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(internal alterations and quotation marks omitted). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Id. AAt the charging conference, Lesniewski asked the court not to instruct the jury that “it is rare that a conspiracy can be proven by direct evidence of an explicit agreement.” Trial Tr. Lesniewski conceded that this statement “may be true,” but argued that the instruction was “almost like marshaling the evidence in a certain way.” Id. The court did, however, grant Lesniewski's request that it change the word “often” to “sometimes” in the sentence: “Sometimes, the only evidence that is available with respect to the existence of a conspiracy is that of disconnected acts on the part of the alleged individual conspirators.” Id. Lesniewski's challenge fails because the instructions were not erroneous. A “jury's verdict may be based entirely on circumstantial evidence.” United States v. And it is true that “the conspiratorial agreement ․ may be established by proof of a tacit understanding among the participants, rather than by proof of an explicit agreement.” United States v. BExplaining that it did not want to go “beyond the [regulatory] definitions,” Trial Tr. And, in any event, the “occupational disability” instruction given was not erroneous.… continue reading »