United States v. Hungerford ( 2023 )

Case: 21-30359 Document: 00516979099 Page: 1 Date Filed: 11/27/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
November 27, 2023
No. 21-30359 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
William B. Hungerford, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CR-112-1
______________________________
Before Willett, Engelhardt, and Oldham, Circuit Judges.
Per Curiam: *
William B. Hungerford challenges his conviction on nine counts of
various forms of fraud and money laundering. He raises twelve alleged trial
errors. We find no reversible error and affirm.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
A.
The crimes in this case arise from a federal foreign investment
program known as “EB-5.” United States Citizenship and Immigration
Services (“USCIS”) uses the EB-5 program to offer wealthy aliens a pathway
to permanent residence. Alien investors must invest $1,000,000 of capital in
a qualified business, maintain that investment for at least two years, and show
that the investment created at least ten American jobs by the end of the two-
year period. ROA.8442–3. But if the alien investors send their capital to
targeted employment areas—rural areas or high unemployment areas in need
of economic investment, like New Orleans after Hurricane Katrina—then
the EB-5 program only requires a $500,000 investment. ROA.8443. The
program also allows investors to contribute their capital to “Regional
Centers” that pool investor capital to promote growth in a particular
geographic region. ROA.2062. Aliens who invest money in creating
American jobs in accordance with the EB-5 rules can apply for permanent
residence.
Three immigration forms play important roles in the EB-5 program.
The first is the I-526. An immigrant investor files an I-526 petition to enter
the United States as a conditional permanent resident. The I-526 requires the
immigrant investor to show that he has made the required investment in the
United States and to submit a business plan for creating the required
American jobs. After USCIS approves the I-526 petition, the immigrant
investor receives conditional permanent residence status (colloquially called
a “temporary green card”) for two years. At the end of the two-year
investment period, the investor may file an I-829 petition for removal of
conditions on their residency (colloquially called a “permanent green card”).
The I-829 requires the immigrant investor to show that he did not receive
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any of the invested money back and that the required jobs were in fact
created. The final form that is important for this case is the I-924. The I-924
is an annual report filed by a Regional Center. The Regional Center uses that
form to certify to USCIS that it continues to meet the EB-5 eligibility criteria
by promoting growth and jobs in its designated region.
B.
Hungerford and his partner, Timothy Milbrath, opened the New
Orleans Regional Center (“the Center”) as part of the EB-5 program. They
operated the Center from 2007 until 2012. ROA.5730–33, 9543. Hungerford
and Milbrath ran the Center through their company, NobleOutReach, LLC
(“NOR”). ROA.3638. NOR served as “an umbrella entity” over the
Center’s portfolio projects. And those portfolio projects were the
purportedly job creating entities (“JCEs”) that would ultimately satisfy the
EB-5 program’s job-creation requirements. ROA.8442.
Hungerford and Milbrath recruited forty-six aliens to invest with the
Center. Thirty-one of those aliens submitted I-526 petitions for temporary
green cards via the EB-5 program. ROA.13114. The documents NOR
prepared for the investor petitions included assurances that the Center’s
JCEs would be located within Orleans Parish and that the minimum investor
capital ($500,000 per investor) would be invested within the geographic
boundaries of the New Orleans targeted employment area. ROA.10692–94.
As it turns out, however, Hungerford and Milbrath did not invest the
aliens’ money to create jobs in New Orleans; they instead used that money
to enrich themselves. Hungerford and Milbrath established Bay-Nola-
Management (“BNM”) as a purportedly New Orleans-based JCE. BNM
purported to provide “marketing, financial management, due diligence and
business analysis” in New Orleans. ROA.8587. And in NOR’s required I-
924 annual reports to USCIS, signed by Hungerford under penalty of perjury,
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NOR claimed BNM performed “Food Service” and “Construction,” and
listed BNM’s and NOR’s addresses as in New Orleans. E.g., ROA.2130,
2367–69. But BNM operated primarily out of Maryland, where Hungerford
and Milbrath lived, not out of New Orleans. Mail addressed to BNM went to
a New Orleans address, only to be forwarded to the Maryland office.
ROA.2359. And there is no evidence that BNM actually created jobs in New
Orleans, or that BNM was anything more than a pass-through entity for
funneling money back to Hungerford and Milbrath via their corporate alter
ego, NOR.
The fraud came to light when the thirty-one alien investors filed their
I-829 petitions for permanent green cards. USCIS denied the aliens’
petitions on the grounds that NOR could not sufficiently demonstrate that
the investors’ funds had been used in New Orleans. ROA.3659; 12116–19.
