Cardin v. State

BLOOM, Judge. A jury in the Circuit Court for Baltimore City convicted appellant, Jerome S. Cardin, of five counts of theft under Maryland’s consolidated theft statute, Maryland Code Annotated, art. 27, § 342 (1957, 1982 Repl. Vol.). Appellant was sentenced to five concurrent fifteen year terms of imprisonment.

In this appeal he makes numerous assertions of error with regard to the sufficiency of evidence, the jury instructions and the conduct of both the State and the trial court during voir dire, during the trial, and during closing arguments. Finding no reversible error, we affirm the judgments of the circuit court. Facts Jerome Cardin, a native of Baltimore City, was, at the time of trial, a 60-year-old attorney and businessman. He had formed Old Court Savings and Loan Association (“Old Court”) as a stock savings and loan association 1 in 1959.

Under Cardin’s control, Old Court was a conservatively run institution. Even though Old Court generated no dividends for its shareholders, it was profitable until the late 1970’s. In 1979, however, Old Court began to fail, primarily as a ²⁰⁵ result of rapidly rising interest rates, and by August 1982 it had a negative net worth. The Maryland Savings Share Insurance Corporation (“MSSIC”), a private insurance authority that participated with the State in regulating the savings and loan industry, advised Old Court to seek an injection of fresh capital through a merger or sale of the association.

At MSSIC’s direction, Cardin began negotiations to sell Old Court or to merge it with a stronger institution. In September 1982, MSSIC’s executive vice president introduced Cardin to prospective buyers, Jeffrey Levitt and Allan Pearlstein. Cardin, Levitt and Pearlstein eventually entered into a written agreement (“the sale agreement”) whereby Cardin sold controlling interests in the institution to Levitt and Pearlstein, retaining only an 18% ownership interest in Old Court. As part of the sale, Cardin negotiated a five year agreement retaining his law firm, Cardin and Cardin, P.A., as counsel to Old Court at an annual retainer of $40,000 plus hours billed in excess of that amount.

The sale agreement also provided for the firm of Cardin and Cardin, P.A., to perform legal services in connection with Old Court loan closings (“the loan closing agreement”). In exchange for those legal services, Cardin and Cardin, P.A., or its designee would receive 50% of the closing fees charged by attorneys handling Old Court’s loan settlements. MSSIC approved the sale agreement in its entirety. The loan closing agreement, however, did not operate as it had been represented to MSSIC.

The role of Cardin and Cardin, P.A. in loan closings progressively diminished over time; by the summer of 1984 the law firm was providing no legal services whatsoever in connection with Old Court’s loan closings. Cardin testified that the loan closing agreement degenerated to a “fee splitting agreement” in that Cardin & Cardin, P.A., continued to receive 50% of all fees generated by Old Court in connection with loan closings even after that law firm ceased to perform the legal services contemplated by the loan closing agreement. Old Court borrowers ²⁰⁶ were not informed that Cardin, who performed no legal services in connection with their loans, received 50% of the closing fees collected at Old Court loan settlements. Jeffrey Levitt paid Cardin & Cardin, P.A. its “settlement fees” under the fee splitting agreement from his personal expense account at Union Trust Co. Bank.

Between December 1983 and May 1985, Levitt wrote twelve checks, in the total amount of $1,040,000.00, to Cardin pursuant to the fee splitting agreement. As early as the summer of 1983, attorneys at Cardin & Cardin, including Jerome Cardin’s son, Sanford, became concerned that the fee splitting agreement might violate the Code of Professional Responsibility’s prohibition against unethical fee splitting. 2 Cardin testified that in the fall of 1983, in response to this concern, he and Levitt entered into two agreements retaining Cardin & Cardin, P.A., as general counsel for Levitt and for Charles Street Title, Inc. (one of Levitt’s companies), respectively. Each agreement provided for Cardin & Cardin, P.A., to receive $6,000.00 per month. Cardin testified that the legal services to be performed consisted of being “available to furnish general legal advice as requested by Jeffrey Levitt on the one hand and Charles Street Title on the other.” The monthly retainer fees were increased to $7,000, then to $8,000, and finally to $9,000 per month.

