## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 23 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BILL HANZLICEK,

Defendant-Appellant. No. 97-5180

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 96-CR-115-BU)
Craig Bryant, Tulsa, Oklahoma, for Defendant-Appell ant Bill Hanzlicek. Neal B. Kirkpatrick, Assistant United States Attorn ey, (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Okl ahoma, for Plaintiff-Appellee.

Before ANDERSON , KELLY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2- I. INTRODUCTION Bill Hanzlicek was convicted, following a jury tria l, of one count of conspiracy in violation of 18 U.S.C. § 371, two cou nts of mail fraud in violation of 18 U.S.C. § 1341, and one count of attempting to pass a falsely made obligation of the United States in violation of 18 U.S.C. § 472. Hanzlicek’s convictions arose out of a conspiracy on the part o f himself and others to avoid their debts through the use of fraudulent “checks.” Hanzlicek raises the following five alleged errors in asserting that his convictio ns should be reversed on appeal: (1) an impermissible variance existed between the i ndictment, which alleged a single conspiracy, and the government’s proof at tr ial, which supposedly established the existence of multiple conspiracies; (2) the district court erred in tendering a deliberate ignorance instruction to the jury; (3) the district court erred in allowing a government agent to give hearsay test imony regarding $1.8 million in losses supposedly sustained from similar/relatedfraudulent checks; (4) the government violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), in failing to produce evidence of any losses resulting from the Schweitzer checks; and (5) the evidence was not sufficient to support his conviction for passing a counterfeit obligation in violation of § 472. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms

.1 The Hanzliceks were tried jointly and were both con victed on the same

counts. Although Mrs. Hanzlicek also appealed her convictions, this court recently dismissed her appeal under the fugitive di sentitlement doctrine. See United States v. Hanzlicek, No. 97-5172, slip op. at 5 (10 thCir. Aug. 16, 1999).

2 Although the jury convicted Hanzlicek on the bank-f raud count, the district court granted Hanzlicek’s motion for dismissal of the bank-fraud conviction because the government failed to prove that the FGB Reality Advisors, Inc., the victim of the scheme, was a financial institution a s required under 18 U.S.C. § 1344(1). -3- II. BACKGROUND Hanzlicek and his wife, Karen Hanzlicek (hereinafte r “Mrs. Hanzlicek”), 1 were charged by indictment with conspiracy, bank fr aud, 2 mail fraud, and passing a counterfeit obligation of the United States. The charges arose out of the Hanzliceks’ participation in two related anti-gover nment groups: the Kansas “common law court” and the Freeman movement headqua rtered in Montana. As part of a scheme engaged in and supported by both g roups, the Hanzlicek’s mailed counterfeit checks totaling $1,240,000 to banks, ba nk subsidiaries, and others. The Hanzliceks acquired the fraudulent checks and l earned the methodology of the scheme from LeRoy M. Schweitzer, the leader of the Montana Freemen. Specifically, the Hanzliceks mailed or hand deliver ed the following fraudulent checks to creditors in an attempt to sat isfy their personal debts: $1,000,000 to the recorder of Jackson County, Kansa s, for a notary public bond3 Such a bond need only be in the amount of $7500. See Kan. Stat. Ann. §

53-102.

4 The common law court movement is described in the i ndictment as “an informal, unofficial organization, [that is] falsel y and fraudulently styled a ‘common law court,’ located in Netawake, Kansas.” Mrs. Hanzlicek was involved in setting up such a system in Kansas based on the procedures Schweitzer taught her during his seminar. Hanzlicek identified himse lf in signed documents as a “justice of the peace, pro tempore” of this common law court.

-4- for Hanzlicek 3 ; $180,000 to FGB Realty Advisors, Inc. (a wholly o wned subsidiary of First Nationwide Bank) to satisfy a $ 56,000 debt; $60,000 to Ag America (FCB) to satisfy a debt of $35,619. Becaus e the checks were for amounts much greater than the debts owed, the Hanzl iceks requested refunds of the remaining amounts. The superseding indictment charged that the Hanzliceks, with the help of unindicted co-conspirator Rockie B roaddus, a “de jure notary public” and “sui juris” of the common law court, 4 mailed a false and fraudulent “Common Law Affidavit of protest” to some of the vi ctims when the checks were not honored. Tommie Canady, a FBI special agent who investigated the criminal activities of Schweitzer and the Montana Freemen, t estified for the government. His testimony included information from an FBI inve stigation that began monitoring Schweitzer seminars in December of 1995. At the seminars, Schweitzer discussed the use of fraudulent checks t o avoid the payment of debts and to obtain large refunds of “overpayments.” The se “checks” contained the-5-

caption “Certified Banker’s Check” and/or “Comptrol ler Warrant” and bore the number of a Norwest Bank account. Persons attendin g a Freemen seminar received these checks after attending the meeting, usually after paying Schweitzer a donation. In addition, seminar attendees were ta ught to file a lien against those to whom the checks were presented in the event the checks were not honored. On July 21 and November 4, 1995, Mrs. Hanzlicek attend ed Freemen seminars in Montana presented by Schweitzer. The government also introduced and played taped con versations between Mrs. Hanzlicek and Schweitzer. These recordings we re the result of government wiretaps. The conversations included discussion ab out the checks, liens, and procedures Schweitzer wanted his classes to follow, the Freemen movement, and the “common law court” movement in Kansas.

