises, or representations." However, it is unlikely that these would be considered elements. "Failing to agree on the overt act that the defendant committed is not like failing to agree on the object of the conspiracy." Griggs, 569 F.3d at 344; see also Daniel, 749 F.3d at 614 (agreeing with other courts that determined the fraudulent representations or omissions committed by defendant were the means used to commit an element of the offense and thus no unanimity instruction was required).
The Committee Comment to No. 5.08(A) does in (e) address unanimity regarding the object of a multiple-object conspiracy. However, the object charged in this Indictment was to defraud. Because there are not multiple objects of the conspiracy, the Court does not believe that an instruction on unanimity is necessary. Accordingly, Defendant's No. 16 will not be given.
(4) The Government's No. 32 and Defendant's No. 14 are competing instructions based on Seventh Circuit No. 4.10, which is the instruction regarding the definition of "knowingly." Both Defendants object to the Government's version, which includes the second paragraph commonly referred to as the "ostrich" instruction.
An "ostrich" instruction is not appropriate in every case. Relying on United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007), the Committee Comment provides that it is appropriate if "(1) the defendant claims a lack of guilty knowledge, and (2) the government has presented evidence sufficient for a jury to conclude that the defendant deliberately avoided learning the truth." "Deliberate avoidance is more than mere negligence; the defendant must have deliberately avoided acquiring knowledge of the crime being committed by cutting off his curiosity through an effort of the will." United States v. Salinas, 763 F.3d 869, 880 (7th Cir. 2014) (internal quotation marks and citations omitted).
The government does not have to choose between presenting an actual knowledge case or a conscious avoidance case; it may rely on both theories if there is a basis in the evidence. See United States v. Broeske, 178 F.3d 887, 890 (7th Cir. 1999).
The Court finds that there is a basis for an "ostrich" instruction in this case. This is particularly true based on some of the testimony and evidence presented relating to Mrs. Dingle.
Accordingly, the Court will give Government's No. 32 and declines to give Defendant's No. 14.
(5) The Defendant next objects to Government's No 32A, which is the so-called Pinkerton instruction based on Seventh Circuit No. 5.11 and relating to a conspirator's liability for substantive crimes ...