United States’ Response in Opposition to Defendant’s Amended Proposed Jury Instruction — No. 1:22-cr-00432-SDG-JEM (Dkt. 93, N.D. Ga.)
Summary
In this response in United States v. Shelitha Robertson, Criminal Action No. 1:22-cr-00432-SDG-JEM (N.D. Ga., Atlanta Division), the United States opposes the defendant's Notice of Amended Proposed Jury Instruction (Doc. 92). It argues the instruction, that co-conspirator Chandra Norton acted as the defendant's attorney and advised that the defendant qualified for Paycheck Protection Program loans, is already covered by the Court's Charge No. 24 on good-faith reliance upon advice of counsel. It also calls the instruction argumentative and riddled with contested facts, citing United States v. Jensen, and says the defense can argue the facts at closing. The only specific intent crime charged is conspiracy to commit wire fraud under 18 U.S.C. § 1349. The response is signed by AUSA Bernita Malloy and Fraud Section Trial Attorney Ariel Glasner, with service dated December 17, 2023.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
U NITED S TATES OF A MERICA
Criminal Action No.
v.
1:22-cr-00432-SDG-JEM
SHELITHA ROBERTSON
United States’ Response in Opposition to Defendant’s Amended Proposed
Jury Instruction
The United States of America, by and through undersigned counsel,
opposes Defendant’s Notice of Amended Proposed Jury Instruction (Doc. 92). The
Court should deny Defendant’s proposed jury instruction because it already is
covered by the Court’s charge and because the proposed jury instruction is
argumentative and wrongly seeks to have the Court recite to the jury purported
factual findings.
ARGUMENT
I. Defendant’s Proposed Instruction Mirrors the Court’s Instruction
Pertaining to Good Faith Reliance Upon Advice of Counsel
The essence of Defendant’s proposed jury instruction is that Defendant’s co-
conspirator acted as Defendant’s attorney and Defendant then followed her co-
conspirator’s advice that Defendant “qualified for Paycheck Protection Program
loans.” (Doc. 92). But this theory is already covered in the Court’s Charge No. 24
1
(Good-Faith Reliance Upon Advice of Counsel).1 Charge No. 24 instructs the jury
that “[u]nlawful intent has not been proved if the Defendant, before acting,” inter
alia, “received the attorney’s advice as to the specific course of conduct that was
followed; and reasonably relied upon that advice in good-faith.” See Court’s Jury
Instructions at p. 27. The point of Defendant’s proposed jury instruction and the
Court’s instruction regarding good-faith reliance upon advice of counsel is
identical. Importantly, a court need not give a theory of defense instruction “when
the charge given adequately covers the substance of the requested instruction.”
United States v. Beck, No. 21-13582, 2023 U.S. App. LEXIS 20331, at *16 (11th Cir.
2023) (quoting United States v. Ndiaye, 434 F.3d 1270, 1293 (11th Cir. 2006).2
II. Defendant’s Amended Proposed Jury Instruction is Argumentative
Defendant’s proposed jury instruction should also be denied as
argumentative and because it “seeks to place the defendant’s desired factual
findings into the mouth of the court.” Id. (quoting United States v. Paradies, 98 F.3d
1266, 1287 (11th Cir. 1996)). Indeed, Defendant’s proposed jury instruction is
1 The government has stated that it does not object to Charge No. 24.
2 As with the Court’s Charge No. 24, Defendant’s proposed jury instruction
appears to apply only to Count One in that it seeks to negate proof of specific
intent. The only specific intent crime with which Defendant is charged is
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. See e.g., United
States v. Eisenstein, 731 F.2d 1540, 1543-44 (11th Cir. 1984) (“A defendant . . . can
attempt to negate proof of specific intent by establishing the defense of good faith
reliance on advice of counsel”) (internal citation omitted).
2
riddled with contested facts. For example, contrary to Defendant’s proposed jury
instruction, the evidence presented in the government’s case-in-chief weighs
against any factual finding that: (1) “Chandra Norton advised Ms. Robertson that
her assets and net worth qualified for PPP loans . . .”; (2) “[o]n May 28, 2020, [] Ms.
Robertson became concerned about Norton’s activities”; or (3) that Defendant then
“immediately contacted another attorney and made arrangements to repay the
PPP loans, with interest.” The evidence presented in the government’s case-in-
chief further weighs against the suggestion that Ms. Norton handled the
preparation and documentation of the PPP loan applications for Defendant’s
businesses without Defendant’s direction and input.
The Court’s reasoning in United States v. Jensen, No. 10-cr-310, 2012 U.S. Dist.
LEXIS 206757 (N.D. Ga. Oct. 22, 2012), in which the Court denied Defendant’s
request for an instruction relating to a theory of defense, is directly applicable. In
that case, the Court concluded that the “requested charge is argumentative and
summarizes the evidence favorable to the Defense. The requested charge
improperly directs the jury's attention to certain facts which the charge seeks to
have emphasized by the Court.” Id. at *23. Here too, the nature of Defendant’s
proposed instruction is partisan and argumentative and should be denied. Id.
(citing United States v. Maxwell, 579 F.3d 1282, 1304-05 (11th Cir. 2009)).
III. Defendant’s Ability to Present an Effective Defense Will Not Be Seriously
Impaired
The appropriate forum for Defendant to present her view of the facts to the
jury is at closing argument. Defendant will have every opportunity then to argue
3
how the jury should consider the weight of the evidence presented at trial.
Moreover, Defendant’s proposed jury instruction is already covered by the Court’s
charge. Accordingly, denial of Defendant’s proposed jury instruction will have no
bearing on Defendant’s ability to present an effective defense. See Maxwell, 579
F.3d at 1303.
CONCLUSION
For the foregoing reasons, Defendant’s proposed jury instruction should be
denied.
Respectfully submitted,
RYAN K. BUCHANAN
United States Attorney
/s/BERNITA MALLOY
Assistant United States Attorney
Georgia Bar No. 718905
75 Ted Turner Drive SW
Atlanta, GA 30303
Bernita.Malloy@usdoj.gov
GLENN S. LEON
Chief, Fraud Section
U.S. Department of Justice
/s/ARIEL GLASNER
Trial Attorney, Fraud Section
U.S. Department of Justice
D.C. Bar No. 991442
1400 New York Ave, NW
4
Washington, DC 20005
Ariel.Glasner@usdoj.gov
5
Certificate of Service
The United States Attorney’s Office served this document today by filing it using
the Court’s CM / ECF system, which automatically notifies the parties and counsel
of record.
December 17, 2023
/s/ A RIEL G LASNER
Trial Attorney, U.S. Department of
Justice
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