United States Court of Appeals

for the Fifth Circuit ____________

No. 22-20337

____________

United States of America, 

Plaintiff—Appellee,

versus

Clint Carr, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:18-CR-339-2

______________________________

Before Duncan and Wilson, Circuit Judges, and Schroeder, District 

Judge.*

Stuart Kyle Duncan, Circuit Judge:

A jury convicted Clint Carr of numerous federal drug offenses related 

to his ownership and operation of a Texas pharmacy that was, in reality, an 

illegal pill mill. On appeal, Carr’s arguments for overturning his convictions 

largely concern four audio recordings that, after being vetted by a 

government filter team, were turned over to the prosecution. Carr contends 

_____________________

* District Judge of the Eastern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

September 26, 2023

Lyle W. Cayce

Clerk

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that the recordings intruded into privileged conversations with his attorney 

and prejudiced his defense and that, as a result, his indictment should have 

been dismissed. Finding Carr’s arguments meritless, we affirm.

I. Background

A. Facts and Proceedings

Clint Carr and his business partner, Dustin Curry, were co-owners of 

CC Pharmacy. They opened the original CC Pharmacy in Houston and later 

added “satellite” locations in Austin and Round Rock, Texas. In 2018, a 

Houston grand jury indicted Carr, Curry, and others for operating CC 

Pharmacy as a “pill mill.” Specifically, the indictment charged them with 

conspiring to unlawfully distribute controlled substances, unlawfully 

distributing and dispensing controlled substances (four counts), conspiring 

to launder monetary instruments, and engaging in monetary transactions in 

property derived from specified unlawful activity (two counts). See 21 U.S.C. 

§ 846; 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; 18 U.S.C. 

§ 1956(h); 18 U.S.C. § 1957 and 18 U.S.C. § 2. Curry pled guilty of conspiring 

to unlawfully distribute controlled substances and cooperated with the 

government. Carr went to trial.

In March 2022, Curry and CC Pharmacy employees testified in detail

during a five-day trial about the pharmacy’s criminal operations and Carr’s 

involvement. The evidence showed the pharmacy was a voluminous and

lucrative operation. From May 2016 to November 2017, it filled 18,327 fake 

prescriptions and dispensed 1,685,400 units of controlled substances 

including hydrocodone, oxycodone, Xanax, codeine cough syrup, and Soma. 

This generated at least $5.58 million in revenue. 

Carr’s basic defense at trial was that, while he “undoubtedly lied to 

drug suppliers, pharmacy inspectors, and employees,” nonetheless “it was 

not outside the realm of plausibility that [he] was in fact a naïve and foolish 

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participant but not a conspirator.” He concedes, however, “[t]hat CC 

Pharmacy was unlawfully distributing controlled substances,” and that the 

government “overwhelmingly” proved this.

The jury found Carr guilty on all counts. He was sentenced to 240 

months in prison to be followed by three years of supervised release. 

B. The Recordings

Most of Carr’s appellate arguments concern four audio recordings, 

which he contends violated his attorney-client privilege and prejudiced his 

defense. Although none were introduced at trial, we provide this detailed 

background on the recordings in order to fully address Carr’s arguments.

Two years before trial, in March 2020, Carr agreed to allow a 

government filter team to review potentially privileged evidence seized from 

CC Pharmacy. While all this evidence was to be released to the defense, none 

was to be released to the prosecution until “cleared” by the filter team. 

During their review, the filter team found four audio recordings that included 

either conversations with CC Pharmacy’s attorney, Don Lewis (who died in 

2020), or discussions about advice received from Lewis. 

Recording 1 captures an August 15, 2017, conversation between Carr, 

Curry, and Lewis. Lewis advises Carr and Curry how to respond to the Drug 

Enforcement Administration’s (DEA) seizure of drugs illegally transported 

by pharmacy employee Jeremy Newberry. Afterthis discussion, Carr emailed

pharmacist Megan Hanson, instructing her to falsely tell the DEA that 

Newberry was authorized to transport the drugs but had left the requisite 

DEA Form 222 on the pharmacy printer. 

Recording 2 captures a conversation between Carr, Curry, and 

Newberry, also on August 15, 2017. Carr tells Newberry that he and Curry

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had spoken with Lewis and, as a result, were going to plant the DEA Form 

222 on the pharmacy printer. 

