The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Instructions Table of Contents
Corporate Liability
1. Corporate Liability:
Intent to Benefit Corporation Required
2. Corporate Knowledge: No
Knowledge From Unfaithful Employees
3. Corporate Liability:
Corporations vs. Natural Persons
4. Agent's Authority To
Make Statement Binding Principal
5. Declaration Of Alleged
Agent Must Be Made In Presence Of Purported Principal
6. To Bind Corporation
Statement Must Be Made With Agent's Personal Knowledge
7. Statement Must Be
Authorized Or Adopted By Corporation
8. Statements Attributable
To Corporation: Factors To Consider
9. Corporate Liability:
Parent Corporation And Subsidiary
10. Common Employees
Between Corporations Do Not necessarily Indicate
An Agency Relationship
11. Agent Statements Of
One Corporation Not Attributable To Another Unless
Corporations Are Related As
Subsidiaries
12. Report Made
Employee/Agent Not Principal's Statement
13. Corporation's
Statements
14. Authority To Report
To Principal Or Fellow Agent Not Authority To Commit Principal
15. Government Must Prove
Agent Acted For Corporation
16. Repetition Of Third
Party's Statement
17. Corporate Liability:
Adoptive Admissions
18. Whether Acts of the
Employees Can Be Attributed to the Corporation:
Factors To Consider
19. Corporation's Intent:
Benefit/Harm
20. Corporate Liability:
Admissions By Agent
21. Corporate Records:
Authentication
22. Corporate Liability:
Management Must Approve/Adopt Handwritten Notes
23. Corporate Liability:
Acts Contrary to Orders
24. Corporate Liability:
Scope of Employment
25. Corporate Liability:
Managerial Agent Or Employee Defined
26. Corporate Liability:
Elements
27. Corporate
Willfulness: Policy-Making Position Required
28. Corporate
Willfulness: Must Be That Of Corporation
29. Corporate Knowledge:
Weight
30. Corporate Knowledge:
Actual Knowledge Required
31. Knowledge Of Employee
Not Imputed To Supervisor
32. Corporate Knowledge:
Conflicting Evidence Not Knowledge
33. Corporate Knowledge:
Supervisors' Knowledge Required
34. Corporate Knowledge:
No Promotion of Knowledge
35. Corporate Knowledge:
Death Or Departure Of Employee With Knowledge
36. Corporate Knowledge:
Assumptions Not Knowledge
37. Corporate Knowledge:
Forgotten Facts
38. Corporate Knowledge:
Intent to Benefit Corporation Required
39. Union Records Not
Corporate Records
40. Separate corporations
As Separate Entities
41. Principal Cannot
Compel Agent To Testify On Its Behalf In Joint Trial
42. Union Manager Not
Corporate Manager
43. Corporations Charged
With Employees' Acts and Knowledge
44. Knowledge That
Another Is Going To Commit Criminal Act Does Not
Make That Person Liable For Act
45. "Knowing"
Act Must Be Imputed To The Corporation
46. Duties Of Officers:
Authority To Act On Behalf Of Corporation
47. Corporations Act
Through Boards of Directors
48. Corporate Liability:
Unauthorized Acts
49. Corporate Statements:
Personal Knowledge Required
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
1. Corporate Liability: Intent To Benefit Corporation Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
While benefit is not essential in terms of result, a purpose to benefit the corporation is decisive in terms of equating an agent's action with that of the corporation. If there was a corporate benefit, it is evidence in determining the purpose and motive for which the agent did the act in question. If there was neither benefit nor gain, that is also evidence of the agent's purpose and motive in committing the act.
When the acts of an agent cheat or harm (his/her) corporate employer, then such acts should not be imputed to the corporation, nor should knowledge by such agents be considered as knowledge by the corporation.
AUTHORITY:
Standard Oil Company of Texas v. United States, 307 F.2d 120, 129 (5th Cir. 1962).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 2:
The acts of a corporate agent or corporation's employee are within the scope of (his/her) authority if those acts are done on the corporation's behalf and for its benefit in the performance of the agent's general duties.
In order to be acting within the scope of his authority, the employee must be found to be acting on behalf of the corporation with a purpose of benefiting the corporation or serving some corporate purpose.
AUTHORITY:
United States v. Beusch, 596 F.2d 871, 878 n.7 (9th Cir. 1979) [as modified].
SAMPLE INSTRUCTION # 3:
The acts [and statements] of an agent of a corporation may be imputed to the principal, but only if it is the agent's purpose to benefit the principal, thus bringing his acts within the scope of his employment.
