The opinion of the court was delivered by: LECHNER
Defendant Barbara Bissell ("Barbara Bissell") and her husband Nicholas Bissell ("Nicholas Bissell") (collectively the "Defendants") were charged in a second superseding indictment (the "Second Superseding Indictment"), filed on 14 March 1996. The facts relating to the numerous charges brought against Defendants are set forth in a decision regarding the pre-trial motions of Defendants and the sentencing of Barbara Bissell. See United States v. Bissell, 954 F. Supp. 841, 1996 U.S. Dist. LEXIS 19982, 1996 WL 754808, at *2-10 (D.N.J. 1996) ("Bissell I ").
Barbara Bissell was named in thirteen counts in the Second Superseding Indictment; she was named in counts 12 through 16, which charged Defendants with mail fraud in connection with their operation of the Bedminster Amoco Gas Station, located in Somerset County, New Jersey (the "Bedminster Station"). Second Superseding Indictment, P 4, at 12. Count 23 charged Defendants with conspiracy to "defraud the United States and the Internal Revenue Service in the ascertainment, computation, assessment, and collection of income taxes." Id., P 2, at 29. Counts 24 through 27 charged Defendants with tax evasion for the years 1991 to 1994 for failing to report money they embezzled from the Bedminster Station on their joint personal tax returns. Id., P 3, at 33. Counts 28 through 30 charged Barbara Bissell with knowingly and wilfully signing false U.S. Partnership and Corporate Income Tax Returns for the Bedminster Station for the tax years 1991 through 1993, in violation of 26 U.S.C. § 7206(1) ("Section 7602(1)").
The Bail Reform Act of 1984 (the "1984 Act") provides, in relevant part:
The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds--
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purposes of delay and raises a substantial question of law or fact likely to result in--
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
18 U.S.C. § 3143(b) ("Section 3143(b)") (emphasis added).
Section 3143(b) creates a presumption against post-conviction release pending appeal. See United States v. Miller, 753 F.2d 19, 22 (3d Cir. 1985) ("The [1984 Act] was enacted because Congress wished to reverse the presumption in favor of bail that had been established under the prior statute, the Bail Reform Act of 1966."); United States v. Mathis, 1994 U.S. Dist. LEXIS 520, Crim. No. 91-595-10, 1994 WL 22303, at *2 (E.D.Pa. 25 Jan. 1994).
The Circuit has explained:
Once a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release pending appeal or even permit it in the absence of exceptional circumstances. First and most important, the conviction, in which the defendant's guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law, a presumption factually supported by the low rate of reversal of criminal convictions in the Federal system. Second, the decision to send a convicted person to jail and thereby reject all other sentencing alternatives, by its very nature includes a determination by the sentencing judge that the defendant is dangerous to the person or property of others, and dangerous when sentenced, not a year later after the appeal is decided. Third, release of a criminal defendant into the community, even after conviction, destroys whatever deterrent effect remains in the criminal law.
Miller, 753 F.2d at 22 (quoting H.Rep. No. 907, 91st Cong., 2d Sess. 186-87 (1970) (emphasis added)). Accordingly, under the 1984 Act, a defendant has the burden of establishing
(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 the 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 of all counts on which imprisonment has been imposed.
1. Risk of Flight/ Danger to Community
The factors to be considered in assessing the risk of flight include: (1) the nature and circumstances of the offense, (2) the defendant's family ties, (3) the defendant's employment status, (4) the defendant's financial resources, (5) the defendant's character and mental condition, (6) the length of defendant's residence in the community, (7) any prior criminal record and (8) any flight or failures to appear in court proceedings prior to or during the time of trial. United States v. Bertoli, 854 F. Supp. 975, 1158 (D.N.J.), aff'd in part, sentence vacated in part on other grounds, 40 F.3d 1384 (3rd Cir. 1994). When assessing danger to the community, "'danger may, at least in some cases, encompass pecuniary or economic harm.'" Id. at 1161 (quoting United States v. Reynolds, 956 F.2d 192, 192 (9th Cir. 1992)).