Recording 3 captures an August 16, 2017, call between Curry and 

Newberry. Curry tells Newberry that he and Carr have talked to Lewis and 

have a “good gameplan on” to respond to the DEA seizure. 

Recording 4 is from July 18, 2017—i.e., a month before Recordings 1–

3. It captures a call between Carr, Curry, and CC Pharmacy pharmacists 

Hassan Barnes and Jose Sanchez. Barnes discusses advice received from 

Lewis in response to concerns raised by Sanchez about the legality of 

transferring drugs between CC Pharmacy locations. Barnes and Carr discuss 

further plans to consult with Lewis. 

In June 2021, the filter team gave Carr’s attorney copies of the four 

recordings. On September 1, 2021, they asked Carr’s attorney whether he 

intended to assert any privilege with respect to the recordings. The team 

explained that, in their view, any privilege was vitiated because CC Pharmacy 

had forfeited its charters and the State of Texas had terminated its 

registrations. When Carr’s lawyer did not respond, the filter team followed 

up on September 9, 2021, stating they planned to file a motion with the 

district court to authorize release of the recordings to the prosecution. After 

some back and forth, Carr’s lawyer finally said on September 14, 2021, that 

he intended to assert a privilege. 

On November 1, 2021, the filter team filed a motion with the district 

court to allow release of the recordings. The motion noted Carr’s opposition

in a footnote. Because, as it later explained, the court mistakenly believed the 

motion was unopposed, it granted the motion the next day, before Carr 

responded. But the filter team did not immediately release the recordings. 

Rather, as they explained in an email to the prosecution, they waited to see 

whether Carr would respond or move for reconsideration. After two weeks 

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transpired with no action from Carr, the team finally released the recordings 

to the prosecution on November 16, 2021. 

On January 10, 2022, the government filed its trial exhibit list with the 

district court. The list included Recording 4, but none of the other 

recordings. The local rules required Carr to object to the list by January 17, 

2022, but Carr did nothing. At this point, as the district court later explained, 

because Carr failed to timely object, the court could have deemed any 

objections to the recordings waived. At a pre-trial hearing on January 20, 

2022—almost three months after the filter team filed its motion and the court 

granted it—Carr finally told the court that he believed that the recordings 

were privileged and that he objected to their use at trial. The district court 

explained it had mistakenly thought the filter team’s release motion was 

unopposed, and so gave Carr a week to file an objection, even though such 

objections had been due three days prior. 

Instead of filing an objection, though, Carr moved to dismiss the 

indictment on January 26, 2022. The deadline for such motions had been 

December 1, 2021. Carr’s motion argued that the prosecution’s review of the 

recordings violated his attorney-client privilege, his Sixth Amendment right 

to counsel, and his Fifth Amendment right to due process. He also claimed

the filter team misled the district court into believing the release motion was 

unopposed. 

The district court denied Carr’s motion as untimely. As the court

explained, it had only allowed Carr to file an out-of-time objection to 

Recording 4, not an untimely motion to dismiss the indictment. 

Alternatively, the court found Carr’s motion meritless because the 

recordings contained no discussions of trial strategy nor had the government 

intentionally interfered with Carr’s right to counsel. Finally, the district 

court rejected Carr’s contention that it had been misled by the filter team. 

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To the contrary, the filter team’s “motion complied with the local and 

Federal Rules of Criminal Procedure; and there is no evidence that 

Government’s counsel, either the filter team or prosecutors, attempted to 

mislead the Court, disregarded any applicable rules, or engaged in any 

unprofessional conduct.” 

The case then proceeded to trial and, as noted, the jury found Carr 

guilty on all counts. 

Carr now appeals. He argues the district court erred by (A) denying 

his untimely motion to dismiss the indictment; (B) admitting evidence 

concerning Carr and Curry’s plan to plant the DEA form on the pharmacy 

printer; and (C) suggesting at the preliminary charge conference that, if Carr 

testified, a “deliberate ignorance” instruction would be appropriate. We 

consider each issue in turn.

II. Standard of Review

We review the denial of Carr’s motion to dismiss the indictment as 

untimely for abuse of discretion. United States v. Dennis, 41 F.4th 732, 739 

(5th Cir. 2022), cert. denied, 143 S. Ct. 2616 (2023). If the district court did 

not abuse its discretion, we review the underlying motion for plain error. 

