United States v. Kottwitz
627 F.3d 1383
11th Cir.2010Background
- Defendants petitioned for rehearing; court reaffirms Kottwitz decision except on accountant-reliance instruction for Count One.
- Previously held error for Counts Three–Five; remanded for retrial with accountant-reliance instruction on those counts.
- Court now holds district court also erred in denying accountant-reliance instruction for Count One conspiracy.
- Burden to receive such instruction is light; any foundation in evidence suffices to warrant it.
- Evidence showed circumstantial support for the accountant’s involvement and potential reliance, including mid-1999 hire, book entry review/reclassification, and tax underpayment.
- Jury could have believed defendants acted with tacit accountant approval; case vacated/reversed and remanded for new trial with the instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an accountant-reliance instruction was required for Count One. | Kottwitz burden met; reliance plausible. | Insufficient foundation for accountant involvement. | Yes; instruction required and remand ordered. |
| Whether act element in Klein conspiracy could include accountant-advice as basis for conviction. | Act can be broader; advice could satisfy act element. | Act must be proven beyond the specific evidence. | Act element could involve accountant-advice; cannot rule out reliance on advice. |
Key Cases Cited
- United States v. Opdahl, 930 F.2d 1530 (11th Cir.1991) (light burden for jury instruction when foundation exists)
- United States v. Adkinson, 158 F.3d 1147 (11th Cir.1998) (general act element for Klein conspiracies)