In the instant case, there is no indication Barbara Bissell poses a physical danger to the community or a risk of flight.
The belated filing, insubstantial nature and lack of merit of the Motion for Bail Pending Appeal warrants the conclusion the motion has been brought for the purpose of merely delaying the commencement of Barbara Bissell's sentence.
As indicated, on 31 May 1996, Barbara Bissell was convicted of all charges brought against her in the Second Superseding Indictment. On 6 December 1996, a sentencing hearing was held (the "Sentencing Hearing"). At the Sentencing Hearing, Barbara Bissell was ordered to surrender to commence serving her sentence on 30 January 1997. Sentencing Hearing Tr. at 48. Barbara Bissell filed a notice of appeal on 12 December 1996. The Bissell I opinion, dealing with all of the pre-trial motions and the sentencing of Barbara Bissell, was filed on 13 December 1996.
Barbara Bissell waited until the close of business Friday, 3 January 1997, to submit the Motion for Bail Pending Appeal, which was not filed until 6 January 1997.
Her belated filing of the instant motion required scheduling adjustments so that opposition from the Government and a reply from Barbara Bissell could be received and considered and the motion decided before 30 January 1997.
The Motion for Bail Pending Appeal is not a substantial undertaking. The Moving Brief is a fifteen page letter memorandum. As is discussed below, the arguments contained in the Moving Brief are not supported by the evidence. The Motion for Bail Pending Appeal, moreover, does not present any substantial questions of law or fact warranting a continuation of bail pending appeal. Counsel for Barbara Bissell misstates the evidence and makes frivolous legal arguments based upon her misstatement of the evidence. The Motion for Bail Pending Appeal appears to have been brought for the purpose of delaying the commencement of Barbara Bissell's sentence.
3. Substantial Question of Law or Fact
The Circuit has held a "substantial question" is one which is "fairly debatable." Smith, 793 F.2d at 89-90 (adopting standard articulated in United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir. 1985), and rejecting "close question" formulation stated in United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), cert. denied, 479 U.S. 1018, 93 L. Ed. 2d 721, 107 S. Ct. 669 (1986)); see Messerlian, 793 F.2d at 96; Bertoli, 854 F. Supp. at 1162. A defendant must show not only that the issues presented on appeal are "debatable among jurists of reason," but also that they are "significant." Smith, 793 F.2d at 89. "Under the [1984 Act], after first making the findings as to flight, danger, and delay, a court must determine that the question raised on appeal is a 'substantial' one, i.e. it must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Miller, 753 F.2d at 23.
"A question of law or fact may be substantial but may, nonetheless, in the circumstances of a particular case, be considered harmless, to have no prejudicial effect, or to have been insufficiently preserved." Miller, 753 F.2d at 23. In order for a question to be "significant" in a particular case, it must be "so integral to the merits of the conviction on which a defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Id.
Barbara Bissell raises three issues which she contends are "important" for the purposes of Section 3143(b). Specifically, she contends the court erred: (1) in denying Barbara Bissell's pretrial severance motion, (2) in instructing the jury on "deliberate ignorance," and (3) in its refusal to appoint Barbara Bissell's chosen counsel under the Criminal Justice Act (the "CJA"). As is discussed below, Barbara Bissell has failed to carry her burden of establishing a substantial question of law or fact. Accordingly, the Motion for Bail Pending appeal is denied. See Messerlian, 793 F.2d at 95-96; Bertoli, 854 F. Supp. at 1158.
As indicated, Barbara Bissell argues the court erred in denying her pretrial severance motion (the "Severance Motion"). Moving Brief at 3. Barbara Bissell conclusorily argues the "nature, extent, and the potential for a negative emotional atmosphere at the trial of the charges against Nicholas L. Bissell, Jr. were manifest and known at the time of trial" and that the Severance Motion should have been granted "to avert a 'manifestly unfair trial.'" Id. at 6-8. In the alternative, she argues "the public corruption charges against Nicholas Bissell should have been severed" from the charges against both Defendants. Id. at 8. Barbara Bissell argues that because "it is more likely than not that [she] will prevail on this issue on appeal ... bail pending appeal should be granted."