United States v. Vasquez, 899 F.3d 363, 373 (5th Cir. 2018). If it did abuse its 

discretion, we review the underlying motion de novo. United States v. Ollison, 

555 F.3d 152, 160 (5th Cir. 2009). 

We review the district court’s evidentiary rulings for abuse of 

discretion. United States v. Richard, 775 F.3d 287, 295 (5th Cir. 2014). We 

review Carr’s complaint about the deliberate indifference instruction for 

plain error, however, because it was unpreserved. United States v. Ricardo, 

472 F.3d 277, 285 (5th Cir. 2006).

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III. Discussion

A. Denial of Carr’s Motion to Dismiss the Indictment

1. Untimeliness of the motion

First, we consider whether the district court abused its discretion in 

denying Carr’s motion to dismiss the indictment as untimely. District courts 

obviously have a strong interest in enforcing their deadlines. See, e.g., United 

States v. Santana-Dones, 920 F.3d 70, 80 (1st Cir. 2019); United States v. 

Trobee, 551 F.3d 835, 838 (8th Cir. 2009) (noting importance of enforcing 

court-ordered deadlines); see also Fed. R. Crim. P. 12(c)(1). Nonetheless, 

courts may consider untimely motions for “good cause.” Fed. R. Crim. 

P. 12(c)(3). “[A] showing of good cause requires a showing of cause and 

prejudice.” Dennis, 41 F.4th at 739–40. Here, Carr shows neither. 

As to cause, Carr first argues that the December 1, 2021, deadline for 

pretrial motions gave him “less than 20 days” to prepare a motion to dismiss 

the indictment, which he says was insufficient. We disagree. For starters, 

Carr counts from the wrong date. He reckons twenty days from when the 

pretrial motion deadline was set on November 10. But the district court 

ordered release of the recordings eight days earlier, on November 2. So, Carr 

was on notice of the principal ground for his motion to dismiss longer than 

twenty days before the deadline. Indeed, he had known for months that the 

filter team had the recordings and would seek to release them to the 

prosecution.

In any event, Carr fails to explain why twenty days were insufficient 

to prepare his motion. Criminal litigants often must act on shorter time-fuses. 

See, e.g., Fed. R. Crim. P. 29(c)(1) (requiring motions for judgment of 

acquittal to be filed within fourteen days after trial); Fed. R. Crim. P.

33(b)(2) (requiring motions for new trial to be filed within fourteen days after 

trial). Indeed, Carr proved capable of working much more quickly in this case: 

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when the district court allowed him to file out-of-time objections in January 

2022, he filed a motion to dismiss in only six days. 

Carr next argues that, even if he had enough time, he could not have 

moved to dismiss the indictment until the government filed its exhibit list, 

which included Recording 4, on January 10. Only then, Carr contends, did he 

know the government would use the recording at trial. We again disagree. As 

the government points out, “Carr could have foreseen that the government 

would seek to use information that it had asked the district court to release.” 

As discussed, Carr had known for months that the filter team had the 

recordings and, furthermore, he had known since at least September that 

they planned to move for authorization to release them to the prosecution. 

Additionally, Carr fails to explain why he took no action to prevent the 

recordings’ release to the prosecution after the district court’s November 2 

release order. One would have expected Carr to promptly alert the district 

court it was mistaken about Carr’s opposing the motion. But even then, the 

filter team still waited until November 16 to release the recordings. In all that 

time, Carr did nothing. Instead, he waited more than two months to raise the 

issue with the district court, at which time the dispositive motion deadline 

had long expired. And even then, Carr did not ask for leave to file an out-oftime motion to dismiss the indictment but only asked for leave to object to 

the recordings’ release. Given that chronic inaction, we cannot say the 

district court abused its discretion in finding no cause for Carr’s untimely 

motion to dismiss.

Finally, Carr fails to show any prejudice, because, as explained in the 

next section, his arguments for dismissing the indictment are meritless. See 

Dennis, 41 F.4th at 739. Accordingly, the district court did not abuse its 

discretion in denying Carr’s motion to dismiss as untimely. Ibid.

