United States v. Carr ( 2023 )

Case: 22-20337 Document: 00516909260 Page: 1 Date Filed: 09/26/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 26, 2023
No. 22-20337 Lyle W. Cayce
____________ Clerk
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.
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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. After this 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-of-
time 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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