Kottwitz Revisited: Eleventh Circuit Court of Appeals Vacates Criminal Conviction upon Rehearing, Holding That Jury Should Have Heard Instruction on Reliance on the Advice of an Accountant

In this post in August, we reported that the Eleventh Circuit had held that a trial court abused its discretion in failing to instruct the jury on good faith reliance. In that opinion, the Court vacated convictions on three counts, but affirmed a conspiracy conviction. Last week, in United States v. Kottwitz, the Court decided on rehearing that the “[d]efendants introduced enough circumstantial evidence to warrant an instruction that — at some pertinent point –[they] may have relied on the accountant’s advice” on the conspiracy count, as well.

Good faith defenses are often significant in white-collar criminal cases. As we have lamented, the government continues to prosecute people on the basis of business decisions that are not intended to break the law. It is imminently important for defense lawyers to convey to the jury that a person acting in good faith cannot be guilty.

To receive a jury instruction in the Eleventh Circuit, a defendant need only show “any foundation in the evidence.” The first Kottwitz opinion, which is still good law inasmuch as it is consistent with this most recent opinion, provides a detailed explanation of when the trial court must instruct the jury on good faith reliance.

The full opinion in Kottwitz I is available here. Kottwitz II is available here.