In 2012, several investors sued NOR based on their lost investment and
denied immigration petitions. Despite the suit, Hungerford and Milbrath
continued to file quarterly reports with the city of New Orleans, reaffirming
that their remaining capital was still invested in New Orleans, and NOR
continued to hold property in New Orleans. ROA.7956–8027, 8028–99,
8100–71, 8173–8247. NOR finally sold one property, Maurepas Foods, in
2016, but Hungerford and Milbrath split the proceeds ($120,000 each),
rather than reinvesting the money in New Orleans. ROA.13365; 13395–96.
In 2018, a grand jury indicted Hungerford and Milbrath with nine
counts: three counts of conspiracy to commit mail/wire fraud, immigration
fraud, and money laundering and six counts of substantive wire fraud. After
a three-week trial, the jury convicted both defendants on all counts.
Hungerford timely appealed. 1
_____________________
1
Milbrath died in custody after filing his opening brief in this appeal.
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II.
Hungerford raises twelve alleged trial errors. 2 We divide them into
four categories: (A) four sufficiency-of-the-evidence challenges, (B) a
constructive-amendment-of-the-indictment claim, (C) three improper-
witness-testimony challenges, and (D) four jury-instruction claims. He also
claims that (E) even if no individual error is reversible, their cumulative effect
is. We address each category in turn.
A.
Hungerford properly preserved his sufficiency objections. Therefore,
our review is de novo but with “great deference” to the jury’s verdict. United
States v. Churchwell, 807 F.3d 107, 114 (5th Cir. 2015). This court “must
affirm a conviction if, after viewing the evidence and all reasonable inferences
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Jordan, 945 F.3d 245, 255 (5th Cir. 2019) (emphasis omitted)
(quotations omitted); see also United States v. Sanders, 952 F.3d 263, 273 (5th
Cir. 2020).
Hungerford challenges (1) the conspiracy convictions and (2) the
substantive wire fraud convictions based on the sufficiency of the evidence.
_____________________
2 The twelve alleged errors are: insufficiency of the evidence for the (1) mail and
wire fraud, (2) immigration fraud, and (3) money laundering conspiracies; (4) insufficiency
of the evidence for the substantive wire fraud counts; (5) constructive amendment of the
immigration fraud conspiracy count; (6) improper expert testimony from lay witness Jan
Lyons; (7) improper hearsay evidence; (8) improper summary witness testimony from
Yvonne Evans; and improper jury instructions (9) for failure to issue an estoppel
instruction, (10) incorrect use of an “ignorance of the law” instruction, (11) incorrect use
of a “deliberate ignorance” instruction, and (12) failure to cure jury confusion.
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1.
First, Hungerford says the Government introduced insufficient
evidence that he conspired with Milbrath. To sustain a conspiracy
conviction, “the Government must prove (1) an agreement between two or
more persons to pursue an unlawful objective; (2) the defendant’s knowledge
of the unlawful objective and voluntary agreement to join the conspiracy; and
(3) an overt act by one or more of the members of the conspiracy in
furtherance of the objective of the conspiracy.” United States v. Mann, 493
F.3d 484, 492 (5th Cir. 2007) (quoting United States v. Floyd, 343 F.3d 363,
370 (5th Cir. 2003)); see also United States v. Fiero, 38 F.3d 761, 768 (5th Cir.
1994) (listing five elements of conspiracy to launder money that are
represented by the three elements in Mann). Mail and wire fraud conspiracies
require these same elements, except that they do not require an overt act. See
United States v. Kuhrt, 788 F.3d 403, 414 (5th Cir. 2015).
In proving these elements, the Government may rely on indirect
evidence. “An agreement may be inferred from concert of action, voluntary
participation may be inferred from a collection of circumstances, and
knowledge may be inferred from surrounding circumstances.” United States
v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (citation omitted). The upshot:
“Direct evidence of a conspiracy is unnecessary; each element may be
inferred from circumstantial evidence.” United States v. Fuchs, 467 F.3d 889,
907 (5th Cir. 2006) (citation omitted).
The record easily contains sufficient evidence to prove that
Hungerford conspired to commit mail and wire fraud, immigration fraud, and
money laundering. See 18 U.S.C. § 1349 (conspiracy to commit mail or wire
fraud); id. § 371 (general federal conspiracy, here applied to the immigration
fraud); id. § 1956(h) (conspiracy to launder money). In fact, the record teems
with such evidence, so any attempt to describe it would be woefully
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underinclusive. To hit just some highlights: Both Hungerford and Milbrath
received equal payments from NOR, owned a 50% share of NOR, and, most
importantly, each engaged in behavior to further the conspiracy, to enrich
themselves with millions of dollars, and to conceal the conspiracy. They
created circular transactions to move money into their pockets and then
omitted those transactions from USCIS filings to deceive the Government.