III. ANALYSIS A. Variance Between Indictment and Proof at Trial Hanzlicek argues that an impermissible variance exi sts between the indictment, which alleged a single, overarching con spiracy, and the evidence adduced at trial, which demonstrated multiple indep endent conspiracies. To obtain a conspiracy conviction, the government mustprove that: (1) there was an agreement to violate the law; (2) the defendants kn ew the essential objectives of-6-

the conspiracy; (3) the defendants knowingly and vo luntarily participated in the conspiracy; and (4) interdependence existed among t he coconspirators. See United States v. Ailsworth , 138 F.3d 843, 850 (10 thCir.), cert. denied, 119 S. Ct. 221 (1998). These elements may be proven by director circumstantial evidence. See United States v. Evans , 970 F.2d 663, 668 (10 thCir. 1992). “A variance arises when the evidence adduced at tri al establishes facts different from those alleged in an indictment.” See United States v. Edwards , 69 F.3d 419, 432 (10 thCir. 1995). Any such variance is reversible erroronly if it affects the substantial rights of the accused. Ailsworth , 138 F.3d at 848. “Accordingly, where a single conspiracy is charged in the indictment, and the government proves only multiple conspiracies, a def endant who suffers substantial prejudice must have his conviction reve rsed.” Edwards , 69 F.3d at 432 (citing Kotteakos v. United States , 328 U.S. 750, 773-74 (1946)). A variance is prejudicial when guilt is imputed to one defenda nt from another defendant’s conduct. See Kotteakos , 328 U.S. at 775-77. The issue of whether a single conspiracy existed is a question of fact for the jury; this court reviews the jury’s decision onthe question in the light most favorable to the government. See Edwards , 69 F.3d at 432. The inquiry focuses on whether the necessary interdependence existed be tween the coconspirators. See id. Interdependence exists when each alleged coconspi rator’s activities-7-

“constituted essential and integral steps toward th e realization of a common, illicit goal.” Id. (quotation omitted). During the trial, evidence was admitted regarding n ot only the conspiracy as charged in the indictment, but additional conspi racies involving Schweitzer and others. Nevertheless, viewing the evidence in the light most favorable to the government, there was sufficient evidence to prove a single conspiracy. The admissible evidence at trial demonstrates an ongoin g course of conduct between the Hanzliceks, Schweitzer, and others in order to achieve a common illicit goal–to profit from the fraudulent presentation of checks and the filing of liens. In addition, there was sufficient evidence, again v iewed in the light most favorable to the government, to establish the neces sary interdependence in this case. The scheme depended on the Hanzliceks follow ing the procedures Schweitzer taught in his seminars. Schweitzer sugg ested that Mrs. Hanzlicek send him some of the excess money after the checks were cashed, and she considered doing so. The money returned to Schweit zer from other coconspirators could also be used to further the sc heme. In addition, any apparent success of others in cashing these checks assisted the promotion of the scheme. Moreover, it should be noted that the jury could in fer that Hanzlicek knowingly assisted Mrs. Hanzlicek in furthering the conspirac y regarding the worthless instruments.-8-

B. Deliberate Ignorance Instruction Hanzlicek contends the district court erred in tend ering a deliberate ignorance instruction to the jury. We examine jury instructions as a whole to evaluate their adequacy, and review the propriety o f tendering an individual instruction de novo

. See United States v. de Francisco-Lopez , 939 F.2d 1405, 1409 (10 thCir. 1991). This court has held that the giving o f a deliberate ignorance instruction is appropriate only when the prosecution presents evidence that the defendant purposely contrived to avoid lea rning all of the facts in order to have a defense in the event of a subsequent prosecu tion. Id This court recognizes that the use of a deliberate ignorance i nstruction “is rarely appropriate . . . because it is a rare occasion when the prosec ution can present evidence that the defendant deliberately avoided knowledge.” United States v. Hilliard, 31 F.3d 1509, 1514 (10 thCir. 1994); see also de Francisco-Lopez , 939 F.2d at 1409. That, however, does not require direct evidence of conscious avoidance or deprive the government of the benefits of inferences from c ircumstantial evidence. See de Francisco-Lopez , 939 F.2d at 1410. Nor does it change the appellate perspective that this court views the evidence in the light mos t favorable to the government. See id.In light of these principles, the evidence was suff icient to support the giving of the instruction in this case. At trial, the prosecution elicited testimony5 In particular, the United States relies on the foll owing testimony of