AUTHORITIES:
City of Long Beach v. Standard Oil Company of California, 46 F.3d 929, 937 (9th Cir. 1995); Purrington v. University of Utah, 996 F.2d 1025, 1035-35 (10th Cir. 1993); Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1565-66 (11th Cir. 1991); Precision Piping v. E.I. du Pont de Nemours, 951 F.2d 613, 619-20 (4th Cir. 1991); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1440 (9th Cir. 1990); OKI America, Inc. v. Microtech Intern., Inc., 872 F.2d 312, 314 (9th Cir. 1989); Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 572 (8th Cir. 1989); Lloyd v. Professional Realty Services, 734 F.2d 1428, 1433 (11th Cir. 1984); United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981); United States v. Beusch, 596 F.2d 871, 877 (9th Cir. 1979), citing, United States v. Hilton Hotels Corp., 467 F.2d 1000 (9th Cir. 1972), and Standard Oil Company of Texas v. United States, 307 F.2d 120 (5th Cir. 1962).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
2. Corporate Knowledge: No Knowledge From Unfaithful Employees
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Under a statute requiring that there be a specific wrongful intent as a necessary element of the offense, as in this case, a corporation does not acquire that knowledge or possess the requisite state of mind essential for criminal responsibility, through the activities of unfaithful agents or employees whose conduct was undertaken to advance the interests of parties other than their corporate employer.
AUTHORITY:
Standard Oil Company of Texas v. United States, 307 F.2d 120, 129 (5th Cir. 1962).
SAMPLE INSTRUCTION # 2:
Under a statute requiring that there be guilty knowledge as a necessary element of the offense, as in this case, a corporation does not acquire that knowledge or possess the requisite state of mind essential for criminal responsibility, through the activities of unfaithful agents or employees whose conduct was undertaken to advance the interests of parties other than their corporate employer.
AUTHORITY:
Standard Oil Company of Texas v. United States, 307 F.2d 120, 129 (5th Cir. 1962).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
3. Corporate Liability: Corporations vs. Natural Persons
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have previously explained to you that under some circumstances the acts of a corporate agent, acting within the scope of his authority, are attributed to the corporation which is his principal and are treated by the law as though those acts had been committed by the corporation. The converse, however, is never true. That is, if an agent of a corporation acts in a certain way and such that his acts, as a matter of law, become the acts of the corporation, these acts by the corporation are not then attributed to other corporate agents. The attribution of statements and conduct of actual agents flows only up to the corporation and never up or down to other corporate employees. Thus, for example, no corporate employee is to be charged with the knowledge, statements or acts of another corporate employee.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
4. Agent's Authority To Make Statement Binding Principal
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In each instance in which the statement of an agent is sought by the government to be attributed to (his/her) corporate principal, it is necessary for the jury to determine whether the agent had the speaking authority required by law, that is, the authority to make the statements which were attributed to (him/her).
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1246 (E.D. Pa. 1980).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
5. Declaration Of Alleged Agent Must Be Made In Presence Of Purported Principal
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A declaration of an alleged agent is not admissible to establish the agency unless made in the presence of or authorized by the purported principal.
AUTHORITIES:
Federal Deposit Insurance Corporation v. Glickman, 450 F.2d 416, 418 (9th Cir. 1971), citing, Restatement of Agency, §286 (2d ed. 1958).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
6. To Bind Corporation Statement Must Be Made With Agent's Personal Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Certain statements have been admitted in this case as statements purportedly binding upon the corporate defendants because the statements were made by agents or employees of these corporations who are acting or speaking within the scope of their authority. In order for such a statement to be binding upon a corporation it must be based upon the agent's personal knowledge. A statement which has not been proven to be based upon an agent's personal knowledge is not binding upon (his/her) corporate principal and should not be considered by you as evidence against a corporation.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1243 n.64 (E.D. Pa. 1980), citing 4 Weinstein §801(d)(2)(C)[01] at 801-156-58 and 801(d)(2)(D) [01] at 801-164.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
7. Statement Must Be Authorized Or Adopted By Corporation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A statement is not admissible against a corporation if it is made by one corporate agent to another unless it is proven that the corporation either (1) authorized the agent not only to make the intra-mural statement but to commit the corporation by such intra-mural statements or (2) adopted the statement by appropriate votes or by thereafter conducting its business on the basis of that statement.
AUTHORITIES:
Grummons v. Zollinger, 240 F. Supp. 63, 70 (N.D. Ind. 1964), citing, United States v. United Shoe Machinery Corporation, 89 F. Supp. 349, 354 (D. Mass. 1950).
SAMPLE INSTRUCTION # 2:
If an agent reported to his principal a matter within the scope of his express authority, that report is not a statement of the principal nor an admission by him unless the principal expressly vouches for the report made to him or adopts or approves the report.
If an employee was given authority to act and does so within the scope of his authority, then those acts, verbal or otherwise, are attributable to the corporation.
AUTHORITY:
United States v. Lykes Bros. Steamship Co., 295 F. Supp. 53, 56 (E.D. La. 1968).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada, 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
8. Statements Attributable To Corporation: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether the statements and actions of Mr. are attributable to and binding upon (corporation), you must consider whether at the time the actions were taken, and the words were spoken, Mr. was acting as an agent of the Corporation or whether he was acting as an agent for . There is no evidence in this case that the Corporation and were the same corporation. There is no evidence that they had the same officers, directors or shareholders. Accordingly, you cannot conclude that statements made as an agent of one of these corporations are binding upon and become the statements of the other corporation.
