United States District Court, N.D. New York
July 6, 2004.
UNITED STATES OF AMERICA,
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
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.
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.
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
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
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
Id. (quoting Miller, 753 F.2d at 24) (other citation
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
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
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
[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).
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.