Id. at 9. Barbara Bissell's current argument, that severance of Defendants' cases was required, is little different than her argument made in the Severance Motion. See Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *24-29.
As Barbara Bissell concedes, Moving Brief at 8, the Second Superseding Indictment was in compliance with Rule 8 of the Federal Rules of Criminal Procedure ("Rule 8").
Barbara Bissell argues her trial should have been severed from Nicholas Bissell's pursuant to Rule 14 of the Federal Rules of Criminal Procedure ("Rule 14"). Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment's technical compliance with Rule 8, joinder would result in a "manifestly unfair trial." Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *24 (citing United States v. Giampa, 904 F. Supp. 235, 265 (D.N.J. 1995), aff'd, 107 F.3d 9 (3d Cir. 1997); United States v. Cannistraro, 800 F. Supp. 30, 87 (D.N.J. 1992); United States v. Vastola, 670 F. Supp. 1244, 1261 (D.N.J. 1987) (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981))). Severance pursuant to Rule 14 is within the discretion of the trial court. Zafiro v. United States, 506 U.S. 534, 539, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993) ("Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts").
A defendant bears a "heavy burden" when moving for severance under Rule 14. See United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied, 502 U.S. 925, 116 L. Ed. 2d 280, 112 S. Ct. 340 (1991); United States v. Sandini, 888 F.2d 300, 305 (3d Cir. 1989), cert. denied, 494 U.S. 1089, 108 L. Ed. 2d 959, 110 S. Ct. 1831 (1990); United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988), cert. denied, 490 U.S. 1004, 104 L. Ed. 2d 153, 109 S. Ct. 1637 (1989). Mere allegations of prejudice are insufficient to meet this burden. Giampa, 904 F. Supp. at 265. Defendants must "pinpoint 'clear and substantial prejudice' resulting in an unfair trial." United States v. McGlory, 968 F.2d 309, 340 (3d Cir.) (quoting Eufrasio, 935 F.2d at 568), cert. denied, 506 U.S. 956, 121 L. Ed. 2d 339, 113 S. Ct. 415 (1992); Giampa, 904 F. Supp. at 265; see also United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986). Defendants are not entitled to severance "merely because they may have a better chance of acquittal in separate trials." Zafiro, 113 S. Ct. at 938; McGlory, 968 F.2d at 340; Giampa, 904 F. Supp. at 265.
"The introduction of evidence more damaging to one defendant than another does not entitle the seemingly less culpable defendant to a severance." McGlory, 968 F.2d at 340 (citing United States v. De Peri, 778 F.2d 963, 983 (3d Cir. 1985), cert. denied, 475 U.S. 1110, 89 L. Ed. 2d 916, 106 S. Ct. 1518 (1986)); Smith, 789 F.2d 196, 206; Adams, 759 F.2d 1099, 1112; United States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). "If that were the case, a joint trial could rarely be held." Dansker, 537 F.2d at 62. The mere introduction of evidence regarding crimes charged only against Nicholas Bissell, moreover, does not entitle Barbara Bissell to a separate trial. McGlory, 968 F.2d at 340 (citing United States v. Rocha, 916 F.2d 219, 228-29 (5th Cir. 1990), cert. denied, 500 U.S. 934, 114 L. Ed. 2d 462, 111 S. Ct. 2057 (1991)).
A risk of prejudice may often be cured with an appropriate jury instruction. Zafiro, 506 U.S. at 540. "Juries are presumed to follow their instructions." Id. The inquiry is whether the jury could reasonably have been expected to compartmentalize the evidence against Barbara Bissell. McGlory, 968 F.2d at 340 (citing Eufrasio, 935 F.2d at 568); Giampa, 904 F. Supp. at 266.
At trial, Nicholas Bissell did testify and was subject to cross-examination by counsel for Barbara Bissell. Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *26. "As the trial demonstrated, Nicholas Bissell was neither an effective nor a credible witness." Id.