Hanzlicek: Q Mr. Hanzlicek, you just testified that you di dn’t agree with everything that was written by the common law court s? A Correct. Q So there were some things that you read and u nderstood? A No, that’s the reason I didn’t agree with the m, because I -9- from Agent Canady and the Hanzliceks regarding the highly suspicious circumstances surrounding the Schweitzer check sche me. This circumstantial evidence is probative of Hanzlicek’s deliberate ign orance. Id. at 1412 (noting that in some cases “the clues of association with t he crime charged [are] so obvious that the clues, combined with suspicion, ne cessarily implicate[] the defendant”). Moreover, the government elicited tes timony that Hanzlicek was, in fact, suspicious about the validity of the Schweitz er checks. See United States v.
Lee , 54 F.3d 1534, 1538-39 (10 thCir. 1995) (In evaluating the propriety of a deliberate ignorance instruction, “‘[t]he evidence must establish that the defendant had subjective knowledge of the criminal behavior. Such knowledge may not be evaluated under an objective, reasonable person test.’” (quoting de Francisco-Lopez , 939 F.2d at 1409)). In addition, the government adduced testimony from the Hanzliceks indicating that despi te several opportunities to do so, Hanzlicek “purposely” declined to learn more ab out the Schweitzer checks or the common law documents utilized in an attempt to intimidate recipients into cashing the checks. 5 In light of this circumstantial and direct eviden ce, wecouldn’t understand them.

Q How can you disagree with something you don’tunderstand? A Well, I guess I was too lazy to go look it up , there were words there that I didn’t understand.

. . . . Q You purposely avoided going into what was behind these documents? A Purposely I had -- I didn’t care because I di dn’t enjoy researching all of this common law stuff that I did n’t understand. Q So as long as you got the money for your loans, fo r your piano, for your land, for your telephone bill, it didn’t m atter what was in those documents? Is that what you are saying?

. . . . A Yes. Q That your concern was with getting the money for t he piano, the telephone bill, for the land, and it wasn’t con cerned with how you were doing it through these documents. A I wasn’t the one that went to the seminars to be i nformed on how everything was supposed to work. Q You could have read the documents before you signe d them, couldn't you have? A I could have read -- yes. Q But you chose not to? A I didn’t have an interest to. Q So it was your choice based on your interest not t o look into the documents before you signed them. Right? A Yes. Q Even though it was free money, you didn’t want to see how you were going to get the free money? A The man was wanting to help the farmer. Q Help the farmer by pianos, pay off $3,000.00 telep hone bills?

. . . . A It was his decision to decide who he was goin g to help and a piano wouldn’t be any different than a pickup or a cow. -10- conclude that the prosecution adduced sufficient ev idence to support the giving of the deliberate ignorance instruction.6 The following excerpt from Hanzlicek’s own trial te stimony demonstrates

the close connection between the common-law courts materials and the Schweitzer checks.

Q. During that particular period of time, and I’m talking about the months between July and November of 1995, what were you doing during that period of time? A. I was working eight to five, probably helping ason.

. . . . Q. What was you wife doing during that period of t ime” A. Most of the time she was – she stayed home and typed up documents, papers, in from of the computer all of t he time Q. All of the time? A. A big share of the day, yes. Q. Well, did you see the kinds of documents that s he was typing? A. I might have saw the papers. Q. Did you – -11- Hanzlicek argues that the testimony referenced abov e is irrelevant because the testimony relates solely to his participation i n and connection to common law

courts. See Appellant Brief at 10 (“Mr. Hanzlicek was being tr ied for conspiracy and for attempting to pass falsely made United Stat es obligations, not for his participation in or knowledge of common law court a ctivities.”). We find this argument unconvincing. First, as noted above in di scussing Hanzlicek’s challenge to his conspiracy conviction, the Freeman checks and common-law court documents were all part of the same conspirac y charged in Count One of the Superseding Indictment. In fact, the great bulk of the intercepted telephone conversations between Mrs. Hanzlicek and Schweitzerconcerned the use of common-law court documents to collect on the Freema n checks. 6 In light of theA. I didn’t read them, no. I’m not saying that th ere were

stacks, but there were documents or papers that she was always working on. Q. And what were those papers in connection with? Why was she doing all of this typing? A. To get the rest of the checks ready to go

.

