US and Relator Proposed Jury Instructions Bunk

Case 1:02-cv-01168-AJT -TRJ Document 1040
Filed 07/29/11 Page 1 of 49 PageID# 20427
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION __________________________________________ ) UNITED STATES OF AMERICA ) ex rel. Kurt Bunk, ) ) Plaintiffs/Relator, ) ) v. ) No. 1:02cv1168 (AJT/TRJ) ) BIRKART GLOBISTICS GMBH & CO. ) LOGISTIK UND SERVICE KG, et al., ) ) Defendants. ) ) __________________________________________) ) UNITED STATES OF AMERICA ) ex rel. Ray Ammons, ) ) Plaintiffs/Relator, ) ) v. ) No. 1:07cv1198 (AJT/TRJ) ) THE PASHA GROUP, et al., ) ) Defendants. ) __________________________________________)
UNITED STATES AND RELATORS DISPUTED PROPOSED JURY INSTRUCTIONS
The United States and Relators hereby submit proposed jury instructions that remain in dispute after conference by the parties. The United States and Relators reserve the right to supplement, delete and/or amend these proposed instructions, including by adding an instruction in response to the instructions proposed by the Defendants or to conform to the evidence and testimony developed at trial.
Respectfully submitted, TONY WEST Assistant Attorney General NEIL H. MACBRIDE United States Attorney STEVEN GORDON Assistant United States Attorney JOYCE BRANDA JAMIE ANN YAVELBERG ANDREW A. STEINBERG JONATHAN M. PHILLIPS /s/ ___________________________ MEREDITH L. TOOLE Va. Bar. No. 81022 Department of Justice Civil Division P.O. Box 261 Ben Franklin Station Washington, DC 20044 Tel: (202) 616-3165 Fax: (202) 514-0280 Email: meredith.l.toole@usdoj.gov Counsel for the United States /s/ _________________________ MARK HANNA Va. Bar No. 45442 Murphy Anderson PLLC 1701 K St. NW, Suite 210 Washington, DC 20006 Tel: (202) 223-2620 Fax: (202) 223-8651 mhanna@murphypllc.com RICHARD E. GREENBERG JOHN E. PETITE Greensfelder, Hemker & Gale, PC 2
Dated: July 29, 2011
Dated: July 29, 2011
10 South Broadway, Suite 2000 St. Louis, MO 63102 Tel: (314) 516-2687 Fax: (314) 241-8624 Counsel for Relators
Plaintiffs Proposed Instruction A [TO BE GIVEN AT COMMENCEMENT OF TRIAL] GENERAL: NATURE OF CASE Ladies and gentlemen: I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions both those I give you now and those I give you later are equally binding on you and must be followed. This is a civil case brought by the plaintiff, the United States of America, against the defendants Gosselin Worldwide Moving N.V., Gosselin Group N.V., and Marc Smet (Gosselin Defendants). In summary, the United States alleges that the Gosselin Defendants entered into a conspiracy to cause the submission of false and inflated claims to the United States by rigging the bids and fixing the price incorporated into bids submitted to the United States Department of Defense for the shipment of military household goods between Germany and the United States and by enforcing that conspiracy, through threatened boycotts and economic sanctions, those entities that failed or refused to comply with their instructions. The Gosselin Defendants deny these allegations and say they did not knowingly cause any false or fraudulent claims to be submitted. It will be your duty to decide from the evidence whether the United States is entitled to a verdict against the Gosselin Defendants. From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not. 4
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it. In deciding what testimony to believe, consider the witnesses intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony and the extent to which their testimony is consistent with other evidence that you believe. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be. Adapted from Model Jury Instruction 1.01 from Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit (1999).
Plaintiffs Proposed Instruction J BURDEN OF PROOF: PREPONDERANCE OF THE EVIDENCE Plaintiff has the burden in a civil action, such as this, to prove every essential element of the United States claims by a preponderance of the evidence. If the United States should fail to establish any essential element of any of its claims by a preponderance of the evidence, you should find for the Gosselin Defendants as to that claim. If you find that the United States and Relators have proved each of the elements that they must establish in support of their claims, you must then consider the Gosselin Defendants defenses. The Gosselin Defendants have the burden of establishing every essential element of their affirmative defenses by a preponderance of the evidence. Establish by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as, when considered and compared with the evidence opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This standard does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proved by a preponderance of the evidence you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. Adapted from OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 104.01; 178.50 Preponderance of the Evidence.
Plaintiffs Proposed Instruction O
ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM
You must follow the following rules while deliberating and returning your verdict: First, when you go to the jury room, you must select a foreperson. The foreperson will preside over your discussions and speak for you here in court. Second, it is your duty, as jurors, to discuss this case with one another in the jury and try to reach agreement. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of the other jurors. Do not be afraid to change your opinions if the discussion persuades you that you should. But do not make a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are judges of the facts. Your sole interest is to seek the truth from the evidence in the case. Third, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone including mehow your votes stand numerically. Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should bethat is entirely for you to decide. 7
Finally, the verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdict, your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom. OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 103.50 Election of Foreperson; Duty to Deliberate; Communications with Court; Cautionary; Unanimous Verdict; Verdict Form
Plaintiffs Proposed Instruction P
EXPERT WITNESSES The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists for expert witnesses. An expert witness is a person who, by education and experience has become expert in some art, science, profession, or calling. Expert witnesses may state their opinions as to matters in which they profess to be expert, and may also state their reasons for their opinions. You should consider each expert opinion received in evidence in this case, and give it such weight as you think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely. OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 104.40 Expert Witness
Case 1:02-cv-01168-AJT -TRJ Document 1040 Filed 07/29/11 Page 10 of 49 PageID# 20436