SAMPLE INSTRUCTION # 2:
In considering whether or not in his actions and words was acting on behalf of the or speaking as its agent, you may consider whether these acts were committed with the authority of the and whether had been given the authority to speak for the corporation on the matters on which he spoke. You may find that certain of his words were spoken with the authority of the corporation or were within the scope of his employment while other statements attributed to him were unrelated to the scope of his employment and did not represent the words of the corporation.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
9. Corporate Liability: Parent Corporation And Subsidiary
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order that statements of agents of a parent corporation be attributed to the subsidiary, the government must prove that the parent corporation directly intervened in the management of the subsidiary so as to treat it as a mere department of its own enterprise.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1248 (E.D. Pa. 1980); citing Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 524 (1940).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
10. Common Employees Between Corporations Do Not necessarily Indicate An Agency Relationship
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere fact that two corporations may have common employees does not necessarily indicate an agency relationship between them.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1248 (E.D. Pa. 1980).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
11. Agent Statements Of One Corporation Not Attributable To Another Unless Corporations Are Related As Subsidiaries
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Statements which were allegedly made by persons who had the authority to speak for or who were acting within the scope of their employment by were not speaking and cannot by the jury be considered to have been speaking for the . The statements of the agents of one corporation are not attributable to another corporation unless it can be shown that the corporations are related as subsidiaries of each other.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1248 (E.D. Pa. 1980).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
12. Report Made Employee/Agent Not Principal's Statement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A report made by an employee or agent to (his/her) principal, and not to a third person, is not the principal's statement or out-of-court admission.
AUTHORITY:
Standard Oil Company of California v. Moore, 251 F.2d 188, 218 (9th Cir. 1957).
SAMPLE INSTRUCTION # 2:
A report made by an employee or agent to his principal, and not to a third person, is not, as such, the principal's statement or extra-judicial admission.
AUTHORITY:
Standard Oil Company of California v. Moore, 251 F.2d 188, 218 (9th Cir. 1957).
SAMPLE INSTRUCTION # 3:
A memorandum by an employee to his superiors or to his own files does not constitute a statement or declaration of the employer and is not binding upon the employer.
AUTHORITY:
United States v. Greater Buffalo Press Incorporated, 327 F. Supp. 305, 309-l0 n. 2 (W.D.N.Y. l970).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
13. Corporation's Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A corporation may make its statements by a vote of the shareholders or on most matters by a vote of the directors. And whether these be open or secret votes, they are admissions of the corporation. The difficulty arises with respect to officers and employees. Where these agents speak to the outside world, the corporate principal, like the individual principal is, held accountable for the agent's statement if he was authorized to make the statement or was authorized to make on the principal's behalf true statements concerning the subject matter. However, where these agents report to other corporate agents, the mere fact that the corporation gave the agents authority to make such intramural reports does not make statements in those reports the statements of the corporation.
AUTHORITIES:
Dilley v. Chesapeake & Ohio Railway, 327 F.2d 249, 252 (6th Cir. 1964), citing United States v. United Shoe Machinery Corp., 89 F. Supp. 349 (D. Mass. 1950).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
14. Authority To Report To Principal Or Fellow Agent Not Authority To Commit Principal
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where the agent makes a report to the principal or to another agent, and all that appears is that the principal had authorized the agent to make such a report, a statement in the report is not the principal's and is not an extra-judicial admission of the principal. Authority merely to report to a principal or a fellow agent is not authority to commit the principal.
AUTHORITIES:
Dilley v. Chesapeake & Ohio Railway, 327 F.2d 249, 252 (6th Cir. 1964), citing United States v. United Shoe Machinery Corp., 89 F. Supp. 349 (D.C. Mass. 1950).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
15. Government Must Prove Agent Acted For Corporation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether acted and spoke on behalf of at any time you must remember that the burden is on the government to prove that he acted as its agent. It must meet this burden by actions of the corporations, its officers, its board of directors, its shareholders, its executives; that is, it cannot meet this burden by the statements and actions of alone. An agent cannot prove his own agency.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
16. Repetition Of Third Party's Statement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere reiteration by a party's agent or employee of the statement of another person does not render that statement an admission against the party unless the party or his agent adopted the statement.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1267 (E.D. Pa. 1980), rev'd on other grounds, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
17. Corporate Liability: Adoptive Admissions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Certain statements were admitted by this Court on the theory that they were adopted by a corporation. Before a statement can be held to have been adopted by a party, it is necessary that the party manifest his adoption or belief in its truth. Absent such an adoption, the statement is not the corporation's, and may not be considered against it.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1243 (E.D. Pa. 1980), citing Weinstein, ¶801(d)(2)(B)[01] at 801-144.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
See FORECITE National™ 25.14 [Adoptive Admissions: (Pre-Trial Silence/Doyle)].
See FORECITE National™ 305.1.8 [Adoptive Admissions].
