UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

 

 Civ. No. 01:07-00039-SM

DEFENDANT JERRY SHANAHAN’S PROPOSED JURY INSTRUCTIONS

Pursuant to Federal Rule of Civil Procedure 51, Local Rule 16.2, and the Court’s Trial 

Notice dated January 20, 2010, Defendant Jerry Shanahan respectfully requests that the Court 

provide the following proposed jury instructions.

In accordance with Local Rule 16.2(b)(1), Mr. Shanahan has not requested herein any 

instructions on routine matters, including instructions regarding: the province of the Court and 

the jury; the identities and independence of multiple defendants; the boundaries of what is and 

what is not considered to be evidence in this case; the difference between direct and indirect 

evidence; the evaluation of deposition testimony; the evaluation of the credibility of witnesses; 

impeachment of witness and deposition testimony; and the burden of proof. Mr. Shanahan is 

prepared to propose such instructions at the Court’s request. Mr. Shanahan also has not 

requested jury instructions on potential equitable or remedy issues to be resolved by the Court 

rather than the jury.

These Requested Jury Instructions are based on the authorities cited herein and on all 

pleadings and other filings in this case.

UNITED STATES SECURITIES AND 

EXCHANGE COMMISSION,

Plaintiff, 

v.

JERRY A. SHANAHAN

Defendant.

Case 1:07-cv-00039-SM Document 346 Filed 12/26/12 Page 1 of 7
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In addition, pursuant to Local Rule 16.2(b)(1), Mr. Shanahan reserves the right to file 

additional jury instructions pending resolution of any outstanding motions, including motions for 

summary judgment, motions in limine, and motions to exclude expert witness testimony, and 

pending review of the Plaintiff Securities and Exchange Commission’s (“SEC’s”) proposed jury 

instructions. Similarly, Mr. Shanahan has not at this stage of the case framed proposed 

instructions summarizing the evidence to be adduced at trial and therefore also respectfully 

requests leave to submit revised or additional jury instructions based upon the evidence actually 

adduced at trial. Finally, Mr. Shanahan requests leave to submit revised or additional requests 

that conform with any rulings of law the Court may render before the trial or during the course of 

trial.

JURY INSTRUCTION NO. 1: The SEC

You are to perform the duty of finding facts without bias or prejudice as to any party.

You are to perform your final duty in an attitude of complete fairness and impartiality.

The fact that the plaintiff is a government agency, the Securities and Exchange 

Commission1, entitles it to no greater consideration than that accorded to any other party to a

litigation. By the same token, it is entitled to no less consideration. All parties, whether 

government or individuals, stand as equals at the bar of justice.

JURY INSTRUCTION NO. 2: Expert Testimony [For use if experts are not excluded]

The rules of evidence ordinarily do not permit witnesses to testify as to opinions or

conclusions. An exception to this rule exists as to those people whom we call “expert

 1 L. Sand, et al., Modern Federal Jury Instructions, Instr. 2-5 (Modified from “government” to “government agency” 

and “Securities and Exchange Commission”); see also charge given in SEC v. Koenig, 2006 WL 2127852 (N.D. Ill. 

June 29, 2006) (modified); charge given in United States v. McCall, 2006 WL 5347401 (N.D. Cal. Oct. 27, 2006) 

(modified)

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witnesses.” These are witnesses who, by education and experience, have become expert in 

some art, science, profession, or calling. When a case involves a matter requiring special 

knowledge or skill not ordinarily possessed by the average person, expert witnesses may 

state their opinions as to relevant subject matters in which they have demonstrated their

expertise, and may also state the reasons for their opinions.

Like the testimony of other witnesses, however, you are not required to accept the 

testimony of any expert witness, in whole or in part. Nor are you required to accept the truth or 

accuracy of any fact on which an expert professes to rely. It is important that you understand that 

you are to reach your own independent decision about what the evidence shows. Opinion 

testimony should be judged just like any other testimony. If you decide that the opinion of an

expert witness is not based on sufficient facts or sufficient education and experience, or if you 

conclude that the reasons given in support of the opinion are not sound, of if you feel that the

opinion is not credible or is outweighed by other evidence, you may disregard the expert opinion 

entirely.2

JURY INSTRUCTION NO. 3: Statement of the Nature of the Case and Issues

This is a civil case in which the SEC (the plaintiff) alleges that defendant Jerry Shanahan,

among other defendants, violated the federal securities laws. 

The SEC claims that Mr. Shanahan, while he served as Chief Operating Officer of 

Enterasys, engaged in an alleged scheme or unlawful course of business by others involving two 

transactions entered into by Enterasys for the purpose of and causing publicly reporting 

improperly recognized revenue.