Plaintiffs Proposed Instruction T SUMMARY OF FALSE CLAIMS ACT PROVISIONS The False Claims Act defines three ways in which defendants may be found liable for submitting or contributing to the submission of false or fraudulent claims: First; a defendant may be found liable for submitting or causing the submission of false claims to the United States. Second, a defendant may be found liable for using a false record or statement in order to get the United States to pay or allow a claim. Third, a defendant may be found liable for conspiring with one or more other persons to get a false or fraudulent claim allowed or paid by the United States. Additionally, the False Claims Act is to be read broadly and its reach is beyond claims that might be legally enforced to all fraudulent attempts to cause the United States to pay out sums of money. The False Claims Act is violated not only by a person who makes a false statement or a false record to get the United States to pay a claim, but also by one who engages in a fraudulent course of conduct that causes the United States to pay a claim for money. The plaintiffs have alleged that the Gosselin Defendants in this case have engaged in all three of the above-mentioned acts. I shall describe each one for you in turn. 31 U.S.C. 3729(a)(1)-(3); Adapted from OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 178.10, False Claims Act, Generally.
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Plaintiffs Proposed Instruction V
FALSE CLAIMS ACT (A)(2) VIOLATION The United States also alleges that the Gosselin Defendants violated section 3729(a)(2) of the False Claims Act, which states that: Any person who... (2) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim For the United States to recover from a defendant for a violation of section 3729(a)(2) of the False Claims Act, it must establish by a preponderance of the evidence that : (1) the Gosselin Defendants knowingly (2) either made or used, or caused another to make or use, a false record or statement to get the Government to pay its claim (3) and the record or statement was false or fraudulent.
31 U.S.C. 3729(a)(2), 3730(c); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).
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Plaintiffs Proposed Instruction W
FALSE CLAIMS ACT (A)(3) VIOLATION The United States also alleges that the Gosselin Defendants violated section 3729(a)(3) of the False Claims Act, which reads: Any person who... (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid is liable to the United States Government for damages. For the Government to recover from a defendant for a violation of section 3729(a)(3) of the False Claims Act, it must establish by a preponderance of the evidence: (1) an unlawful agreement between the Gosselin Defendants and co-conspirators to get a false or fraudulent claim reimbursed by the government (2) at least one act performed in furtherance of that agreement. 31 U.S.C. 3729(a)(3); United States ex rel. Decesare v. Americare In Home Nursing, No. 1:05cv696, 2011 WL 607390, at *7 (E.D. Va. Feb. 10, 2011); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).
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Plaintiffs Proposed Instruction X
FALSE CLAIMS ACT DEFINITION OF KNOWINGLY For purposes of the alleged False Claims Act violations, the term "knowingly" means that The Gosselin Defendants, with respect to information: (1) had actual knowledge of the information; or (2) acted in deliberate ignorance of the truth or falsity of the information; or (3) acted in reckless disregard of the truth or falsity of the information. It is not necessary, however, for the United States to prove that the Gosselin Defendants acted with an intent to defraud anyone. 31 U.S.C. 3729(b); United States ex rel. Decesare v. Americare In Home Nursing, No. 1:05cv696, 2011 WL 607390, at *6 (E.D. Va. Feb. 10, 2011); United States v. Newport News Shipbuilding, Inc., 276 F. Supp. 2d 539, 561 (E.D. Va. 2003); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir. 1999).
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Plaintiffs Proposed Instruction Y
FALSE CLAIMS ACT ACTUAL KNOWLEDGE AND REASONABLE INQUIRY "Actual knowledge" means affirmative knowledge that claims were false. The United States may establish that Defendant had actual knowledge through circumstantial evidence. If it appears that a certain condition had existed for a substantial period of time, and that a defendant or defendants had regular opportunities to observe the condition, then you may draw the inference that a defendant or defendants had knowledge of the condition. If it appears from the evidence in the case that a defendant or defendants had information which would lead a reasonably prudent person to make an inquiry through which he would surely learn certain facts, then the defendant or defendants may be found to have had actual knowledge of these facts, the same as if the defendant or defendants had made such inquiry and had actually learned such facts. The law expects a person to make a reasonable inquiry under the circumstances and will charge a person with notice and knowledge of whatever he would have learned upon making such inquiry. United States ex rel. Ervin and Assocs., Inc. v. Hamilton Securities Group, Inc., 370 F. Supp. 2d 18, 41 (D.D.C. 2005) (defendant must make such inquiry as would be reasonable and prudent to conduct under the circumstances to ascertain the true and accurate basis of the claim); United States ex rel. Stone v. Rockwell Intern. Corp., 282 F.3d 787, 811-12 (10th Cir. 2002) (affirming validity of jury instruction directing jury that in considering whether defendant knowingly made any false statements, it must consider all direct and circumstantial evidence).
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Plaintiffs Proposed Instruction Z
FALSE CLAIMS ACT RECKLESS DISREGARD I also instructed you that the term "knowingly" includes acting in "reckless disregard" of an acts truth or falsity. The term "reckless" means "gross negligence plus." If a defendant submitted a claim, or caused a claim to be submitted, without properly considering the claims truth or falsity, that defendant may be found to have acted in reckless disregard of its truth or falsity.
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir. 1999); United States v. Krizek, 111 F.3d 934 (D.C. Cir. 1997); United States ex rel. Ervin and Associates, Inc. v. Hamilton Securities Group, Inc., 370 F.Supp.2d 18, 41 (D.D.C. 2005).
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Plaintiffs Proposed Instruction AA FALSE CLAIMS ACT DELIBERATE IGNORANCE Plaintiffs can prove "deliberate ignorance" through proof that a defendant deliberately closed its eyes to what would otherwise have been obvious to the defendant. A finding that a defendant purposely avoided learning all the facts or suspected a fact but refused to confirm it, also constitutes deliberate ignorance. Stated another way, a defendants knowledge of a fact may be inferred from willful blindness to the existence of the fact. It is entirely up to you as to whether you find any deliberate closing of the eyes and the inference to be drawn from any such evidence.
U.S. ex rel. K & R Ltd. Partnership v. Massachusetts Housing Finance Agency, 456 F.Supp.2d 46, 61 (D.D.C. 2006); United States ex rel. Ervin and Associates, Inc. v. Hamilton Securities Group, Inc., 370 F.Supp.2d 18, 41 (D.D.C. 2005).