Barbara Bissell conclusorily argues she was prejudiced by the joint trial. Moving Brief at 8. She argues her trial was tainted by the "disgust engendered toward her husband by proof of despicable conduct such as ordering the tailing of a Superior Court judge...." Id. She argues the charges of "egregious" conduct brought solely against Nicholas Bissell "had the special ... ability to poison the courtroom atmosphere and inflame the jury to a degree that curative instructions could not correct." Moving Brief at 4. This conduct included:
a) Failing to disclose a material conflict of interest ... with an attorney who represented clients in an adversarial capacity with the Somerset County Prosecutor's Office.
b) [Nicholas Bissell's] threatening to plant cocaine in his distributor's car and having him arrested and prosecuted by the Somerset County Prosecutor's Office; and by
c) Failing to act honestly in the conduct of his office with respect to a Federal civil rights proceeding ... in his capacity as the Somerset County Prosecutor and in his personal capacity by obstructing justice and giving perjured testimony.
Moving Brief at 5. Barbara Bissell also argues the evidence showing Nicholas Bissell engaged in criminal solicitation of a vendor of the Prosecutor's Office to prepare fraudulent tax return prejudiced her trial. Id.
As is more fully explained in Bissell I, Barbara Bissell's argument for severance of her case from that of her husband was, and is, without merit. The Second Superseding Indictment charged Barbara Bissell, in conjunction with Nicholas Bissell, "routinely embezzled cash from the Bedminster Station" without informing their partner Thomas "Buddy" Thornburg ("Buddy Thornburg"). Second Superseding Indictment, P 9, at 13. Barbara Bissell's role in the fraud was far from minor; she was a voluntary, full partner in the criminal conduct. She was an officer of the corporation which owned the franchise to operate the Bedminster Station and was the bookkeeper for the Bedminster Station, maintaining the station's checkbook and payroll records. Second Superseding Indictment, P 2, at 12. She, moreover, signed false corporate and personal tax returns relating to income derived from the Bedminster Station. Id., PP 1-3, at 33-34; 1-4, at 35-36. Barbara Bissell also paid personal expenses with the Bedminster Station Partnership's funds. Id., P 8, at 13; P 4, at 29. As well, she accompanied her husband on weekends when he visited the Bedminster Station to skim money.
As indicated, Defendants were charged in conjunction with fraudulently running the Bedminster Station and committing tax evasion. Accordingly, the separate trials would involve many of the same witnesses and much of the same documentary proofs. This duplication of effort was neither justified nor necessary.
Many of the charges directed solely at Nicholas Bissell were closely related to the charges against Barbara Bissell. Despite Barbara Bissell's conclusory argument to the contrary, a separate trial would have required a duplication of effort and a waste of resources.
For example, Nicholas Bissell was convicted of knowingly and wilfully devising and executing a scheme to defraud "the citizens of the County of Somerset, the County of Somerset itself, and the State of New Jersey to their right to the honest and faithful services of their chief law enforcement officer, from 18 November 1988 through 28 September 1995," in violation of 18 U.S.C. § 1341. See Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *2. The fraudulent operation of the Bedminster Station was charged as part of the conduct which compromised Nicholas Bissell's "ability to faithfully, justly and impartially" execute his duties as Somerset County Prosecutor. Second Superseding Indictment, P 11, at 8. As mentioned, Barbara Bissell was a voluntary, full partner in the criminal conduct.
As part of this scheme, the Government proved Nicholas Bissell failed to disclose a business relationship with an adversary of the Somerset Prosecutor's Office. Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *3. This business relationship involved the operation of the Bedminster Station. Nicholas Bissell was also charged with threatening to plant cocaine on the gasoline distributor of the Bedminster Station. Id. at *4. The threat was made because of a business dispute regarding the operation of the Bedminster Station and the continuation of the franchise. Id.
As indicated, Barbara Bissell was convicted of mail fraud and tax evasion in connection with the operation of the station. The charges against Nicholas Bissell in counts 1-11 of the Second Superseding Indictment were accordingly related to the charges against Barbara Bissell. Nicholas Bissell's criminal involvement with the Bedminster Station was central to the charges against him in counts one through eleven. Accordingly, the separate charges against Nicholas Bissell were connected with the charges against Defendants as well as those exclusively against Barbara Bissell. Barbara Bissell's argument that severance would not have impacted upon judicial economy, Moving Brief at 8, is without basis.
