United States v. Alston-Graves, Lois

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2005 Decided January 27, 2006
Reissued March 17, 2006

No. 04-3095

UNITED STATES OF AMERICA,
APPELLEE

v.

LOIS A. ALSTON-GRAVES, A/K/A LOIS AUSTIN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(03cr00045-02)

W. Douglas Wham, appointed by the court, argued the cause
and filed the briefs for appellant.

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher and Thomas J.
Tourish, Jr., Assistant U.S. Attorneys.

Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.
 2

RANDOLPH, Circuit Judge: This appeal from convictions on
charges of conspiracy and wire fraud raises questions about a
“willful blindness” jury instruction on knowledge. The
instruction allowed the jury to find that the defendant acted
knowingly if she deliberately closed her eyes to obvious facts.
Questions about the propriety of such an instruction and the
circumstances when it may be given have frequently been the
subject of opinions in the other circuits, but have received little
attention in this court. The appeal also presents an issue
regarding sentencing in light of United States v. Booker, 125 S.
Ct. 738 (2005).

I.

The indictment charged John H. Smith, Gwendolyn C.
Jones, and Lois A. Alston-Graves with conspiracy to commit
wire fraud, 18 U.S.C. § 371, and wire fraud, 18 U.S.C. § 1343,
in connection with a scheme to defraud finance companies in
Florida, Colorado, and the District of Columbia. Smith, Jones,
and Alston-Graves allegedly carried out a scheme to induce
lenders into making “factoring” loans to Accurate Computer
Technicians, Inc. (“ACT”), a D.C. corporation Smith founded
that was “supposed to . . . build computers and repair
computers,” but by his own admission “didn’t do anything.”

A “factoring” loan is a short-term commercial loan
provided to a company in need of cash to perform a contract –
in this case, a government contract. The amount loaned is a
percentage of the money due from the government on
outstanding invoices. In exchange for the loan, the company
assigns to the factoring company the proceeds due on the
contract. When a company applies for such a loan, the factoring
company verifies that the contract exists, that the work is being
performed, and that the government will assign the proceeds of
the invoice. The views of the government officer who
 3

administers the contract and authorizes payment are obviously
of critical importance to the prospective lender. The factoring
company also verifies with the government’s disbursing officer
that the government will pay the factoring company. Upon
receiving the assigned proceeds, the factoring company keeps an
amount equal to the loan plus a fee based on a percentage of the
invoice amount.

Smith pled guilty to conspiracy and testified for the
government at the first trial. A jury acquitted Jones and
convicted Alston-Graves on both counts. The district court set
aside Alston-Graves’s conviction and the government retried
her. The evidence at the second trial, viewed in favor of the
government, United States v. Butler, 924 F.2d 1124, 1126 (D.C.
Cir. 1991), showed as follows.

In July 1997, Smith filled out an invitation for bids issued
by the District of Columbia on a computer-related contract. The
paperwork was not something with which Smith was familiar.
He soon decided to use the government contracting process to
make money illegally. Smith consulted a person in his
neighborhood with known expertise in shady dealings. The
individual gave Smith the telephone number of Alston-Graves,
who was employed in the District’s child support enforcement
division at the time. Smith called her, invoked the individual’s
name, and asked for her help with a “fake contract.” Alston-
Graves, suspicious of Smith, asked him to fax a copy of his
driver’s license, which he did. A few days later Smith and
Alston-Graves met. Smith showed her an ACT contract with the
District, saying it was fake and asking her for help in making
money with it. Alston-Graves agreed to pose as the government
contracting officer and told Smith to make a phony invoice and
“shop it around” to finance companies. In return, she demanded
twenty-five percent of the profits from the scheme.
 4

At a second meeting in late summer 1997, Alston-Graves
gave Smith “a certificate of award, a recommendation of award,
payment schedule, and some blank government letterhead.” She
instructed Smith to fill out the portions for the offeror and sign
the relevant documents. Smith then used the paperwork to
convince potential investors to provide $5000 in loans to his
company. In addition to showing the investors “all the
paperwork” Alston-Graves had given him, Smith showed them
two fake checks. The checks, which Alston-Graves prepared,
purported to be partial payments on the contract. In a
conference call with the investors, Alston-Graves acted the part
of a government contracting officer and gave assurances that
“the contract was real.” After Smith received the $5000 in
checks, Alston-Graves asked him to come to her house to cash
the checks. Smith complied, and they cashed the checks at a
nearby liquor store. Smith gave Alston-Graves $2500 to $3000,
which was the amount she demanded.