Cardin explained that he would deduct from the amounts owed pursuant to the fee splitting agreement the amounts received pursuant to the Levitt and Charles Street Title retainers. The fees received pursuant to the Levitt and ²⁰⁷ Charles Street Title retainers brought Cardin’s total Old Court earnings far above the $1,040,000 received from Levitt pursuant to the fee splitting agreement. Meanwhile, between the 1982 sale of Old Court and its collapse in 1985, Cardin continued to be involved in Old Court’s management. Cardin, Levitt and Pearlstein attempted to meet at least weekly to discuss Old Court’s current and future business.

Cardin and Levitt joined in a number of business and real estate ventures financed through Old Court. On at least two occasions, Cardin sent memos to Levitt, warning Levitt of “the importance of Old Court’s strict compliance with all regulations” and preaching that “no matter how big one is, it is imperative that he comply with the letter of the law” and that “perception is more important than fact.” Prophetically, Cardin attached to one of his warning memos a 14 November 1984 Wall Street Journal article concerning the indictment of a former bank chief executive officer on 44 counts of bank fraud. From the fall of 1982 through May 1985, when Old Court collapsed and was placed into conservatorship by the state, Cardin & Cardin, P.A., received $1.3 million for “legal services” rendered to Old Court over and above the $1,040,-000 it received pursuant to the fee splitting agreement. In addition to those sums, Cardin was paid a total of $385,000 in five separate transactions, for which he was indicted and convicted in this case.

The five counts of theft were as follows: Count I: Count I charged Cardin with stealing $100,000 in connection with a project known as “Bloody Point.” The state produced evidence from which the jury found that, in October and November of 1984, two real estate developers obtained a $6.5 million loan from Old Court Savings and Loan to purchase and eventually develop property known as Bloody Point. The loan proceeds in excess of the purchase price were placed in escrow to be withdrawn as needed. Cardin admittedly had no involvement whatsoever with ²⁰⁸ Bloody Point; nevertheless he submitted to Jeffrey Levitt an invoice on the letterhead of Cargol Consultants, Inc. (“Cargol”) for “services rendered” in the amount of $100,-000.00. Cargol, a shell corporation formed and controlled by Cardin, had rendered no services.

At the time of settlement, Levitt drew a check to Cargol for $100,000.00 as part of the distribution of the $6.5 million loan proceeds. The jury convicted Cardin of theft of the $100,000.00, which would otherwise have remained in escrow at Old Court for use by the developers. In so doing, the jury rejected Cardin’s defense that the $100,000.00 actually represented his rightful share of the closing fees and that Cargol was merely the “designated payee” pursuant to the fee splitting agreement. Counts II and III: Counts II and III concerned two checks, each for $75,000, which Cardin received in February of 1985.

One check was drawn on the account of Old Court Joint Venture (OCJV), the other on the account of Old Court Investment Corporation, Inc. (OCIC). Both OCJV and OCIC were wholly owned subsidiaries of Old Court. Cardin had submitted to OCJV and to OCIC invoices on Cargol letterhead, in the amount of $75,000 each, for services rendered. At trial, Cardin admitted that Cargol rendered no services for OCIC or OCJV, and that the invoices were “inaccurate.” In convicting Cardin of theft in connection with each of those transactions, the jury rejected Cardin’s defense that the two $75,000 payments were actually “bonuses” representing Cardin’s rightful 18% share of Old Court’s recent profits.

Cardin admitted that he knew that Old Court’s Board of Directors never approved such a distribution of profits, and he also conceded that under Maryland Code Ann. Financial Institutions article § 9-328 (1986 Repl. Vol.), a saving and loan’s board of directors must approve the distribution of any profits. It is interesting to note that Cardin testified that he served on the committee that promulgated the current Financial Institutions Code. Count IV: Count IV involved a project known as “Galleria Enterprises of Maryland” (Galleria).

Galleria’s owners ²⁰⁹ borrowed $300,000 from Old Court and deposited the money into an account opened in Galleria’s name. Cardin submitted two invoices to Galleria on May 1, 1984, and July 18, 1984, on his personal stationery. Each of those invoices requested payment “for consultation services” in the amount of $25,000. Admitting that no services were performed for Galleria and that the invoices were “inaccurate,” Cardin claimed the $50,000 paid from the Galleria escrow account at Old Court represented closing fees rightfully due him pursuant to the fee splitting agreement.