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
18. Whether Acts of the Employees Can Be Attributed To The Corporation: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In general the law imposes criminal liability upon a person only for his own acts and declarations. There are, however, certain exceptions to this in which a person may be criminally liable for the acts and declarations of others.
One of these exceptions arises when a corporation is charged with crime. Since a corporation can only act through its employees, the jury must examine whether the acts of the employees can be attributed to the corporation. It is this issue of attribution to which I will now direct your attention.
The relationship of an employee to his corporate employer is frequently referred to as the relationship between an agent and his principal. The mere fact of employment, however, does not create such an agency relationship that the corporate employer is criminally responsible for the acts of his employee. The employee must be acting not only as the corporation's agent but also within the scope of the authority which the corporation has conferred upon him.
In determining whether an employee is an agent of the corporation and whether, if so, he is acting within the scope of his agency, you may not consider the words and acts of the employee. Only the principal can define the agency relationship. An agency cannot be proven through the mouth of the agent. Thus, in determining whether the corporate defendants should be bound by the acts and declarations of persons asserted to be their agents, you must look beyond the acts and declarations of the purported agents in order to determine whether in fact an agency relationship existed and, if so, whether the agent was acting within the scope of his authority.
SAMPLE INSTRUCTION # 2:
A corporation, like a natural person, may be held criminally liable for the act of an agent within the scope of his employment, provided that the criminal intent or willfulness necessary to warrant conviction is brought home to the corporation. The president and general manager, or, in his absence, the vice president in his place, actually wielding the whole executive power of the corporation may well be treated as so far representing the corporation and identified with it, that any willfulness on his part, in doing wrongful acts in behalf of the corporation, may be treated as the willfulness of the corporation itself.
Other, subordinate agents or servants, however, occupy a very different position, and are not identified with their principal so as to bind the corporation with their own unlawful and criminal intent or willfulness.
AUTHORITY:
Lake Shore & Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 111, 114 (1893) (re punitive damages).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
19. Corporation's Intent: Benefit/Harm
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Because specific intent is an element of the offense charged in all counts of this indictment and must be proven beyond a reasonable doubt just as each of the other elements, before a corporation can be convicted of this charge, the government must prove that it possessed the specific intent required for the commission of these crimes. In that regard, a corporation is not criminally liable for unauthorized acts of its agents. In considering whether a corporation has authorized the acts of its agents, you may consider whether these acts benefited or harmed the corporation. If the acts benefited the corporation, you may draw the inference that they were authorized by it; if, on the other hand, these acts harmed the corporation, then you may infer that the corporation did not authorize them.
AUTHORITY:
See, e.g., United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004 (9th Cir. 1972).
SAMPLE INSTRUCTION # 2 :
Because specific intent is an element of the offense charged in this indictment and must be proven beyond a reasonable doubt as each of the other elements must be proven before conviction will lie, before any corporation can be convicted of this charge, the government must prove that it possessed the specific intent requisite to the commission of this crime. Accordingly, a corporation is not criminally liable for unauthorized acts of its agents. In considering whether a corporation has authorized the acts of its agents, you may consider whether these acts benefited or harmed the corporation. If the acts benefited the corporation, you may draw the inference that they were authorized by it; if, on the other hand, these acts harmed the corporation, then you may infer that the corporation did not authorize them.
AUTHORITY:
See, e.g., United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004 et seq. (9th Cir. 1972).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
20. Corporate Liability: Admissions By Agent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In this trial the government has offered the statements of a number of persons. Perhaps one of the most complex matters you will have to consider is the extent to which the statement of one person becomes, as a matter of law, the statement of another. I have explained that this situation can arise in prosecutions in which the government has proven beyond a doubt that there is a conspiracy and that both the declarant and the person against whom the statement is sought to be admitted are found beyond a reasonable doubt to be members of that conspiracy. I shall now further discuss situations in which the statements of one person may be considered by a jury against another party:
Where a party is a natural person, any statement made by him either publicly or secretly is his.
Where the natural person has an agent who makes a statement to a third person, the statement is the principal's if the agent was authorized to make the statement or was authorized to make on the principal's behalf true statements concerning the subject matter.
Where the agent makes a report to the principal or to another agent, and all that appears is that the principal had authorized the agent to make such a report, a statement in the report is not the principal's and is not an admission of the principal. Authority merely to report to a principal or to a fellow agent is not authority to commit the principal.
However, if the principal expressly said, either before or after the agent spoke, that he vouched for the agent's statement or wanted action taken upon it, then it is his statement even though it was not made for communication to the outside world. The basis for regarding the statement as the principal's is that he has expressly authorized it to be used or has adopted it. Even if the principal does not expressly vouch for the agent's statement, if he acts or conducts his business in such a way as to show by implication that he adopted the statement, then such parts of the statement as he acted upon are his. And to that extent the statement is receivable against the principal as an adoptive admission.