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Plaintiffs Proposed Instruction CC FALSE CLAIMS ACT DEFINITION OF CLAIM A "claim" may include a voucher, invoice, or any other demand for the payment of Government money or the transfer of Government property. In order for a defendant to cause a false claim to be made, it is not necessary for the defendant to actually receive the money directly from the Government, causing the payment of Government money to some individual will suffice. Therefore, if you find that the defendant knowingly committed an act or acts that caused another to submit false or fraudulent claims, then you must find that defendant caused false claims to be submitted. 31 U.S.C. 3729(c); United States v. Neifert-White Co., 390 U.S. 228 (1968); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785, 790 (4th Cir. 1999); United States v. Ekelman & Associates, 532 F.2d 545 (6th Cir. 1976); U.S. ex rel. K & R Ltd. Partnership v. Massachusetts Housing Finance Agency, 456 F.Supp.2d 46, 54 (D.D.C. 2006); Adapted from OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 178.33.
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Plaintiffs Proposed Instruction DD FALSE CLAIMS ACT FALSE OR FRAUDULENT
The False Claims Act uses the word "or" when it prohibits "false or fraudulent" claims. The claim need not be fraudulent so long as it is false. Nor is there a requirement that a claim be false on its face in order for it to be violative of the Act. Each and every claim submitted under a contract or other agreement that was originally obtained by means of false statements or other corrupt or fraudulent conduct, or in violation of any statute or applicable regulation, constitutes a false claim. Likewise, concealment of a fact vital to the integrity of a government program can render a claim false. If you find that a claim is either false or fraudulent, and the other elements of the False Claims Act are satisfied, you must find liability under the False Claims Act. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 786 (4th Cir. 1999); Abtech Construction, Inc. v. United States, 31 Fed. Cl. 429, 433 (Cl. Ct. 1994); United States v. Uzzell, 648 F.Supp. 1362, 1363 (D.D.C. 1986); OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 178.30-31.
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Plaintiffs Proposed Instruction EE CLAIMS SUBMITTED AFTER BID RIGGING ARE FALSE CLAIMS All payments sought from the United States that are the product of rigged bids are false claims under the False Claims Act. Thus, if you find that the bids on any of the contracts at issue were rigged, you must also find that the claims that were ultimately submitted on those contracts were false or fraudulent claims. The fact that a bid was rigged does not prove that defendants knowingly submitted false claims. However, the fact that a particular bid was rigged does establish that all of the claims that were ultimately submitted on that contract were false or fraudulent. United States ex rel. Marcus v. Hess, 317 U.S. 537, 543-45 (1943); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 787 (4th Cir. 1999); United States v. CFW Construction Co., Inc., 649 F. Supp. 616, 618 (D.S.C. 1986); U.S. ex rel. Bettis v. Odebrecht Contractors of California, Inc., 297 F.Supp. 2d 272, 279 (D.D.C. 2004).
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Plaintiffs Proposed Instruction FF FALSE CLAIMS ACT CAUSATION When a defendant is removed from the claims submission process, it causes false claims to be submitted if it was reasonably foreseeable that the defendants actions would result in false claims, and participated in setting in motion a chain of events that led to false claims. In determining whether the Gosselin Defendants conduct caused false claims to be submitted, you must determine that their conduct was a substantial factor in producing the harm and that the outcome was foreseeable. You may find that causation was established even if you find that the U.S. carriers who submitted the claims to the United States did not know that the rates were inflated due to a conspiracy. Thus, in evaluating causation in this case, it is the knowledge and conduct of the Gosselin Defendants that matter and not the actual submitter of the claims, here, the U.S. carriers, who were duped or participated in the scheme. The United States decision to keep making payments after learning of the falsity of the claims does not break the causal chain. United States ex rel. Hutcheson v. Blackstone, --- F.3d ----, 2011 WL 2150191, *11 (June 1, 2011) (The Supreme Court has long held that a non-submitting entity may be liable under the FCA for knowingly causing a submitting entity to submit a false or fraudulent claim, and it has not conditioned this liability on whether the submitting entity knew or should have known about a non-submitting entity's unlawful conduct.); United States ex rel. Schmidt v. Zimmer, 386 F.3d 235, 244 (3rd Cir. 2003) (discussing the Hess decision, noting that [g]iven the Court's view that the crucial issue was whether the defendants knowingly assisted in the presentation of false claims, the knowledge and conduct of the defendant were what mattered and the outcome did not turn on whether the actual presenters were duped or participated in the 11 fraudulent scheme); United States ex rel. Franklin v. Parke-Davis, 147 F. Supp. 2d 39 (D.Mass. 2001) (recognizing that defendant could be liable under the False Claims Act for its fraudulent conduct which induced third-parties to submit false claims to United States); United States v. Erlich, 643 F.2d 634, 639) (9th Cir. 1981); 1 John T. Boese, Civil False Claims and Qui Tam Actions 2-193 (3d ed. 2006).
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Plaintiffs Proposed Instruction GG
FALSE CLAIMS ACT MATERIALITY To find a violation or violations of the False Claims Act, you must find that false or fraudulent statements were or would have been material to the payment of the claim. "Material" for these purposes means whether the false statement has a natural tendency to influence agency action or is capable of influencing agency action. To show materiality, the United States need not provide evidence or prove that it would not have paid the false claims had it known of the falsity. Materiality may be established not only through express contractual language, but other ways, such as testimony demonstrating that both parties understood that payment was conditional on compliance with the requirement at issue. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir. 1999); United States ex rel. Berge v. Bd. of Trustees of Univ. of Ala., 104 F.3d 1453, 1459 (4th Cir. 1997); United States v. Science Applications Intern. Corp., 626 F. 3d 1257, 1269 (D.C. Cir. 2010); United States v. Rogan, 517 F.3d 449, 452 (7th Cir. 2008).
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Plaintiffs Proposed Instruction HH SINGLE, OVERARCHING CONSPIRACY
Plaintiffs allege that the defendants acts in agreeing to raise rates for ITGBL services in the 2001 and 2002 rate cycles and acts to enforce that agreement were part of a single, overarching conspiracy. In determining whether the defendants acted as part of a single overarching conspiracy with respect to these cycles, you may consider whether the defendants shared a common goal, whether there was any interdependence between the alleged participants in the conspiracy, and whether there was any overlap among the alleged participants, including the presence of core participants linked to this behavior in multiple ITGBL cycles. United States v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001) (noting that factors to determine a single overarching conspiracy include overlap of key actors, methods, and goals); United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 899901 (D.C. Cir. 2010); United States v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996).