Around October or November 1997, Smith called Paragon
Financial Group, Inc., a Florida finance company engaged in
factoring. Smith – who identified himself as the Chief
Operating Officer of ACT – dealt with Jon Anselma, a Paragon
partner. Among the documents Smith provided to Anselma
were invoices listing “Lois Austin” – Alston-Graves’s alias – as
the contracting officer. Smith convinced Anselma that ACT had
a five-year contract with the District of Columbia for $1 million
annually. Smith began sending invoices to Anselma, who said
he would need signatures from the government contracting
officer – “Lois Austin” – and the disbursing officer. Gwendolyn
Jones then pretended to be the District’s disbursing officer,
using the name “Mary Ann Whitaker”; Jones demanded $5000
from Smith for her services. Alston-Graves stayed in touch with
Anselma by telephone, confirming that she was the District’s
contracting officer, that the contract existed, that ACT was
performing under the contract, and that the disbursing officer
 5

would soon approve payment. These confirmations were
crucial. Anselma testified that Paragon “would not [have
loaned] money on the invoice had [Alston-Graves] not verified
the contract, and the assignment, and the invoice.” Alston-
Graves also told Anselma about $120,000 monthly payouts to
ACT for computer services. Anselma asked Smith for correct
copies of certified invoices, a written amendment to the contract
reflecting the monthly payouts, and a completed assignment of
the proceeds.

Smith eventually forwarded to Anselma all the documents
he needed, as well as copies of a worksheet reflecting the
authorized work completed on the contract and two invoices
signed by “Lois Austin” reflecting the $120,000 monthly
payouts to ACT. Anselma testified that in reviewing these
papers, he thought Lois Austin’s signatures “looked a little bit
different from each other” and “was concerned that [the
signatures were] forged.” When he called Alston-Graves about
this, she assured him that she had signed the papers and said it
was not necessary for him to fax them for her confirmation.
Anselma insisted. After receiving the documents Alston-Graves
told Anselma that “they were, indeed, her signatures on the
invoices.” Paragon then confirmed with Whitaker (i.e.,
Gwendolyn Jones) that the invoices “were being processed for
payment and Paragon was scheduled to be paid,” and
independently confirmed that ACT was a corporation in good
standing in D.C. In early February 1998, Paragon wired
$83,740 to ACT. Smith used part of the money to repay ACT’s
investors and to pay Alston-Graves $5000.

Anselma testified that when the certified letters he had
mailed to Mary Ann Whitaker and Lois Austin returned to
Paragon in early March, he phoned Alston-Graves to inquire
when Paragon would be paid on the invoice. She told him the
“contract had been cancelled,” to which he replied that he “knew
 6

the contract was bogus.” At this, Alston-Graves “suddenly . . .
got nervous and denied ever talking to [Anselma].” She asked
him “who [he] was and said she had no idea what [he] was
talking about.” Paragon never received its money under the fake
contract assignment.

Meanwhile, the conspirators attempted to carry out two
other frauds. In November 1997, Smith began the same scam
anew, this time with Norwest Business Credit, a Colorado
finance company. Smith sent Norwest the same documents he
had sent Paragon: “the certificate, award of certificate, the
memorandum, and the recommendation for award,” as well as
phony October and November invoices. When Smith told
Alston-Graves he “had gotten in contact with Norwest,” she was
pleased and said “[s]he would pose as a contracting officer.”
She told Smith to “get as much money as possible.”

Smith called Cynthia Lynn Anderson of Norwest in January
1998, identifying himself as the CEO of ACT, Inc. and telling
her he “had a government contract” that he wanted Norwest to
factor. During that conversation, Anderson conveyed some
concerns regarding the paperwork Smith had sent. When she
challenged him about the paperwork, he told her to call “Lois
Austin,” the “contracting officer.” Anderson called Alston-
Graves “[i]mmediately” to ask her to verify the invoices Smith
had sent. Alston-Graves made three comments that troubled
Anderson. Without hesitation, Alston-Graves indicated that
ACT “was a great company” and had “[d]one a very, very good
job.” It surprised Anderson that Alston-Graves, who purported
to be part of a large government organization, would be so
familiar with ACT. Alston-Graves also said the money was
ready to be wired to Norwest, which was troubling for two
reasons: first, because Anderson had never conveyed Norwest’s
wiring information, and, second, because ACT had no reason to
 7

pursue a loan from Norwest if the money was ready to be sent.
Norwest ultimately declined ACT’s loan application.

Smith and Alston-Graves attempted an identical scheme
with Prinvest, a finance company based in Washington, D.C.
This was their largest attempted fraud – they sought a loan of $1
to $5 million based on a bogus $240 million contract. The
Prinvest fraud began in late 1997 when Alston-Graves gave
Smith a fake contract with instructions to “shop it around” and
“get as much money as possible.” She also told him to “identify
her as a contracting officer.” Smith called Prinvest and spoke
with George Hajimihalis. When Hajimihalis called Alston-
Graves, she identified herself as “the contracting officer that had
awarded th[e] contract,” confirmed the amount, and confirmed
that the contract “had been awarded to Mr. Smith.” Despite
these confirmations, Hajimihalis’s supervisor declined the
application.

