The Honorable Dean Whipple, United States District Judge for 1

the Western District of Missouri.

___________

No. 95-3559

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Paul William Cunningham, *

*

Appellant. *

___________

 Submitted: February 13, 1996

 Filed: May 6, 1996

___________

Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

BOWMAN, Circuit Judge.

A jury convicted Paul William Cunningham of one count of conspiring

to transport money obtained by fraud in interstate commerce in violation

of 18 U.S.C. § 371 (1994) and one count of transporting money obtained by

fraud in interstate commerce in violation of 28 U.S.C. § 2314. The

District Court sentenced Cunningham to two concurrent terms of twenty

1

months of imprisonment followed by two concurrent terms of three years of

supervised release. The court also imposed a $100 assessment and ordered

Cunningham to make restitution to the victims of his crimes in the amount

of $155,832.37. Cunningham timely appeals his convictions. We affirm.
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I.

Cunningham married Carol W. Jones in the early 1960s. By the mid1960s they were divorced. Between 1965 and 1988, Cunningham and Jones did

not maintain contact with each other. By 1988, Jones had become president

and chairman of the board of directors of Jackson County Escrow Services,

Inc. She also owned twenty percent of the outstanding shares of Jackson

County Escrow. As president of Jackson County Escrow, Jones was

responsible for the day-to-day operations of the corporation. In 1986

Jones began stealing large amounts of money from the corporation. She used

her authority over the corporation's accounts, including its escrow

account, to transfer corporate and client funds to satisfy her personal

obligations. As a result of a probe by the Federal Bureau of

Investigation, Jones pleaded guilty to mail fraud charges and cooperated

with the FBI in its investigation of Cunningham and others. As a part of

her plea agreement, Jones testified against Cunningham at his trial.

Jones testified that she contacted Cunningham in 1988, while

Cunningham was living in Oklahoma, and asked him to loan her $100,000 to

$150,000. Jones needed the money to cover her current husband's gambling

debts and to make up a shortfall in the escrow account of Jackson County

Escrow. Jones believed that Cunningham might have funds available because

she believed that he was a successful bookmaker. Cunningham was not able

to loan Jones any money. Cunningham later asked if Jones could loan him

$20,000, and Jones agreed to loan him $20,000 at ten percent interest. As

the new relationship between Jones and Cunningham blossomed, Jones began

sending or wiring from Missouri large amounts of escrow funds to Cunningham

in Oklahoma. In some instances Jones sent Cunningham checks, which

Cunningham endorsed, that were inscribed on their face as "Escrow Account"

checks. In other instances, Jones would wire money. At the same time,

Cunningham and Jones were engaged in daily telephone conversations.

Cunningham, however, used the code
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name "Don" when he called Jones at her office. Additionally, Federal

Express packages sent from Jones to Cunningham were addressed to code names

for Cunningham such as Don Hawkins at a rented private mail box.

When Cunningham received money from Jones, he generally sent back

some percentage of the money to Jones in Missouri. The money Cunningham

returned was deposited in the personal bank account of Harold and Carol

Jones at a rural bank near the Lake of the Ozarks. In all, Jones sent

Cunningham $155,832.37. Cunningham sent $70,491.64 back to Jones, keeping

$85,340.73 for his own use. According to Jones, she hoped that Cunningham

would use the escrow money to win more money through his illegal

bookmaking. Jones testified that toward the beginning of their joint

activities she told Cunningham that she was getting the money from the

escrow account of her business and that she would probably have to go to

jail if she did not pay back the money she had stolen. She also testified

that it was Cunningham's idea to use false names when sending funds through

Federal Express and when calling Jones at her office.

Cunningham testified at trial in his own defense. He denied that he

knew about Jones's illegal activities. He testified that he believed that

Jones was loaning him the money she was sending him. He admitted, however,

that no documents existed that would show that the transfers were loans.

He also testified that he was unemployed during the relevant time period

and that his only source of income was from his illegal bookmaking

activities. When asked on cross-examination why Jones required him to

remit a portion of the funds back to her, Cunningham testified that he

never asked Jones and that he "remained ignorant." Trial Tr. at 258.