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Plaintiffs Proposed Instruction JJ NO IMMUNITY UNDER ANTITRUST LAW Any communications about price that attempt to set rates for the through transportation market of military household goods between the United States and any other country are not immune under antitrust law. United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502 (4th Cir. 2005).
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Plaintiffs Proposed Instruction KK ANTITRUST IMMUNITY NOT A DEFENSE Antitrust immunity is not a defense to a case brought under the False Claims Act. Accordingly, even if you suspect or believe that the Gosselin Defendants actions were immune under an antitrust law, the Gosselin Defendants should still be found liable under the False Claims Act if you find that they violated the elements of the Act. Antitrust immunity is not a defense to a case brought under the common law claims of fraud, conspiracy to defraud or unjust enrichment. Accordingly, even if you suspect or believe that the Gosselin Defendants actions were immune under an antitrust law, the Gosselin Defendants should still be found liable under fraud, conspiracy to defraud or unjust enrichment if you find that they violated the elements of those claims. United States v. Gosselin Worldwide Moving, N.V., 1333 F. Supp. 2d 497, 512 (E.D. Va. 2004); United States v. Gosselin Worldwide Moving, N.V., 411 F.3d 502, 510 (4th Cir. 2005).
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Plaintiffs Proposed Instruction LL BENEVOLENT MOTIVATION NOT A DEFENSE The United States need not provide evidence of a motive to establish a violation of the False Claims Act. Thus, benevolent motivation is not a defense, nor is it a legal justification, to a case brought under the False Claims Act. Accordingly, even if you suspect or believe that the Gosselin Defendants actions were intended to improve quality of moving services, compensate for low rates bid by other companies, or address any other alleged deficiency in the ITGBL program, the Gosselin Defendants should still be found liable under the False Claims Act if you find that they violated the elements of the Act. Benevolent motivation is also not a defense, nor is it a legal justification, to a case brought under the common law claims of fraud, conspiracy to defraud or unjust enrichment. Accordingly, even if you suspect or believe that the Gosselin Defendants actions were intended to improve quality of moving services, compensate for low rates bid by other companies, or address any other alleged deficiency in the ITGBL program, the Gosselin Defendants should still be found liable under the common law claims of fraud, conspiracy to defraud or unjust enrichment if you find that they violated the elements of those claims. United States ex rel. Marcus v. Hess, 317 U.S. 537, 539 n.1 (1943).
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Plaintiffs Proposed Instruction MM GOVERNMENT KNOWLEDGE NOT A DEFENSE Government knowledge is not a defense to a case brought under the False Claims Act. The required intent under the False Claims Act is the knowing presentation of what is known to be false. That the relevant government officials know of the falsity is not in itself a defense. Accordingly, even if you suspect or believe that the United States or any agent of the United States knew or should have known that the claims were false, the Gosselin Defendants should still be found liable under the False Claims Act if you find that they violated the elements of the Act. United States v. Rogan, 517 F.3d 449, 45253 (7th Cir. 2008); United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 917, 920 n.14 (4th Cir. 2003); United States ex rel. Becker v. Westinghouse Savannah River Co.,305 F.3d 284, 28889 (4th Cir. 2002); Varljen v. Cleveland Gear Co., Inc., 250 F.3d 426, 431 (6th Cir. 2001); United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991).
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Plaintiffs Proposed Instruction NN GOVERNMENT NEGLIGENCE NOT A DEFENSE Negligence, or the failure of a Government employee to act as a reasonable person in satisfying a duty, is not a defense under the False Claims Act. I instruct you that you may not consider as a defense any negligent or unreasonable conduct on the part of the Government or any failure by Government personnel to perform their duties. If you find that one or more defendants violated the False Claims Act, you must find for the Plaintiffs notwithstanding any negligence or unreasonable conduct on the part of Government personnel or any failure by these personnel to perform their duties. It is irrelevant and cannot be used as a defense to the defendants liability. Cenco, Inc. v. Serdman & Serdman, 686 F.2d 449 (7th Cir. 1982), cert. denied, 459 U.S. 880 (1982); United States v. Kates, 419 F.Supp. 846 (E.D. Pa. 1976).
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Plaintiffs Proposed Instruction OO FAILURE TO MITIGATE DAMAGES NOT A DEFENSE Failure to mitigate damages is not a defense to a defendants liability under the False Claims Act or under the common law claims of unjust enrichment, fraud, and conspiracy to defraud. The Governments decision to continue to fund a contract in which it learned of wrongdoing does not preclude the Governments ability to recovery False Claims Act damages. I instruct you that you may not consider as a defense any payment by the plaintiff to the defendants after it learned of the fraud. If you find that the Gosselin Defendants violated the False Claims Act, or are liable for unjust enrichment, fraud or conspiracy to defraud, you must find for the United States even if the United States continued to pay them after learning of their fraud. It is irrelevant and cannot be used as a defense to the defendants liability. United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 916-17 (4th Cir. 2003); Toepleman v. United States, 263 F.2d 697, 700 (4th Cir. 1959; United States v. Eghbal, 475 F. Supp. 2d 1008, 1018 n.13 (C.D. Cal. 2007), affd, 548 F.3d 1281 (9th Cir. 2008); United States ex rel. Monaghan v. Robert Wood Johnson Univ. Hosp., No. 02-5702, 2009 WL 4576097, at *8 (D.N.J. Dec. 1, 2009) (citing Toepleman, 263 F.2d at 700) (The Government has no duty to mitigate damages in fraud actions, including those under the FCA.); United States ex rel. Sanders v. Allison Engine Co., No. C-1-95-970, at 3-4 (S.D. Ohio Apr. 8, 2002) (finding no duty to mitigate in a False Claims Act case); United States v. Intervest Corp., No. 3:98CV531BN, at 12-13 (S.D. Miss. Jan. 27, 1999); United States v. Consolidated Aeronautics Corp., No. CV 90-3408-AWT, at 2 (C.D. Cal. Feb. 11, 1991) (same).