. . . . Q. Was she typing documents in connection with the common law court? A. Correct. It was – a lot of it was involved wit h the common law court. -12- fact that the government adduced sufficient evidenc e to prove a unified conspiracy, it would be improper to compartmentaliz e the common law courts documents and conclude that Hanzlicek’s actions wit h regard to those documents is irrelevant to the question of his deliberate ign orance. Second, Hanzlicek gives an unduly narrow reading to the above testimony in concluding that it only relates to common law courts documents. Read in context, a nd in a light most favorable to the government, the testimony could certainly be read to embrace both the Freeman checks as well as the common-law documents considered necessary to collect on the checks. Even were this court to conclude that the evidence adduced at trial was not sufficient to support the giving of the deliberate ignorance instruction, the error would be harmless for those reasons stated by the E leventh Circuit in United
States v. Stone , 9 F.3d 934, 937-42 (11 thCir. 1993). In Stone , the court was faced with a situation where the jury was instructed on a lternate theories of actual7As Hanzlicek correctly recognizes in his brief, the deliberate ignorance

instruction given in this case, properly stated the law and avoided the problems identified by this court in earlier opinions–that i s, the instruction does not imply that negligence or mistake is enough to support a c onviction and does not shift the burden to the defendant to prove his innocence. See United States v. Sasser , 974 F.2d 1544, 1552 (10 thCir. 1992); United States v. Barbee , 968 F.2d 1026, 1033- 34 (10 thCir. 1992). The instruction given here provided a s follows:

The government may prove that a defendant acted “kn owingly” by proving, beyond a reasonable doubt, that the def endant deliberately closed his or her eyes to what would o therwise have been obvious to him or her. No one can avoid respo nsibility for a crime by deliberately ignoring what is obvious. A finding beyond reasonable doubt of an intent of the defendant to avoid knowledge or enlightenment would permit the jury to infer knowle dge. Stated another way, a defendant’s knowledge of a particula r fact may be inferred 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 e yes and the inferences to be drawn from any such evidence. You may not infer that a defendant had knowledge, h owever, from proof of a mistake, negligence, carelessness, or a belief in an inaccurate proposition. -13- knowledge and deliberate ignorance; the deliberate ignorance instruction given properly stated the law; 7there was sufficient, but not overwhelming, eviden ce of actual knowledge; and, finally, there was insuffici ent evidence to support the giving of a deliberate ignorance instruction. Id. at 937. Under these circumstances, the Stone court held that the giving of an unsupported delib erate ignorance instruction was harmless error. The Stone court concluded that such a result was dictated by the Supreme Court’s decisions in Griffin v. United States , 502 U.S. 46 (1991) and Sochor v.-14-

Florida , 504 U.S. 527 (1992). With respect to these cases , the Stone court noted as follows: The Supreme Court's holding in [ Griffin ] substantially informs and supports our decision in this case. In Griffin the defendant was charged with a single count of conspiracy to defrau d the federal government. The conspiracy had the dual objects of hindering the IRS and the Drug Enforcement Agency in their offici al duties. At trial, the Government failed to produce any evidenc e whatsoever to connect Griffin to an effort to interfere with the Drug Enforcement Agency. Over Griffin's objection, the trial court instructed the jury that Griffin could be convicted of conspiracy if sh e had participated in either of the two objects of the conspiracy. Th e jury returned a general guilty verdict against Griffin and her two codefendants. The Supreme Court affirmed the conviction. The Court f ound no precedent to support Griffin's contention that a ge neral verdict must be set aside where “one of the possible bases of co nviction was neither unconstitutional . . . nor even illegal . . . but merely unsupported by sufficient evidence.” Griffin , 502 U.S. at 56. The Court concluded that there is a common sense reason to distinguish between a jury instruction which misstates the law and one which presents a theory of conviction not supported by th e evidence: Jurors are not generally equipped to determine whet her a particular theory of conviction submitted to them i s contrary to law--whether, for example, the action i n question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and exp ertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since j urors are well equipped to analyze the evidence. Id. at 59 (emphasis in original) (citation omitted). The Supreme Court reiterated that position in Sochor v. Florida , 504 U.S. 527, 538 (1992). In Sochorthe trial court had instructed a capital jury on four aggravating facto rs, one of which was not supported by the evidence. If the jury had relied on the-15-