And both knew that their actions were unlawful under the constraints of the
EB-5 program—USCIS told them several times that the investors’ $500,000
contributions could only go toward investments in New Orleans. Moreover,
Hungerford conspired with Milbrath to cause immigrant investors to submit
fraudulent immigration forms. See United States v. Elashyi, 554 F.3d 480, 497
(5th Cir. 2008) (holding conspiracy to make false statement can be proved
where defendant conspired to cause a third party to make it). And
Hungerford signed under penalty of perjury I-924 annual reports that he
knew were fraudulent because BNM did not perform “Food Service” and
“Construction” in New Orleans.
The Government therefore presented sufficient evidence to convict
Hungerford on each conspiracy charge.
2.
Hungerford next challenges his substantive wire fraud convictions.
“The elements of wire fraud under 18 U.S.C. § 1343 are: (1) a scheme to
defraud and (2) the use of, or causing the use of, wire communications in
furtherance of the scheme.” Simpson, 741 F.3d at 547–48 (quotation
omitted). Hungerford’s wire fraud convictions were based on five quarterly
report emails he filed with the city of New Orleans and one sale of an NOR-
held property, Maurepas Foods. ROA.145–46; ROA.7886–955, 7956–8027,
8028–99, 8100–71, 8173–247; ROA.13365–69.
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To satisfy § 1343, the fraudulent wire need only be “incident to an
essential part of the scheme [to defraud] or a step in the plot.” United States
v. Barraza, 655 F.3d 375, 383 (5th Cir. 2011) (alteration adopted) (quoting
Schmuck v. United States, 489 U.S. 705, 710–11 (1989)). And wires that
conceal or delay detection of an ended scheme can be considered essential to
the scheme. See United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986).
That is because “actions taken to avoid detection, or to lull the fraud victim
into complacency, can further the fraud.” United States v. Allen, 76 F.3d
1348, 1363 (5th Cir. 1996) (citing United States v. Maze, 414 U.S. 395, 402–03
(1974)).
Here, each of Hungerford’s five email reports contained assurances
that the EB-5 investments were still located in New Orleans and that NOR
was pursuing the Center’s goals. See ROA.7886–955, 7956–8027, 8028–99,
8100–71, 8173–247; see also ROA.2701–14. But trial evidence showed that
substantial portions of the investments were actually in Maryland or in the
defendants’ pockets and that no significant work had been done in New
Orleans for years. And the property sale was an even more direct piece of the
scheme to defraud. Although the sale proceeds initially went to an NOR
holding, they never got reinvested in New Orleans. Instead, Hungerford and
Milbrath split them 50/50. A reasonable jury could certainly have found that
Hungerford meant these wires to lull the city into believing that the Center
was still investing in New Orleans while he wrapped up the loose ends of his
scheme. Therefore, there was sufficient evidence to support his convictions
for substantive wire fraud.
B.
Hungerford did not raise his constructive-amendment or material-
variance claim to the district court, so we review the claim for plain error. See
United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010). Under plain
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error, “[t]he defendant must show that (1) the district court committed an
error, (2) the error is plain, (3) the error affects his substantial rights, and
(4) failure to correct the error would seriously affect the fairness, integrity,
or public reputation of judicial proceedings.” United States v. del Carpio
Frescas, 932 F.3d 324, 332 (5th Cir. 2019) (per curiam) (citation omitted).
Thus, “[r]elief under the plain-error standard ‘will be difficult to get, as it
should be.’” United States v. Figueroa-Coello, 920 F.3d 260, 264 (5th Cir.
2019) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9
(2004)).
“A constructive amendment occurs when the government changes its
theory at trial, allowing the jury to convict on a broader basis than that alleged
in the indictment, or . . . proves an essential element of the crime on an
alternate basis . . . not charged in the indictment.” United States v. Stanford,
805 F.3d 557, 565 (5th Cir. 2015) (citation omitted). Its less-severe sibling, a
material variance, “occurs when the proof at trial depicts a scenario that
differs materially from the scenario charged in the indictment but does not
modify an essential element of the charged offense.” United States v.
Rodriguez, 553 F.3d 380, 392 (5th Cir. 2008) (citation omitted). Generally,
constructive amendments are reversible error per se, while material variances
are reviewed for harmless error. See United States v. Jara-Favela, 686 F.3d
289, 299 (5th Cir. 2012). But under plain error review, even if a difference
between the indictment and the proof at trial constituted a constructive
amendment, we will reverse only if the amendment was also a clear or
obvious error that affected the defendant’s substantial rights and meets our
discretionary threshold. See Broadnax, 601 F.3d at 340.
