Free Motion to Amend/Correct - District Court of Arizona - Arizona

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Burton M. Bentley, Esq. (Bar No. 00980) 2 BURTON M. BENTLEY, P.C. 5343 North 16th Street, Suite 480 3 Phoenix, Arizona 85016 (602) 861-3055 4 (602) 861-3230 fax
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Attorney for Defendants Rada

IN THE UNITED STATES DISTRICT COURT
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IN THE DISTRICT OF ARIZONA LAWRENCE J. WARFIELD, RECEIVER, Plaintiff, vs. MICHAEL ALANIZ, et al. Defendants. The following Rada Defendants: Leonard & Betty Bestgen Robert Carroll Rudy & Mary Crosswell Charles Davis Richard Derk Orville Dale Frazier Dwight Lankford John & Candes Rada Paul Richard Patrick & Andrea Wehrly CAUSE NO. CIV'03 2390 PHX JAT RADA DEFENDANTS' MOTION TO AMEND JURY INSTRUCTIONS PURSUANT TO FRCP 51 (Assigned to Hon. James A. Teilborg)

(collectively "Rada Defendants"), by and through counsel undersigned, hereby submit this Motion to Amend Jury Instructions pursuant to Federal Rules for Civil Procedure Rule 51. Plaintiff's Third Amended Complaint, the Rada Defendants' Motion for

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Summary Judgment, the Court's Amended Order Supercedes (sic) August 1, Order ("Amended Order"), and the Joint Proposed Jury Instructions as filed on October 2, -1Case 2:03-cv-02390-JAT Document 539 Filed 10/23/2006 Page 1 of 19

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2006 are hereby incorporated by reference. The following Memorandum of Points and Authorities supports this Motion.

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MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND Plaintiff has filed a cause of action against the Rada Defendants based upon a violation of § 10(b) of the '34 Exchange Act. Plaintiff's Third Amended Complaint, ¶¶ 147-162. The Rada Defendants filed a Motion for Summary Judgment on December 30, 2005, claiming that such allegations were not available to Plaintiff because CGAs

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could not be construed to be "securities" under any interpretations of definitions of securities in either the '33 Securities Act or '34 Exchange Act. Rada Defendants' Motion for Summary Judgment, pp. 6-21. Later, the District Court in this matter held that the CGAs sold by the Rada Defendants on behalf of Mid-America Foundation were

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securities because they were investment contracts under the Howey test. Amended Order, p. 5, lns. 4-8. The Joint Proposed Jury Instructions were submitted by the parties on October 2, 2006. The purpose of this Motion is to prevent the unintended conse-

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quences to the Rada Defendants of having failed to properly and succinctly object to Jury Instructions or neglect to offer valid instructions in compliance with the Ninth Circuit's decisions. Accordingly, the Rada Defendants may additionally ask the Court to add or detract to the Proposed Jury Instructions as may be appropriate from the

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evidence adduced at trial, prior to submission of the case to the jury, in conformance with the standards set by Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir.
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1998), to fairly and accurately cover the issues presented. II. LEGAL ARGUMENT A. Standard of Review for Jury Instructions

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The "district court is afforded `substantial latitude in tailoring jury instructions.'" Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001). The court's "formulation" for the instructions is reviewed for "`abuse of discretion.'" Id., citing Gilbrook v. City of Westminister, 177 F.3d 839, 860 (9th Cir. 1999). However, "[i]f jury

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instructions are challenged as a misstatement of the law, they are reviewed de novo." Id., citing Mockler. "`Jury Instructions must be formulated so that they fairly and adequately cover the issues presented, correctly state the law and are not misleading.'" Id. (Emphasis added.)

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"The standard of review on appeal for an alleged error in jury instructions depends on the nature of the claimed error." Phillips v. U. S. I.R.S., 73 F.3d 939, 941 (9th Cir. 1996). "If it is the district court's formulation of an instruction which is claimed to be in error, we review the instructions as a whole for abuse of discretion by determining whether the instructions, considered as a whole, were inadequate or misleading." Id., citing Gzoni v. Southwest Marine Inc., 56 F.3d 1138, 1142 n. 5 (9th Cir. 1995).

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B.

