NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3175

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UNITED STATES OF AMERICA

v.

RONALD ALLEN, 

Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. Action No. 1-09-cr-00892-001)

District Judge: Honorable Jerome B. Simandle

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Submitted Under Third Circuit LAR 34.1(a)

April 10, 2012

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Before: HARDIMAN, GREENAWAY, JR., and GREENBERG, Circuit Judges.

(Opinion Filed: July 11, 2012)

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OPINION

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GREENAWAY, JR., Circuit Judge.

Ronald Allen (“Allen”) appeals the District Court‟s July 27, 2011 Judgment and 

Conviction, sentencing him to a term of seventy months of imprisonment. Allen was 
2

convicted of conspiracy to commit mail and wire fraud. For the following reasons, we 

will affirm the District Court‟s Order.

I. BACKGROUND

We write primarily for the benefit of the parties and shall recount only the 

essential facts. Allen served as the owner and president of Universal Pacific Insurance 

Company (“UPIC”), which was formed on the Fijian island of Rotuma. UPIC had no 

employees, no claims processing department, and no licenses to do business in the United 

States. The Company also had limited funds and could not pay most claims. 

The fraudulent scheme involved selling insurance to unsuspecting businesses with 

the inducement that policy costs were 25-30% below market rate.1 Allen‟s coconspirator, Gilbert Morgan (“Morgan”)2

, would sell and issue the policies, which bore 

Allen‟s signature. Morgan kept a percentage of the premiums and would wire the 

remainder of the money to RRG Business Development Corporation (“RRG”), one of 

Allen‟s other companies. Over the course of the scheme, Morgan forwarded 

approximately $366,918.93 to Allen‟s RRG account. 

Allen and Morgan devised other ways to sell the fraudulent insurance, and in June 

2004, Allen authorized Morgan to “bind” commercial liability insurance policies from 

 

1 Morgan‟s clients were largely bars, nightclubs, and strip clubs, who needed liability 

insurance to protect against alcohol related injuries and altercations. (Appellee‟s Br. at 

4.)

2 Morgan was a Texas insurance broker, who had previously engaged in fraudulent 

insurance sales. He specialized in providing insurance policies to night clubs and strip 

clubs.
3

Prime Insurance Syndicate (“Prime”), a legitimate insurer that Allen claimed to be in the 

process of purchasing.3 Allen never purchased Prime and Prime never authorized any 

broker affiliated with Allen to bind its policies. As a result, Prime issued a cease and 

desist letter to Morgan regarding the illegal binding activities. Allen directed Morgan to 

ignore the cease and desist letter and continue to bind insurance policies. Although 

Morgan initially heeded Allen‟s directive, he later switched the insureds from Prime to 

UPIC.

Allen and Morgan also used other brokers to market UPIC policies to their clients. 

Those brokers would receive a share of the premiums and then forward the remainder to 

Morgan, who took his share and wired the balance to Allen‟s RRG account. 

Allen and Morgan worked together through December 2004, when the last UPIC 

policy was sold.4 At that point, Allen and Morgan ceased working together because of 

mutual distrust. 

In December 2007, Allen was interviewed by FBI Special Agent Samuel Mayrose. 

During the interview, Allen conceded that he was President of UPIC and acknowledged 

that UPIC was not licensed to do business in the United States. Allen stated that he did 

 

3 Certain brokers are granted the ability to “bind” an insurance company. The resulting 

“binder” is evidence that insurance coverage is going to be issued, and binds the 

company to issuing a policy.

4 Allen‟s role in the conspiracy was reportedly short-lived, although a large number of 

businesses purchased UPIC policies and paid tens of thousands of dollars in premiums. 

When business insureds attempted to contact UPIC at its Belize, Mexico or California 

addresses, their claims were ignored. Those businesses were forced to hire their own 

attorneys, forced to pay out-of-pocket claims, or, forced to close their offices.
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not know much about UPIC‟s operations and that Morgan sold UPIC policies for 

nightclubs. Allen did admit that he received money from Morgan as insurance 

commissions and claimed that he did not personally follow up on policyholder inquiries, 

but instead referred them to Morgan.