The two transactions consist of: first, a June 2001 software sale by Enterasys to Accton; 

 2 New Hampshire Civil Jury Instructions § 4.3; O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 

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second, a sale of computer network hardware to Tech Data Canada by Enterasys. The SEC 

alleges that Mr. Shanahan’s purported involvement in these transactions violated Section 

17(a)(1) and (3) of the Securities Exchange Act of 1934 and Rules 10b-5(a) or (c) promulgated 

thereunder.

The SEC bears the burden of proof on each of its claims. I will now instruct you on what 

the SEC must prove to meet its burden with respect to each claim.

JURY INSTRUCTION NO. 4: Elements of Liability, and Primary Violation of Section 

10(b) and Rule 10b-5(a), (c)

The SEC’s first claim against Mr. Shanahan in this case is asserted under the Securities 

Exchange Act of 1934. The Securities Exchange Act is a federal statute that allows the Securities 

Exchange Commission to promulgate rules and regulations prohibiting certain conduct in the 

purchase or sale of securities. Rule 10b-5(a) makes it unlawful for anyone to employ any device, 

scheme, or artifice to defraud in connection with the purchase or sale of any security. Rule 10b5(c) makes it unlawful for anyone to engage in any practice or course of business which would 

operate as a fraud in connection with the purchase or sale of any security. A “security” is 

commonly defined as a stock, bond, note, convertible debenture, warrant, or other document 

representing a share of stock in a company or a debt owed by a company.

Mr. Shanahan hereby incorporates by reference the following proposed jury instructions 

submitted by the SEC.

1. First Element – Fraudulent Act Under Section 17(a)(10). Doc. 313-1 at pp. 10-11, 

except that the word “Cabletron” should be omitted and the last paragraph should be 

omitted.

 

104.40 (6th ed., updated Feb. 2012).

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2. Second Element – Scienter. Doc. 313-1 at pp. 12-13, except the last paragraph.

3. Third Element – Use of Interstate Commerce or Mails. Doc. 313-1 at p. 14.

4. Elements of Fraudulent Transactions Under Section 17(a)(3). Doc. 313-1 at p. 15, 

except that the word “Cabletron” should be omitted.

5. First Element - Fraudulent Transactions under Section 17(a)(3). Doc. 313-1 at pp. 

16-17, except that the word “Cabletron” and the last paragraph should be omitted.

6. Second Element of Fraudulent Transactions Under Section 17(a)(3) – State of Mind 

– Negligence. Doc. 313-1 at pp. 18-19, except that the word “Cabletron” and the 

first sentence of the second paragraph.

7. Third Element of Fraudulent Transactions Under Section 17(a)(3) – Use of 

Interstate Commerce or Mails. Doc. 313-1 at p. 20.

8. Elements of Securities Fraud Under Section 10(b) and Rule 10b-5. Doc. 313-1 at 

pp. 21-22, except that the word “Cabletron” should be omitted and the last sentence 

concerning aiding and abetting should be omitted.

9. First Element – Fraudulent Act Under Rule 10b-5. Doc. 313-1 at pp. 23-25, except 

that the word “Cabletron,” the third paragraph, fifth paragraph, and the final 

paragraph should be omitted.

10. Second Element – Scienter Under Rule 10b-5. Doc. 313-1 at p. 26, except that the 

word “manipulate” should be omitted.

11. Third Element – Use of Interstate Commerce or Mails Under 10b-5. Doc. 313-1 at 

p. 27.

Mr. Shanahan hereby incorporates by reference the following proposed jury instructions 

submitted by Defendant Jaeger [Dkt. No. 320].

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1. Jury Instruction No. 5, except that Mr. Shanahan’s name should be substituted 

and the transactions should be changed to Accton and Tech Data Canada.

2. Jury Instruction No. 7, except that Mr. Shanahan’s name should be substituted 

and the transactions should be changed to Accton and Tech Data Canada.

3. Jury Instruction No. 8, except that Mr. Shanahan’s name should be substituted 

and the transactions should be changed to Accton and Tech Data Canada.

4. Jury Instruction No. 9, except that Mr. Shanahan’s name should be substituted 

and the transactions should be changed to Accton and Tech Data Canada.

5. Jury Instruction No. 10, except that Mr. Shanahan’s name should be substituted 

and the transactions should be changed to Accton and Tech Data Canada.

DATED: December 26, 2012

Respectfully submitted, 

JERRY SHANAHAN

By his attorneys,

/s/ Andrew Good ________________

Andrew Good 

Philip G. Cormier

Good & Cormier

83 Atlantic Avenue

Boston, MA 02110

Tel. 617-523-5933

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CERTIFICATE OF SERVICE

I, Andrew Good, hereby certify that Defendant Jerry Shanahan’s Pretrial Statement, filed 

through the ECF system will be sent electronically to the registered participants as identified on 

the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered 

participants on October 12, 2012. 

/s/ Andrew Good

Andrew Good

Dated: December 26, 2012

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