Objections to Jury Instructions Must be Specific

Rule 51 of the Federal Rules of Civil Procedure provides:

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"... no party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." (Emphasis added.) The United States Supreme Court has held that objections to jury instructions "'must be sufficiently specific to bring into focus the precise nature of the alleged error.'" Voohries-Larson, 241 F.3d at 713. C. The Appropriate Statute of Limitations for a Violation of §10(b) and Rule 10b-5 is One-Year Limitation and Three-Year Repose

"Congress imposed an explicit statute of limitations for each of the private claims created by the 1933 and 1934 Acts." Securities and Exchange Commission v. Rind, 991 F.2d 1486, 1489 (1993). "Litigation instituted pursuant to § 10(b) and Rule 10b-5 ... must be commended within one year after the discovery of the facts constituting the violation and within three years after such violation," thus creating a three-year period of repose. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 2782, 115 L.Ed. 2d 321 (1991). "See § 13 of the 1933 Act, 15 U.S.C. § 77m...." Securities and Exchange Commission v. Rind, 991 F.2d 1486, 1489 (1993). D. Rada Defendants' Specific Objections to Jury Instructions and Proposed Alternate Instructions 1. FMCJI 1.2 ­ Claims and Defenses

Jury Instruction Filed with the Court:
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To help you follow the evidence, I will give you a brief summary of the positions of the parties: The Receiver claims that each defendant:

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a. b.

Breached his fiduciary duties to his client; Committed constructive fraud in a confidential relationship;

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c. d. e. f. g. h. i.

Took secret profits; Was negligent; Committed securities fraud under the federal securities laws; Committed securities fraud under the Arizona securities laws; Received a fraudulent transfer; Converted the property of others; and Is required to disgorge his commissions.

The defendant denies those claims, and defendants contend that the fraudulent transfer claim is barred by the statutes of limitations and by the affirmative defenses of having accepted commissions in good faith and that reasonably equivalent was exchanged when a charitable gift annuity was sold and a commission was paid for that sale.

The Rada Defendants object to the Proposed Instruction 1.2(e) and (f) in this instruction, as the statute of limitations has expired on every claim that was made against any Rada Defendant pursuant to § 10(b) of the '34 Act and under Rule 10b-5 (17 C.F.R. §240.10b-5). To permit the jury to speculate about the '33 Securities Act or

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'34 Exchange Act claims on the part of the Receiver is contra to the holding of Mochler v. Multnomah, as being misleading, citing Lampf as authority that the statute of limitation has run on all claims. Proposed Alternate Instruction:

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Because the word "securities" may have been used in testimony you have heard in this case, or in an Exhibit introduced into evidence, you are not to speculate as to whether or not the Rada Defendants were selling securities, or that if they were selling securities that they broke any laws or statutes, as the Court has already ruled that such claims on behalf of the Receiver are barred by law.
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2.

FMCJI 21.3 ­ Securities ­ Scienter ­ Knowledge ­ Definition (15 U.S.C.)

Jury Instruction Filed with the Court: A defendant acts knowingly when the defendant makes an untrue statement with the knowledge that the statement was false or with reckless disregard for whether the statement was true, or the defendant omits necessary information with the knowledge that the omission would make the statement false or misleading or with reckless disregard for whether the omission would make the statement false or misleading. Reckless means highly unreasonable conduct that is an extreme departure from ordinary care, presenting a danger of misleading Mid-America Annuitants, which is either known to the defendant or is so obvious that the defendant must have been aware of it. Note: In second paragraph, "investors" deleted and "Mid-America Annuitants" inserted, as stipulated by the Receiver and the Rada Defendants. The Rada Defendants object to the use of the word "securities" in this instruction. The statute of limitations has expired on every claim that was made against any

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Rada Defendant pursuant to § 10(b) of the '34 Act and under Rule 10b-5 (17 C.F.R. §240.10b-5). Rada Defendants' Objection: The word "Securities" is a misnomer and should be deleted from the title.

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3.

Non-Model Stipulated Instruction No. 3 ­ Constructive Fraud

Jury Instruction Filed with the Court: The defendants admit to selling Mid-America Charitable Gift Annuities without a securities license, which license is a regulatory requirement of federal and state securities laws. Accordingly, if you find a defendant owed a duty that gives rise to an action in constructive fraud, then you must find that the defendant breached that duty by violating federal and state securities laws.