A corporation may make its statement by a vote of the shareholders, or on most matters by a vote of the directors. And whether these be open or secret votes, they are admissions of the corporation. Where officers and employees of a corporation speak to the outside world, the corporate principal like the individual principal is held accountable for the agent's statement if he was authorized to make the statement or was authorized to make, on the principal's behalf, true statements concerning the subject matter. However, where these agents report to other corporate agents, the mere fact that the corporation gave the agents authority to make such internal reports does not make statements in those reports the statements of the corporation. If on the other hand shareholders or directors authorize or adopt the internal statement of the agent as the statement of the corporation, then they are statements of the corporate principal.
AUTHORITY:
United States v. United Shoe Machinery Corporation, 89 F.Supp. 349, 352-53 (D. Mass. 1950).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D. Nev. 1981).
SAMPLE INSTRUCTION # 2:
In this trial the government has offered the statements of a number of persons. Perhaps one of the most complex matters you will have to consider is the extent to which the statement of one person becomes, as a matter of law, the statement of another. I have explained that this situation can arise in prosecutions in which the government has proven beyond a doubt that there is a conspiracy and that both the declarant and the person against whom the statement is sought to be admitted are both found beyond a reasonable doubt to be a member of that conspiracy. I shall now further discuss situations in which the statements of a party may be considered by a jury:
Where a party is a natural person, any statement made by him either publicly or secretly is his.
Where the natural person has an agent who makes a statement to a third person, the statement is the principal's if the agent was authorized to make the statement or was authorized to make on the principal's behalf true statements concerning the subject matter.
Where the agent makes a report to the principal or to another agent, and all that appears is that the principal had authorized the agent to make such a report, a statement in the report is not the principal's and is not an extra-judicial admission of the principal. Authority merely to report to a principal or a fellow agent is not authority to commit the principal.
However, if the principal expressly said, either before or after the agent spoke, that he vouched for the agent's statement or wanted action taken upon it, then it is his statement even though it was not made for communication to the outside world. The basis for regarding the statement as the principal's is that he has expressly authorized it to be used or has adopted it. Even if the principal does not expressly vouch for the agent's statement, if he acts or conducts his business in such a way as to show by implication that he adopted the statement, then such parts of the statement as he acted upon are his. And to that extent the statement is receivable against the principal as an adoptive admission.
A corporation may make its statement by a vote of the shareholders, or on most matters by a vote of the directors. And whether these be open or secret votes, they are admissions of the corporation. Where officers and employees of a corporation speak to the outside world, the corporate principal like the individual principal is held accountable for the agent's statement if he was authorized to make the statement or was authorized to make on the principal's behalf, true statements concerning the subject matter. However, where these agents report to other corporate agents, the mere fact that the corporation gave the agents authority to make such intra-mural reports does not make statements in those reports the statements of the corporation. However, where shareholders or directors authorize or adopt the intra-company statement of the agent as the statement of the corporation, then they are statements of the corporate principal.
AUTHORITY:
United States v. United Shoe Machinery Corporation, 89 F. Supp. 349, 352-53 (D. Mass. 1950).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
21. Corporate Records: Authentication
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere fact that documents are obtained from a corporation's files does not make those documents the records of the corporation. These documents must be authenticated. That is, the government, or the proponent of the document, must introduce evidence that the document is what it purports to be. The fact that it was produced from the files of a corporation is evidence which you may consider in determining whether the document is authenticated, but is not in and of itself determinative on this issue.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24, ECR (D. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Evidence: Hearsay Rule And Exceptions – Business Records.
See also The Shellow Instructions: Evidence: Documentary Evidence.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
22. Corporate Liability: Management Must Approve/Adopt Handwritten Notes
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The jury may not consider the handwritten notes placed on minutes of the meetings of the __________ (name of company) unless evidence has been offered that __________ (name of company) management approved or otherwise adopted those handwritten entries.
AUTHORITY:
Gulbranson v. Duluth, Missabe and Iron Range Ry., 921 F.2d 139, 142 (8th Cir. 1990).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Evidence: Hearsay Rule And Exceptions – Business Records.
See also The Shellow Instructions: Evidence: Documentary Evidence.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
23. Corporate Liability: Acts Contrary to Orders
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A corporation is not criminally liable for the acts of its agents acting either contrary to orders, or with an intent to harm the corporation.
AUTHORITY:
Standard Oil Company of Texas v. United States, 307 F.2d 120, 125 (5th Cir. 1962).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 2:
Acts which caused money to be diverted from a corporation to the personal use of its agents are not acts which benefit the corporation, but are acts which harm the corporation.
SAMPLE INSTRUCTION # 3:
Acts which cause money to be diverted from a corporation to the personal use of its agents are not acts which benefit the corporation but are acts which harm the corporation. Accordingly, an agent of a corporation who causes funds to be diverted from the corporation or from other sources for which the corporation will ultimately be liable for repayment, is not acting to benefit the corporation but acting to harm it and his acts are not the acts of the corporation and may not be attributed to it.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
24. Corporate Liability: Scope Of Employment
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A corporation may be held criminally liable for the acts of an agent or employee when such agent or employee acts within the scope of his employment in behalf of the corporation.