Jones testified that after Jackson County Escrow failed she and

Cunningham had a number of conversations concerning the length of the

statute of limitations, Cunningham's belief that he would
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not have to return the money because the limitations period had expired,

and the "story" that Jones would give to investigators regarding the

transfers of funds to Cunningham. When Jones suggested that she tell the

FBI that her husband was placing bets through Cunningham, Cunningham

demurred. He said that he did not want the FBI to know that money had been

transferred across state lines. At trial, Cunningham testified that he

knew it was illegal to transport across state lines money that had been

obtained through theft or fraud.

II.

Cunningham argues that the District Court abused its discretion by

instructing the jury, consistent with Eighth Circuit Model Criminal Jury

Instruction 7.04 (1994), that it could impute knowledge to Cunningham if

it found that he deliberately remained ignorant of the fact that the money

he received had been obtained through fraud or theft. Cunningham also

argues that the District Court should have granted his motion for a

judgment of acquittal because the evidence is insufficient to support the

jury's verdict on either count. We address each of these issues in turn.

A. Deliberate Ignorance Instruction

According to Cunningham, the only contested element of the offenses

charged was the element of knowledge. Cunningham has steadfastly

maintained that he had no knowledge of Jones's illegal activities. With

respect to the proof required for the jury to find that the defendant acted

knowingly, the District Court instructed the jury in relevant part as

follows:

You may find that the defendant acted knowingly if you

find beyond a reasonable doubt that the defendant was aware of

a high probability that the money sent to him by Carol Jones

was stolen or had been obtained by fraud from Jackson County

Escrow and that he deliberately avoided learning the truth.

The element of knowledge may be
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inferred if defendant deliberately closed his eyes to what

would otherwise have been obvious to him.

You may not find that the defendant acted knowingly,

however, if you find that the defendant actually believed that

the money sent to him was not stolen or obtained by fraud from

Jackson County Escrow. A showing of negligence, mistake, or

carelessness is not sufficient to support a finding of

knowledge.

Instruction 22. The District Court's instruction was patterned after

Eighth Circuit Model Criminal Jury Instruction 7.04, which is based upon

our decisions in United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984),

cert. denied, 471 U.S. 1115 (1985), United States v. Graham, 739 F.2d 351,

352 (8th Cir. 1984), and United States v. Kershman, 555 F.2d 198, 200 (8th

Cir.), cert. denied, 434 U.S. 892 (1977). Cunningham argues that this

deliberate ignorance (or willful blindness) instruction should not have

been given because it is not supported by the evidence. He contends that

the evidence proved either that he did or did not have actual knowledge of

Jones's illegal activities. In Cunningham's view, no evidence tends to

show that he made a deliberate effort to avoid learning the truth.

We will reverse a district court on an instructional issue only when

the court has abused its wide discretion to formulate jury instructions.

United States v. Darden, 70 F.3d 1507, 1541 (8th Cir. 1995), cert. denied,

No. 95-8295, 1996 WL 138047 (U.S. Apr. 15, 1996). If the instructions,

viewed as a whole, fairly and adequately contain the law applicable to the

case, we will not disturb the jury's verdict. Id. A deliberate ignorance

instruction should not be given in every case because there is a

possibility that the jury will use a "negligence standard and convict a

defendant on the impermissible ground that he should have known [an illegal

act] was taking place." United States v. Barnhart, 979 F.2d 647, 651 (8th

Cir. 1992) (citations omitted). In Barnhart, we stated that such an

instruction should not be given unless there is evidence from which a jury

reasonably could find
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"that the defendant was aware of a high probability of the existence of the

fact in question and purposely contrived to avoid learning all of the facts

in order to have a defense" to criminal charges. Id. at 652 (citations

omitted).

Cunningham argues that the instruction should not have been given

because, "[i]n reality, the case boils down to a credibility battle between

Mr. Cunningham and his ex-wife, Ms. Jones." Appellant's Brief at 21.

Cunningham testified that he did not know that the money Jones was sending

him had been taken by theft or fraud from Jackson County Escrow. Jones,

on the other hand, testified that Cunningham knew the source of the funds

because she had told him. 