A federal grand jury returned a one-count Indictment against Allen on December 

3, 2009, charging him with conspiracy to commit mail and wire fraud, contrary to 18 

U.S.C. § 1341 and § 1343, and in violation of 18 U.S.C. § 1349. Allen filed an omnibus 

pre-trial motion, requesting that the Indictment be dismissed because he was not involved 

in the conspiracy during the five-year statute of limitations period. The Government 

opposed the motion and stated that it would prove at trial that additional UPIC policies 

were sold by Allen within the limitations period.

The District Court denied Allen‟s motion seeking to dismiss the Indictment.

Jury trial commenced on December 3, 2010. Allen‟s theory of defense throughout 

the trial was that he only agreed with Morgan to sell fake insurance to businesses that 

were aware of the illegitimacy of the policies that they were purchasing. The jury 

rejected this theory and returned a guilty verdict against Allen. He was sentenced to 70 

months of imprisonment, the bottom of the sentencing Guidelines range, and ordered to 

pay restitution in the amount of $692,736.28. Allen then filed this appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction, pursuant to 18 U.S.C. § 3231. We have 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 
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An appellate court reviews de novo a district court‟s interpretation and application 

of the statute of limitations. United States v. Harriston, III, 329 F.3d 779 (11th Cir. 

2003). In most cases, we review a district court‟s refusal to give a requested jury 

instruction under an abuse of discretion standard. United States v. Gross, 961 F.2d 1097, 

1101 (3d Cir. 1992), cert. denied, 506 U.S. 965 (1992). However, a district court‟s 

refusal to give a jury instruction on a defendant‟s theory of his defense is reviewed de 

novo where the defendant objects to the district court‟s refusal. United States v. Stewart, 

185 F.3d 112, 124 (3d Cir. 1999). 

If a defendant does not object to the jury instruction at trial, we review the District 

Court‟s instructions to the jury for plain error. United States v. Antico, 275 F.3d 245, 

265 (3d Cir. 2001); see also United States v. Lee, 612 F.3d 170, 191 (3d Cir. 2010) 

(unraised challenges to the jury instructions are reviewed for plain error). “We review a 

district court‟s determination that the trial evidence justified the instruction for abuse of 

discretion, and view the evidence and the inferences drawn therefrom in the light most 

favorable to the [G]overnment.” United States v. Stadtmauer, 620 F.3d 238, 252 (3d Cir. 

2010) (internal citations omitted).

Review of a verdict for sufficiency of the evidence is plenary. United States v. 

Mussare, 405 F.3d 161, 166 (3d Cir. 2005). We reverse a jury verdict for insufficiency of 

the evidence “only when the record contains no evidence, regardless of how it is 

weighted, from which the jury could find guilt beyond a reasonable doubt.” Id.
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III. ANALYSIS

Allen raises six arguments related to his conviction, - - 1) that the charges against 

him were barred by the Statute of Limitations (“SOL”); 2) that there was insufficient 

evidence of his membership in the conspiracy during the SOL period, which requires a

reversal of his guilty verdict; 3) that the District Court committed plain error by not 

instructing the jury sua sponte regarding unanimity as to an underlying factual issue; 4)

that the District Court committed structural error when it gave a jury instruction

regarding multiple conspiracies and containing his theory of defense; 5) that the District 

Court abused its discretion by instructing the jury on willful blindness, and that the 

evidence did not support the instruction; and 6) that he is entitled to a new trial based on 

ineffective assistance of counsel. These issues will be addressed seriatim below.

Statute of Limitations

Allen contends that the charges against him were barred by the SOL and the 

District Court erred by not dismissing the indictment on this basis. The December 3, 

2009 indictment alleges that Allen‟s conspiracy began in March 2004 and ended “in or 

about December 2004”. (Supp. App., Vol. I, 100.) The SOL for conspiracy to commit 

mail or wire fraud is five years, pursuant to 18 U.S.C. § 1349. Allen argues that this case 

is untimely because “the conspiracy was concluded and perfected . . . on November 24, 

2004, when the last policy was bought and sold by UPIC, [] the moneys [] disbursed by 

coconspirators was not in furtherance of the conspiracy, but the conspiracy in fact was 

completed in total upon the last sale of the UPIC policy, which was prior to December 
7

3

rd, about ten days earlier.” (Id. at 98.) Although Allen received a wire transfer from

Morgan on December 7, 2004, he contends that “the conspiracy was not about 

disbursement of moneys between the coconspirators but was about selling those policies 

to the victims of these policies and that the last act in this Indictment is named as 

November 24, 2004.” (Id. at 100.)