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Defendants' Objection: The Rada Defendants object to the instruction using the words: (i) "a securities license" without specifying that it is a license issued by the Arizona Corporation Commission; and (ii) the words "of federal and state securities laws" without first omitting the words "federal and" without specifying that it is only

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the Arizona securities laws that are involved. Lampf states that there is an absolute 3year window period to bring a claim under Section 10(b) and Rule 10b-5 for federal claims. The federal absolute 3-year statute of limitations bars all of the Rada

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Defendants sales of CGA as falling within the 3-year window period pursuant to Lampf. Instruction No. 3 is incorrect as a matter of law. Proposed Alternate Instruction: The Rada Defendants admit to selling Mid-America Charitable Gift Annuities

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without an Arizona securities license. In order to find that each Rada Defendant owed a legal or equitable duty to each individual customer of his that purchased a CGA, you must find that each of the Rada Defendants largely substituted his will for the will of his customer in each transaction. This means that each individual purchaser of the

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CGAs must not have used their independent judgment in the purchase of their CGAs. If you do not find that each of the Rada Defendants substituted his will for the will of each Mid-America Annuitant involved in each transaction, then you should find there was no duty owed to that customer as to the transaction involved.

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Comment Taeger v. Catholic Family and Community Services, 196 Ariz. 285, 290-91, 995 P.2d 721, 726-27 (App. 1999) citing In re Guardianship of Chandos, 18 Ariz.App. 583, 585, 504 P.2d 524, 526 (1972), Terry v. June, 432 F.Supp. 2d 635, 642 (W.D. Va. 2006), Herz & Lewis, Inc. v. Union Bank, 22 Ariz.App. 437, 439, 528 P.2d 188, 190 (1974) rehearing denied, review denied 1975); In re World Vision Entertainment, Inc., 275 B.R. 641 (M.D. Florida 2002). 4. FMCJI 21.1 Securities Misrepresentation ­ Elements and Burden of Proof (15 U.S.C. § 78j(b))

Jury Instruction Filed with the Court: On the Receiver's claims for violations of federal securities law, the Receiver has the burden of proving each of the following elements by a preponderance of the evidence: 1. the defendant made an untrue statement of a material fact or omitted a material fact necessary under the circumstances to keep the statements that were made from being misleading in connection with the trading of securities; the defendant acted knowingly; the defendant used or caused the use of the mail or telephone in connection with the trading of securities whether or not the mail or telephone was used to make an untrue statement or a material omission; the defendant's client reasonably relied on defendant's untrue statement of a material fact or defendant's failure to state a necessary material fact in purchasing the Mid-America annuity; and the defendant's client suffered damages as a result of the defendant's conduct.

2. 3.

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4.

5.
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If you find that each and all of the elements on which the Receiver has the burden of proof has been proved, your verdict should be for the Receiver. If, on the other hand,

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the Receiver has failed to prove any of these elements, your verdict should be for the defendant. Note: Non-substantive alterations stipulated by the Receiver and the Rada Defendants. Rada Defendant's Objection: Proof of scienter is required in a claim for violation of §10(b). The Rada Defendants object to this instruction as the statute of limitations has expired on every claim that was made against any Rada Defendant pursuant to § 10(b) of the '34 Act and under Rule 10b-5 (17 C.F.R. §240.10b-5). Proposed Alternate Instruction: On the Receiver's claims for violation of federal securities law, the Receiver has

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the burden of proving each of the following elements as to each separate Rada Defendant by a preponderance of the evidence. 1. The Rada Defendant made an untrue statement of a material fact or

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omitted a material fact necessary under the circumstances to keep the statements that were made from being misleading in connection with the trading of securities; 2. 3. The Rada Defendant acted knowingly and with the intent to defraud; The Rada Defendant used or caused the use of the mail or telephone in

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connection with the trading of securities whether or not the mail or telephone was used to make an untrue statement or a material omission; 4. The Rada Defendant's client reasonably relied on Rada Defendant's

untrue statement of a material fact or defendant's failure to state a necessary material
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fact in purchasing the Mid-America annuity; and

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5.

The Rada Defendant's client suffered damages as a result of the Rada

Defendant's conduct.
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If you find that each and all of the elements on which the Receiver has the burden of proof has been proved as to each separate Rada Defendant, your verdict should be for the Receiver as to each separate Rada Defendant. If, on the other hand, the Receiver has failed to prove any one of these elements, your verdict should be for

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the Rada Defendant against whom the proof has failed. The Receiver's claims for violations of federal securities law have been found by this Court to be barred by law, and therefore you are instructed not to speculate as to whether or not the '33 Securities Act or '34 Exchange Act laws have been broken,

