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.” AlstonGraves, 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.” AlstonGraves 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 AlstonGraves “[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 AlstonGraves, 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 AlstonGraves 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

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

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 COMMITTEE ON FEDERAL CRIMINAL JURY

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
12

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

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
13

– 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

the wording of the instructions4 and the limits on the doctrine’s

proper use.5
14

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).

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
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

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

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
17

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”). 

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
18

10 Heredia, 429 F.3d at 824; United States v. de FranciscoLopez, 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).

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
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

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 . . ..”).

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
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.