 The Government argues that the conspiracy was about collecting money, and 

claims that Allen‟s participation in the conspiracy extended beyond December 3, 2004. 

In addition, the Government stated that it would prove at trial that additional UPIC 

policies were sold within the limitations period. In addition, Morgan testified at trial that 

five businesses had insurance coverage that became effective after December 3, 2004. 

We have held that: 

1) resignation from the enterprise does not, in and of itself, constitute 

withdrawal from a conspiracy as a matter of law; (2) total severing of ties 

with the enterprise may constitute withdrawal from the conspiracy; 

however (3) even if the defendant completely severs his or her ties with the 

enterprise, the defendant still may remain a part of the conspiracy if he or 

she continues to do acts in furtherance of the conspiracy and continues to 

receive benefits from the conspiracy‟s operations. 

United States v. Antar, 53 F.3d 568, 583 (3d Cir. 1995). 

Here, there was sufficient evidence of activity that falls within the SOL and 

activity in furtherance of the conspiracy after December 3, 2004 that Allen‟s argument 

must fail. The District Court committed no error on this point.

On December 3, 2010, the District Court denied Allen‟s omnibus motion and the 

jury trial began.
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Evidence of Allen’s Participation in the Conspiracy during the SOL Period

The Government satisfies the requirements of the statute of limitations for a nonovert act conspiracy if it alleges and proves that the conspiracy continued into the 

limitations period. Harriston, 329 F.3d at 783. The Government only has to show, either 

directly or circumstantially, that a conspiracy existed; that the defendant knew of the 

conspiracy; and that with knowledge, the defendant became a part of the conspiracy. Id. 

A conspiracy is deemed to have continued as long as the purposes of the conspiracy have 

neither been abandoned nor accomplished and the defendant has not made an affirmative 

showing that the conspiracy has terminated. Id. A defendant can overcome this 

presumption of continued participation only by showing that he affirmatively withdrew 

from the conspiracy or that the final act in furtherance of the conspiracy has occurred. Id.

During trial, Allen requested that the District Court instruct the jury regarding the 

duration of the conspiracy and his theory that he had withdrawn from the conspiracy 

before the SOL had run. In its instructions, the District Court discussed both the 

conspiracy and Allen‟s theory of withdrawal from the conspiracy, as Allen had requested. 

Allen did not object to the jury instruction before the jury retired for deliberations, but 

later claimed that the District Court should have sua sponte given the jury an instruction 

that “the dividing up of the money gained in a conspiracy, after the conspiracy is over, 

does not extend the ending date of the conspiracy.” (Appellant Br. at 11.) While Allen 

concedes that the District Court properly instructed the jury on the statute of limitations 
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for the conspiracy, he now argues that the District Court committed error by not sua 

sponte giving the above jury instruction. 

When a defendant does not raise objections to the jury instructions before the jury 

begins deliberations, he bears the burden of proving plain error. See Lee, 612 F.3d at 

191. In order to prove plain error, a defendant must show: “(1) there is an error; (2) the 

error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected 

the appellant‟s substantial rights, which in the ordinary case means it affected the 

outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” United States v. Marcus, 130 S. 

Ct. 2159, 2164 (2010). (Internal citations and quotations omitted.) However, Fed. R. 

Crim. Pro. 52(B) authorizes no remedy unless the error affects substantial rights. If the 

error is found to be plain and to affect substantial rights, the court of appeals “has 

authority to order correction, but is not required to do so.” United States v. Olano, 507 

U.S. 725, 735 (1993).

Allen has not satisfied the requisites of plain error. The facts necessary to argue 

that the District Court erred when it issued jury instructions related to the conspiracy are 

not present here. The District Court instructed the jury that the Government bore the 

burden of proving that Allen committed the crime charged within the five-year SOL 

period, and that in order to find Allen guilty, the jury would have to also find that the 

conspiracy extended beyond December 3, 2004. The District Court also pointed out that 

in order for the jury to find that Allen withdrew from the conspiracy, they must find that 
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he “must have taken some clear, definite, and affirmative action to terminate his 

participation, to abandon the illegal objective, and to disassociate himself from the 

agreement.” (Supp. App., Vol. II, 758-59.)