Other crimes for which Nicholas Bissell was convicted related to charges against Barbara Bissell. For example, count 22 charged Nicholas Bissell with making false statements to Federal Agents. Second Superseding Indictment, PP 1-9, at 27-28. Nicholas Bissell made these statements after Defendants' home was searched and more than $ 9,000 in cash, belonging to Barbara Bissell, was discovered. Id., P 4, at 27. Barbara Bissell also insisted on the opportunity to speak to the several Federal Agents and made statements not dissimilar to those made by her husband. As indicated below, many of the statements made by Barbara Bissell to Federal investigators were misleading and/or patently false. Nicholas Bissell's statements were made with the purpose of covering up Defendants' common scheme to defraud Thornburg, as were Barbara Bissell statements. Second Superseding Indictment, P 9 at 28.
Count 17, which charged Nicholas Bissell with fraud on the investors of the Somerset Amoco, located in Somerset County, New Jersey (the "Somerset Station"), involved a similar course of conduct and dealing as counts 12-16. The Somerset Station, moreover, had made the lease payments on a Mercedes-Benz automobile which had been driven by Barbara Bissell. Trial Tr. at 1488.
Counts 20 and 21 charged Nicholas Bissell with obstruction of justice and concerned his role in the destruction of a police report and his perjured testimony in connection with a civil action in which he was named as a defendant. These charges were not related in any way to Barbara Bissell's criminal conduct. These charges were clearly distinct; there is no reference to Barbara Bissell in the Second Superseding Indictment concerning these charges. At trial, the Government made no reference to Barbara Bissell in connection with these distinct charges against Nicholas Bissell.
The evidence and charges against Barbara Bissell were closely connected to and intertwined with the evidence and charges against Nicholas Bissell. Prior to trial, it was determined a joint trial would not (and did not) prejudice Barbara Bissell. As indicated, any risk of prejudice caused by the joint trial was avoided by an appropriate instruction. The jury was cautioned:
Each count of the indictment charges a separate offense and each count and the evidence pertaining to it must be considered separately.
The fact that you may find a defendant guilty or not guilty of one of the counts should not control your verdict as to any other count charged.
Trial Tr. at 2960-61 (emphasis added). The jury instructions were carefully worded to stress the jury's obligation to consider the evidence against each defendant separately. At the conclusion of the jury instructions the jury was again reminded of their duty "to consider each count and each defendant separately...." Id. at 3038.
The possibility the jury would be influenced by the presence of Nicholas Bissell as a defendant was explored during jury selection. Potential jurors were asked a series of questions regarding their prior knowledge of the facts of the case or Defendants, particularly Nicholas Bissell.
Number one, other than what you have head in this courtroom today, do any of you know anything about or have any of you read or heard anything about this case or have you spoken about this case?
Number two, if so, have you formed any opinions concerning this case?
Number five, have you had any dealings with the County of Somerset or the Somerset County Prosecutor's Office and if so, is there anything about that which would prevent you in any way from being fair and impartial in this case?
Number six, are you award of any actions taken by Mr. Nicholas Bissell in his capacity as prosecutor of Somerset County and if so, is there anything about that which would prevent you form being fair and impartial in this case?
Number seven, will the fact that Nicholas L. Bissell, Jr. served as County prosecutor for Somerset County prevent you from being fair and impartial to both the United States and the defendants in your consideration of the evidence to be presented in this case?
Number eight, have you or has any member of your immediate family lived in Somerset County within the past ten years?
Trial Tr. at 55-56. The juror's answers to the above-quoted questions revealed they had not been influenced by the "media blizzard" Barbara Bissell complains of in the Moving Brief. Moving Brief at 4. The jurors' answers, moreover, demonstrated they were neither prejudiced nor predisposed in light of the pre-trial publicity or Nicholas Bissell's former position as Somerset County Prosecutor. Significantly, Barbara Bissell did not object to the adequacy of the questions or otherwise during jury selection.