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Plaintiffs Proposed Instruction PP LACHES NOT A DEFENSE Laches is not a defense available against the United States. If you find that the Gosselin Defendants violated the False Claims Act, or are liable for unjust enrichment, fraud or conspiracy to defraud, the Gosselin Defendants may not assert laches as a defense to the United States claims. United States v. Summerlin, 310 U.S. 414, 416 (1940) (stating that it is well settled that the United States is not. . . subject to the defense of laches in enforcing its rights.); United States v. RePass, 688 F.2d 154, 158 (2d Cir. 1982) (finding same in FCA suit).
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Plaintiffs Proposed Instruction QQ ADVICE OF COUNSEL DEFENSE The burden of establishing reliance on advice of counsel rests with Defendants. Defendants may claim reliance on advice of counsel to rebut that they knew or acted in reckless disregard or deliberate ignorance as to the truth or falsity of the information they caused to be submitted; even a good faith reliance on advice of counsel does not affect the falsity of the claims. In order for Defendants to establish good faith reliance on advice of counsel, they must prove the following: 1. The advice was sought in good faith; 2. The client provided full and accurate information to the attorney; 3. The advice could be reasonably relied upon; and 4. The client faithfully followed the attorneys advice. A defendant cannot establish reliance on advice of counsel if the defendant did not disclose full and accurate information, including all material facts, to its attorneys. If you find that the Gosselin Defendants did not fulfill their obligation to disclose complete and accurate information to their attorney, including all material facts, then you should find that they cannot establish reliance on advice of counsel. A defendant may still act with reckless disregard under the False Claims Act if its compliance with the attorneys advice was recklessly incomplete. If you find that the Gosselin Defendants compliance with the advice they received was recklessly incomplete, then they cannot prevail on their argument of advice of counsel. A crucial element of an advice of counsel claim is that the defendant secured the advice before taking the action in question. Any advice the Gosselin Defendants received after causing 30
the submission of a false or fraudulent statement or claim cannot support a claim of reliance on the advice of counsel. United States v. Benson, 941 F.2d 598, 614 (7th Cir. 1991) cited by United States v. Biller, No. 1:06CR14, 2007 WL 325798, at *10 (N.D.W. Va. Jan. 31, 2007); United States v. United Medical and Surgical Supply Corp., 989 F.2d 1390, 140405(4th Cir. 1993); United States v. Polytarides, 584 F.2d 1350,135253 (4th Cir. 1978); United States v. Newport News Shipbuilders, 276 F. Supp. 2d 539, 565 (E.D. Va. 2003).
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Plaintiffs Proposed Instruction RR CIVIL CONSPIRACY A civil conspiracy is a combination of two or more persons, or two or more entities such as corporations, acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means. The principal element of a civil conspiracy is an agreement between the parties to inflict a wrong upon another. A conspiracy is a kind of "partnership in unlawful purposes" in which each member becomes the agent of every other member. The gist of conspiracy is a combination or agreement to disobey or disregard the law. In your consideration of the evidence in the case as to the bid-rigging and price fixing conspiracy alleged in the complaint, you should first determine whether or not the conspiracy existed, as alleged in the complaint. If you conclude that the conspiracy did exist, you should next determine whether or not the defendants willfully became a member of the conspiracy. Once the existence of a conspiracy has been established, evidence is needed to connect a particular participant to the conspiracy. Even a single act may be sufficient to draw a defendant within the ambit of a conspiracy, if the act is such that one may infer from it an intent to participate in an unlawful enterprise. If it appears from a preponderance of the evidence in the case that the bid-rigging and price fixing conspiracy alleged in the complaint was willfully formed, and that a particular defendant willfully became a member of the conspiracy either at its inception or afterwards, and that thereafter one or more of the conspirators knowingly committed one or more overt acts in furtherance of some object or purpose of the conspiracy, then you may return a verdict for the
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plaintiffs even though the conspirators may not have succeeded in accomplishing their common objects or purposes and in fact may have failed in so doing. Adapted from OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 31.04, 31.06, 31.07, 31.08, 150.46; Lenard v. Argenta, 699 F.2d 874 (7th Cir. 1983), cert denied, 464 U.S. 815 (1983); Youming Jin v. Ministry of State Security, 335 F.Supp.2d 72, 82 (D.D.C. 2004) ("in most cases the court will have to infer a conspiracy from indirect evidence").
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Plaintiffs Proposed Instruction SS CIVIL CONSPIRACY CIRCUMSTANTIAL EVIDENCE The existence of a conspiracy may be established by circumstantial evidence. You may conclude that a defendant joined a conspiracy even in the absence of evidence directly showing an express or formal agreement. Rather, you may infer that an agreement existed between defendants, or between a defendant and other conspirators, from any collection of circumstances tending to show a mutual understanding, spoken or otherwise, that the members would cause to have a fraudulent claim paid by the United States.
United States v. Hoover-Hankerson, 406 F.Supp.2d 76, 83 (D.D.C. 2005) ("It is of no moment that there may have been, as the defendants contend, little direct evidence of an agreement or the defendants knowing joinder in that agreement, for "[i]t is unusual to have direct evidence of the conspiracy. Circumstantial evidence, including inferences from a development and a collection of circumstances, suffices to prove participation in a conspiracy.") (quoting United States v Edmonds, 765 F.Supp. 1112, 1116 (D.D.C. 1991); Youming Jin v. Ministry of State Security, 335 F.Supp.2d 72, 82 (D.D.C. 2004).
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Plaintiffs Proposed Instruction TT CIVIL CONSPIRACY OVERT ACT
An "overt act" is any act knowingly committed by one of the conspirators, in an effort to accomplish some object or purpose of the conspiracy. The overt act need not be criminal in nature, if considered separately and apart from the conspiracy. It must, however, be an act which tends toward accomplishment of the plan or scheme and must be knowingly done and in furtherance of some object or purpose of the conspiracy alleged in the complaint.
OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 31.04, 31.06, 31.07, 31.08, 150.46
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Plaintiffs Proposed Instruction UU ACTS AND DECLARATIONS OF CO-CONSPIRATORS Whenever it appears from a preponderance of the evidence in the case that a conspiracy existed, and that a defendant was one of the members, then the statements made and the acts by any person likewise found to be a member may be considered by you as evidence in the case as to the defendant found to have been a member. This is so even though the statements and acts may have occurred in the absence and without the knowledge of the defendant, provided such statements and acts were made and done during the continuance of the conspiracy, and in furtherance of some object or purpose of the conspiracy. Likewise, any admission or statement made or act done outside of court, by one person, may not be considered as evidence in the case against any person who was not present and heard the statement made, or saw the act done.
