### The Honorab le 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 co nvicted 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 (1 994) and one count of transporting money obtained by fraud in interstate commerce in violation of 28 U.S.C. § 2314. Th e District Court sentenced Cunningham to two concurrent terms of twent y 1 months of imprisonmen t followed by two concurrent terms of three years of supervised release. The court also imposed a $100 assessment and ordered Cunningham to make re stitution to the victims of his crimes in the amount of $155,832.37. Cunningham timely appeals his convictions. We affirm.

### -2- I.

Cunnin ghammarried Carol W. Jones in the early 1960s. By the mid

1960s 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 b oard of directors of Jackson County Escrow Services, Inc. She also owned twenty percent of the outstanding shares of Jackson Co untyEscrow. As president of Jackson County Escrow, Jones wa s responsible for the day-to-day operations of the corporation. In 198 6 Jones began stealing large amounts of money from the corporation. She use d her a uthority over the corporation's accounts, including its escro w
acc ount, to transfer corporate and client funds to satisfy her persona l obl igations. As a result of a probe by the Federal Bureau o f Investigation, Jones pleaded guilty to mail fraud charges and cooperated with the FBI in its i nvestigation of Cunningham and others. As a part of her plea agreement, Jones testified against Cunningham at his trial.

Jone s testified that she contacted Cunningham in 1988, whil e Cunninghamwas living in Oklahoma, and asked him to loan her $100,000 to $150,000. Jones need ed 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 ha ve 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 Cunningha m in Oklahoma. In some instances Jones sent Cunningham checks, whic h Cunningham endorsed, that were inscribed on thei r face as "Escrow Account" checks. In other instances, Jones would wire money. At the same time , Cunni nghamand 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, Federa l Express packages sent from Jones to Cunningham were addressed to code name s for Cunningham such as Don Hawkins at a rented private mail box.

When Cunningham received money from Jones, he generally sent bac k
some percentage of the money to Jones in Missouri. The money Cunningham returned was deposited in the personal bank account of Harold and Caro l Jones at a rural bank near the Lake of the Ozarks. In all, Jones sen t 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
wo uld use the escrow money to win more money through his illega l bookmak ing. Jones testified that toward the beginning of their join t activ ities she told Cunningham that she was getting the money from th e
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 s tolen. She also testified that it was Cunningham's idea to use false names when sending funds throug h 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 testi fied 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 bookmakin g activities. When asked on cross-examination why Jones required him t o remit a portion of the funds back to her, Cunningham testified that h e never asked Jones and that he "remained ignorant." Trial Tr. at 258.

Jones testified that after Jackson County Escrow failed she an d Cunning hamhad a number of conversations concerning the length of th e 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 th e transfers of funds to Cunningham. When Jones suggested that she tell the FBI th at her husband was placing bets through Cunningham, Cunningha m demurred. He said that he did not want the FBI to know that money had bee n tra nsferred across state lines. At trial, Cunningham testified that h e knew it w as illegal to transport across state lines money that had bee n obtained through theft or fraud.

II.
Cunninghamargues that the District Court abused its discretion b y 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 re ceived had been obtained through fraud or theft. Cunningham als o argues th at 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 eit her count. We address each of these issues in turn.

A. Deliberate Ignorance Instruction
According to Cunningham, the only contested element of the offenses charge d was the element of knowledge. Cunningham has steadfastl y 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 acte d knowing ly, the District Court instructed the jury in relevant part a s follows:

You ma y find that the defendant acted knowingly if yo u find beyond a reasonable doubt that the defendant was aware of a high p robability that the money sent to him by Carol Jone s was stolen or had been obtained by fraud from Jackson Count y Escrow and that he deliberately avoided learning the truth

. The element of knowledge may be

### -5- infe rred if defendant deliberately closed his eyes to wha t would otherwise have been obvious to him.
You may not find that the defendant acted knowingly , however, if you find tha t the defendant actually believed that the money sent to him wa s not stolen or obtained by fraud from Jac kson County Escrow. A showing of negligence, mistake, o r carelessness is not sufficient to support a finding o f knowledge.