unsupported factor, its death sentence recommendati on would have violated the Eighth Amendment. However, the Suprem e Court refused to presume jury error and noted that jurors are “indeed likely to disregard an option simply unsupported by eviden ce.” Id. According to the SochorCourt, the lesson of Griffin is that due process is not violated when “a trial court instruc t[s] a jury on two different legal theories, one supported by the evid ence, the other not.” Id.
Stone , 9 F.3d at 938-39. Having reviewed Griffin and Sochor , this court agrees with the Eleventh Circuit that a district court does not commit rever sible error where it submits a properly-defined, although factually unsupported, l egal theory to the jury along with a properly supported basis of liability. See Griffin , 502 U.S. 60 (“What we have said today does not mean that a district courtcannot, in its discretion, give an instruction of the sort petitioner requested her e, eliminating from the jury’s consideration an alternative basis of liability that does not have adequate evidentiary support. Indeed, if the evidence is in sufficient to support an alternative legal theory of liability, it would gen erally be preferable for the court to give an instruction removing the theory from the jury’s consideration. The refusal to do so, however, does not provide an inde pendent basis for reversing an otherwise valid conviction .” (emphasis added)). Furthermore, the analysis set forth in Stone is entirely consistent with Tenth Circuit preceden t. See United States v. Scott , 37 F.3d 1564, 1578-79 (10 thCir. 1994) (citing Stone for proposition that giving factually unsupported delib erate ignorance instruction is-16-

harmless if evidence of actual knowledge is suffici ent); United States v. Pace , 981 F.2d 1123, 1130 (10 thCir. 1993) (affirming, on the basis of Griffin , conviction on indictment charging that defendant di stributed methamphetamine or amphetamine, despite “total lack of evidence” conce rning amphetamine); see also
Stone , 9 F.3d at 941 (asserting that rule announced ther ein is consistent with Tenth Circuit precedent). Accordingly, even assumi ng that the deliberate ignorance instruction given in this case was not supported by sufficient evidence, the giving of the instruction was harmless. C. Hearsay Testimony Regarding Losses Attributable to Schweitzer Checks Hanzlicek claims the district court abused its disc retion in admitting hearsay evidence that banks paid out $1.8 million o n Schweitzer checks similar to those used by Hanzlicek. This court upholds the di strict court’s admission of evidence unless the admission constituted an abuse of discretion. See United States v. Lugo , 170 F.3d 996, 1005 (10 thCir. 1999). During trial, the government elicited testimony fro m Agent Canady that banks had paid out $1.8 million on Schweitzer’s fra udulent checks. Defense counsel objected to the admission of this testimonyon hearsay grounds and because the government had never complied with a di scovery order to produce documentation of these alleged payments. The distr ict court, however, allowed this testimony to show “the effectiveness of the sc heme.” The district court also-17-

reasoned that Mrs. Hanzlicek’s counsel had “opened the door” on this issue by questioning Agent Canady about several checks writt en by Schweitzer in an effort to prove that the Hanzliceks thought the checks wer e valid because nothing adverse had happened to Schweitzer. During closing arguments, the government repeatedly referred to the $1.8 million, arguing th at this evidence indicates that the checks must have looked “authentic.” Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ” Hearsay is not admissible at trial, unless otherwise provided by the Federal Rul es of Evidence or other statutory authority. See Fed. R. Evid. 802. The d istrict court found this evidence not to be hearsay because it was admitted to show “ the effectiveness of the scheme.” To prove the effectiveness of the check s cheme, however, evidence that $1.8 million in fraudulent checks were actually cas hed was necessary. This case provides a prime example of why the hears ay rule is a crucial and necessary evidentiary safeguard to insure a crimina l defendant a fair trial. “The hearsay rule seeks to eliminate the danger that evi dence will lack reliability because faults in the perception, memory, or narrat ion of the declarant will not be exposed.” 5 Jack B. Weinstein & Margaret A. Berger , Weinstein's Federal Evidence § 802.02[3], at 802-9 (2d ed. 1999). Here, the ju ry heard unreliable8 Cf. United States v. Kelley , 929 F.2d 582, 585 (10 thCir. 1991) (allowing,

but not requiring, evidence of actual pecuniary los s). -18- testimony regarding $1.8 million in fraudulent chec ks being paid out. While the government may prove this point through the use of admissible evidence, 8 Agent Canady’s hearsay testimony is simply not admissible

. Having determined that this evidence was erroneousl y admitted, this court must now determine whether the error was harmless. See Fed. R. Crim. P. 52(a). The harmless error inquiry in these circumstances f ocuses on whether the erroneously admitted evidence had a substantial inf luence on the jury’s verdict or leaves this court in grave doubt about whether it d id. See United States v. Cass , 127 F.3d 1218, 1225 (10 thCir. 1997); see also Kotteakos v. United States , 328 U.S. 750, 765 (1946). This court reviews the recor d as a whole de novo to evaluate whether the error is harmless, examining t he context, timing and use of the erroneously admitted evidence at trial and how it compares to properly admitted evidence. See United States v. Glass , 128 F.3d 1398, 1403 (10 thCir. 1997). Hanzlicek argues that the effectiveness of the sche me was critical to the government’s case. The bank fraud and mail fraud c harges in this case both require a showing of fraudulent intent. See United States v. Cochran , 109 F.3d 660, 667 (10 thCir. 1997). Neither charge, however, requires that the scheme to9 The effectiveness of the scheme would tend to show that the falsely made

