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Notes -
See here. The highlighted sections are the defense's proposed additions to the instructions.
That looks like it's just the discussion on FECA, and it doesn't even include all of the stuff that was openly discussed during the trial transcript, where the judge quoted proposed draft from the defense with the words:
And the defense highlighted :
The PDF I posted was only the specific section dealing with the FECA violations. There is one of these for each section of the jury instructions, and posting all of them would be a bitch on mobile.
Here's the one for Election Law 17-152, which includes the defense's request for instructions on it requiring "willful", and does not show up in the final jury instructions, so at least for the conspiracy leg it's missing completely, the objection is documented, and the error is sufficient enough that.
More broadly, while I agree that the defense should have and would have a stronger case if they'd publicly pushed harder for better instructions on FECA, and perhaps they'd have had more luck getting the EL 17-152 part if they'd only pressed to include "willful" only if the underlying predicate were the federal laws, I think you're reading preservation for appeal rules here more strictly than even the federal processes, nevermind the more permissive New York ones.
((See US v Curran for a federal example that was both considered plain error, not that much more severe in its prejudicial effect, and also where the court was "satisfied that the [oral] discussion between the trial judge and counsel following the charge was adequate to preserve the point".))
I don't think that the failure to a d the word "willful" to the jury instructions on the Election Law claim is going to be enough to get a reversal. The defense was trying to elevate the mens rea of the object to the conspiracy which isn't how things work. New York criminal law is based on the Model Penal Code, which explicitly rejects any "willful" requirement for conspiracies that the Powell doctrine may require. As for protecting the record, the tendency is that appeals courts are more willing to look beyond preservation issues when there is clear error. If, as in this case, there's merely an argument to be made, then the court is likely to claim failure to preserve to avoid wasting time with losing arguments. My guess is that any appeals here are going to be limited to issues Merchan actually ruled on and not whether the addition of another word into the jury instructions would have conceivably gotten a different result.
You're right to say Powell has been largely rejected, including in New York, but its doctrine is a different question: whether conspiracies to acts that are malum prohibitum need prove evil motive even if the underlying laws or regulations have no special scienter requirements. The MPC notes merely say that conspiracy does not inherently require knowledge of the law or corrupt motive; it leaves open or encourages importing elements from underlying offenses (albeit 'as a matter for courts'), pretty explicitly as part of its disavowal of Powell.
In this case, two (FECA, federal tax) of the four possible underlying laws for the conspiracy had specific "willful" requirements.
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