If the only evidence of Cunningham's knowledge was the conflicting

testimony of Jones and Cunningham, Cunningham's argument might be

persuasive. Cunningham, however, views the record too narrowly. In the

course of deciding whether to give Instruction 22, the District Court

specifically found that there was evidence indicating that the defendant

was well aware that the source of Jones's funds was probably illegal. The

evidence that the District Court relied on included the following: (1) at

least one check made out to Cunningham was identified on its face as being

drawn on the escrow account of Jackson County Escrow; (2) Cunningham used

a false name when he called Jones's office; (3) wire transfers were made

in the names of two individuals rather than Cunningham alone; (4) Jones

eventually transferred $155,000 to Cunningham while the initial loan was

to be either $30,000 or $20,000; (5) despite the large amount of money

being "loaned" to Cunningham, Jones never asked him to sign promissory

notes and no other records were made of the transactions that would support

a finding that the transfers were legitimate loans; and (6) Cunningham was

returning to Jones almost half of the money that she transferred to him.

The evidence is sufficient to support a finding that Cunningham was

deliberately ignorant of the fact that
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the money Jones was sending him had been obtained by fraud or theft, and

we thus conclude that in the circumstances of this case the District Court

was well within its discretion to instruct the jury on deliberate

ignorance. 

B. Sufficiency of the Evidence

When reviewing a district court's denial of a motion for acquittal,

our standard of review is quite narrow. We must view the evidence in the

light most favorable to the jury's verdict, giving the government the

benefit of the reasonable inferences that may be drawn from the evidence.

Darden, 70 F.3d at 1517. "We will reverse a conviction for insufficient

evidence and order the entry of a judgment of acquittal only if no

construction of the evidence exists to support the jury's verdict." Id.

In contrast, a motion for a judgment of acquittal should be denied when

"there is substantial evidence justifying an inference of guilt

irrespective of any countervailing testimony that may be introduced."

United States v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994). "The jury's

verdict must be upheld if there is an interpretation of the evidence that

would allow a reasonable-minded jury to find the defendant guilty beyond

a reasonable doubt." United States v. White, No. 95-2949, 1996 WL 154228,

at *1 (8th Cir. Apr. 4, 1996).

Cunningham argues that the government did not introduce sufficient

evidence of his knowledge that the transferred funds had been obtained

through fraud or theft. He insists that "[t]he only clear and

uncontradicted testimony" is Cunningham's testimony that he never had any

knowledge that the money involved in his transactions with Jones had been

obtained through theft and fraud. Appellant's Brief at 18. Cunningham's

argument misses the mark both factually and legally. First, Cunningham's

testimony is directly contradicted by Jones's testimony that she told him

that the money had been stolen from her company's escrow account. 
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Second, the government is under no obligation to introduce "clear and

uncontradicted testimony."

A reasonable jury could have credited Jones's testimony and found

that Cunningham knew the source of the money. As Cunningham states in his

brief, the question of actual knowledge of Jones's illegal activities

"boils down to a credibility battle between Mr. Cunningham and his ex-wife,

Ms. Jones." Appellant's Brief at 21. This Court, however, is not in the

best position to judge the credibility of witnesses. It is for the jury

to assess the credibility of witnesses and resolve conflicting testimony.

United States v. Anderson, 78 F.3d 420, 422-23 (8th Cir. 1996). In this

case, Jones's testimony is sufficient to establish that Cunningham knew

that the funds he was transporting and conspiring to transport in

interstate commerce had been obtained by fraud or theft.

Additionally, we conclude that the jury properly could have convicted

Cunningham even if it did not credit Jones's testimony. As we decided

above, the evidence was sufficient to support the giving of an instruction

on deliberate ignorance. As Cunningham testified, he remained ignorant of

Jones's reasons for requiring Cunningham to remit a portion of the money

she sent him from Jackson County Escrow's account to her personal bank

account. It is not by any means a stretch of the imagination to conclude

that, even if he did not have actual knowledge, Cunningham "was aware of

a high probability that the money sent to him by Carol Jones was stolen or

had been obtained by fraud from Jackson County Escrow and that he

deliberately avoided learning the truth," Instruction 22. All of the

strange circumstances surrounding his dealings with Jones point strongly

to a conclusion that Cunningham could have avoided reaching only by

engaging in willful blindness or deliberate ignorance: the funds he was

receiving from Jones were funds she had obtained from Jackson County Escrow

by fraud or theft. 
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The government introduced sufficient evidence for a reasonable jury

to find beyond a reasonable doubt either that Cunningham actually knew the

illegal nature of Jones's activities or that he at least possessed the

guilty knowledge defined by the deliberate ignorance instruction. We thus

conclude that the District Court properly denied Cunningham's motion for

a judgment of acquittal.

III.

For the foregoing reasons, the judgment of the District Court is

affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.