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and such considerations should not become a part of your deliberations. Comment 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5; Gray v. Winthrop Corp., 82 F.3d 877, 884 (9th Cir. 1996); McGonigle v. Combs, 968 F.2d 810, 817 (9th Cir.) cert dismissed, 506 U.S. 948 (1992); Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54 (1972); Basic, Inc. v. Levinson, 485 U.S. 224, 247 (1988); Binder v. Gillespie, 184 F.3d 1059, 1063-64 (9th Cir. 1999); In re Convergent Technologies Sec.Litig., 948 F.2d 507, 512 n. 2 (9th Cir. 1991); Computer Sec. Litig., 886 F.2d 1109, 1115 (9th Cir. 1989); Lampf, Pleva, Lipkind, Prupis S. Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 2782, 115 L. Ed. 2d 321 (1991); SEC v. Rind, 991 F.2d 1486, 1489 (1993). 5. Non-Model Stipulated Instruction No. 7 ­ Arizona Securities Law ­ Knowledge

Jury Instruction Filed with the Court:

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The Receiver does not need to prove the defendant knew that an untrue statement made by the defendant was untrue. The Receiver must prove merely that the statement was untrue, material and misleading. Source: Aaron v. Fromkin, 994 P.2d 1039, 1042 (Ariz.App. 2000) (plaintiff's burden). Rada Defendant's Objection: Incomplete statement of the law, the instructtion does not accord with the holding in Aaron v. Fromkin, 196 Ariz. 224, 994 P.2d 1039 (2000) cited by Plaintiff.

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Proposed Alternate Instruction: The Receiver does not need to prove the Rada Defendant knew that the untrue statement made by the Rada Defendant was untrue to prove a securities violation under Arizona law. The Receiver must prove, however, that the statements made by the

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Rada Defendants were material and would be misleading to the reasonable buyer of a charitable gift annuity. Comment

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Aaron v. Fromkin, 196 Ariz. 224, 227, ¶¶ 14-15, 994 P.2d 1039, 1042, ¶¶ 14-15 (2000). 6. Plaintiff's Jury Instruction No. 2 ­ Breach of Fiduciary Duty

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Jury Instruction Filed with the Court: The defendants acted as securities brokers with respect to the sale of MidAmerica Charitable Gift Annuities. A securities broker may owe a special duty to his or her clients, which is called a fiduciary duty. This duty may require a securities broker to act with the utmost loyalty, good faith and disclosure for his/her client. Receiver claims that the defendant owed and breached this fiduciary duty. To establish this claim, the Receiver must prove:
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(1) Defendant breached this duty; (2) Defendant's breach was a cause of Receiver's damages; and (3) Receiver's damages. Source: RAJI (Civil) 4th Commercial Torts 1A; Gemstar Ltd. v. Ernst & Young, 917 P.2d 222, 233 (1996) (nature of fiduciary duty owed); Mason v. Bulleri, 543 P.2d 478, 481 (Ariz.App. 1975)(broker failing to . Revise Rada Defendants' Objection to read: A securities broker is only liable as fiduciary when he acts for the client and has discretion by virtue of a discretionary account approved by the customer/annuitant, to buy and sell securities for his clients without further approvals. 7. Plaintiff's Jury Instruction No. 3 ­ Federal Securities Law ­ General

Jury Instruction Filed with the Court: The Receiver claims to have suffered a loss caused by the defendant's violation of the federal securities laws. The Court has already determined that Mid-America's Charitable Gift Annuity sold by the defendants is a security not subject to any exemptions, for purposes of application of the federal securities laws. Each defendant sold a security when he sold a Mid-America Charitable Gift Annuity to his client. The buying and selling of securities is controlled by the securities laws. In particular, the securities laws prohibit misrepresentation of material facts or the omission of material facts in connection with the purchase and sale of securities. Defendants stipulate to receiving commissions based on their sale of MidAmerica Charitable Gift Annuities. Source: FMCJI 21.0. Nelson v. Serwold, 576 F.2d 1332, 1337 (9th Cir. 1978)(holding actual intent not required, but that "Congress intended the ambit of § 10(b) to reach a broad category of behavior, including knowing or reckless conduct")(emphasis added). Amended Order Supercedes [sic] August 1, 2006, Order, § 2(A)(1) (finding Mid- 12 Document 539 Filed 10/23/2006

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America Annuities to be "securities not subject to any exemptions, for purposes of application of the relevant securities laws"). Revise Rada Defendants' Objection to read: See '34 Act, § 10(b). In the third paragraph, after the words "securities laws prohibit," add in the words "the intentional" to make the statement correct. After the words "material facts or the" add in the word