The State, however, produced evidence that the checks were not drawn on Levitt’s personal account as was the regular practice pursuant to the fee-splitting agreement. The jury convicted Cardin of stealing $50,000 of Galleria’s money. Count V: Count V involved one payment to Cardin of $85,000 by check drawn on an Old Court account in the name of “Variety Services, Inc.” Unlike the other sums for which Cardin was convicted, this payment was not made pursuant to a false invoice. The check, however, bore the notation “legal consult.” Cardin testified that he had never heard of Variety Services, Inc. and that he performed no legal services for Variety.

The State presented considerable evidence that tended to prove that by the time Cardin received the $85,000 payment in May 1985, he knew that the money he received had been stolen by Levitt. Cardin asserted that the $85,000 payment represented payment due him pursuant to the fee splitting agreement with Levitt and Pearlstein, but the check was not drawn on Levitt’s personal account at Union Trust as had been Levitt’s usual method of dispersing payments due pursuant to the fee splitting agreement. It was the State’s theory that Cardin was guilty of theft because he knew he was receiving stolen money. The jury apparently accepted that theory; it convicted Cardin of theft of the $85,000.

Appellant’s Contentions With regard to the jury instructions, Cardin claims the following instructions were erroneous: ²¹⁰ -that the jury need not agree on which form of theft was committed; -that any conduct by the defendant related to his receipt and handling of money which was likely to mislead or conceal was relevant to the question of intent; -that if the jury found Cardin had engaged in fee splitting which violated Disciplinary Rule 2-107, that fact could be considered in deciding whether the defendant had criminal intent in receiving the funds alleged to be stolen; -that under Maryland law, dividends can be declared only on an annual basis. Cardin also asserts the trial judge erred in refusing to instruct the jury on the definitions of his “claim of right” and “honest belief” defenses, and in refusing to instruct the jury that “evidence of good character ... ‘is not proof of innocence although it may be sufficient to raise a doubt of guilt.’ ” With regard to the evidence produced at trial, Cardin complains that the State failed to prove the essential elements of “obtaining or exerting unauthorized control over the property of another’’ and “theft by deception,” two of the types of theft prohibited under Maryland’s comprehensive theft statute. Finally, with regard to the conduct of the trial itself, Cardin claims that the trial court impermissibly limited the scope of voir dire, erred in refusing to dismiss a juror for cause, impermissibly cross-examined Cardin and impermissibly permitted the State to present an inflammatory closing argument. We shall address each of those contentions in turn.

I In instructing the jury, the trial judge said, inter alia: “All that is required is that all members of you, the jury, are convinced beyond a reasonable doubt that all ²¹¹ elements of one or more forms of theft have been proven.” Cardin contends that this instruction was erroneous because, under Maryland’s consolidated theft statute, Md. Code Ann. art. 27, § 342 (1957, 1982 Repl. Vol.), the jury must unanimously agree upon which form of theft was committed in order to convict. Cardin’s contention is without merit. As we recently stated in Craddock v. State, 64 Md.App. 269 , 494 A.2d 971 , cert. denied, 304 Md. 297 , 498 A.2d 1184 (1985): Article 27, Sec. 342 sets forth five different factual situations which, if proved, constitute the crime of theft.

The categories are: (a) Obtaining or exerting unauthorized control over property of the owner. (b) Obtaining control over property of the owner by deception. (c) Possessing stolen personal property knowing that it has been stolen, or knowing that it probably has been stolen. (d) Obtaining control over the property of another knowing that it is lost or mislaid property.

(e) Obtaining the services of another by deception, or knowing that the services are provided without the consent of the person providing them. Clearly, the gravamen of the offense of theft is the depriving of the owner of his rightful possession of his property. The particular method employed by the wrongdoer is not material; “an accusation of theft may be proved by evidence that it was committed in any manner that would be theft under this subheading____” Art. 27, Sec. 341; Whitehead v. State, 54 Md.App. 428 at 442 , 458 A.2d 905 (1983). See Jones v. State, 303 Md. 323 , 493 A.2d 1062 (1985).

Generally, jurors are not required to uniformly accept all of the evidence presented in order to arrive at a unanimous verdict. Some jurors unquestionably reject ²¹² evidence that others accept in determining guilt or innocence. In short, the law requires unanimity only in the verdict, not in the rationale upon which the verdict is based. In the case sub judice, the statute sets forth various acts that constitute the crime of theft.