An agent or employee is within the scope of his employment when he is performing work or rendering services he was hired to perform and render within the time and space limits of his authority and is actuated by a purpose in serving his employer in doing what he is doing. He is within the scope of his employment when he is performing work or rendering services in obedience to the express order or direction of his employer or is doing that which is warranted within the terms of his express or implied authority, considering the nature of the services required, the instructions which he has received and the circumstances under which his work is being done or the services are being rendered.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 2:
An agent or employee is outside the scope of his employment when he deviates or steps aside from the performance of his employer's business for the purpose of doing an act or rendering a service intended to accomplish an independent purpose of his own, or for some other reason or purpose not related to the business of his employer.
Such deviation or stepping aside from his employer's business may be momentary and slight, measured in terms of time and space, but if it involves a change of mental attitude in serving his personal interest, or the interest of another, instead of his employer's, then his conduct falls outside the scope of his employment.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
25. Corporate Liability: Managerial Agent Or Employee Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A corporation may be held criminally liable only for the acts of its managerial agents done on behalf of and to the benefit of the corporation and directly related to the performance of the duties the employee has authority to perform. By a managerial agent I mean an officer of the corporation or an agent of the corporation having duties of such responsibility that his conduct may fairly be assumed to represent the corporation.
AUTHORITY:
United States v. Koppers, Co., 652 F.2d 290, 298 (2d Cir. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
26. Corporate Liability: Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A corporation may be held criminally liable for the act of an agent within the scope of his employment, only if an officer or high managerial employee (1) authorized or approved the servant's criminal act, (2) participated in the act, or (3) ratified the act.
AUTHORITIES:
Lake Shore & Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 111, 114 (1893) (re liability for punitive damages); People v. Canadian Fur Trappers Corp., 248 N.Y. 159, 161 N.E. 455 (1928); Restatement (2d) of Torts §909; Restatement (2d) of Agency §217C (re liability for punitive damages).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
27. Corporate Willfulness: Policy-Making Position Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The required for conviction may not be based upon the knowledge or willfulness of lower level employees without managerial responsibility. The knowledge or willfulness of lower level employees without management responsibility, absent some indication that the senior management shares that knowledge and willfulness, simply do not constitute evidence of corporate intent.
AUTHORITIES:
Cf. United States v. Siemens Corp., 621 F.2d 499, 508 (2d Cir. 1980) (memoranda and opinions of lower level employees do not constitute evidence of corporate intent absent endorsement by senior management); cf. MCI Communications v. AT&T, 708 F.2d 1081, 1143 (7th Cir. 1983) ("opinions of [`low level'] employees without management responsibility are not properly considered to be admissions of the corporation").
SAMPLE INSTRUCTION # 2:
Corporate intent or willfulness is shown only by the actions and statements of the officers, directors, and employees who are in positions to make policy for the corporation.
AUTHORITY:
United States v. Basic Construction Company, 711 F.2d 570, 573 (4th Cir.), cert. denied, 464 U.S. 956 (1983).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
28. Corporate Willfulness: Must Be That Of Corporation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The willfulness required for conviction must be that of the corporation, not merely that of the agent.
AUTHORITY:
People v. Canadian Fur Trapper's Corp., 248 N.Y. 159, 161 N.E. 455 (1928).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Willfulness.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 46: Willfulness.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
29. Corporate Knowledge: Weight
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether the knowledge of an employee should be attributed to the corporation, the jury may consider whether the employee was biased against the corporation for any reason and whether the corporation was aware of such bias.
SAMPLE INSTRUCTION # 2:
In considering whether the knowledge of an employee should be attributed to the corporation, the jury may consider whether the employee had reason to falsely report claimed knowledge and whether the corporation was aware of such reason.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
30. Corporate Knowledge: Actual Knowledge Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Knowledge of corporation is only that which is actually known by an employee with a policy-making or implementing position in the corporation, not what could or should have been known by such an employee.
SAMPLE INSTRUCTION # 2:
A corporation only knows those facts known by its management employees, not inferences from those facts.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
31. Knowledge Of Employee Not Imputed To Supervisor
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The knowledge of an employee is never imputed to his supervisor.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
32. Corporate Knowledge: Conflicting Evidence Not Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A corporation cannot be deemed to have knowledge of a particular fact if the knowledge of its employees is in conflict on that point.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
33. Corporate Knowledge: Supervisors' Knowledge Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A corporation only knows that which is specifically observed by or told to management employees.
AUTHORITY:
See, e.g., Secretary of Labor v. Jones and Williams Construction Co., 6 BNA OSHC 1612,; 1978 WL 6670 (OSHRC 1978) (citation vacated because the person to whom the violative condition was reported was not a "supervisor" within the meaning of the Occupational Safety and Health Act and therefore the knowledge of the conditions could not be imputed to the employer).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
34. Corporate Knowledge: No Promotion of Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Knowledge acquired by a non-managerial production worker is not imputed to his corporate employer when the production worker is promoted to management.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
35. Corporate Knowledge: Death Or Departure Of Employee With Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Knowledge of a management employee is not imputed to the corporate employer after the departure or death of the employee.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
36. Corporate Knowledge: Assumptions Not Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A corporation only knows a fact when a member of its management knows that fact. While facts known to management are thus said to be corporate knowledge, the beliefs, opinions and assumptions of management are not similarly imputed to the corporation.