Although Allen claims that he withdrew from the conspiracy before December 3, 

2004, five years before the government obtained the Indictment charged in the 

conspiracy, we find that Allen did not affirmatively withdraw from the conspiracy prior 

to the SOL. There was testimony from one of the FBI Special Agents that RRG received 

wire transfers for funds from March 23, 2004 to December 7, 2004. “[I]n order to 

establish a prima facie case, he [the defendant] must demonstrate either that he gave 

notice to his co-conspirators that he disavows the purpose of the conspiracy or that he did 

acts inconsistent with the object of the conspiracy.” Antar, 53 F.3d at 583. 

Allen did not demonstrate that he had given notice to Morgan or any other coconspirators that he would no longer be involved in the conspiracy. By accepting money 

from the proceeds of the conspiracy, Allen acted consistently with the intent of the 

conspiracy. The Indictment charges Allen with, among other crimes, “collecting 

premiums as payment for such false and fraudulent policies, and using such premium 

payments for their own personal use.” (Emphasis added.) The proofs at trial support this 

statement in the indictment. We find that Allen was still a participant in the conspiracy 

during the SOL period. 
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Unanimity Jury Instruction

Allen argues that the District Court committed plain error by not sua sponte 

instructing the jury regarding unanimity as to an underlying factual issue. Allen wanted 

the District Court to direct the jury that it needed to unanimously agree as to whether he 

and Morgan agreed to use UPIC or Prime to defraud insureds. Allen argues that both the 

Indictment and the Government‟s proof presented at trial describe two separate 

conspiracies, UPIC and Prime, and contends that the jury needed to unanimously agree 

on which conspiracy had been proven. We disagree. 

The Indictment describes only one conspiracy between Allen and Morgan. The 

conspiracy is described as “a scheme and artifice to defraud Insureds, and to obtain 

money and property, by means of false and fraudulent pretenses, representations and 

promises,” and lists the methodologies of the crime, including the agreement to sell and 

the sale of “false and fraudulent UPIC and Prime policies.” (Supp. App., Vol. 1, 2-4.) In 

addition, the District Court instructed the jury as to the necessity for a unanimous verdict, 

stating that “you must all find” that the government proved that Allen engaged in a 

conspiracy with Morgan. (Supp. App., Vol. 1, 196.) This instruction complies with the 

law of this Circuit. 

While it is true that a defendant in a federal criminal trial has a constitutional right 

to a unanimous verdict, United States v. Yeaman, 194 F.3d 442, 453 (3d Cir. 1999), it 

does not mean that a defendant has a right to insist on an instruction requiring unanimous 

agreement on the means by which each element is satisfied. See id. The District Court 
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did not err. There is no requirement that the Court, sua sponte, render a jury instruction 

regarding unanimity as to the means by which he engaged in the conspiracy.

Structural Error

Allen next argues that the District Court committed structural error when it gave a 

jury instruction regarding multiple conspiracies and containing his theory of defense, 

“mistakenly reliev[ing] the jury of the duty of finding an essential element of the 

offense.” Appellant‟s Br. 12-17. 

The Supreme Court of the United States has concluded “that various forms of 

instructional error are not structural but instead trial errors subject to harmless-error 

review.” Hedgpeth v. Pulido, 555 U.S. 57, 60-61 (2008) (internal citations omitted). 

Further, “Neder [v. United States, 527 U.S. 1 (1999)], makes [it] clear that harmless-error 

analysis applies to instructional errors so long as the error at issue does not categorically 

„vitiat[e] all the jury‟s findings.‟” (Internal quotations and citations omitted). “An 

instructional error arising in the context of multiple theories of guilt no more vitiates all 

the jury‟s findings than does omission or misstatement of an element of the offense when 

only one theory is submitted.” Hedgpeth, 555 U.S. at 61.

Allen requested the jury instruction on multiple conspiracies. We have held that 

we will not entertain a defendant‟s challenge to jury instructions that were requested by 

the defendant. See United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d Cir. 2008). Under

the „invited error doctrine,‟ because Allen requested the jury instruction, he waived his 

right to raise this issue on appeal. Id. (“Because Ozcelik made a joint request in favor of 
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the very instructions he now challenges, he waived his right to raise these instructional 

issues on appeal under the invited error doctrine.”) There is no error here.