As long as jurors unanimously agree that theft in some form was committed, nothing more is required. Id. at 277-78, 494 A.2d 971 . Even more recently, the Court of Appeals had occasion to address the same issue in a slightly different context. In Rice v. State, 311 Md. 116 , 532 A.2d 1357 (1987), the evidence would have supported a conviction of theft under either subsection (a) of art. 27, § 342, “Obtaining or exerting unauthorized control,” or subsection (c), “Possession of stolen property.” The appellant contended that the trial judge erred in refusing to grant an instruction to the effect that, in order to convict, the jury must be unanimously agreed on all elements of at least one subsection of the statute.

Rejecting that contention, the Court held that the unanimity sought by appellant is not constitutionally required because subsection (a) and subsection (c) “are not autonomous offenses but rather one crime defined two ways.” 311 Md. at 136 , 532 A.2d 1357 . II The court also instructed the jury as follows: “Any conduct by a defendant related to his receipt and handling of money which was likely to mislead or conceal is relevant to the question of intent.” “You have heard evidence that certain conduct of the defendant may be unethical fee splitting in violation of Disciplinary Rule 2-107 of the Maryland Code of Professional Responsibility for attorneys____ “A violation of Disciplinary Rule 2-107 is not a crime in and of itself. However, if you conclude that the defendant’s conduct violated Disciplinary Rule 2-107, you may consider that evidence as relevant to the defendant’s intent, the defendant’s good character or lack thereof, the ²¹³ defendant’s knowledge of the conduct of Jeffrey Levitt when the defendant received funds from Mr. Levitt, and whether the defendant had a good faith honest belief that he was entitled to the monies he received.” Cardin argues that the two instructions quoted above were erroneous because they were “grossly prejudicial” and because they were “unprecedented” under Maryland law. We do not agree, and find that the trial judge correctly instructed the jury.

Cardin’s defense to each charge of theft was that he entertained a good faith belief that he was entitled to the money. The challenged instructions addressed the jury’s determination of Cardin’s state of mind, and, as Lord Bowen noted in Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1885), the state of a man’s mind is as much a matter of fact as the state of his digestion. In Weaver v. State, 226 Md. 431 , 174 A.2d 76 (1961), the Court of Appeals stated: The state of one's mind or scienter is a question of fact. Putinski v. State, supra [ 223 Md. 1 , 161 A.2d 117 (1960) ]; Tufts v. Poore, 219 Md. 1 , 147 A.2d 717 .

And being subjective in nature, proof of wrongful intent is seldom direct, but is usually inferred from proven circumstances. Felkner v. State, 218 Md. 300 , 146 A.2d 424 . Id. at 434 , 174 A.2d 76 (quoted in Caldwell v. State, 26 Md.App. 94, 108 , 337 A.2d 476 (1975)). In Caldwell, supra, we further explained that “[t]he ‘proven circumstances’ for which an accused’s state of mind or intent can be inferred are his acts, conduct and words.” Id. at 108 , 337 A.2d 476 (citations omitted); see also Taylor v. State, 238 Md. 424, 433 , 209 A.2d 595 (1965).

Prior crimes or bad acts may be considered by the jury in their determination of a defendant’s intent. Tinnen v. State, 67 Md.App. 93, 98 , 506 A.2d 656 (1986). “Moreover, ‘other crimes’ evidence may be admitted when several crimes are so connected in time or circumstances that one cannot be fully shown without proving the other.” Id. at 98 , 506 A.2d 656 (citations omitted). ²¹⁴ We feel that the instructions with regard to Cardin’s “receipt and handling of money” were correct. Cardin testified that he arranged for Cargol to receive funds which were actually paid to him. Cardin testified that he formed and utilized Cargol, a shell corporation, purely for tax purposes.

Cardin claimed that his use of Cargol evidenced his good faith, honest belief defense that he had the right to exert control over the funds received as he did. The State, on the other hand, contended that Cardin’s use of Cargol’s name in submitting false invoices evidenced Cardin’s intent to deceive bank regulators and to launder funds he knowingly stole from Old Court’s depositors. In view of the conflicting inferences as to Cardin’s intent or state of mind in submitting bills and receiving money through Cargol, the court’s instruction concerning Cardin’s “receipt and handling of money” was proper. Cardin was free to argue, as he did, that his use of Cargol as a conduit was not intended to and did not mislead or conceal; the State, in turn, was free to interpret Cardin’s use of Cargol as proof of criminal intent.