obligation imitated or resembled a genuine obligati on of the United States. This is how the government characterized the $1.8 millio n loss evidence at trial, while, at the same time, reminding the jury that it was no t required to prove any loss at all. Nevertheless, as set out below, this court re jects the contention that the government must prove that an actual government obl igation was replicated to support a conviction under 18 U.S.C. § 472. See infra Section III.E. -19- defraud result in a monetary loss. See United States v. Hollis , 971 F.2d 1441, 1451 n.4 (10 thCir. 1992) (holding that success of scheme not an element of mail fraud); United States v. Young , 952 F.2d 1252, 1257 (10 thCir. 1991) (holding that monetary loss not required for bank fraud convictio n). The jury was so instructed. Accordingly, the government was not re quired to prove that the alleged conspiracy resulted in monetary loss. 9
While not unmindful of the effect that evidence of an actual loss could have upon a jury, this court is required to view the rec ord as a whole in the context of arguments raised. Although the evidence strengthen ed the government’s case concerning the existence of a scheme to defraud and the resemblance of the instruments to genuine obligations, we conclude that the admission of this evidence was harmless error. This court cannot ove rlook that Mrs. Hanzlicek introduced, over the government’s objection and wit hout objection from Hanzlicek, evidence concerning nine Schweitzer chec ks totaling over $35 million that had come to the attention of authorities. Furthermore, Mrs. Hanzlicek persisted in this inquiry at some length, including eliciting details about how-20-

some of the checks aroused suspicion. Mrs. Hanzlic ek introduced this information to establish that she believed the chec ks were valid and this belief was supported by the government’s inaction against Schweitzer. Moreover, Mrs. Hanzlicek testified as to her understanding that th e checks had been accepted and effective. Although she apparently was attempting to show that she had no fraudulent intent or knowledge, the evidence direct ly supports the existence and effectiveness of the scheme. Mrs. Hanzlicek’s coun sel repeatedly characterized the items as “bogus checks” in his questioning, whi ch also suggests that the scheme was effective, not merely a ruse that no one would take seriously. Under these circumstances, admission of evidence concerni ng the $1.8 million allegedly paid is harmless.
D. BradyViolations Relating to Losses Attributable to Schw eitzer Checks Hanzlicek also contends that he was prevented from developing effective cross-examination of Agent Canady because the government failed to furnish a summary list, as ordered by the district court, of victims who had received Mr. Schweitzer’s fraudulent checks and information regarding the cashing of those checks. The government did not turn over the list to defense counsel until after the trial. When asked during oral argument why the list was not turned over to defense counsel as ordered, the Assistant United St ates Attorney (“AUSA”) responded, “It would have been better practice. . . . I don’t know why [the list-21-

was not turned over]. . . . It was a mistake and n egligence on my part.” After the trial, and before sentencing the defendants, the tr ial judge stated: “[M]any of these checks on this 1.8 million dollar list that t he agent testified that there had been losses on, at least it appears that there was no loss, there was in fact no loss at all.” In addition, at oral argument, the AUSA a dmitted that there is no evidence that the checks actually had been cashed. In upholding Hanzlicek’s conviction, the district court found that the intro duction of evidence of $1.8 million in losses was not material to the case. It is certainly troubling that the government neverproduced the list of Schweitzer checks resulting in the claimed $1.8 mil lion paid. Nevertheless, this court cannot conclude that the government’s failure to produce the list resulted in a violation of Brady . Hanzlicek argues that he made a specific requestfor such information, and that the list of checks would have enabled him to impeach Agent Canady. To establish a Bradyviolation, Hanzlicek must demonstrate that evidence was (1) suppressed by the prosecution, (2) favorable to him, and (3) material, meaning that had the evidence been disclo sed to the defense, a reasonable probability exists that the result of th e trial would have been different. See Moore v. Reynolds , 153 F.3d 1086, 1112 (10 thCir. 1998), cert. denied, 119 S. Ct. 1266 (1999). Materiality is gauged on the basi s of the whole record, considering the undisclosed evidence collectively. See Kyles v. Whitley , 514 U.S.-22-

