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U.S. v. BARBER

United States District Court, N.D. New York


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 refer to Counts Two through Seven; rather, the Court defined "knowingly" as it did in Count One, which did not include a conscious-avoidance charge.

  Thus, in light of the fact that the conscious-avoidance instruction, even if erroneous, does not affect several of the other Counts of which Defendants were convicted, the Court could, on this basis alone, deny Defendants' motions for release pending appeal. See Randell, 761 F.2d at 125 (quoting Miller, 753 F.2d at 24) (other citation omitted).

  Alternatively, the Court finds that Defendants have failed to meet their burden of demonstrating that, even if the Court were to find that their assertion that the conscious-avoidance instruction was erroneous presents a substantial question of law, that substantial question is likely to result in a reversal or an order for a new trial. With respect to conscious avoidance, the Court provided the jury with the following instruction:

  The Government can also meet its burden of showing that the Defendant you are considering had knowledge of the falsity of the statements if it establishes beyond a reasonable doubt that he acted with deliberate disregard of whether the statements were true or false, or with a conscious purpose to avoid learning the truth. If the Government establishes that the Defendant you are considering acted with deliberate disregard for the truth, the knowledge requirement would be satisfied unless that Defendant actually believed the statements to be true. This guilty knowledge, however, cannot be established by demonstrating that the Defendant you are considering was merely negligent or foolish. As this instruction demonstrates, although the Court may not have used the exact language of the "model charge," i.e., that the defendant was aware of a "high probability" of a particular fact's existence, the Court did instruct the jury that the Government was required to prove, beyond a reasonable doubt, that Defendants "acted with deliberate disregard of whether the statements were true or false, or with a conscious purpose to avoid learning the truth." Despite Defendants' assertion to the contrary, this "deliberate disregard" language is not "in essence a negligence standard."

  Moreover, immediately following this statement, the Court cautioned the jury that, even if the Government proved that Defendants acted with deliberate disregard for the truth, the knowledge element would not be satisfied if Defendants actually believed that the statements were true. Finally, the Court instructed the jury that "guilty knowledge . . . cannot be established by demonstrating that [Defendants] w[ere] merely negligent or foolish."*fn10

  Faced with similar conscious-avoidance instructions, the Second Circuit has, on at least two occasions, found that there was no reversible error. In United States v. Shareef, 714 F.2d 232 (2d Cir. 1983), the district court provided the following conscious-avoidance instruction:

In other words, you may find that a defendant acted knowingly if you find that either he actually knew of the false or fraudulent representations or promises, or that he deliberately closed his eyes to what he had every reason to believe was the fact.
Id. at 233.

  Immediately following this portion of its charge, the district court instructed the jury: I should like to emphasize, however, that the requisite knowledge in this connection cannot be established by demonstrating merely negligence or even foolishness on the part of a defendant.

 Id. at 234.

  On appeal, the Second Circuit noted that, although it did "not consider this instruction to be an acceptable substitute for the balancing charge which incorporates the concept of `actual belief', its use in the instant case did not constitute reversible error." Id. The court reasoned that "[t]he challenged language was used only once in the charge, and it was accompanied by lengthy instructions to the effect that neither mistake nor inadvertence would justify a finding of fraudulent intent." Id. Moreover, the court held that, "in view of the strength of the Government's case, to the extent that the charge was error, it was harmless error." Id.

  The Second Circuit reached a similar result in United States v. Cano, 702 F.2d 370 (2d Cir. 1983), in which the district court charged the jury on the meaning of "knowingly and intentionally" four times — once in the original charge and three times during deliberations in response to the jury's questions. Each time, the court told the jury that it could

 

find the requisite knowledge if they found that the defendant was aware of a high probability that the envelopes contained drugs, but deliberately closed his eyes to that probability. [The court] also stated each time that mere negligence, foolishness or mistake on the part of the defendant would not be enough to establish knowledge. However, [the court] never instructed the jury that a finding that defendant actually believed the envelopes did not contain drugs would preclude finding the requisite knowledge.
Id. at 371.

  On appeal, the Second Circuit stated that it could not find that this instruction was plain error or fatally defective. The court noted that "[i]n evaluating the significance of the failure to charge the jury on defendant's actual belief, we must compare the model charge . . . with the charge actually given." Id. (citation omitted). Applying this standard, the court found that each time the district court instructed the jury on conscious avoidance, it also cautioned that mere negligence or foolishness was not enough and that in its view "the absence of the precise balancing language called for by [United States v.] Bright, [517 F.2d 584, 587 (2d Cir. 1975)], a `deviation from the norm' that was not egregious enough to trigger an objection on any of the four occasions on which it was delivered, . . ., does not call for reversal." Id.

  The court reasoned further that this was not a case in which the district court failed to instruct on an element of the crime or affirmatively misstated the law. Moreover, the court found that

[t]he jury was properly instructed to focus on the issue of knowledge, and the charge was sufficient to inform them not to infer knowledge from anything less than a deliberate disregard of a high probability that the envelopes contained contraband — which would be inconsistent with a finding that [the defendant] actually believed they did not.
Id. at 371-72 (citation omitted).

  In light of the Second Circuit's decisions in Shareef and Cano as well as the fact that the Court's conscious-avoidance instruction in the present case specifically included a charge to the jury regarding Defendants' actual belief — the absence of which the Second Circuit found so problematic in both Shareef and Cano — coupled with the strength of the Government's case against Defendants, it is not likely that the Second Circuit, even if it were to find that this Court's instruction was erroneous, would reverse Defendants' convictions or order a new trial. Accordingly, the Court denies Defendants' motions for release pending appeal pursuant to § 3143(b).

  III. CONCLUSION

  After reviewing the Court's jury instructions as a whole, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court hereby

  ORDERS that Defendants' motions for release pending appeal pursuant to 18 U.S.C. § 3143(b) are DENIED.

  IT IS SO ORDERED.


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