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2. Merits of Carr’s motion to dismiss the indictment

Because the district court did not abuse its discretion in denying as 

untimely Carr’s motion to dismiss the indictment, we review the merits of 

that motion for plain error. Vasquez, 899 F.3d at 373. Accordingly, “we will 

reverse only if [Carr] shows error that is plain and affects his substantial 

rights, and even then, only if it seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” United States v. Grzywinski, 57 

F.4th 237, 238 (5th Cir. 2023), petition for cert. filed, (Apr. 7, 2023) (citations 

omitted) (cleaned up).

a. Sixth Amendment

We begin with Carr’s Sixth Amendment argument. He claims the 

indictment must be dismissed because the prosecution violated his Sixth 

Amendment right to counsel by reviewing the four recordings. That 

argument fails. Even assuming any of the recordings were privileged, but see 

infra III(B), Carr’s Sixth Amendment right to counsel had not attached when 

the recordings were made. That right attached when Carr’s prosecution 

“commenced”—that is, when the grand jury indicted him in June 2018. 

United States v. Diaz, 941 F.3d 729, 738–39 (5th Cir. 2019) (per curiam) 

(quoting Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008)). But the 

conversations at issue were recorded nearly a year before that—in July and 

August 2017. 

Our decision in Diaz is squarely on point. There, as here, the 

government obtained and reviewed recordings of conversations appellant 

claimed contained information protected by attorney-client privilege. Id. at 

739. We found no Sixth Amendment violation because, “when the 

recordings took place . . . [the] prosecution had not yet commenced.” Ibid.

(citing Rothgery, 554 U.S. at 198). So too here.

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Carr’s attempts to distinguish Diaz fail. First, he points out that Diaz

found the recorded conversation contained no privileged information. True, 

but immaterial. Diaz turned on the fact that the “prosecution had not yet 

commenced” when the conversation was recorded. Ibid. That the 

conversation’s subject matter was also non-privileged separately supported 

the court’s decision (as it does here, see infra III(B)). Ibid.

Second, Carr argues that in Diaz the government reviewed the 

recording before the indictment, whereas here it did so afterwards. Again, 

that is immaterial. Diaz turned on the fact that “[a]t the point in the 

investigation when the recordings took place . . . prosecution had not yet 

commenced.” Ibid. (emphasis added). When the prosecutors reviewed the 

recordings was of no moment.

Finally, Carr argues the recordings here, unlike in Diaz, were not 

made “at the behest and direction of the Government as part of their 

investigation,” so the recordings are not “governmental act[s].” It is unclear 

why that distinction would help Carr. If anything, it shows that any

governmental intrusion was less significant here than in Diaz. 

In sum, we see no error, plain or otherwise, with respect to Carr’s 

Sixth Amendment claim.

b. Fifth Amendment

We next consider Carr’s Fifth Amendment claim. He argues the 

prosecution’s access to the recordings denied him due process. We disagree.

“Government misconduct does not mandate dismissal of an 

indictment unless it is so outrageous that it violates the principle of 

fundamental fairness under the due process clause of the Fifth 

Amendment.” United States v. Sandlin, 589 F.3d 749, 758–59 (5th Cir. 2009)

(quoting United States v. Mauskar, 557 F.3d 219, 231–32 (5th Cir. 2009)). The 

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government’s actions must be “shocking to the universal sense of justice,”

and “such a violation will only be found in the rarest circumstances.” 

Mauskar, 557 F.3d at 232 (citations omitted). “While rare, governmental 

intrusion into an attorney-client relationship has occasionally risen to the 

level of ‘outrageous government conduct’ violative of the Fifth

Amendment’s Due Process Clause.” United States v. Scarfo, 41 F.4th 136, 

172 (3d Cir. 2022), cert. denied sub nom. Pelullo v. United States, 143 S. Ct. 

1044 (2023) (citation omitted); see Gaetano v. United States, 942 F.3d 727, 

732 (6th Cir. 2019) (“Vanishingly few decisions have found a due process 

violation for government intrusion into the attorney client relationship.”). A 

defendant asserting such a claim must also show “actual and substantial 

prejudice.” United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996); see 

United States v. Williams, 720 F.3d 674, 686 (8th Cir. 2013).

Nothing in the government’s conduct here rises to the level of 

shocking or outrageous behavior that would justify dismissal under the Due 

Process Clause. As discussed, before releasing the recordings, the filter team 

contacted Carr’s lawyer to ask whether he intended to assert a privilege—

while explaining they did not believe the recordings were privileged. When 

Carr’s lawyer did not respond for over a week, the filter team did not take 

this silence as license to go forward. Rather, they again asked whether Carr 

intended to assert a privilege. Because Carr’s lawyer said that he would do so

only after this second set of correspondence, the team moved the district 

court to authorize release of the recordings. And even when the district court 

prematurely granted that authorization the next day, the team still did not 

release the recordings because they believed Carr would take corrective 

action. It was only after two weeks passed with no word from Carr that the 

filter team finally released the recordings. 