OMalley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) 150.45.
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Plaintiffs Proposed Instruction VV BENEFIT TO CO-CONSPIRATOR IMMATERIAL
In considering a conspiracy charge, you should place no significance on whether any conspirator expected to receive a benefit from the conspiracy. It is simply irrelevant whether or not an individual who engages in a conspiracy receives any compensation for his participation in the conspiracy. United States v. Boswell, 372 F.2d 781, 783 (4th Cir. 1967); United States v. Shoup, 608 F.2d 950, 956-57 (3d Cir. 1979)
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Plaintiffs Proposed Instruction WW LIABILITY OF CO-CONSPIRATOR One can be a participant in a conspiracy even though he does not participate in all of the acts that may take place under the conspiracy. A participant in a conspiracy needs to know just the essentials of the conspiracy, he need not know all the details. He is liable for the acts of his co-conspirators done in furtherance of the conspiracy even if he had no knowledge of the acts that were carried out as long as those acts were reasonably foreseeable. Once liability for conspiracy under the False Claims Act is established, each conspirator is liable for each of the overt acts committed pursuant to the conspiracy and for the damages arising from the conspiracy even if he did not personally commit all of the acts that may take place under the conspiracy.
Pinkerton v. United States, 328 U.S. 640, 646 (1946); Blumenthal v. United States, 332 U.S. 539, 556-57 (1947); United States ex rel. Amin v. George Washington University, 26 F. Supp. 2d 162, 165 (D.D.C. 1998); United States v. Pinto, 548 F.Supp. 236 (E.D. Pa. 1982); United States v. Cripps, 460 F. Supp. 969 (E.D. Mich. 1978)
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Plaintiffs Proposed Instruction XX DAMAGES If you find that one or more defendants violated the False Claims Act, you must determine the damages sustained because of the violations. The damages that the United States is entitled to recover under the False Claims Act is the amount of money that the Government paid out by reason of the false claims over and above what it would have paid out had the claims not been false. In the context of this case, the measure of damages to the United States is the difference between what the United States paid and what it would have paid had there been no bid-rigging and price fixing agreement. The phrase "by reason of in the False Claims Act means that you must conclude that the false claims caused the damages to the Government. The phrase should be construed by you so as to provide the Government with restitution for any losses it incurred as a result of the false claims. If you determine that there was a causal link between any false claim and some loss sustained by the Government, you should determine the amount of the loss so sustained and enter a verdict for the United States in that amount.
Adapted from OMalley, Grenig, and Lee, Federal Jury Practice and Instructions, (5th Ed.) 178.60; United States ex rel. Marcus v. Hess, 317 U.S. 537, 543-44 (1943); United States v. Ekelman & Associates, 532 F.2d 545 (6th Cir. 1976); United States v. Hibbs, 568 F.2d 347, 351 (3d Cir. 1977); Brown v. United States, 524 F.2d 693,706 (Ct. C1. 1975); U.S. ex rel. Ervin and Associates, Inc. v. Hamilton Securities Group, Inc., 370 F. Supp. 2d 18 (D.D.C. 2005).
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Plaintiffs Proposed Instruction YY PROOF OF DAMAGES As with all other elements of a False Claims Act violation, the United States must prove its damages only by a preponderance of the evidence. The United States may establish damages by direct or circumstantial evidence. 31 U.S.C. 3731(d); Herman & McLean v. Huddleston, 459 U.S. 375, 390-91 (1983); Federal Jury Practice and Instructions, 104.05.
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Plaintiffs Proposed Instruction ZZ PRECISION OF DAMAGES
The plaintiffs must prove their damages with reasonable certainty. You may not award the plaintiffs damages that are merely speculative. Speculative damages are those that might be possible but are remote or based on guesswork. The plaintiffs do not have to prove their exact damages, however. You may award the plaintiffs damages that are based on a just and reasonable award derived from relevant evidence. In computing any damages suffered by the Government in this case, you do not have to determine the actual damages with precision. If you find that the defendants have by their own acts prevented a precise computation of damages, the jury may make a just and reasonable award based on the relevant data and render its verdict accordingly. In such circumstances, juries are allowed to act upon probable and inferential, as well as direct and positive proof.
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65 (1946); National Constructors Assn v. National Electrical Constructors Assn, 498 F. Supp. 510, 538 (D.Md. 1980); Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997); Eureka Investment Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 938 (D.C. Cir. 1984); United States v. Killough, 848 F.2d 1523, 1532 (11th Cir. 1988).
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Plaintiffs Proposed Instruction AAA NUMBER OF FALSE CLAIMS If you find one or more defendants liable under the False Claims Act, then you must determine the number of false claims the defendant or defendants submitted, caused to be submitted or conspired to get submitted, regardless of whether you find that the United States was damaged as a result. Each separate bill, voucher, invoice, progress payment request or other demand for payment you determine is false or fraudulent constitutes a separate claim. There will be a space in the verdict form for you to place this number should you find for the Government on the False Claims Act claims.
31 U.S.C. 3729(a); United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943); United States ex rel. Miller v. Bill Harbert Intl Constr., Inc., 608 F.3d 871, 904 (D.C. Cir. 2010).
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Plaintiffs Proposed Instruction DDD VIRGINIA FRAUD DAMAGES
If you find that the plaintiff is entitled to recover from the defendants for fraud, then the measure of damages is the difference between what the United States paid as a result of the fraudulent representation caused by the Gosselin Defendants contract with the freight forwarders and what it would have paid had the fraudulent representation been true. Va. Pract. Jury Instruction 52:4 Measure of Damages Fraud.
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Relators Proposed Instruction FFF