419, 436 (1995). A specific request for informatio n may lower the threshold for materiality. See Smith v. Secretary of N.M. Dep’t of Corrections , 50 F.3d 801, 826 (10 thCir. 1995). Nevertheless, we agree with the distr ict court that the evidence at issue here is not material because it d oes not create a reasonable probability that the outcome of the trial would hav e been different. Stated another way, “[t]he mere possibility that an item o f undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense .” United States v. Agurs , 427 U.S. 97, 109-10 (1976). In the context of what the government was required to prove, the significance of whether banks actually c ashed these checks is of far less importance than suggested by Hanzlicek. E. Sufficiency of the Evidence Relating to the 18 U.S.C. § 472 Conviction Hanzlicek argues that the evidence adduced at trial is insufficient to support his conviction for attempting to pass a fal sely made obligation of the United States in violation of 18 U.S.C. § 472. In particular, he claims that the instruments in question were not falsely made oblig ations or securities of the United States as required by § 472. In challenging his conviction on sufficiencyof-the-evidence grounds, Hanzlicek is “faced with ahigh hurdle: in reviewing the sufficiency of the evidence to support a jury verdi ct, this court must review the record de novo and ask only whether taking the evid ence–both direct and-23-

circumstantial, together with the reasonable infere nces to be drawn therefrom–in the light most favorable to the government, a reaso nable jury could find the defendant guilty beyond a reasonable doubt.” See United States v. Voss , 82 F.3d 1521, 1524-25 (10 thCir. 1996) (quotations omitted). This court concludes there was sufficient evidence admitted at trial to sustain Hanzlicek’s conviction under § 472. First, contrary to his contentions, the “Certified Bankers Check” in this case clearly fall s within the definition of “obligation or other security of the United States” which includes “checks, or drafts for money, drawn by or upon authorized offic ers of the United States.” 18 U.S.C. § 8. The instrument involved in the indictm ent was purportedly drawn on the “Treasurer united [sic] States of America” and “Redeemable at office of Postmaster.” A reasonable jury could easily conclu de that it attempted to imitate a United States government obligation. Hanzlicek also claims that the evidence is insuffic ient because the instruments were not of such a quality to be calcul ated to deceive an honest and sensible person of ordinary care, as required under§ 472. In so doing, he states the standard for and derives support from cases inv olving uttering or possessing counterfeit currency. See United States v. Cantwell , 806 F.2d 1463, 1470 & n.5 (10 thCir. 1986); United States v. Grismore , 546 F.2d 844, 849 (10 thCir. 1976); United States v. Drumright , 534 F.2d 1383, 1385-86 (10 thCir. 1976). Hanzlicek,-24-

however, was convicted of “attempt[ing] to pass, utter, and publish a falsely made obligation or security of the United States, namely , a false and fraudulent ‘Certified Bankers Check’ ‘Comptroller Warrant’, nu mber 1310, in the amount of $180,000.00.” As this court discusses below, the t erms “falsely made” and “counterfeit” are not synonymous in these circumsta nces. See United States v. Parnell , 581 F.2d 1374, 1381 (10 thCir. 1978). Hanzlicek argues the government must prove that an actual government obligation was replicated to support a conviction u nder § 472. An attempt to pass a falsely made obligation does not, however, requir e similitude where the obligation is most charitably described as a hybrid instrument given its nonstandard form and nomenclature. Unlike a case invo lving possession or uttering counterfeit currency where the instrument must beara likeness to the original, here no original exists. The government does not i ssue obligations of the form devised by Schweitzer and utilized by the Hanzlicek s. It is sufficient that the government prove the instrument is falsely made, on e that purports to be what it is not: an obligation of the United States, apparen tly in the form of a check.

IV. CONCLUSION For those reasons set forth above, Hanzlicek’s conv ictions are hereby
AFFIRMED

.No. 97-5180, United States v. Bill Hanzlicek.

KELLY , Circuit Judge, concurring. I concur in the court’s opinion, except the portion of § III(B) that upholds use of a deliberate ignorance instruction. Even vi ewing the evidence in the light most favorable to the government, see United States v. de Francisco-Lopez , 939 F.2d 1405, 1409 (10th Cir. 1991), the evidence in t his case fell short of proving that the defendant purposely contrived to avoid lea rning the truth. See United States v. Hilliard , 31 F.3d 1509, 1514 (10th Cir. 1994). Though the prosecution attempted to elicit such evidence, the responses itreceived did not suffice. For a deliberate ignorance instruction to be approp riate, the evidence must show that the defendant subjectively knew that the activity was criminal, not that a “reasonable person” would have known. See de Francisco-Lopez , 939 F.3d at 1409. It is not enough that the defendant should h ave known about the criminal venture, recklessly disregarded the truth, or was n egligent in failing to inquire.
See id. at 1410-11. In my view, none of the evidence in this case estab lishes a direct or circumstantial inference that Mr. Hanzlicek deliber ately acted to avoid actual knowledge of the illegality of the checks he signed or the collection procedures employed. Mr. Hanzlicek testified that he discusse d the checks with his wife and expressed some skepticism to her, but she reassuredhim, explaining that the checks helped others pay off bills and Mr. Schweitz er wanted to help farmers in- 2 -