Barbara Bissell has not raised a "substantial question of law or fact" in her conclusory argument. On the facts alleged in the Pretrial Severance Motion, it was not reasonable to find Barbara Bissell would be prejudiced by a "spillover" of evidence against Nicholas Bissell, or that a joint trial would have been "manifestly unfair" to her. Aside from her speculation that such spillover may have occurred, Barbara Bissell has not demonstrated she was prejudiced in any manner. Accordingly, she has failed to "pinpoint 'clear and substantial prejudice'" resulting from the joint trial. McGlory, 968 F.2d at 340. No such prejudice, moreover, was apparent during the trial.
B. The Deliberate Ignorance Instructions
Barbara Bissell vaguely argues it was error to give "the deliberate ignorance charge." Moving Brief at 9 (emphasis added). In fact, deliberate ignorance instructions (the "Deliberate Ignorance Instructions") were given with regard to both the mail fraud and tax evasion charges. Barbara Bissell argues it was error to give the Deliberate Ignorance Instructions, based upon the facts of the case. This argument is factually and legally without merit. The arguments made by counsel for Barbara Bissell are frivolous; her misrepresentation of the evidence in the instant case, moreover, is improper.
As is set forth below, contrary to her argument, counsel for Barbara Bissell did not distinctly state an objection to the giving of the Deliberate Ignorance Instructions. As indicated, aside from a passing comment regarding the propriety of giving one of the proposed instructions on deliberate ignorance, counsel did not object to the giving of the instructions. Instead, she proposed minor changes to the language that were confusing and not necessary.
The Deliberate Ignorance Instructions, moreover, were proper and supported by the evidence. The record is not only replete with evidence supporting the Deliberate Ignorance Instructions, the record also established Barbara Bissell knowingly participated in the illegal conduct for which she was convicted.
Barbara Bissell's argument the evidence did not support giving the Deliberate Ignorance Instructions is surprising in light of counsel's comments before sentencing that Barbara Bissell had accepted responsibility for her actions. Prior to sentencing, counsel argued the sentence should be adjusted downward because Barbara Bissell had "'accepted responsibility for her deliberate ignorance of facts of which she should have been aware.'" Bissell I, 954 F. Supp. 841, 1996 WL 754808, at *45 (emphasis added).
Deliberate ignorance is "a subjective state of mind that is deemed to satisfy [the] scienter requirement of knowledge." United States v. One 1973 Rolls Royce V.I.N. SRH-16266, 43 F.3d 794, 808 (3d Cir. 1994) ("Rolls Royce") (adopting deliberate ignorance rule in the context of civil forfeiture). Deliberate ignorance is a "state of mind of much greater culpability than simple negligence or recklessness...." Id. (citing with approval United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991); United States v. Rothrock, 806 F.2d 318, 323 (1st Cir. 1986)).
The deliberate ignorance instruction is found in United States v. Jewell, 532 F.2d 697 (5th Cir.), cert. denied, 426 U.S. 951, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976). In Jewell, the defendant had been convicted of knowingly possessing illegal narcotics. 532 F.2d at 698. On appeal, the defendant argued the trial court committed reversible error when it instructed the jury he could be convicted, upon proof beyond a reasonable doubt, even though it determined he lacked positive knowledge a controlled substance was concealed in the automobile he was driving, if his lack of positive knowledge "was solely and entirely because of the conscious purpose on his part to avoid learning the truth." Id. at 698.
The Fifth Circuit held that where "knowledge" of a particular fact is an element of an offense, proof a defendant was subjectively aware of a high probability of the existence of the fact in question is sufficient. The court explained the basis for the deliberate ignorance rule:
The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he [or she] is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.
Jewell, 532 F.2d at 700; see also United States v. Hayden, 64 F.3d 126, 133 (3d Cir. 1995) ("Defendants may not avoid the knowledge requirement of criminal statutes merely by ignoring the high probability they may be breaking the law.").
A deliberate ignorance instruction must make clear the defendant himself or herself was subjectively aware of the high probability of the fact in question, and not merely that a reasonable person would have been aware of the probability. Rolls Royce, 43 F.3d at 808 n.12 (quoting United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977)).