DIRECT PROCUREMENT CONTRACT Relators also assert a claim on behalf of the United States regarding payments made under the Direct Procurement Contract. To sustain Plaintiffs burden of proof for the charge of knowingly submitting a false or fraudulent claim to the United States, they must prove the following four essential elements by a preponderance of the evidence: First, Defendant Gosselin presented or caused to be presented to the Department of Defense a claim against the United States; Second, at the time that the claim was presented or caused to be presented, the Department of Defense was an agency of the United States; Third, the claim presented was false in that the prices for the services were determined in violation of the requirements of the bid solicitation for the Direct Procurement Contract services; Fourth, Defendant Gosselin knew the claim was false. The False Claims Act reaches beyond claims that might be legally enforced to all fraudulent attempts to cause the Government to pay out sums of money. Thus, the False Claims Act is violated, not only by a person who makes a false statement or false record to cause the Government to pay a claim, but also by one who engages in a fraudulent course of conduct that causes the Government to pay a claim for money. Adapted from OMalley, Grenig and Lee, Fed. Jury Practice & Instructions (5th Ed.), 178.20.
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Plaintiffs Proposed Instruction GGG [Previously Joint Proposed Instruction] INSTRUCTION NO. __ PLAINTIFFS CONSPIRACY ALLEGATIONS The Government contends that the Defendants conspired to violate federal law. The Complaint reads in relevant part: Defendants and their co-conspirators conspired to restrain trade by fixing the bids submitted to the United States for the shipment of personal property of members of the United States Armed Forces and civilian employees of the U.S. Department of Defense (military household goods) between Germany and the United States. In addition, the defendants and their co-conspirators conspired to punish, through threatened boycotts and economic sanctions, those entities that failed or refused to abide or otherwise comply with their illegal schemes. The purpose of the conspiracy was to obtain collusive, artificially inflated, and noncompetitive prices for transportation services performed in connection with international household goods shipments for the U.S. Department of Defense (DoD). As a result of the conspiracy, the defendants submitted or caused to be submitted false and inflated claims for payment to the United States for services provided in connection with the shipment of military household goods, and made, used or caused to be made or used false records or statements to get those claims paid or approved.
Authority: United States Complaint in Intervention (Doc. 110) 5-6.
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Plaintiffs Proposed Instruction HHH [Previously Joint Proposed Instruction]
FRAUD
The United States has also alleged that the Gosselin Defendants are liable under the theory of common law fraud in this case. In order to hold the Gosselin Defendants liable for fraud, the United States must show that the Gosselin Defendants actions constituted:
1. A misrepresentation of a material fact, made intentionally and knowingly by the Gosselin Defendants with the intention to mislead the United States into taking action based on that misrepresentation, and 2. The United States took action, or forbore to take action, in reliance on the misrepresentation, and 3. The United States reliance on the misrepresentation caused the United States damage.
A misrepresentation is any words or conduct which produce a false or misleading impression of fact in the mind of another. The misrepresentation must be made concerning an actually existing or past fact. A promise, an expression of interest, or an expectation or opinion concerning the future is not a misrepresentation. A misrepresentation may result from silence or from the suppression of facts as well as from an affirmative representation. A material fact is one which influences a person to act or not to act. Reliance is a belief that a representation is true which causes a person to take action he would not otherwise have taken, or not to take action he otherwise would have taken. The United States must prove all of these elements of common law fraud by clear and
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convincing evidence. What does clear and convincing evidence mean? Clear and convincing evidence is a more exacting standard than proof by a preponderance of the evidence, where you need believe only that a partys claim is more likely true than not true. On the other hand, clear and convincing proof is not as high a standard as the burden of proof applied in criminal cases, which is proof beyond a reasonable doubt. Clear and convincing proof leaves no substantial doubt in your mind. It is proof that establishes in your mind, not only that a proposition at issue is probable, but also that it is highly probable. It is enough if the party with the burden of proof establishes his claim beyond any substantial doubt; he does not have to dispel every reasonable doubt. Adapted from Va. Pract. Jury Instruction 52:1 Elements Actual Fraud; 2-39 Virginia Model Jury Instructions Civil Instruction No. 39.010; 2-39 Virginia Model Jury Instructions Civil Instruction No. 39.020; 2-39 Virginia Model Jury Instructions Civil Instruction No. 39.020 [as modified]; 4-73 Leonard B. Sand et al., Modern Federal Jury Instructions Civil (2010) 73.01, Instruction 73-3 (citing Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)) [as modified].
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Plaintiffs Proposed Instruction III [Previously Joint Proposed Instruction]
UNJUST ENRICHMENT The United States has also alleged that the Gosselin Defendants are liable under the theory of unjust enrichment as a result of a conspiracy to fix the bids submitted to the United States ITGBL program, and by conspiring to punish, through threatened boycotts and economic sanctions, those entities that failed or refused to comply with their schemes. In order for the Gosselin Defendants to be held liable for unjust enrichment, the United States must establish that: 1. A benefit was conferred on the Gosselin Defendants by the United States. 2. The Gosselin Defendants knew the benefit was conferred. 3. It was inequitable for the Gosselin Defendants to accept or retain the benefit without paying for its value. Khader, et al. v. Hadi Enterprises, et al., No. 1:10cv1048, 2010 WL 5300876, at *7 (E.D. Va. Dec. 22, 2010) (citing Firestone v. Whiley, 485 F. Supp. 2d 694, 704 (E.D. Va. 2007)); Veney v. Douglas, No. 3:10cv542, 2011 WL 1637107, at *10 (E.D. Va. April 29, 2011).
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Plaintiffs Proposed Instruction JJJ IMPEACHMENT BY CONVICTION OF A CRIME You have heard evidence that [Gosselin World Wide Moving N.V.] was convicted of a crime [and that Marc Smet, as an officer of the company, signed the criminal Statement of Facts]. Evidence a [] prior conviction of a crime may be considered by you [] insofar as it may affect the credibility of the witness. You may use that evidence only to help you decide whether to believe that witness and how much weight to give that witness testimony.
Adapted from OMalley, section 102.44
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Case 1:02-cv-01168-AJT -TRJ Document 1040