In addition to the foregoing evidence, the government
introduced Alston-Graves’s testimony from the first trial. By
Alston-Graves’s account, Smith contacted her through a mutual
friend, and she later spoke with Smith and his mother in Smith’s
car while it was parked in Alston-Graves’s driveway. Smith’s
mother pled for her son’s life, telling Alston-Graves that Smith’s
life was in danger because he owed money to “some Italian
Mafia people,” that she (Smith’s mother) already had refinanced
her home, and that they needed Alston-Graves’s help. In
Alston-Graves’s version of the story, Smith showed her a
contract bearing ACT’s logo and indicating ACT owed $60,000.
He explained that he needed a place to cash some business
checks after hours. Alston-Graves took him to the liquor store
where she succeeded in cashing the checks. Smith then handed
her $3000 of the proceeds.
 8

Alston-Graves maintained that she simply did a few favors
for Smith, primarily giving to inquiring callers “some letters and
numbers” Smith had provided her. She denied knowing what
the letters and numbers were for – bank accounts or similar
financial information related to his debts, she thought. While
she admitted posing as ACT’s contracting officer, she claimed
that she never pretended to be a government contracting officer.
Alston-Graves said she never knew what ACT did or what the
contracts were for and certainly did not know that Smith was
defrauding lenders. She stopped helping Smith because the
telephone calls during working hours were interfering with her
job.

In response to the government’s evidence, Alston-Graves
presented several witnesses, including a forensic document
examiner and Gwendolyn Jones. The document examiner
testified that the documents allegedly signed by Alston-Graves
in the name “Lois Austin” “were not prepared in the normal
handwriting of Lois Alston-Graves,” and that “in all likelihood
she did not prepare the[] signatures.” However, he could not
rule out the possibility that she disguised her handwriting.
Gwendolyn Jones’s testimony corroborated some portions of
Alston-Graves’s account. Like Alston-Graves, Jones agreed –
at John Smith’s request – to give numbers to a man who would
call looking for them. She agreed to do this after Smith “led
[her] to believe that someone was trying to kill him” because he
“owed them money.” For fear that the person threatening
Smith’s life might threaten her life too, Jones chose the alias
Mary Ann Whitaker. Jones admitted speaking with Anselma of
Paragon – she thought he was a loan shark. But she said she had
not heard of ACT until being questioned by investigators in this
case. Jones said she and Alston-Graves were friends and had
known each other for eight years.
 9

At the government’s urging the district court not only gave
the standard charge on “knowingly,” but also gave a “willful
blindness” charge:

When the word “knowingly” or the phrase “the
defendant knew” is used in these instructions, it means that
the defendant realized what she was doing and was aware
of the nature of her conduct and did not act through
ignorance, mistake or accident.

The government may prove that the defendant acted
“knowingly” by proving, beyond a reasonable doubt, that
this defendant deliberately closed her eyes to what would
otherwise have been obvious to her. No one can avoid
responsibility for a crime by deliberately ignoring what is
obvious. A finding beyond a reasonable doubt of an intent
of defendant to avoid knowledge or enlightenment would
permit the jury to find knowledge. Stated another way, a
person’s knowledge of a particular fact may be shown from
a deliberate or intentional ignorance or deliberate or
intentional blindness to the existence of that fact.

It is, of course, entirely up to you as to whether you
find any deliberate ignorance or deliberate closing of the
eyes and any inferences to be drawn from any such
evidence. You may not conclude that defendant had
knowledge, however, from proof of a mistake, negligence,
carelessness, or a belief in an inaccurate proposition.

II.

The main issue is whether the district court erred in giving
the willful blindness instruction contained in the last two
paragraphs above.
 10

Both of the counts on which the jury found Alston-Graves
guilty required the government to prove that she acted
knowingly. The elements of the conspiracy offense were that
she entered into an agreement with Smith to commit wire fraud,
that she knowingly participated in the conspiracy with the intent
to commit wire fraud, and “‘that at least one overt act was
committed in furtherance of the conspiracy.’” United States v.
Mellen, 393 F.3d 175, 180-81 (D.C. Cir. 2004) (quoting United
States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996)). The
elements of the wire fraud offense were that she knowingly and
willingly entered into a scheme to defraud and that an interstate
wire communication was used to further the scheme. See, e.g.,
United States v. Maxwell, 920 F.2d 1028, 1035-36 (D.C. Cir.
1990).

The evidence supporting Alston-Graves’s conviction on
both counts, and particularly the evidence that she acted
knowingly, was overwhelming. Viewed in the light most
favorable to the government, the evidence showed that Alston-
Graves assisted Smith in fraudulently obtaining, and in
attempting to obtain, money from multiple finance companies;
that she adopted an alias – “Lois Austin” – to accomplish this;
that she falsely posed as a government contracting officer; that
in telephone conversations from her District government office
she falsely represented to finance company officers that ACT
was performing contracts with the District, for which it had
earned substantial sums; that she prepared false documents,
which Smith then sent to the finance companies; and so forth.