trouble. He stated that he was not interested in r eading the documents his wife gave him to sign, and that he customarily signed do cuments he did not read or fully understand because his wife asked him to and she had not steered him wrong before. Such conduct does not rise to the level of intentionally failing to learn facts that would reveal that Mr. Schweitzer’s check s or collection scheme were fraudulent. Mr. Hanzlicek could be characterized a s negligent or reckless in his actions. However, this does not support a deliberate ignorance instruction. See id. In addition, Mr. Hanzlicek’s testimony goes to ac tual knowledge of whether the checks and other documents were illegal, and th is evidence cannot be used to prove deliberate ignorance of their illegality. Se e id. at 1410. The government relies heavily upon the following te stimony of Mr. Hanzlicek in support of the deliberate ignorance in struction: Q: You purposely avoided going into what was behindthese documents? A: Purposely I had–I didn’t care because I didn’t enjoy researching all of this common law stuff that I didn’t understa nd. Q: So long as you got the money for your loans, foryour piano, for your land, for your telephone bill, it didn’t matte r what was in those documents? Is that what you’re saying?

. . . . A: Yes. Ct. Op. at 9-10 n.5. When Mr. Hanzlicek gave these answers, he was being questioned about “everything that was written by th e common law courts,” not about the fraudulent checks or common law court doc uments specifically used to- 3 -

collect on the fraudulent checks. It is a stretch to say that Mr. Hanzlicek’s failure to read and understand every document produced or r elied upon by the common law court movement, including the Magna Carta and t he Montana Constitution, provides evidence of deliberate ignorance. Surely not every unidentified document connected to the common law court is incul patory, even given a conspiracy. Under this circuit’s precedent, the an swers to the prosecutor’s questions hardly show that Mr. Hanzlicek purposely contrived to avoid learning the truth about the checks or collection documents in order to have a defense in the event of prosecution. To be sure, the prosecution tried to elicit testimo ny from Mr. Hanzlicek that he deliberately avoided inquiry into the illegality of the documents he signed, but Mr. Hanzlicek’s response merely indicates that he d id not carefully scrutinize all of the common law court documents because he was no t interested in these documents and did not understand them. Disinterestand lack of understanding on a defendant’s part do not become deliberate ignoran ce merely because the scheme would benefit him, even when the benefits may be s ubstantial. Taken in context and in the light most favorable to the government, the testimony simply does not support deliberate ignorance with respect to the ch ecks and the collection documents.- 4 -

Assuming error in the tendering of the deliberate i gnorance instruction, the next inquiry is harmless error. According to our p recedent, this determination should be made by examining the strength of the evi dence against Mr. Hanzlicek, the wording of the deliberate ignorance instruction , and whether the other instructions negate any adverse effects of the impr oper instruction. See Hilliard , 31 F.3d at 1516; United States v. Sasser , 974 F.2d 1544, 1552 (10th Cir. 1992); United States v. Barbee , 968 F.2d 1026, 1033 (10th Cir. 1992). We are als o bound by the decision in United States v. Scott , 37 F.3d 1564, 1578-79 (10th Cir. 1994), which applied the rationale of United States v. Stone , 9 F.3d 934, 941 (11th Cir. 1993). The Scottpanel cited that portion of Stone explaining how Tenth Circuit cases were consistent with Stone . See Scott , 37 F.3d at 1578. Here, the deliberate ignorance instruction has a pr oper subjective focus, and the instructions as a whole contain language re garding knowing and intentional conduct. Looking at the strength of th e evidence against Mr. Hanzlicek in the light most favorable to the govern ment, a rational jury could convict Mr. Hanzlicek of the charged offenses. Mr. Hanzlicek endorsed the checks, and certainly would have benefitted had the scheme been successful. Regarding actual knowledge, Mr. Hanzlicek testified to his awareness of a 1993 “common law lien” (on which his signature appeared) that was an attempt to avoid a debt. See XVII R. at 521-24. Where evidence of actual knowl edge is- 5 -

lacking, it is reversible error to give a deliberat e ignorance instruction. See United States v. Ebert , 1999 WL 261590, *31-33 (4th Cir. May 3, 1999) (unpublished) (applying Stone ). That is not the case here; hence, any error in giving the deliberate ignorance was harmless. See United States v. Adeniji , 31 F.3d 58, 62-63 (2d Cir. 1994) (considering evidence of actual knowledge in applying Stone ). Of course, even with the Stone harmless error analysis, the deliberate ignorance instruction should be used cau tiously. See United States v. Mari , 47 F.3d 782, 786 (6th Cir. 1995) (“We do, however , admonish the district courts against giving the deliberate ignorance inst ruction indiscriminately.”).