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"intentional" to make the statement accurate, in accord with Rule 10b-5, '34 Act. The courts require proof of scienter in connection with a § 10(b) misrepresentation. Comment

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Ernst & Ernst v. Hochfelder, 425 U.S. 185, 209-10, 96 S.Ct. 1375, 1388-89, 47 L. Ed. 2d 688 (1976) rehearing denied. Neslon v. Serwold, 576 F.2d 1332, 1337 (9th Cir. 1978) cert. denied, 439 U.S. 970 (1978); Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1569 (9th Cir. 1990) (en banc), cert denied, 499 U.S. 976 (1991); In re Software Toolworks, Inc., 50 F.3d 615, 626 (9th Cir. 1994) cert denied, 516 U.S. 907 (1995). 8. Plaintiff's Jury Instruction No. 6 ­ UFTA ­ Constructive Fraud -- Defenses ­ Good Faith

Jury Instruction Filed with the Court: The good faith defense is not available to a defendant in a constructive fraudulent transfer action where the transferee was insolvent at that time or the transferee became insolvent as a result of the transfer. Source: A.R.S. §§ 44-1005, 44-1008(A); Hullett v. Cousin, 63 P.3d 1029, 1032 (Ariz. 2003); In re Viscount Air Servs., Inc., 232 B.R. 416, 445 (Bankr.D.Ariz. 1998) (finding good faith defense inapplicable to A.R.S. section 44-1005)); Warfield v. Byron, 436 F.3d 551, 556 (5th Cir. 2006)(Ponzi scheme insolvent from inception); Spanier v. United States Fid. & Guar. Co., 623 P.2d 19, 24-25 (Ariz.App. 1980)(no reasonably equivalent value exchanged if transfer renders transferee insolvent); see A.R.S. § 441003.

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Revise Rada Defendants' Objection to read: Argumentative. No court has held that the "good faith" defense is unavailable where a federal or state securities law has

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been violated. The CGAs were not subject to Arizona securities laws at the time sold. Even if the Rada Defendants sold the CGAs negligently, they are entitled to the defense of good faith under A.R.S. § 44-1008. The defense of good faith depends upon intention.

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Comment Terry v. June, 432 F.Supp. 2d 635, 641 (W. D. Va. 2006); A.R.S. § 44-1003. Alternate Proposed Instruction:

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If you should find that the Rada Defendants exercised "objective good faith," meaning that the Rada Defendants had an objective rather than a subjective awareness of the fact that Mid-America was insolvent when the charitable gift annuities were sold by them, and that the Rada Defendants were not therefore reasonably put on notice that

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the payment to them of sales commission was made to delay, hinder or defraud the annuitants, then you must also find that the Rada Defendants were paid commissions in good faith. Comment

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Terry v. June, 432 F. Supp. 2d 635, 641 (W. D. Va. 2006). A.R.S. §44-1003.
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///

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Rada Defendants' Jury Instruction No. 21.3 Securities ­ Scienter ­ Knowledge ­ Definition

Jury Instruction Filed with the Court: A defendant acts knowingly when the defendant intentionally makes a specific untrue statement with the knowledge that the specific untrue statement was false or the defendant omits necessary information with the knowledge that the omission would make the specific statement false or misleading. A defendant does not act knowingly, if he makes an untrue statement or omits a material fact without knowledge of having made an untrue statement or omission. If a defendants makes an untrue statement or omits necessary information through negligence rather than knowingly, such negligent wrongdoing is not sufficient to find a violation of state or federal securities laws. Defendants must have a state of mind something more than negligence. Comment

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Ernst & Ernst v. Hochfelder, 425 U.S. 185, 209-10, 96 S.Ct. 1375, 1388-89, 47 L.Ed. 2d 688 (1976) rehearing denied. Nelson v. Serwold, 576 F.2d 1332, 1337 (9th Cir.), cert. denied, 439 U.S. 970 (1978). Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1569 (9th Cir. 1990) (en banc), cert. denied, 499 U.S. 976 1991). In re Software Toolworks, Inc., 50 F.3d 615, 626 (9th Cir. 1994), cert. denied, 516 U.S. 907 (1995). Add to Comment:

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"While the Arizona Court of Appeals had held that reliance is not a necessary element to state a claim under A.R.S. § 44-1991, Rose v. Dobras, 128 Ariz. 209, 624 P.2d 887, 892 (App. 1981), the federal courts have interpreted the statute to require a plaintiff in

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a non-public action to prove that he or she reasonably relied on the defendants misstatements." Jankovich v. Bowen, 844 F.Supp. 743, 749 (S.D. Fla. 1994) citing McDaniel v. Compania Minera Mar de Cortes, 528 F.Supp. 152, 166 (D.Ariz. 1981).