Instru ction 22. The District Court's instruction was patterned afte r 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 State s v. Graham , 739 F.2d 351, 352 (8th Cir. 1984), and United States v. Kershm an , 555 F.2d 198, 200 (8th Cir.) , cert. denied , 434 U.S. 892 (1977). Cunningham argues that thi s deliberate ignorance (or willful blindness) instruction should not hav e been given because it is not supported by the evidence. He contends that the evidence proved either that he did or did no t have actual knowledge of Jon es's illegal activities. In Cunningham's view, no evidence tends t o 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. 95-82 95, 1996 WL 138047 (U.S. Apr. 15, 1996). If the instructions , viewed as a whole, fairly and adequately containthe law applicable to the case, we will not disturb the jury's verdict. I d. A deliberate ignorance in struction should not be given in every case because there is a possibilitythat the jury will use a "negligence standard and convict a defendant on the impermissible ground that he should have known [an illega l act] was taking place." United States v. Barnha rt , 979 F.2d 647, 651 (8th Cir. 1992) (citations omitted). In Barnhart , we stated that such a n instruction should not be given unless there is evidence from which a jury reasonably could find

### -6-

"that the defendant was aware of a high probability of the existence of th e fact in question and purposely contrived to avoid learning all of the fact s in orde r to have a defense" to criminal charges. Id. at 652 (citation s omitted).
Cunninghamargues that the instruction should not have been give n because, "[i]n reality, the case boils down to a credibility battle betwee n Mr. Cunnin gham and his ex-wife, Ms. Jones." Appellant's Brief at 21

. Cunningham testified that he did not know that t he money Jones was sending himhad been taken by theft or fraud from Jackson County Escrow. Jones, on the other hand, te stified that Cunningham knew the source of the funds because she had told him.

If the only evidence of Cunningham's knowledge was the conflictin g tes timonyof Jones and Cunningham, Cunningham's argument might b e persuasive. Cunningham, however, views the record too narrowly. In the
course of deciding whether to give Instruction 22, the District Cour t specificallyfound 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 inclu ded the following: (1) at least one check made out to Cunningham was ident ified on its face as being drawn on the escrow a ccount 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) Jone s 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 mone y being "loaned" to Cunningham, Jones never asked him to sign promissor y notes and no other records were made of the transactions that would suppor t a finding that the transfers were legitimate loa ns; 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 wa s 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 th is case the District Court
was w ell within its discretion to instruct the jury on deliberat e ignorance.

B. Sufficiency of the Evidence

When revi ewing a district court's denial of a motion for acquittal, our standard of revie w is quite narrow. We must view the evidence in the light m ost favorable to the jury's verdict, giving the government th e benefit of the reason able 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 n o construction of the evidence exists to support the jury's verdict." Id. In contra st, a motion for a judgment of acquittal should be denied whe n "there is substantial evidence justifying an inference of guil t irrespe ctive of any countervailing testimony that may be introduced. " United States v. Armstrong , 16 F.3d 289, 292 (8t h Cir. 1994). "The jury's verdict must be uphel d 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).

Cu nninghamargues that the government did not introduce sufficien t evidence of his knowledge that the transferred funds had been obtaine d through fraud or theft. He insists that "[t]he only clear an d uncontradicted testim ony" is Cunningham's testimony that he never had any knowledge that the mo ney involved in his transactions with Jones had been obtained through thef t and fraud. Appellant's Brief at 18. Cunningham's argument misses the m ark 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.

### -8-

Second, the government is under no obligation to introduce "clear an d uncontradicted testimony."

Areasonable jury could have credited Jones's testimony and foun d that Cunningham knew the source of the money. A s Cunningham states in his brief, the question of actual knowledge of Jones's illegal activitie s "boils down to a credibility battle between Mr. Cunningham and his ex-wife , Ms. Jones." Appellan t'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 credibi lity 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 kne w that the funds he was transporting and conspiring to transport i n interstate commerce had been obtained by fraud or theft.
Additionally, we conclude that the jury properly could have con victed Cunninghameven if it did not credit Jones's testimony. As we decide d above, the evidence was sufficient to support th e giving of an instruction on deliberate ignorance. As Cunningham testifie d, he remained ignorant of Jones's reasons for requiring Cunningham to remit a portion of the money she s ent him from Jackson County Escrow's account to her personal ban k 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 h e deliber atelyavoided learning the truth," Instruction 22. All of th e strange circumstances surrounding his dealings with Jones point strongly to a conclusion that Cunningham could have avoided reaching only b y engaging in willful blindness or deliberate ignorance: the funds he was receiving from Jones were funds she had obtained from Jackson County Escro w by fraud or theft.

### -9- The gover nment introduced sufficient evidence for a reasonable jury to find beyond a reasonable doubt either that Cu nningham actually knew the illeg al nature of Jones's activities or that he at least possessed th e guilty knowledge defined by the deliberate ignor ance instruction. We thus conclude that the District Court properly denied Cunningham's motion for a judgment of acquittal.

III.

Fo r the foregoing reasons, the judgment of the District Court i s affirmed.

A true copy.

Attest:

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