Why in the face of this mountain of evidence the
prosecution sought, and the district court gave over a defense
objection, a willful blindness instruction is difficult to fathom.
The instruction, although taken from pattern jury instructions,
1A KEVIN F. O’MALLEY ET AL., FEDERAL JURY PRACTICE AND
JURY INSTRUCTIONS, CRIMINAL § 17.09, at 653 (5th ed. 2000),
 11

is problematic. The district court first correctly told the jury that
“the word ‘knowingly’ . . . means that the defendant realized
what she was doing and was aware of the nature of her conduct
and did not act through ignorance, mistake or accident.” E.g.,
United States v. Graham, 431 F.3d 585, 590 (7th Cir. 2005)
(quoting C OMMITTEE ON F EDERAL C RIMINAL J URY
INSTRUCTIONS FOR THE SEVENTH CIRCUIT, PATTERN CRIMINAL
FEDERAL JURY INSTRUCTIONS FOR THE SEVENTH CIRCUIT § 4.06
(1998), available at http://www.ca7.uscourts.gov/Rules/pjury
.pdf); accord United States v. Mercado, 412 F.3d 243, 250-52
(1st Cir. 2005); United States v. Sinskey, 119 F.3d 712, 715 (8th
Cir. 1997). The court then instructed that “a person’s
knowledge of a particular fact may be shown from a deliberate
or intentional ignorance or deliberate or intentional blindness to
the existence of that fact.” It makes obvious sense to say that a
person cannot act “knowingly” if she does not know what is
going on. To add that such a person nevertheless acts
“knowingly” if she intentionally does not know what is going on
is something else again.1

1
United States v. Jewell, 532 F.2d 697, 700-04 (9th Cir. 1976)
(en banc), one of the more frequently cited willful blindness cases,
upheld an instruction that the defendant acted knowingly if his
ignorance resulted from his conscious decision “to avoid learning the
truth.” Commenting on the case, Husak and Callender state that

[l]iability was not predicated on a finding of knowledge, but
rather on a particular explanation of why the defendant
remained ignorant. But it is hard to see how ignorance, from
whatever cause, can be knowledge. A particular explanation
of why a defendant remains ignorant might justify treating
him as though he had knowledge, but it cannot, through some
mysterious alchemy, convert ignorance into knowledge.

Douglas N. Husak & Craig A. Callender, Wilful Ignorance,
Knowledge, and the “Equal Culpability” Thesis: A Study of the
 12

Yet in the federal courts, willful blindness instructions –
sometimes called “deliberate ignorance” or “conscious
avoidance” or “ostrich” instructions – are now commonly given
and commonly upheld. All of the other circuits with criminal
jurisdiction have approved such instructions for a wide range of
criminal offenses,2 although the courts’ rationales vary,3 as do

Deeper Significance of the Principle of Legality, 1994 WIS. L. REV.
29, 52 (footnote omitted).
2
Some of the more recent decisions are: United States v.
Freeman, No. 04-30037, 2005 WL 3525612, at *5-6 (5th Cir. Dec. 23,
2005) (conspiracy, 18 U.S.C. § 371; wire fraud, 18 U.S.C. § 1343;
travel fraud, 18 U.S.C. § 2314; and money laundering, 18 U.S.C.
§ 1957); United States v. Arias, 431 F.3d 1327, 1335 (11th Cir. 2005)
(conspiracy, 18 U.S.C. § 371); United States v. Epstein, 426 F.3d 431,
440-41 (1st Cir. 2005) (mail fraud, 18 U.S.C. § 1341); United States
v. Wasserson, 418 F.3d 225, 237-39 (3d Cir. 2005) (improper disposal
of hazardous waste, 42 U.S.C. § 6928(d)); United States v. Zedner,
401 F.3d 36, 50-51 (2d Cir. 2005) (bank fraud, 18 U.S.C. § 1344);
United States v. Sdoulam, 398 F.3d 981, 993-95 (8th Cir. 2005)
(chemical distribution with reason to believe it would be used to
manufacture methamphetamine, 21 U.S.C. § 841(c)); United States v.
Jaffe, 387 F.3d 677, 681 (7th Cir. 2004) (wire fraud, 18 U.S.C.
§ 1343); United States v. Carney, 387 F.3d 436, 448-49 (6th Cir.
2004) (firearms transactions violations, 18 U.S.C. §§ 922, 924);
United States v. Collins, 372 F.3d 629, 634 (4th Cir. 2004) (money
laundering, 18 U.S.C. § 1956); United States v. Soussi, 316 F.3d 1095,
1106-07 (10th Cir. 2002) (unlawful exportation of goods, 50 U.S.C.
§§ 1702, 1705); United States v. Shannon, 137 F.3d 1112, 1117-18
(9th Cir. 1998) (interference with commerce by threatened physical
violence, 18 U.S.C. § 1951; mailing a threatening communication, 18
U.S.C. § 876).