Hayette v. State, 199 Md. 140, 145 , 85 A.2d 790 (1952). We also believe that the court’s instruction with regard to the possible Disciplinary Code violation was correct and warranted by the evidence. Cardin himself stated that he engaged in a fee-splitting arrangement with the other Old Court owners. Cardin also testified that his associates at Cardin & Cardin, P.A., expressed their concern that the fee-splitting arrangement violated the disciplinary rules, but subsequently researched the problem and concluded that the fee-splitting agreement did not amount to a violation.

Cardin claimed that the fee splitting agreement, and his belief that the practice was ethical, evidenced his good faith claim of right to the funds he was accused of stealing in Counts I, IV and V. Cardin requested an instruction that “[u]nder certain circumstances fee splitting may violate the lawyer’s professional code, but it is not a violation of law and not a criminal act.” The given instruction—“A violation of Disciplinary ²¹⁵ Rule 2-107 is not a crime in and of itself”—fairly covered the instructions requested. The remainder of the instruction was also correct. Cardin introduced evidence of the fee-splitting agreement and its possible violation of the disciplinary rule as evidence of his “good faith claim of right” defense, i.e., his belief that he was entitled to the money paid to him. It was entirely proper for the jury to consider whether a fee splitting arrangement that would violate the canons of ethics governing Cardin’s profession was consistent with a bona fide belief that he was entitled to the money.

In United States v. Reamer, 589 F.2d 769 (4th Cir.1978), in a criminal trial for mail fraud arising from charges of operating a scheme to defraud insurance companies, the Fourth Circuit Court of Appeals affirmed the lower court’s instruction that if the jury concluded that the defendant violated a disciplinary rule in connection with the scheme to defraud insurance companies, the jury could consider such violation in their determination of defendant’s intent to engage in mail fraud. Id. at 771 . In United States v. Klauber, 611 F.2d 512 (4th Cir.1979), in a criminal trial for mail fraud and racketeering, the Fourth Circuit Court of Appeals approved the following instructions: The Government has introduced evidence which it claims shows that the defendant paid individuals known as runners and MTA bus drivers moneys in exchange for those individuals referring to him clients who had been injured in automobile and bus accidents. The use of such individuals is relevant in this case if you find that the procurement of clients by such persons was part of the scheme as alleged in the indictment.

The law of the State of Maryland prohibits an attorney from compensating or agreeing to compensate another person for procuring clients. Furthermore, the Code of Professional Responsibility which applies to attorneys practicing in the State of Maryland provides in part as follows: ²¹⁶ A lawyer should not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client. Likewise, a lawyer shall not accept employment when he knows or it is obvious that the person who seeks his service does so as a result of conduct described herein. If you should find that as a part of a scheme to defraud, the defendant paid certain individuals for the purpose of procuring as clients persons who had been involved in automobile and bus accidents, and if you should further find that the defendant knew or should have known that such payments were violations of Maryland law or violations of the Code of Professional Responsibility applicable to Maryland lawyers, then you may consider such violation as evidence of the intent with which the defendant acted in this case.

The Maryland Court of Appeals found it necessary to analyze those instructions in the disciplinary proceedings that followed Klauber’s conviction, in order to determine whether the crime of mail fraud was necessarily one involving moral turpitude. The Court concluded that it was not. Attorney Grievance Commission v. Klauber, 283 Md. 597, 598-99 , 391 A.2d 849 (1978). Concurring with that result, Judge Gilbert specifically criticized the Klauber instruction as follows: Plainly, the hiring of “runners,” while a clear violation of the Canons of Professional Responsibility, Md. Rule 1230, is not a crime involving moral turpitude.