SAMPLE INSTRUCTION # 2:
If one member of management believes something to be a fact and another member of management believes it not to be a fact, neither of the "facts" are imputed to the corporation.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
37. Corporate Knowledge: Forgotten Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a fact is known to a person in company management, it is imputed to the corporation and thus known to the corporation for only as long as the fact is recalled by the person from whom it is imputed. If that person forgets the fact, it then no longer is knowledge of the corporation.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
38. Corporate Knowledge: Intent to Benefit Corporation Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The knowledge or willfulness of an agent not acting with a purpose to benefit his employer will not be imputed to the employer when the crime with which the latter is charged is under a statute which requires knowledge or willfulness.
AUTHORITIES:
United States v. Ridglea State Bank, 357 F.2d 495, 500 (5th Cir. 1966). See also United States v. Carter, 311 F.2d 934, 942-43 (6th Cir. 1963)
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada 1981).
SAMPLE INSTRUCTION # 2:
The offense charged in this indictment requires guilty knowledge and willfulness as elements of the offense. In such a prosecution, a corporation cannot be charged with guilty knowledge acquired by employees acting outside the scope of their employment. An employee is not within the scope of his employment unless his acts are motivated by a purpose to benefit his employer or to further his employer's business.
AUTHORITY:
Standard Oil Company of Texas v. United States, 307 F.2d 120, 125 (5th Cir. 1962).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
39. Union Records Not Corporate Records
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Records maintained by officers of a union, the members of which are employed at a particular company, are not records of that company.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Evidence: Hearsay Rule And Exceptions – Business Records.
See also The Shellow Instructions: Evidence: Documentary Evidence.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
40. Separate Corporations As Separate Entities
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Separate corporations are to be treated as separate entities in the absence of circumstances justifying disregard of the corporate entity.
AUTHORITY:
B-W Acceptance Corporation v. Porter, 568 F.2d 1179, 1182 (5th Cir. 1978).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
41. Principal Cannot Compel Agent To Testify On Its Behalf In Joint Trial
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In a joint trial with its agents, the corporate principal cannot compel them to testify on its behalf. The corporate principal cannot compel fellow-defendant-agents to take the stand. You may consider this fact in weighing the evidence you have heard against the corporations.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 2:
[A corporation is at a particular disadvantage when it is compelled to stand trial with persons whom the prosecution asserts are its agents.] In a joint trial with its agents, the corporate principal cannot compel these agents to testify on behalf of their corporate principals. The corporate principals cannot even compel their fellow-defendant agents to take the stand. You may consider this fact in weighing the evidence you have heard against any corporation.
AUTHORITY:
United States v. Gay, 567 F.2d 916, 918 (9th Cir. 1978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981) [bracketed material deleted].
SAMPLE INSTRUCTION # 3:
In a joint trial with its agents, the corporate principal cannot compel these agents to testify on behalf of their corporate principals. The corporate principals cannot even compel their fellow-defendant agents to take the stand. You may consider this fact in weighing the evidence you have heard against any corporation.
AUTHORITIES:
United States v. Gay, 567 F.2d 916, 918 (9th Cir. 1978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
42. Union Manager Not Corporate Manager
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
That an employee holds a management or supervisory position in a union is not the equivalent of holding a managerial or supervisory position in the corporate employer.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
43. Corporations Charged With Employees' Acts and Knowledge
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
I instruct you as a matter of law that __________ (name of Defendant A) and __________ (name of Defendant B) were acting within the scope of their employment by __________ (name of Corporation A) and __________ (name of Corporation B), respectively, at all times relevant to this case. Accordingly, if you find that __________ (name of Defendant A) or __________ (name of Defendant B) took an action, or knew or approved something, then you must conclude that their respective employers, ___________ (name of Corporation A) or __________ (name of Corporation B), thereby took that action, or knew or approved that thing.
In short, for purposes of this case, __________ (name of Defendant A) was (name of Corporation A), and __________ (name of Defendant B) was __________ (name of Corporation B).
AUTHORITIES:
St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 700-01 (8th Cir. 1992), affirming, 765 F. Supp. 538, 543-47 (D. Minn. 1991); First Nat. Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1417-18 (7th Cir. 1988); Restatement (Second) of Agency §§9(3), 268(1), 272, 274, 275 (1958); see also State v. Mullin, 225 N.W.2d 305, 307-08 (Iowa 1975) [depositor could not be convicted for cashing an overdraft check on his own account at another office of the same bank; knowledge of bank officer that account was overdrawn is imputed to entire bank, so bank not deceived].