Some criminal statutes on their face require that a defendant
act “knowingly” to be guilty. E.g., 18 U.S.C. § 152 (concealment of
assets in bankruptcy); id. § 1344 (bank fraud). Other criminal statutes
 13

the wording of the instructions4 and the limits on the doctrine’s
proper use.5

– like those Alston-Graves was convicted of violating – require
knowledge as a result of judicial interpretation, not statutory text.
E.g., id. § 371 (conspiracy); id. § 1343 (wire fraud). Courts reviewing
convictions premised on willful blindness do not seem to draw this
distinction.
3
One rationale is that a defendant who deliberately remains
ignorant is just as culpable as a defendant who is fully informed.
Jewell, 532 F.2d at 700. Another is that “criminal recklessness . . . is
the legal equivalent of knowledge.” United States v. Ramsey, 785
F.2d 184, 189 (7th Cir. 1986). Still another is that “one ‘knows’ facts
of which he 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.” United States v. Graham, 739 F.2d 351, 353
(8th Cir. 1984); see also United States v. Adeniji, 31 F.3d 58, 62 (2d
Cir. 1994) (“The rationale for the conscious avoidance doctrine is that
a defendant’s affirmative efforts to ‘see no evil’ and ‘hear no evil’ do
not somehow magically invest him with the ability to ‘do no evil.’”)
(internal quotation marks omitted).
4
See, e.g., Sdoulam, 398 F.3d at 993 n.8; United States v.
Mari, 47 F.3d 782, 784-85 (6th Cir. 1995); United States v. Manriquez
Arbizo, 833 F.2d 244, 248 (10th Cir. 1987); Ramsey, 785 F.2d at 190-
91.
5
Some of the more recent decisions are: Freeman, 2005 WL
3525612, at *5 (permitting “deliberate indifference” instruction when
“(1) the defendant was subjectively aware of a high probability of the
existence of illegal conduct; and (2) the defendant purposely contrived
to avoid learning of the illegal conduct”) (quoting United States v.
Scott, 159 F.3d 916, 922 (5th Cir. 1998)); United States v. Heredia,
429 F.3d 820, 824 (9th Cir. 2005) (“[T]he instruction is ‘rarely
appropriate,’ and should be given only when the government presents
‘specific evidence’ that the defendant ‘(1) actually suspected that he
 14

The trend in favor of allowing a willful blindness
instruction may have been accelerated by a 1962 proposed draft
of the Model Penal Code, which has since become official. The
Code defines knowledge of a fact to include a situation in which
“a person is aware of a high probability of [the fact’s] existence,
unless he actually believes that it does not exist.” MODEL
PENAL CODE § 2.02(7) (Official Draft and Revised Comments
1985). The Commentary explains that this definition was
designed for “the case of the actor who is aware of the probable
existence of a material fact but does not determine whether it
exists or does not exist.” Id. § 2.02 cmt. 9. As Judge Friendly
put it, “[t]his received at least nodding approval in Leary v.
United States, 395 U.S. 6, 46 n.93 (1969) and perhaps more than

or she might be involved in criminal activity, (2) deliberately avoided
taking steps to confirm or deny those suspicions, and (3) did so in
order to provide himself or herself with a defense in the event of
prosecution.’”) (quoting United States v. Baron, 94 F.3d 1312, 1318
n.3 (9th Cir. 1996)); Sdoulam, 398 F.3d at 993 (“‘A deliberate
ignorance instruction is appropriate when the defendant asserts a lack
of guilty knowledge, but the evidence supports an inference of
deliberate ignorance.’”) (quoting United States v. Hildebrand, 152
F.3d 756, 764 (8th Cir. 1998)); United States v. Espinoza, 244 F.3d
1234, 1242 (10th Cir. 2001) (permitting use of “deliberate ignorance”
instruction “‘only when the prosecution presents evidence that the
Defendant purposely contrived to avoid learning all the facts in order
to have a defense in the event of a subsequent prosecution’”) (quoting
United States v. Hanzlicek, 187 F.3d 1228, 1233 (10th Cir. 1999));
United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000)
(permitting “conscious avoidance” instruction only if: (1) “the
defendant asserts the lack of some specific aspect of knowledge
required for conviction,” and (2) “‘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’”) (quoting United States
v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)) (alterations in
original).
 15

that in Turner v. United States, 396 U.S. 398, 416 & n.29
(1970), although in neither case did the trial judge use the
definition in a charge.” United States v. Jacobs, 475 F.2d 270,
287 (2d Cir. 1973) (citations altered). Judge Friendly was
understandably reluctant to attribute too much to the Supreme
Court’s mention of the Model Penal Code’s definition of
knowledge. The Court never cited the Commentary, which
explained the purpose of the definition. And the definition’s
“high probability” qualification, standing alone, could be taken
to mean simply that knowledge need not entail absolute
certainty. “To demand that a proposition be certain in order to
be known . . . would severely restrict the extent of our
knowledge, perhaps to the vanishing point.” THEODORE SCHICK,
JR. & LEWIS VAUGHN, HOW TO THINK ABOUT WEIRD THINGS:
CRITICAL THINKING FOR A NEW AGE 100 (1995).

