The Champion

September-October 2012 , Page 26 

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Jury Instructions: Key Topics in Federal White Collar Cases

By Susan E. Brune and Laurie Edelstein

The right jury charge can make the difference between conviction and acquittal. Take, as a basic example, a criminal securities fraud case in which the government has alleged that a defendant employed in a large organization made misleading statements about the company’s performance in financial statements. The defendant contends that although he participated in drafting the documents, he did not have final control over the statements. Under the Supreme Court’s recent decision in Janus Capital Group Inc. v. First Derivative Traders, only “the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it” is the maker of a statement for purposes of primary liability under the securities laws.1 Most model or pattern securities fraud instructions do not account for or address the Janus ruling. Proposing and advocating for an instruction that incorporates Janus could provide the jury with a reason to acquit.

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