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II.

NEW RADA DEFENDANTS' INSTRUCTIONS The Rada Defendants also request the addition of these jury instructions to the

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Joint Proposed Jury Instructions pursuant to defenses raised in the Rada Defendants' Answer: 11. Rada Defendants' Jury Instruction ­ Contributory Negligence

Proposed Instruction:
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If you should find that each of the Rada Defendants is liable in some measure for damages claimed by the Plaintiff, and if you should further find that the purchasers of the CGAs were also negligent as the proximate cause of their own injury in the purchase of the CGAs, then the purchasers' damages shall be reduced in proportion to

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the relative degree of the purchasers' fault which was the proximate cause of the injury to the purchaser of the CGA. Comment

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A.R.S. § 12-2505 (2006); A.R.S. Const. Art. 18 § 5, which requires that "the defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." 12. Rada Defendants' Jury Instruction ­ Plaintiff's Fault

On each of the Rada Defendants' claim that his customer was at fault, you must
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decide whether each of the Rada Defendants has proved that his customer was at fault and, under all the circumstances of this case, whether any such fault should reduce each of the customer's full damages. These decisions are left to your sole discretion.

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If you decide that the fault of any purchaser of a CGA should reduce their full damages, the court will later reduce those damages by the percentage of fault you have

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assigned to each purchaser of a CGA.

Comment Wareing v. Falk, 182 Ariz. 495, 498, 897 P.2d 1381, 1384 (App. 1995), review denied.

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13.

Rada Defendants' Jury Instruction ­ Determining Relative Degrees of Fault

If you find more than one person at fault for each annuitant's injury, you must then determine the relative degrees of fault of all those whom you find to have been at fault. The fault of each annuitant may be greater or lesser than that of another, but the

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relative degrees of all fault must add up to 100% for each annuitant. Comment Bridgestone/Firestone North America Tire, L.L.C. v. Naranjo, 206 Ariz. 447, 449, 79 P.3d 1206, 1208 (App. 2003). 14. Rada Defendants' Jury Instruction ­ Statement of Claims

Plaintiff claims that each of the Rada Defendants was at fault in causing
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damages to accrue to his respective purchaser of a CGA and claims that each purchaser of a CGA was also at fault for failure to properly investigate the safety of buying a CGA from Mid-America.

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Fault is negligence that was a cause of injury to the purchaser of a CGA. Comment

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A.R.S. § 12506. II. CONCLUSION FRCP Rule 51(a)(1) allows a party to "file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests," either "at the close of the evidence or at an earlier reasonable time that the court

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directs." Additionally, this rule and Ninth Circuit precedent require that objections to jury instructions "must be sufficiently specific to bring into focus the precise nature of the alleged error." Voohries-Larson, 214 F. 3d at 713. In accordance with these requirements the Rada Defendants respectfully request the Court grant this Motion to

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Amend Jury Instructions and to add the New Rada Defendants' Instructions in Section II. of this Motion. Dated at Phoenix, Arizona this 23rd day of October, 2006. BURTON M. BENTLEY, P.C.

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_s/ Burton M. Bentley _________ Burton M. Bentley Attorney for Defendants Rada

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PROOF OF SERVICE This is to certify that a true copy of the foregoing Motion has been filed electronically with the Court and that the persons on the below service list designated as "CM/ECF Registered" will be served with same by the Court's CM/ECF system; and that the other persons on the attached service list have

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been served with a copy of the Motion by first class mail this 23rd day of October, 2006.
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_/s/___Michele Medlyn Michele Medlyn Ryan W. Anderson, Esq. Guttilla & Murphy, PC Attorneys for the Receiver CM/ECF Registered Ren Bidwell 3430 Pacific Avenue SE Olympia, WA 98501 Defendant Pro Se Steve A. Bryant 3618 Mt. Vernon, # A Houston, TX 77006-4238 Co-Counsel for Rada Defendants

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Case 2:03-cv-02390-JAT

- 19 Document 539 Filed 10/23/2006

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