In this court, United States v. Gallo, 543 F.2d 361, 367
(D.C. Cir. 1976), quoted Judge Friendly’s opinion in Jacobs
with approval and held that 18 U.S.C. § 2314 – which
criminalizes transporting stolen property “knowing the same to
have been stolen” – does not require proof of the defendant’s
“actual knowledge.” By this Gallo seems to have meant that
circumstantial evidence of the defendant’s knowledge that the
property was stolen would suffice. The court added: “It may be
true in a given case, such as where the notice was clear and was
wilfully ignored, that evidence of such facts may be considered
by the jury as part of the proof that an accused possessed the
requisite knowledge.” Gallo, 543 F.2d at 367 (emphasis added).
In reversing the conviction, Gallo suggested “[f]or possible use
on remand” an instruction “based on the charge given and
approved in [Jacobs].” Id. at 368-69 & 368 n.6 (citing Jacobs,
475 F.2d at 287 n.37). Part of that suggested instruction states
that guilty knowledge “may be satisfied by proof that the
defendant deliberately closed his eyes to what otherwise would
have been obvious to him.” Id. at 368 n.6.
 16

In United States v. Mellen, 393 F.3d 175 (D.C. Cir. 2004),
our only other opinion addressing the matter, we reviewed the
sufficiency of the evidence supporting the defendant’s
conviction for receipt of stolen government property. Although
a willful blindness instruction had been given to the jury, Mellen
did not challenge his conviction on that basis. Nevertheless,
after finding “ample evidence” showing that Mellen “knew . . .
the[] goods were stolen,” we stated in dicta that “guilty
knowledge” may be shown by proof “that, when faced with
reason to suspect he is dealing in stolen property, the defendant
consciously avoided learning that fact.” Id. at 181. For the
latter proposition we cited United States v. Reyes, 302 F.3d 48,
54-55 (2d Cir. 2002). Reyes, on the pages cited, summarized the
law of the Second Circuit regarding willful blindness
instructions in conspiracy cases.6

One problem with the various formulations of this
instruction is that the jury might convict a defendant for acting
recklessly7 – a problem the drafters of the Model Penal Code

6
The Reyes court stated that in a conspiracy case, “the jury
may use the conscious avoidance doctrine to establish the defendant’s
knowledge of the aims of the conspiracy but . . . may not use it to
establish the defendant’s intent to participate in the conspiracy.” 302
F.3d at 55. The Second Circuit may have retreated from this
proposition, which it later described as “pure dictum.” United States
v. Svoboda, 347 F.3d 471, 478 (2d Cir. 2003).
7
See Robin Charlow, Wilful Ignorance and Criminal
Culpability, 70 TEX. L. REV. 1351, 1382-90 (1992) (comparing willful
ignorance to knowledge and recklessness and concluding that “most
definitions of wilful ignorance delineate a mens rea that is the
equivalent neither of knowledge nor recklessness”); Ira P. Robbins,
The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens
Rea, 81 J. CRIM. L. & CRIMINOLOGY 191, 220-27 (1990) (discussing
the similarity of willful blindness to recklessness and arguing that the
 17

recognized8 – or even for acting negligently.9 Negligence and
recklessness are not the same as intentional and knowing
conduct. We have held in a civil context that a defendant acts
with extreme recklessness if he “encountered ‘red flags,’ or
‘suspicious events creating reasons for doubt’ that should have
alerted him to the improper conduct.” Howard v. SEC, 376 F.3d
1136, 1143 (D.C. Cir. 2004) (quoting Graham v. SEC, 222 F.3d
994, 1006 (D.C. Cir. 2000)). Yet willful blindness instructions
have been justified when “record evidence reveals ‘flags’ of
suspicion that, uninvestigated, suggest willful blindness.”
United States v. Epstein, 426 F.3d 431, 440 (1st Cir. 2005)
(quoting United States v. Coviello, 225 F.3d 54, 70 (1st Cir.
2000)); see also United States v. Craig, 178 F.3d 891, 898 (7th
Cir. 1999) (affirming conviction based on willful blindness
because defendant “saw and experienced enough suspicious

Model Penal Code “has merely renamed recklessness with respect to
existing facts in order to reach the deliberately ignorant defendant”).
8
See MODEL PENAL CODE § 2.02 cmt. 9.
9
E.g., United States v. Del Aguila-Reyes, 722 F.2d 155, 157
(5th Cir. 1983) (“From these suspicious facts, it was reasonable for the
jury to infer that Del Aguila-Reyes should have known that his trip to
Miami was prompted for some additional, probably illegal, reason.”);
see also Jewell, 532 F.2d at 707 (Kennedy, J., dissenting) (“The
failure to emphasize, as does the Model Penal Code, that subjective
belief is the determinative factor, may allow a jury to convict on an
objective theory of knowledge that a reasonable man should have
inspected the car and would have discovered what was hidden
inside.”); Robbins, supra note 7, at 227-29 (arguing that even though
“[b]oth prongs of the Model Penal Code formulation protect the
defendant from conviction for merely negligent behavior. . . . trial
judges and reviewing courts often give or approve jury instructions
that . . . eliminat[e] even the minimal safeguards that these provisions
afford”).
 18

activities to raise several red flags,” which “supports an
inference that she consciously chose not to pursue the truth”).

