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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


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