The leading Circuit decision regarding the deliberate ignorance rule is United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985). In Caminos, the defendant was convicted of knowingly importing cocaine into the country and possession of cocaine with intent to distribute. Id. at 362. The Circuit approved the deliberate ignorance instruction given by the trial court, which read, in pertinent part:
Camino, 770 F.2d at 366 (emphasis added).
The instructions on deliberate ignorance in the instant case are substantially similar to the instruction approved in Camino. With regard to the charges of mail fraud, the following instruction was given:
The Government can ... meet its burden of showing that a defendant had actual knowledge of the fraud if it establishes beyond a reasonable doubt that a particular defendant acted with deliberate disregard of whether the statements were true or false or with a conscious purpose of avoiding learning the truth.
If the Government establishes beyond a reasonable doubt that a particular defendant acted with deliberate disregard for the truth, than the knowledge requirement would be satisfied unless the defendant actually believed the statements to be true. This guilty knowledge, however, cannot be established by demonstrating that a defendant was merely negligent or foolish.
Trial Tr. at 2971. With regard to the tax evasion charges, the following instruction was given with regard to deliberate ignorance of the law:
The defendants' knowledge of his or her legal duty to pay income taxes on taxable income may be proved by inferences drawn from evidence that the defendant closed his or her eyes to what would otherwise have been obvious to him or her. Namely that he or she had a duty to pay income taxes on taxable income.
A finding beyond a reasonable doubt of a conscious purpose by the defendant to avoid enlightenment of the law would permit an inference of knowledge. Stated another way, a defendant's knowledge of the fact may be inferred from his or her willful blindness to the existence of a fact.
It is up to you as to whether you find any deliberate closing of the eyes by a defendant you are considering with regard to the requirements for the Internal Revenue laws and inferences to be drawn from such evidence. If you find the defendant's conduct was due to negligence or a good faith mistake of law, that is not sufficient to support a finding of willfulness.
The jury was instructed that to find Barbara Bissell guilty of violating Section 7206(1) it "not only must find that [she] did the acts of which she ... stands charged, but [it] must also find the acts were done knowingly...." Tr. at 3027. The jury was instructed:
When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if you find beyond a reasonable doubt that the defendant was aware of a high probability of its existence and then failed to take action to determine whether or not it was true. It is entirely up to you as to whether you find any deliberate closing of the eyes by a defendant and the inferences to be drawn from such evidence.
A showing of simple negligence or mistake, however, is not sufficient to support a finding of willfulness or knowledge. More is required.
You may find the defendant you are considering acted knowingly and willfully if you find either that he or she knew about the tax liability for the prosecution years or that he or she deliberately closed his or her eyes to what he or she had every reason to believe was the fact.
On the other hand, if you find the defendant was honestly mistaken or merely ignorant about his or her obligation to report certain types of income and to claim certain types of deductions, then you may not find that defendant guilty.
2. Instruction on Deliberate Ignorance
A deliberate ignorance instruction is appropriately given when a defendant asserts a lack of guilty knowledge and there are facts and evidence that support an inference of deliberate ignorance. United States v. Neville, 82 F.3d 750, 760 (7th Cir.), cert. denied, U.S. , 136 L. Ed. 2d 177, 117 S. Ct. 249 (1996). Moreover, where the evidence presented supports both actual knowledge on the part of the defendant and deliberate ignorance, a deliberate ignorance charge is proper. United States v. Abbas, 74 F.3d 506, 513 (4th Cir.) (citing United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.), cert. denied, 510 U.S. 873, 126 L. Ed. 2d 161, 114 S. Ct. 204 (1996); United States v. Arias, 984 F.2d 1139, 1143 (11th Cir.), cert. denied, 508 U.S. 979, 125 L. Ed. 2d 676, 113 S. Ct. 2979 (1993)).