For all these reasons, many of the courts of appeals
admonish that “[c]aution is necessary in giving a willful
blindness instruction.” United States v. Cassiere, 4 F.3d 1006,
1023 (1st Cir. 1993). Some say that such an instruction is
“rarely appropriate,”10 or only proper in “rare circumstances”11
or “rare cases.”12 Others are “wary of giving a willful blindness
instruction,”13 or advise that the instruction be given only
“sparingly.”14

We began this discussion by wondering why, in light of the
evidence, a willful blindness instruction was even given in this
case. The only defense objection at trial was to the lack of an
evidentiary predicate for the instruction. Now that the case is on
appeal, Alston-Graves also complains about the wording of the
instruction and its use in a conspiracy prosecution. As to these
complaints, we could reverse only if the district court committed
plain error. United States v. Thompson, 279 F.3d 1043, 1049

10
Heredia, 429 F.3d at 824; United States v. de Francisco-
Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991).
11
United States v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999);
accord United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.
2003); Espinoza, 244 F.3d at 1242.
12
United States v. Concha, 233 F.3d 1249, 1252 (10th Cir.
2000); United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000).
13
United States v. Mancuso, 42 F.3d 836, 846 (4th Cir. 1994).
14
United States v. Inv. Enters., Inc., 10 F.3d 263, 269 (5th Cir.
1993); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.
1991).
 19

(D.C. Cir. 2002); see FED. R. CRIM. P. 30(d); FED. R. CRIM. P.
52(b). Given the state of the law in this circuit, and in the other
courts of appeals, any error – if there was one – could hardly be
considered plain. See United States v. Olano, 507 U.S. 725,
732-34 (1993).

As to the factual predicate for the instruction, we agree with
Alston-Graves that there was none. Some courts hold that a
willful blindness instruction should not be given unless there is
evidence that the defendant “purposely contrived to avoid
learning all the facts in order to have a defense in the event of a
subsequent prosecution.” United States v. Espinoza, 244 F.3d
1234, 1242 (10th Cir. 2001) (quoting United States v. Hanzlicek,
187 F.3d 1228, 1233 (10th Cir. 1999)) (internal quotation mark
omitted); accord United States v. Heredia, 429 F.3d 820, 824
(9th Cir. 2005); United States v. Puche, 350 F.3d 1137, 1149
(11th Cir. 2003); United States v. Willis, 277 F.3d 1026, 1032
(8th Cir. 2002). Other circuits hold that there must be evidence
“that [the defendant] was aware of a high probability [of the fact
in dispute] and consciously avoided confirming that fact.”
United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000)
(quoting United States v. Rodriguez, 938 F.2d 455, 458 (2d Cir.
1993)) (alterations in original; internal quotation mark omitted);
accord United States v. Freeman, No. 04-30037, 2005 WL
3525612, at *5-6 (5th Cir. Dec. 23, 2005). There are other
variations, see, e.g., supra note 5, but none of them remotely
justified giving a willful blindness instruction in this case, see
Ferrarini, 219 F.3d at 157-58.

The only instance of deliberate ignorance or willful
blindness the prosecutor cited in his closing argument concerned
Alston-Graves’s initial refusal to accept documents from
Anselma, the finance company officer, who wanted to fax them
to her because he suspected the signatures of “Lois Austin” were
forged. The district court also relied on this incident in granting
 20

the prosecution’s request to give the instruction. We cannot
understand how Alston-Graves engaged in deliberate ignorance
in this exchange with Anselma. She was posing as Lois Austin
at the time and she, above anyone else, would have known
whether she had signed the documents or not. Far from feigning
ignorance, she told Anselma that the signatures were hers. And
when he did fax the documents to her, Alston-Graves confirmed
again that she had signed “Lois Austin” on the documents. Her
conduct of course was criminal, regardless whether she signed
the documents or not. The documents were phony and not just
because she was using a phony name. But the point is that
nothing in her actions amounted to an attempt to remain ignorant
of some fact bearing on the criminality of her endeavors.15

To illustrate, suppose an individual is driving someone
else’s vehicle and suppose the vehicle has a hidden compartment
containing drugs. No one would say that the driver engaged in
deliberate ignorance when, in response to the owner’s invitation
to see what is in the hidden compartment, the driver replies that
he does not need to look inside because he put the drugs in there
himself. That is exactly the situation here with respect to the
Lois Austin signatures Anselma wanted Alston-Graves to
examine for authenticity.