This hardly constitutes conduct that is “outrageous” or

fundamentally unfair. Sandlin, 589 F.3d at 758–59. To the contrary, the 

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government afforded Carr every opportunity to oppose the release of the 

recordings, even assuming there was any basis to do so. But see infra III(B). 

Accordingly, we find no merit in Carr’s due process claim and certainly no 

plain error on the district court’s part. 

In short, Carr cannot demonstrate any error, much less “clear or 

obvious” error, in the district court’s denial of his motion to dismiss the 

indictment. Vasquez, 899 F.3d at 373 (citation omitted).

B. Evidentiary Claims

Carr also contends the district court erred in admitting two pieces of 

evidence at trial: (1) Curry’s testimony explaining how he and Carr planted 

the DEA Form 222 on the printer at the Round Rock CC Pharmacy, and 

(2) the email Carr sent to pharmacist Megan Hanson instructing her how to 

justify Newberry’s transport of drugs to the DEA. Carr argues this evidence 

was “fruit[] of [the government’s] unlawful intrusion into Carr’s privileged 

communications” because it involved actions taken in response to advice

they received from Lewis that was captured in Recording 1. We disagree.1

Carr cannot show any error because, as the government argues, the 

crime-fraud exception vitiates any privilege Carr could have claimed over 

Recording 1. “Under the crime-fraud exception to the attorney-client 

privilege, the privilege can be overcome where communication or work 

_____________________

1 It is unclear whether Carr preserved this objection. Although he did object to 

admitting this evidence, his argument was that the evidence itself was privileged. That is 

somewhat different from the argument he now makes that the evidence was the “fruit” of

an unlawful intrusion into his attorney-client relationship. United States v. Lewis, 796 F.3d 

543, 545–46 (5th Cir. 2015) (explaining that “[t]o preserve error, an evidentiary objection 

must ‘state[] the specific ground, unless it was apparent from the context,’” and that “a 

trial court judge must be fully apprised of the grounds of an objection” (quoting Fed. R. 

Evid. 103(a)(1)(B), and United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998))). In any 

event, we need not decide whether plain error review should apply because Carr cannot 

show any error to begin with as to admission of this evidence.

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product is intended to further continuing or future criminal or fraudulent 

activity.” In re Grand Jury Subpoenas, 561 F.3d 408, 412 (5th Cir. 2009)

(citation omitted). “[W]here the government makes a prima facie showing 

that the attorney-client relationship was intended to further continuing or 

future criminal or fraudulent activity, the privilege does not exist.” United 

States v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983).

In the conversation captured in Recording 1, Carr solicited Lewis’s 

advice about what Hanson should tell the DEA to cover up CC Pharmacy’s 

wrongdoing. Lewis instructed Carr to have Hanson tell the DEA that she had 

authorized Newberry’s drug transfer, and that Newberry had simply 

forgotten the requisite form. Carr promptly put that advice into action by 

emailing Hanson the falsehood-laden script for her call with the DEA. This 

establishes a prima facie case that Carr’s communication with Lewis was 

“intended to further continuing or future criminal or fraudulent activity.” In 

re Grand Jury Subpoenas, 561 F.3d at 412 (citation omitted). Because

Recording 1 was non-privileged, the prosecution’s use of Curry’s testimony 

and Carr’s email at trial could not have been the “fruit” of any unlawful 

intrusion into the attorney-client relationship.

2

But even assuming Recording 1 was privileged, Carr fails to explain 

why the proper remedy would have been to exclude the evidence at issue.

Both Curry’s testimony and Carr’s email plainly incriminated Carr. He does 

not argue that the prosecution had this evidence only because of its access to 

Recording 1. Cf. United States v. Runyan, 290 F.3d 223, 235 (5th Cir. 2002) 

(under the “independent source” exception, “evidence obtained from an 

illegal search is admissible if the same evidence was also obtained from a 

_____________________

2 Because we conclude Recording 1 was not privileged, we need not consider the 

government’s alternate argument that Lewis represented CC Pharmacy, not Carr, and that 

any privilege CC Pharmacy could have asserted expired when the company ceased to exist. 