Barbara Bissell suggests "the use of [deliberate ignorance instructions] seems to be confined to contraband cases and drug forfeiture cases which are commonly carried out under clearly suspicious circumstances." Moving Brief at 12 (citing Jewell, 532 F.2d 697). This suggestion is unsupportable. See e.g. United States v. Anderskow, 88 F.3d 245, 251-52 (3d Cir. 1996) (evidence of defendant's willful blindness was sufficient to support element of guilty knowledge necessary to sustain convictions for conspiracy, wire fraud and money laundering). Deliberate ignorance instructions are properly given in both mail fraud and tax evasion cases. See e.g., United States v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994) (mail fraud); United States v. Wisenbaker, 14 F.3d 1022, 1027-28 (5th Cir. 1994) (tax evasion); United States v. Lennartz, 948 F.2d 363, 368-69 (7th Cir. 1991) (mail fraud); United States v. Schnabel, 939 F.2d 197, 204 (4th Cir. 1991) (mail fraud); United States v. Stout, 1990 U.S. Dist. LEXIS 12343, Crim. No. 89-317-1-2-3, 1990 WL 136341, at *26 (E.D.Pa., Sep 18, 1990) (mail fraud), aff'd, 932 F.2d 961 (3rd Cir.) (table), cert. denied, 502 U.S. 870 (1991).
A deliberate ignorance instruction should not be given if there is no evidence the defendant had any knowledge of the facts in question. United States v. Baron, 94 F.3d 1312, 1317 (9th Cir. 1996) (charge improperly given where no evidence that defendant was aware of secret compartments in car or that he suspected that his acquaintance was involved in drug trafficking) (citing United States v. Sanchez-Robles, 927 F.2d 1070, 1074 (9th Cir. 1991)).
Instructing the jury on deliberate ignorance was appropriate in the instant case. Barbara Bissell's defense was that she lacked knowledge of the criminal activity of Nicholas Bissell and Defendants' accountant Thomas Wagner. Moving Brief at 11. As indicated, prior to sentencing, Barbara Bissell argued her sentence should be adjusted downward because she had accepted responsibility for her "deliberate ignorance" of facts. Barbara Bissell's argument that the evidence at trial did not support an instruction on deliberate ignorance is specious. As is discussed below, the evidence at trial overwhelmingly supported an instruction on deliberate ignorance.
3. The Evidence of Deliberate Ignorance
Barbara Bissell argues the evidence demonstrated she "lacked the knowledge that her attorney husband and ... accountant had conspired in a fraudulent skimming/tax evasion scheme...." Moving Brief at 11. She further argues "there were no suspicious circumstances where [she] should have questioned an attorney and an accountant regarding the propriety of the actions they took. There were no signals that would have created an awareness that they were engaged in unlawful conduct." Moving Brief at 12. This argument is frivolous; at trial, there was overwhelming evidence to justify instructing the jury on deliberate ignorance.
Barbara Bissell argues that during the Interview "she stated that she just signed everything at her husband's request without reading it. She believed that there was no reason not to. He was her lawyer and both he and Tom Wagner, the accountant, had superior knowledge and understanding than she had in business matters." Moving Brief at 8. Barbara Bissell also argues she "contended that she signed all of the checks and documents that the government produced and handled the payroll and any other matters under the supervision and subject to the instructions of her attorney husband and their accountant." Id. at 7.
Barbara Bissell's argument "she did not suspect that anything illegal was occurring because she did not suspect that her attorney and accountant were engaged in anything unlawful," Moving Brief at 8, is without merit. The evidence at trial established Barbara Bissell was a "full partner with her husband and assisted him in the criminal conduct." Bissell, 954 F. Supp. 841, 1996 WL 754808, at *52.
During the Interview, Barbara Bissell made a number of false and misleading statements to the Federal investigators. For example, Barbara Bissell falsely denied paying for personal expenses from the Bedminster Station:
CARBONE: Have you ever taken any money out of the bag?
[BARBARA] BISSELL: No sir I haven't.
CARBONE: Have you or your husband ever taken any money out of weekend receipts?
[BARBARA] BISSELL: No sir we haven't. Um, it's, doesn't do very well, the way uh, really the only way that we ever benefit from the station is it pays the gas station, pays gas bills, I don't know like my gas, uh Amoco bill, it'll, and also we put it uh ...