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Further, although the Second Circuit found that at trial Scully had waived any objection to the jury instruction regarding advice-of-counsel, the court offered guidance to the district court for use on retrial. The court explained that “[i]n a fraud case … the advice-of-counsel defense is not an affirmative defense that defeats liability even if the jury accepts the government’s allegations as true.” Rather, evidence of advice of counsel can raise reasonable doubt as to whether the government proved the requisite element of unlawful intent. Thus, once facts exist in the record providing a sufficient foundation, a trial court must give an advice of counsel instruction that advises the jury clearly that the burden to prove unlawful intent beyond a reasonable doubt at all times remains with the government. The appellate court explained that the district court’s instruction that Scully had “the burden of producing evidence to support the defense” and had to satisfy the elements of the defense may have been confusing to the jury and impermissibly shifted the burden of proof. The court provided examples of preferred instructions, recommending a charge that expressly informed the jury that the burden at all times remains with the government and the defendant need not establish his good faith. The Foundation for an Advice of Counsel Instruction: ‘U.S. v. DeFries’. Although not at issue in Scully, the question whether a sufficient foundation exists for an advice of counsel jury instruction is often disputed. United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997), provides useful insight on some recurring government lines of attack.

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