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lawful source independent of the illegality”). As the government notes, 

“Carr’s argument appears to be that, had the government not possessed 

Recording 1, it would not have sought to introduce Carr’s email directing 

Hanson to tell the DEA that she had authorized the transfer and that 

Newberry had forgotten the form or Curry’s testimony.” That argument 

fails. So, even if Recording 1 intruded into Carr’s privilege, the evidence here 

was not a “fruit” of that intrusion.

In sum, the district court did not err in admitting Curry’s testimony 

or Carr’s email. 

C. Deliberate Ignorance Instruction

Finally, Carr argues the district court erred by stating at the charge 

conference that it would give a “deliberate ignorance” instruction if Carr 

chose to testify. We disagree.

“A deliberate ignorance instruction informs the jury that it may 

consider evidence of the defendant’s charade of ignorance as circumstantial 

proof of guilty knowledge.” Diaz, 941 F.3d at 741 (cleaned up) (quoting 

United States v. Ricard, 922 F.3d 639, 655 (5th Cir. 2019)). Because such an 

instruction risks convicting a defendant for mere “negligence or stupidity,” 

it “should only be given when a defendant claims a lack of guilty knowledge 

and the proof at trial supports an inference of deliberate ignorance.” Ricard, 

922 F.3d at 655–56 (quoting United States v. Wofford, 560 F.3d 341, 352 (5th 

Cir. 2009)); see also United States v. Araiza-Jacobo, 917 F.3d 360, 366 (5th Cir. 

2019) (discussing deliberate ignorance instruction).

Carr contends that the district court’s statement impermissibly 

chilled his right to testify. Because the prosecution’s case was so powerful, 

he argues his “only recourse to set the record straight would have been to 

testify during his case-in-chief.” But “that avenue was cut off to him” by the 

court’s stated intention to give a deliberate ignorance instruction if he 

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testified. As noted, Carr did not object, and so we review for plain error. See 

Grzywinski, 57 F.4th at 238.

We see no error here, plain or otherwise. Carr concedes there was 

“overwhelming[]” proof that CC Pharmacy was an illegal drug operation

and, moreover, he admits he “undoubtedly lied to drug suppliers, pharmacy 

inspectors, and employees.” His story, however, was that he just did not 

realize anything illegal was afoot. As he puts it in his brief, he would have 

testified that he was merely “a naïve and foolish participant but not a 

conspirator” and that his “lies could just as easily have been to avoid red tape 

or to appease a less morally scrupulous Dustin Curry’s sensibilities.” That is 

a textbook case for a deliberate ignorance instruction.3 A district court does 

not err by informing a defendant about the legitimate consequences that will 

flow from a decision to testify. See United States v. Webber, 208 F.3d 545, 552–

53 (6th Cir. 2000). Here, a deliberate ignorance instruction was plainly one 

of them.

Furthermore, as the government argues, “Carr has not shown that, 

but for the court’s statement, he would have testified.” Many things might 

have led Carr to forgo testifying: the prospect of cross-examination, for 

instance, or the risk of a perjury sentencing enhancement. The record is silent 

on this point—no doubt because Carr failed to object to the district court’s 

statement. Accordingly, we cannot find that the district court’s statement 

(even assuming it was improper) affected Carr’s substantial rights.

_____________________

3 See, e.g., Diaz, 941 F.3d at 741 (instruction appropriate when defendant’s 

“charade of ignorance” could be “circumstantial proof of guilty knowledge” (citation 

omitted)); Araiza-Jacobo, 917 F.3d at 367 (instruction appropriate when “the 

circumstances were so overwhelmingly suspicious that [the defendant’s] failure to conduct 

further inspection or inquiry suggests a conscious effort to avoid incriminating knowledge” 

(citation and internal quotation marks omitted)).

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Finally, Carr claims his argument is supported by our decision in 

Ricardo. We disagree. In that case, we cautioned that a perjury sentencing

enhancement cannot be “based entirely on the jury’s verdict without any 

independent findings by the court.” Ricardo, 472 F.3d at 285–86. A court’s 

suggesting otherwise to a defendant could chill a defendant’s right to testify. 

Ibid. This case is different. As discussed, here the evidence plainly supported 

giving a deliberate ignorance instruction if Carr decided to testify. That 

would have been the legitimate price of his claiming “lack of guilty 

knowledge” in the face of overwhelming evidence to the contrary. Wofford, 

560 F.3d at 352.

IV. Conclusion

For the foregoing reasons, the judgment is AFFIRMED.

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