11th Circuit Reverses Conviction on Failure to Charge on Reliance on Advice

Professor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength of the government’s case, issues of fact should be decided by a jury and not by an appellate or trial court. Professor Podgor found particularly significant the Court’s reasoning that:

A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory.

Carl Lietz and Paul Kish also provide some helpful commentary on this case in their excellent Federal Criminal Lawyer Blog. From a practice perspective, they point out the importance of requesting a reliance upon professional advice charge in white collar cases where it is factually applicable.


A More General Takeaway from the Decision

Jury charges should be an important of a lawyer’s approach to a criminal trial. The charge conference is probably the single best place to plant appellate issues in your record because charging errors are seldom harmless.


The Georgia Court of Appeals Should Adopt a Similar Harm Analysis

The Georgia Court of Appeals appears to be of two different minds about how to analyze harm in jury charge issues. In a recent case, they reasoned that a failure to charge on a lesser included instruction authorized by a defendant’s testimony was harmless. Yet, in a slightly less recent theft case, the Court held that harm was practically presumed from a charging error even where the defense was “incredible.”

The case demonstrates how important jury charges should be to preserving the record for appeal and how the jury’s power to function as factfinder is at stake when it comes to analyzing harm from charging errors.

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