SAMPLE INSTRUCTION # 2:
For purposes of this case, __________ (name of Defendant A) was __________ (name of Corporation A) , and __________ (name of Defendant B) was __________ (name of Corporation B). If you find that either of those men did a particular act, then that is the act of __________ (name of Corporation A) or of __________ (name of Corporation B), as the case may be. What __________ (name of Defendant A) knew or approved,__________ (name of Corporation A) knew or approved. And what __________ (name of Defendant B) knew or approved, __________ (name of Corporation B) knew or approved.
AUTHORITIES:
St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 700-01 (8th Cir. 1992), affirming, 765 F. Supp. 538, 543-47 (D. Minn. 1991); First Nat. Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1417-18 (7th Cir. 1988); Restatement (Second) of Agency §§9(3), 268(1), 272, 274, 275 (1958); see also State v. Mullin, 225 N.W.2d 305, 307-08 (Iowa 1975) [depositor could not be convicted for cashing an overdraft check on his own account at another office of the same bank; knowledge of bank officer that account was overdrawn is imputed to entire bank, so bank not deceived].
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
44. Knowledge That Another Is Going To Commit Criminal Act Does Not Make That Person Liable For Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Knowledge that another in his company is going to commit a criminal act does not make a defendant liable for the commission of that act.
AUTHORITIES:
Snyder v. United States, 448 F.2d 716, 718 (8th Cir. 1971); Ramirez v. United States, 363 F.2d 33, 34 (9th Cir. 1966); United States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ 64.1 [Accomplice Liability: Intent And Knowledge Elements].
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
45. "Knowing" Act Must Be Imputed To The Corporation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Criminal liability for the commission of certain offenses may be imputed to a corporate defendant. Because corporations act only through human agents, the requisite level of intent, here, a "knowing" act, must be imputed to the corporation. Before the jury can find a corporate defendant guilty, it must find that the corporate agents acted deliberately and with knowledge and that they intended to benefit the corporation by their acts.
AUTHORITIES:
United States v. Gibson Products Company, Inc., 426 F. Supp. 768, 770 (S.D. Tex. 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 2:
Criminal liability for the commission of certain offenses may be imputed to a corporate defendant. Because corporations act only through human agents, the requisite level of intent, here, a "knowing" and "willful" act, must be imputed to the corporation. Before the jury can find a corporate defendant guilty, it must find that the corporate agents acted deliberately and with knowledge and that they intended to benefit the corporation by their acts.
AUTHORITIES:
United States v. Gibson Products Company, Inc., 426 F. Supp. 768, 770 (S.D. Tex. 1976).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada 1981).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ 64.1 [Accomplice Liability: Intent And Knowledge Elements].
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
46. Duties Of Officers: Authority To Act On Behalf Of Corporation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that ________ (name) is an officer of _______ (name of corporation). I instruct you that he had only such authority to act on behalf of ________ (name of corporation) as was prescribed to (him/her) by ________’s (name of corporation) board of directors. In considering whether ________ (name) had the authority to act in any particular situation, you are to consider any by-laws or minutes of directors' meetings which have been admitted into evidence.
AUTHORITIES:
Diederich v. Wisconsin Wood Products, 247 Wis. 212, 19 N.W.2d 268 (1945); Model Business Corporation Act §8.41.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
47. Corporations Act Through Boards of Directors
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have instructed you that _______ (name of corporation) is a corporation. Its powers may only be exercised by, or under the authority of, its board of directors. Boards of directors act by voting on specific matters. In considering whether any action allegedly taken in this case was authorized by _______ (name of corporation), you are to consider any minutes of meetings of the corporation's board of directors that have been admitted into evidence.
AUTHORITIES:
Model Business Corporation Act §8.21.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
48. Corporate Liability: Unauthorized Acts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether a corporation authorized the acts of its employees, you may consider whether these acts benefited or harmed the corporation. If the acts benefited the corporation, you may draw the inference that they were authorized by it; if, on the other hand, these acts harmed the corporation, then you may infer that the corporation did not authorize them.
AUTHORITY:
See, e.g., United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004 (9th Cir. 1972).
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
RELATED FORECITE National™ MATERIALS:
See generally FORECITE National™ Chapter 69: Corporate Liability.
The Shellow Instructions
Jury Instructions By James M. Shellow of Wisconsin
49. Corporate Statements: Personal Knowledge Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Certain statements have been admitted in this case as statements of _________ (company) because the statements were made by _________ (company) employees who were speaking within the scope of their authority. In order for such a statement to be binding upon _________ (company) it must be based upon the employee's personal knowledge. A statement which has not been proven to be based upon an employee's personal knowledge is not binding upon (his/her) employer and should not be considered by you as evidence against (his/her) employer.
AUTHORITIES:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, 505 F. Supp. 1190, 1243 n.64 (E.D. Pa. 1980), rev'd on other grounds, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986), citing 4 Weinstein §801(d)(2)(C)[01] at 801-156-58 and 801(d)(2)(D) [01] at 801-164.
RELATED SHELLOW MATERIALS:
See also The Shellow Instructions: Corporate Conspiracy.
See also The Shellow Instructions: Elements: Knowledge.
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ Chapter 47: Knowledge.
See generally FORECITE National™ Chapter 69: Corporate Liability.