us and relator proposed jury instructions bunk

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.

Case 1:02-cv-01168-AJT -TRJ Document 1040 Filed 07/29/11 of 49 PageID# 20427

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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: [email protected]

Dated: July 29, 2011 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 [email protected]

RICHARD E. GREENBERG JOHN E. PETITE Greensfelder, Hemker & Gale, PC


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10 South Broadway, Suite 2000 St. Louis, MO 63102 Tel: (314) 516-2687 Fax: (314) 241-8624

Dated: July 29, 2011 Counsel for Relators


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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.


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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).


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Plaintiff’s 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 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 104.01; 178.50 Preponderance of the Evidence.


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Plaintiff’s 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 me—how 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 be—that is entirely for you to decide.


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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.

O’Malley, 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


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Plaintiff’s 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.

O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 104.40 Expert Witness


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Plaintiff’s 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 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 178.10, False Claims Act, Generally.


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Plaintiff’s 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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Plaintiff’s 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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Plaintiff’s 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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Plaintiff’s 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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Plaintiff’s Proposed Instruction Z

FALSE CLAIMS ACT – RECKLESS DISREGARD

I also instructed you that the term "knowingly" includes acting in "reckless disregard" of

an act’s 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 claim’s 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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Plaintiff’s 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 defendant’s

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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Plaintiff’s 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 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 178.33.


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Plaintiff’s 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); O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 178.30-31.


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Plaintiff’s 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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Plaintiff’s 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 defendant’s 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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Plaintiff’s 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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Plaintiff’s 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, 899-901 (D.C. Cir. 2010); United States v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996).


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Plaintiff’s 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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Plaintiff’s 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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Plaintiff’s 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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Plaintiff’s 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, 452–53 (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, 288–89 (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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Plaintiff’s 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

defendant’s 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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Plaintiff’s Proposed Instruction OO

FAILURE TO MITIGATE DAMAGES NOT A DEFENSE

Failure to mitigate damages is not a defense to a defendant’s liability under the False

Claims Act or under the common law claims of unjust enrichment, fraud, and conspiracy to

defraud. The Government’s decision to continue to fund a contract in which it learned of

wrongdoing does not preclude the Government’s 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 defendant’s 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), aff’d, 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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Plaintiff’s 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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Plaintiff’s 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 attorney’s 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 attorney’s 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


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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, 1404–05(4th Cir. 1993); United States v. Polytarides, 584 F.2d 1350,1352–53 (4th Cir. 1978); United States v. Newport News Shipbuilders, 276 F. Supp. 2d 539, 565 (E.D. Va. 2003).


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Plaintiff’s 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


33

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 O’Malley, 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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Plaintiff’s 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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Plaintiff’s 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.

O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) §§ 31.04, 31.06, 31.07, 31.08, 150.46


36

Plaintiff’s 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.

O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions (5th Ed.) § 150.45.


37

Plaintiff’s 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)


38

Plaintiff’s 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)


39

Plaintiff’s 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 O’Malley, 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).


40

Plaintiff’s 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.


41

Plaintiff’s 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 Ass’n v. National Electrical Constructors Ass’n, 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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Plaintiff’s 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 Int’l Constr., Inc., 608 F.3d 871, 904 (D.C. Cir. 2010).


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Plaintiff’s 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 Plaintiff’s 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 O’Malley, Grenig and Lee, Fed. Jury Practice & Instructions (5th Ed.), § 178.20.


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Plaintiff’s 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.


46

Plaintiff’s 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


47

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 party’s 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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Plaintiff’s 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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Plaintiff’s 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 O’Malley, section 102.44


us and relator proposed jury instructions bunk

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