Under that charge, if the jury believed the government’s case tvas weak, they may well have considered the employment of “runners” as evidence of fraudulent intent and thereby bootstrapped the government’s case to a strength it otherwise would not possess. Of course, I do not know that this is what happened, but as the majority makes clear, it could have happened, and that is enough to preclude a finding that “the crimes of which ... ²¹⁷ [Klauber] was convicted plainly involved moral turpitude.” Attorney Grievance Commission v. Reamer, 281 Md. [323] at 328 [ 379 A.2d 171 (1977) ]. I cannot, with any degree of reasonable certainty, state that the portion of the District Court judge’s charge dealing with the “runners” had no effect on the jury’s verdict. Id. at 602, 391 A.2d 849 (Gilbert, J., specially assigned, concurring) (emphasis added).

In view of the concern expressed by Judge Gilbert in Klauber, we specifically limit our holding to the facts of this case—where the defendant introduces evidence of possible Disciplinary Code violations as evidence of a good faith or honest belief defense, whether a violation in fact occurred is relevant to the jury’s determination of the defendant’s intent or lack thereof. The instructions therefore were correct. Appellant also contends that it was error for the trial judge to instruct the jury that: “[A]t all times relevant to the issues in this case, Section 9-328 of the Financial Institutions Article of the Annotated Code of Maryland provides: ‘The Board of Directors of any savings and loan association shall allocate the profits of the association, at least annually, at the times the by-laws provide.' ” In Counts II and III, Cardin claimed that the $75,000 payments from OCJV and OCIC to Cargol represented payment from Old Court to Cardin of profits to which Cardin was entitled as an owner of Old Court. Cardin’s knowledge of the above-quoted statute was admitted into evidence without objection; indeed, Cardin testified that he served on the committee that drafted § 9-328.

Cardin asserts that the instruction was erroneous because “§ 9-328 governs the allocation of accumulated profits to reserve accounts (which must be done annually)—a pure accounting function.” That contention is without merit. Section 9-328 identifies who must authorize payments of profits, a key issue in determining whether Cardin believed ²¹⁸ he had a legitimate right to exercise control over the $150,000 in Counts II and III, and whether he in fact honestly believed he was entitled to his share of Old Court’s profits in the form of payments from OCJV and OCIC. Inclusion of a pertinent statute in the trial court’s advisory instruction is of course proper. Dillon v. State, 27 Md.App. 579, 588 , 342 A.2d 677 (1975), aff'd, 277 Md. 571 , 357 A.2d 360 (1976); Parker v. State, 7 Md.App. 167, 184-86 , 254 A.2d 381 (1969), cert. denied, Parker v. Maryland, 402 U.S. 984 , 29 L.Ed.2d 150 , 91 S.Ct. 1670 (1971).

There was no error here. Ill Evidence of good character ... “is not proof of innocence although it may be sufficient to raise a doubt of guilt.” Cardin claims that under Hennessy v. State, 37 Md.App. 559 , 378 A.2d 205 , cert. denied, 281 Md. 738 (1977), he was entitled to the above-quoted instruction. We do not agree. We did state in Hennessy that the above-quoted instructions were “as far as we will go.” Id. at 566 , 378 A.2d 205 .

Relying on that statement, Cardin requested, the above instruction, but the trial judge denied the request and instead instructed the jury as follows: The defendant has introduced evidence as to his good character in the community wherein he resides. The defendant has a right to do this in order to show that his character is such that it would make it unlikely that he would commit a crime such as the one with which he is charged. The prosecution may attempt to impeach the reputation of the defendant by offering evidence to rebut it or to show acts inconsistent with the character trait asserted by the defendant. You should consider that evidence along with all the other evidence in this case in determining the guilt or innocence of the defendant. ²¹⁹ We believe the gist of the instruction Cardin requested was fully covered in the instructions eventually given.

The judge stated that character evidence may be presented to show that it is “... unlikely that [the defendant] would commit a crime such as the one with which he is charged.” The phrase “unlikely that he would commit” conveys basically the same idea as “raise a doubt of guilt,” since a determination that it is unlikely that the defendant committed the crime necessarily means that there is a reasonable doubt that the defendant is guilty as charged. It is clearly the law in Maryland that “[t]he court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Md. Rule 4-325(c). See, Lansdowne v. State, 287 Md. 232, 239 , 412 A.2d 88 (1980); King v. State, 36 Md.App. 124, 136 , 373 A.2d 292 , cert. denied, 281 Md. 740 (1977). Since the instructions actually given fairly covered the instructions