The opinion of the court was delivered by: J. Schwab United States District Judge
Rulings on Objections to Final Jury Instructions
Before the Court are objections by the government (doc. no. 57) and by defendant (doc. no. 56) to the Court's Final Jury Instructions dated April 18, 2006 (4:30 p.m.). The Court's rulings are as follows:
Substantive Instruction No. 4. The Court agrees with the government that Substantive Instruction No. 4 should be modified to track the definition of "dispense" as set forth in 21 C.F.R. § 208.3. Thus, the following language of Substantive Instruction No. 4 will be deleted:
To dispense means to deliver a prescription drug product to a patient or an agent of a patient - either directly or indirectly - by a licensed practitioner or an agent of a licensed practitioner, in a suitable container appropriately labeled, for subsequent administration to or use by a patient or other individual entitled to receive the drug.
The Following Language Will be Inserted in Place of the Beleted Language:
"Dispense" to patients means the act of delivering a prescription drug product to a patient or an agent of the patient either:
(1) By a licensed practitioner or an agent of a licensed practitioner, either directly or indirectly, for self-administration by the patient, or the patient's agent, or outside the licensed practitioner's direct supervision; or
(2) By an authorized dispenser or an agent of an authorized dispenser under a lawful prescription of a licensed practitioner.
1. Substantive Instruction No. 9. As agreed and discussed at the pretrial conference on April 19, 2006, Substantive Instruction No. 9 on the Entrapment by Estoppel Defense will be modified by replacing "(2) affirmatively indicated to the defendant that certain criminal conduct was legal . . ." with "(2) affirmatively indicated to the defendant that the conduct in question was legal . . ."
2. Substantive Instruction No. 8. Defendant asserts that the last sentence of this instruction makes it "unnecessarily long, confusing and . . . neutraliz[es] the defense of 'Reliance on Advice of Counsel.'" The last sentence reads "However, a person cannot intentionally and knowingly violate the law and excuse himself from the consequences by claiming that he consulted with counsel or followed the advice of counsel."
The Court does not agree that the final sentence of this instruction should be deleted. One sentence does not make this instruction "unnecessarily long," nor does the Court deem the challenged sentence to be confusing or as negating the advice of counsel defense. The challenged sentence correctly informs the jury that one cannot avoid the legal consequences of an intentional and knowing violation of a law by the mere expedient of consulting with counsel. See United States v. Traitz, 871 F.2d 368, 382 n. 9 (3d Cir. 1989) (simple invocation of advice of counsel defense does not automatically insulate a defendant from liability; where advice of counsel is properly invoked, it becomes a matter to be considered by the jury in determining the defendant's guilt); Modern Federal Jury Instructions, Sand, Seiffert, Loughlin and Reiss (2005), section 8-4 ("On the other hand, no man can willfully and knowingly violate the law and excuse himself from the consequences of his conduct by pleading that he ...