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U.S. v. BARBER

July 6, 2004.

UNITED STATES OF AMERICA,
v.
CHARLES M. BARBER, CHARLES H. BARBER, and HELEN J. BARBER, Defendants.



The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

  Presently before the Court are Defendants' motions seeking an Order, pursuant to 18 U.S.C. § 3143(b), releasing Defendants pending appeal. In support of their motions, Defendants argue that their contention that the Court's conscious-avoidance instruction was erroneous presents a "substantial question" within the meaning of § 3143(b). Specifically, Defendants assert that the Court's conscious-avoidance instruction was in error because it omitted the following critical language: "If you find beyond a reasonable doubt that the defendant was aware of a high probability of" the facts in dispute. See Defendants' Memorandum of Law at 3-4. Moreover, they argue that, because the conscious-avoidance instruction cuts against all counts of which they were convicted, there would likely be a reversal on all counts if the Second Circuit agreed with their claim. See id. at 3.

  Furthermore, although they acknowledge that the Court must review the instruction for plain error because they did not object to it at trial, Defendants contend that the complained-of error meets all the prongs of the plain-error test.*fn1 Specifically, they contend that the Court's erroneous instruction affected their substantial rights because they maintained in their testimony and in their respective arguments to the jury that they thought they were acting lawfully and, in the case of Defendants Charles M. Barber and Charles H. Barber, they consulted with lawyers, bankers and other professionals, who never advised them otherwise. In addition, in the case of Defendant Helen J. Barber, she testified that she simply did what her husband and her son asked and had no reason to believe that what they were asking was illegal. See id. at 7-8. Defendants also claim that knowledge that they were doing something that the law forbids was crucial to a finding of guilt because the Court's instruction on "intent to defraud" — an element at the core of this case — incorporated that requirement and immediately preceded the conscious-avoidance instruction.

  Finally, Defendants assert that the claimed error in the conscious-avoidance instruction seriously affected the fairness of the proceedings. See id. at 9-10. This is so, Defendants argue, because each of them testified in his or her own defense and provided innocent explanations for the various transactions and the jury's task was primarily to evaluate those explanations and decide whether they were, in fact, innocent. See id. at 10. Defendants contend that, if the jury concluded that the explanations were not innocent on the erroneous ground that one or more of Defendants did not try hard enough to learn the true facts, even though that Defendant was not "aware of a high probability of the fact in dispute," then the fairness of the proceedings was compromised. See id. at 10.

  II. DISCUSSION

  Section 3143(b)(2) of Title 18 of the United States Code conditions release pending appeal, among other things, on a finding that the appeal "raises a substantial question of law or fact likely to result in reversal or an order for a new trial." 18 U.S.C. § 3143(b)(2).*fn2 The Second Circuit, in agreement with the Third Circuit, has concluded that
"the phrase `likely to result in reversal or an order for a new trial' cannot reasonably be construed to require the district court to predict the probability of reversal. . . . Instead, the language must be read as going to the significance of the substantial issue to the ultimate disposition of the appeal."
United States v. Randell, 761 F.2d 122, 124 (2d Cir. 1985) (quoting [Miller], 753 F.2d at 23).

  Thus, when interpreting § 3143(b)(2), "a district court [must] determine first whether any question raised on appeal is a `substantial' one." Id. at 125. As the Second Circuit noted in Randell, a number of Courts of Appeals have defined a "substantial" question in slightly different ways. See id. (quoting Miller, 753 F.2d at 23 (defining a substantial question as "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful"); Giancola, 754 F.2d at 901 (defining a substantial question as "one of more substance than would be necessary to a finding that it was not frivolous[;] . . . a `close' question or one that very well could be decided the other way"); Handy, 753 F.2d at 1490 (defining a substantial question as one that is "fairly debatable")). The Second Circuit concluded that "these definitions of `substantial' [do not] differ significantly from each other, but if we were to adopt only one, it would be the language of Giancola." Id.

  If the court finds that a question is "substantial," "it must then consider whether that question is `so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Id. (quoting Miller, 753 F.2d at 23). The defendant bears the burden of persuasion on this issue as well as on all the criteria of § 3143(b). See id. (citation omitted).

  Thus, in accordance with the standards set forth in Randell,
before a district court may grant bail pending appeal, it must find:
(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial on all counts on which imprisonment has been imposed.
Id. (quoting Miller, 753 F.2d at 24) (other citation omitted).*fn3 A conscious-avoidance instruction, such as the one about which Defendants complain, allows a jury to conclude that "a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fact." United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000) (citing United States v. Adeniji, 31 F.3d 58, 62 (2d Cir. 1994)). A court may give such an instruction only
 
if (1) the defendant asserts the lack of some specific aspect of knowledge required for conviction, . . . and (2) the appropriate factual predicate for the charge exists, i.e., "the evidence is such that a rational juror may reach [the] conclusion beyond a reasonable doubt . . . that [the defendant] was aware of a high probability [of the fact in dispute] and consciously avoided confirming that fact. . . ."
Id. (internal quotation and citation omitted).

  When giving a conscious-avoidance charge, the court should instruct the jury "that knowledge of the existence of a particular fact may be inferred `(1) if a person is aware of a high probability of its existence, (2) unless he actually believes that it does not exist.'" United States v. Rodriguez, 983 F.2d 455, 457 (2d Cir. 1993) (quotation omitted). The court also generally tells the jury "that a showing of negligence, mistake, or even foolishness, on the part of the defendant, is not enough to support an inference of knowledge." Id. (citing United States v. Shareef, 714 F.2d 232, 233-34 (2d Cir. 1983)).

  Applying the above-cited principles to Defendants' motions requires the Court to deny the relief they seek. First, despite Defendants' assertion to the contrary, the conscious-avoidance charge, even assuming arguendo that it was erroneous, was not incorporated into the Court's instructions regarding all of the Counts of the Indictment of which Defendants were convicted.*fn4 For example, in addressing the elements of Count One (Charles M. Barber, Charles H. Barber), the Court did not provide a conscious-avoidance instruction. The only definition that the Court provided with respect to the knowledge element of this Count was that the term "knowingly" meant "to act voluntarily and deliberately, rather than mistakenly or inadvertently." Thus, at least with respect to Defendants Charles M. Barber and Charles E. Barber, the two Defendants who were implicated in Count One, even if the Court were to find that Defendants' assertion that the conscious-avoidance charge presented a "substantial question" and even if the Second Circuit were to decide this question in favor of Defendants on appeal, that decision would not result in reversal or an order for a new trial "on all counts on which imprisonment has been imposed," Randell, 761 F.2d at 125 (quoting Miller, 753 F.2d at 24) (other citation omitted) (emphasis added), as Randell requires for release pending appeal under § 3143(b)(2).

  This same reasoning holds true for the Court's instructions with regard to Counts Twelve through Eighteen (Charles M. Barber, Charles H. Barber, Helen J. Barber),*fn5 Counts Nineteen and Twenty (Charles M. Barber, Charles H. Barber), Counts Twenty-One and Twenty-Two (Charles M. Barber, Charles H. Barber), Counts Twenty-Three and Twenty Four (Helen J. Barber),*fn6 Count Twenty-Five (Charles M. Barber),*fn7 Count Twenty-Six (Charles H. Barber),*fn8 and Count Twenty-Seven (Charles M. Barber, Charles H. Barber, Helen J. Barber).*fn9 In none of these Counts did the Court ...


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