United States v. Diamond , 322 F. App'x 255 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-23-2009
USA v. Diamond
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3837
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3837
UNITED STATES OF AMERICA
v.
MICHAEL DIAMOND
a/k/a JERMAINE D. BURTON
a/k/a KEITH DIAMOND
Michael Anthony Diamond,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 06-cr-00892)
District Judge: Hon. Susan D. Wigenton
Submitted Under Third Circuit LAR 34.1(a)
April 21, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER,
Circuit Judges
(Filed: April 23, 2009)
OPINION
SLOVITER, Circuit Judge.
Michael Anthony Diamond, who was convicted by a jury of three counts of mail
fraud in violation of 18 U.S.C. § 1341, appeals his conviction and sentence. We will
affirm.1
I.
During the pendency of Diamond’s appeal of his 2004 conviction for wire fraud,
he sent a series of mailings to the persons involved in his prosecution as well as the
presiding federal judge. Diamond sought to create a basis for his filing of UCC-1
financing statements against the judge and Assistant United States Attorney (“A.U.S.A.”)
for $10,000,000 each. Diamond had one such mailing, titled Certificate of Satisfaction,
notarized and mailed to the District Court; it was received by the court on December 12,
2005, and entered on the docket of Diamond’s then-pending criminal action. It purported
to establish that the District Judge who presided over the 2004 wire fraud trial had, inter
alia, consented to involuntary bankruptcy.
Diamond argues that because this document, charged in Count Two, was not
identified in the testimony given by the Assistant United States Attorney, the government
failed to prove the intended victim of the fraud received the mailing, and, therefore, there
was insufficient evidence to support the conviction. We reject Diamond’s challenge,
1
This Court has jurisdiction to review a challenge to a
conviction under 28 U.S.C. § 1291. We have jurisdiction to review
an appeal of a sentence pursuant to 18 U.S.C. § 3742(a).
2
which we review under the plain error standard because it was not properly preserved at
trial. There was ample evidence of the mailing and that it furthered Diamond’s scheme to
eliminate his $75,000 restitution obligation.
II.
Diamond next argues that his conviction should be vacated because the District
Court erroneously instructed the jury. We review a district court’s jury instructions for
abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008) (citing
United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006)).
Diamond first contends the District Court erred in failing to give an instruction on
good faith. We uphold a District Court’s denial of a requested good faith instruction,
“where the instructions given already contain a specific statement of the government’s
burden to prove the elements of a ‘knowledge’ crime,” including the intent requirements.
Leahy, 445 F.3d at 651(citing United States v. Gross, 961 F.2d 1097, 1102-03 (3d Cir.
1992)). Here, the jury instructions adequately defined the intent element of the crime,
therefore obviating the need for a separate instruction on good faith. After the District
Court defined the terms “knowingly” and “willfully,” App. at 396-97, it instructed jurors
that to convict Diamond they had to find beyond a reasonable doubt that he had acted
“knowingly, willfully and with intent to defraud.” App. at 403. The court went on to
explain the various ways requisite intent could be established. The instruction was
adequate.
3
Diamond also argues the jury was improperly instructed because the District Court
refused to give an instruction stating that “mailings that serve to put the defrauded party
on notice, or make the execution of the fraud less likely, are not covered under this
section.” App. at 681. Under the abuse of discretion standard, this Court will order a
new trial based on a district court’s refusal to give a proposed jury instruction “only when
the requested instruction was correct, not substantially covered by the instructions given,
and was so consequential that the refusal to give the instruction was prejudicial to the
defendant.” Hoffecker, 530 F.3d at 167 (quoting Leahy, 445 F.3d at 651).
Here, Diamond’s claim must fail, as there is no evidence the proposed jury
instruction was correct. Diamond gleaned the language of the instruction from a factually
distinct case from another circuit. Moreover, this Circuit’s Model Criminal Jury
Instructions do not contemplate such an instruction. See 3d Cir. Model Crim. Jury
Instructions § 6.18.1341-5. Commentary in the model instructions stating that routine,
innocent or even counterproductive mailings may form the basis of a mail fraud
conviction suggests the instruction proffered by Diamond was an incorrect statement of
the law in this Circuit. See id.
Diamond also argues the District Court erred in instructing the jury on willful
blindness. We have held that a willful blindness charge does not lower the government’s
burden of proving intent when the charge “‘emphasize[s] the necessity of proving a
subjective awareness.’” United States v. Stewart, 185 F.3d 112, 126 (3d Cir. 1999)
4
(quoting United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985)). In this case, the
District Court properly instructed the jury that if it found “the defendant was subjectively
aware of a high probability of the existence of a fact and deliberately tried to avoid
learning that fact . . . you may find that the government has satisfied its burden of proving
the element of knowledge of that fact.” App. at 396. We reject all of Diamond’s
challenges to the jury instructions.
III.
In challenging his sentence, Diamond argues the District Court erred in failing to
grant a two-level downward adjustment for acceptance of responsibility. We review for
clear error a district court’s factual findings underlying a denial to adjust a sentence for
acceptance of responsibility. United States v. Lessner, 498 F.3d 185, 199 (3d Cir. 2007).
We will “reverse only if we are left with a definite and firm conviction that a mistake has
been committed.” Id.The record is devoid of any acceptance of responsibility by Diamond. Not only
did he challenge the case on its merits during trial in the District Court, at sentencing he
argued vigorously that he did not intend to perpetrate a fraud. Thus, the District Court did
not clearly err in refusing to grant a downward adjustment for acceptance of
responsibility.
IV.
For the reasons set forth, we will affirm the District Court’s judgment of
5
conviction and sentence.