Opinion
Case No. 03-00399-01/02-CR-W-HFS.
July 8, 2004
MEMORANDUM TO COUNSEL
Plaintiff's Instruction No. 18 is seriously defective in failing to supply an adequate collection of sources. "Modified" may be appropriate if there are obvious adaptions of wording; it does not satisfy the needs of court and opposing counsel when there is a considerable amount of substantive material without citations. What case law or approved instructions in other cases or from other circuits supports the lecturing in that instruction?
The practice complained of has been engaged in by most counsel for some time, but this is the worst example of a failure to supply sources that I can remember.
In addition, unless I have missed something in hasty examination, I think there are serious problems in submitting a verdict form that asks the jury to find a specified dollar "loss", without defining loss. If, as I understand, the evidence would show the sums were received by defendant(s) I suppose most people on the street would question whether that means the employer lost that sum.
My recollection may not be correct, but I thought that a defendant's gain was a fall-back measure of loss under the Guidelines. That may be rough justice, but either the jury needs adequate instructions on this or it should be omitted from the verdict forms, in the expectation that I will apply Croxford.