Willful Blindness Jury Instruction

Allen argues that the District Court abused its discretion by instructing the jury on 

willful blindness, because the evidence did not support the instruction. 

A willful blindness instruction is often described as sounding in deliberate 

ignorance. Such instructions must be tailored . . . to avoid the implication 

that a defendant may be convicted simply because he or she should have 

known of facts of which he or she was unaware. Willful blindness is not to 

be equated with negligence or a lack of due care, for willful blindness is a 

subjective state of mind that is deemed to satisfy a scienter requirement of 

knowledge. The instruction must make clear that the defendant himself 

was subjectively aware of the high probability of the fact in question, and 

not merely that a reasonable man would have been aware of the probability. 

United States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000) (internal citations and 

quotations omitted).

Allen insists that there was no evidence presented at trial indicating that he denied 

knowing that the object of the conspiracy was to sell UPIC and Prime insurance to 

business owners to defraud them. However, at Allen‟s trial, the District Court placed an 

oral opinion on the record, addressing the willful blindness charge. The District Court 

stated that Allen “has taken the position that while there may be proof that he and 

Morgan conspired to issue false insurance certificates requested by the insureds and, thus, 

defrauding landlords or regulatory bodies that required these businesses to be covered by 

insurance, that he did not become aware that Morgan, Petrillo, and others were 
14

defrauding the insureds. This defense, thus, denies knowledge of the object of the 

charged conspiracy.” Supp. App. Vol. II, 715-16. We agree. 

We also agree with the District Court‟s conclusion that “there is ample evidence 

that defendant Allen took deliberate steps to not confirm the facts of defrauding the 

insureds that were otherwise obvious to him.” Id. at 716. Therefore, we find that the 

District Court did not abuse its discretion in instructing the jury on willful blindness.

Ineffective Assistance of Counsel

Finally, Allen argues that he is entitled to a new trial based on ineffective 

assistance of counsel. “Under Strickland v. Washington, 466 U.S. 668 (1984), to 

establish ineffective assistance of counsel a criminal defendant must show that counsel‟s 

conduct was deficient (i.e. „outside the wide range of professionally competent 

assistance‟)”, id. at 690, and that the deficiency resulted in prejudice to the defense (i.e., 

“there is a reasonable probability that, but for counsel‟s unprofessional errors, the result 

of the proceeding would have been different”). Id. at 694. 

This Court has repeatedly held that “the proper avenue for pursuing such claims is 

through a collateral proceeding in which the factual basis for the claim may be 

developed.” United States v. Olfano, 503 F.3d 240, 246 (3d Cir. 2007); United States v. 

Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989). “There is, however, a narrow 

exception to the rule that defendants cannot attack the efficacy of their counsel on direct 

appeal. Where the record is sufficient to allow determination of ineffective assistance of 

counsel, an evidentiary hearing to develop the facts is not needed.” United States v. 
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Headley, 923 F.2d 1079, 1083 (3d Cir. 1991); see also Government of Virgin Islands v. 

Zepp, 748 F.2d 125, 133 (3d Cir. 1984) (defendant‟s counsel was ineffective because of a 

conflict of interest); Theodoropoulos, 866 F.2d at 598 (no direct review “unless the 

record sufficiently establishes a basis for our review”). A sufficient record would 

include Allen‟s disagreement with his trial counsel regarding his court strategy and 

factual evidence on the prejudice Allen suffered as a result of his trial counsel‟s actions. 

See e.g., Olfano, 503 F.3d at 246-47 (“without a record . . . the court could not determine 

whether counsel failed to effectively represent his client. Nor is it clear that Olfano was 

prejudiced by counsel‟s performance.) 

Here, Allen‟s counsel represented him throughout trial and sentencing. The record 

is not sufficient to allow us to determine whether there was ineffective assistance of 

counsel. Therefore, we conclude that Allen‟s argument regarding ineffective assistance 

of counsel should be addressed by the District Court if and when Allen seeks collateral 

review.

IV. CONCLUSION

For the above reasons, we affirm the July 27, 2011 Judgment and Conviction of 

the District Court.