For many of the reasons just stated, the error in giving the
willful blindness instruction was harmless. The incident

15
Some courts hold that a willful blindness instruction may be
given even though there is sufficient evidence that the defendant acted
knowingly. See, e.g., United States v. Wert-Ruiz, 228 F.3d 250, 257
(3d Cir. 2000) (“[B]ecause the jury could selectively discredit some of
the evidence in the prosecution’s case, the existence of evidence that
points to actual knowledge does not preclude consideration of other
evidence that points to a finding that [the defendant] was wilfully
blind . . ..”).
 21

involving the signatures was of minor significance compared to
the rest of the prosecution’s evidence. No reasonable juror
would have treated that incident in the manner the instruction
permitted; there was no factual basis for viewing her conduct as
conscious avoidance. The balance of the evidence against
Alston-Graves was untouched by the instruction, and, as we
have said, that evidence showed beyond doubt that she
committed the offenses for which the jury found her guilty. Just
like other errors that occur at trial, erroneous instructions – even
unconstitutional instructions, which this is not – can be
harmless. See, e.g., Rose v. Clark, 478 U.S. 570, 579-80 (1986);
United States v. Carney, 387 F.3d 436, 449 (6th Cir. 2004)
(“[E]ven a legally-erroneous jury charge will not justify reversal
of a conviction if its probable effect on the verdict was
inconsequential.”); United States v. Wells, 262 F.3d 455, 466
(5th Cir. 2001) (“[E]rror in giving the deliberate ignorance
instruction is . . . harmless where there is substantial evidence of
actual knowledge.”) (second alteration in original; internal
quotation marks and citation omitted); accord Ferrarini, 219
F.3d at 157; United States v. Whittington, 26 F.3d 456, 464 (4th
Cir. 1994).

III.

Operating in the period between Blakely v. Washington, 542
U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738
(2005), the district court concluded that as a consequence of
Blakely, the mandatory regime of the U.S. Sentencing
Guidelines was invalid. The court therefore considered the
guidelines “helpful and instructive” and imposed a discretionary
sentence. In its factual findings based on a preponderance of the
evidence, the court concluded that the loss amount for
sentencing purposes was “in the neighborhood of just shy of
$800,000.” On that basis, the court enhanced Alston-Graves’s
base offense level from 6 to 17. The court further increased the
 22

offense level by four levels – adding two for more-than-minimal
planning and two for misrepresenting that she acted on behalf of
a government agency – making a total level of 21. Based on a
criminal history category of I, the court determined the
applicable Guidelines range to be 37-46 months. Nevertheless,
the court in its discretion imposed a prison sentence of 27
months. The defense urged the court to discard the Sentencing
Guidelines’s enhancement provisions and determine the range
of sentence “solely on the basis of facts found by the jury
beyond a reasonable doubt.” Br. of Appellant 31. Had her
argument prevailed, Alston-Graves claims her base offense level
would have been 6, her criminal history category I, and the
sentencing range 0-6 months because the jury did not make any
specific factual findings.

After Alston-Graves’s sentencing, the Supreme Court
decided in Booker that the Sentencing Guidelines are now
“effectively advisory,” given the Sixth Amendment principles
first articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, 125 S. Ct. at 757. Alston-Graves now argues that due
process and ex post facto principles preclude application of the
Booker remedy to her case because it deprives her of the full
benefit of Booker’s Sixth Amendment holding. She makes this
argument despite the Supreme Court’s explicit instruction to
apply both the Sixth Amendment and remedial holdings of
Booker “to all cases on direct review.” 125 S. Ct. at 769.

The due process claim, resting on ex post facto principles,
can succeed only if Alston-Graves did not have fair warning of
the potential punishment at the time of her conduct. See Rogers
v. Tennessee, 532 U.S. 451, 459 (2001); Bouie v. City of
Columbia, 378 U.S. 347, 355 (1964). Other courts of appeals
have rejected arguments of this sort and we do the same. E.g.,
United States v. Jamison, 416 F.3d 538, 539-40 (7th Cir. 2005)
(citing cases); accord United States v. Dupas, 417 F.3d 1064,
 23

1068-69 (9th Cir. 2005); United States v. Duncan, 400 F.3d
1297, 1306-08 (11th Cir. 2005). In 1997 and 1998, when
Alston-Graves engaged in criminal conduct, anyone committing
wire fraud and conspiracy was subject to the statutory maximum
sentence of five years for each crime. 18 U.S.C. §§ 371, 1343
(1994); see id. § 3551 et seq.; Duncan, 400 F.3d at 1307. In a
case like this one, in which the sentence imposed falls within
both the statutory maximum and the Guidelines range, a
defendant cannot reasonably claim unfair notice of potential
punishment. See United States v. Vaughn, 430 F.3d 518, 524-25
(2d Cir. 2005); United States v. Lata, 415 F.3d 107, 112 (1st Cir.
2005). Alston-Graves therefore had ample warning of the
potential sentence that could be imposed when she committed
her crimes and had no reason to expect a lesser sentence. Cf.
Dobbert v. Florida, 432 U.S. 282, 297-98 (1977) (“[T]he
existence of the statute served as an ‘operative fact’ to warn the
petitioner of the penalty which Florida would seek to impose on
him if he were convicted . . .. This was sufficient compliance
with the ex post facto provision of the United States
Constitution.”). Marks v. United States, 430 U.S. 188 (1977), on
which Alston-Graves relies, is not to the contrary. See id. at
196-97. Her due process rights were not violated.

We therefore hold that by giving the jury the willful
blindness instruction the district court committed harmless error
and that application of the remedial holding in Booker does not
violate ex post facto principles of due process.

Affirmed.