Filed 07/29/11 Page 1 of 49 PageID# 20427

UNITED STATES AND RELATORS DISPUTED PROPOSED JURY INSTRUCTIONS

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Dated: July 29, 2011

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Dated: July 29, 2011

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Plaintiffs Proposed Instruction O

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Plaintiffs Proposed Instruction P

Plaintiffs Proposed Instruction V

Plaintiffs Proposed Instruction W

Plaintiffs Proposed Instruction X

Plaintiffs Proposed Instruction Y

Plaintiffs Proposed Instruction Z

Plaintiffs Proposed Instruction DD FALSE CLAIMS ACT FALSE OR FRAUDULENT

Plaintiffs Proposed Instruction GG

Plaintiffs Proposed Instruction HH SINGLE, OVERARCHING CONSPIRACY

Plaintiffs Proposed Instruction TT CIVIL CONSPIRACY OVERT ACT

Plaintiffs Proposed Instruction VV BENEFIT TO CO-CONSPIRATOR IMMATERIAL

Plaintiffs Proposed Instruction ZZ PRECISION OF DAMAGES

Plaintiffs Proposed Instruction DDD VIRGINIA FRAUD DAMAGES

Relators Proposed Instruction FFF

Authority: United States Complaint in Intervention (Doc. 110) 5-6.

Plaintiffs Proposed Instruction HHH [Previously Joint Proposed Instruction]

Plaintiffs Proposed Instruction III [Previously Joint Proposed Instruction]

Adapted from OMalley, section 102.44

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