In determining what represents an amendment, the constructive
amendment rules lie on top of rules governing the specificity of indictments.
In general, “[a]n indictment is not required to expressly set out every action
of the defendant which may have contributed to the commission of the crime
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charged. Rather, the chief purposes of an indictment are to apprise the
defendant of the specific charges he will be asked to rebut at trial and to
protect him against double jeopardy.” United States v. Moree, 897 F.2d 1329,
1333–34 (5th Cir. 1990) (citation omitted). If the indictment specifies “one
particular kind of falsity . . . [then] a conviction must rest on that charge.”
United States v. Adams, 778 F.2d 1117, 1125 (5th Cir. 1985). Thus, whether it
is an error to allow the Government to present new or different evidence from
that specified in the indictment turns on both the contents of the indictment
and the degree of difference between the charges and the evidence at trial.
Similarly, the constructive amendment doctrine serves chiefly to
protect defendants from unfair surprise evidence at trial and from successive
prosecutions for the same offense based on different evidence. See Berger v.
United States, 295 U.S. 78, 82 (1935) (“The general rule that allegations and
proof must correspond is based upon the obvious requirements (1) that the
accused shall be definitely informed as to the charges against him, so that he
may be enabled to present his defense and not be taken by surprise by the
evidence offered at the trial; and (2) that he may be protected against another
prosecution for the same offense.” (citation omitted)). If any amendment did
not affect one of these two substantial rights, then we cannot say that it was
plain error for the district court to allow evidence outside of the indictment.
Here, Hungerford contends that the prosecution constructively
amended or materially varied from the immigration fraud charge levied by
the grand jury by introducing I-924 annual reports that Hungerford signed
under penalty of perjury and submitted to USCIS to demonstrate compliance
with the EB-5 program. True, the indictment mentions two immigration
forms required by the EB-5 program (the I-526 and I-829 petitions, which
immigrant investors submit to adjust their immigration statuses) and does
not mention I-924s. But Hungerford cannot show that the omission satisfies
the high bar for plain-error relief.
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First, there was no risk of unfair surprise. The grand jury indicted
Hungerford and Milbrath for “knowingly and willfully combin[ing],
conspir[ing] and agree[ing] to make and cause to be made material false
statements under oath and penalty of perjury on an application or other
document required by the immigration laws or regulations of the United
States, in violation of Title 18, United States Code, Section 1546(a); all in
violation of Title 18, United States Code, Section 371.” ROA.143. The
indictment further charged Hungerford with conspiring to make false
“statements” (plural) on “an application or other document.” ROA.143.
Hungerford knew that the EB-5 program included several kinds of
documents, including the I-924, and he knew that he had submitted the
fraudulent I-924s. And he points to no case requiring an indictment to list
each piece of evidence the Government will use to prove an indictment’s
allegations. As such, there was no fairness violation in introducing the I-924s.
Second, there was no risk of a second prosecution. Because the
overarching charge was the conspiracy to commit immigration fraud, not the
substantive crime of immigration fraud, there was no risk that leaving the I-
924 forms out of the indictment would subject Hungerford to the risk of
another prosecution based on the I-924 forms alone. The conspiracy charge
covered the scheme as a whole, of which the I-924 forms were only a piece.
That the district court allowed them to be introduced here arguably protects
Hungerford from a future prosecution for this same scheme.
Thus, it is unclear there was any error. Even if there were, any error
was not plain or obvious because none of our constructive-amendment or
material-variance cases compel a finding of error here. And even if there were
a plain error, Hungerford cannot show that he was prejudiced—much less
that we should exercise our discretion to award relief.
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C.
Hungerford next alleges three evidentiary errors: (1) improper
admission of hearsay evidence, (2) improper lay-witness testimony, and
(3) improper summary-witness testimony. Hungerford raised his hearsay
objection below, so we review it for abuse of discretion, “subject to the
harmless error rule.” Jordan, 945 F.3d at 257; United States v. Ragsdale, 426
F.3d 765, 774–75 (5th Cir. 2005). But Hungerford failed to raise his lay-
witness objection below, so there we review for plain error. See Jordan, 945
F.3d at 258. Finally, the parties dispute whether Hungerford sufficiently
preserved his objection to the summary-witness testimony. The dispute does
not matter because Hungerford’s claim fails in any event.
1.
First, hearsay. Hungerford objected to the prosecution’s introduction
of out-of-court statements by Morrie Berez, a USCIS official-turned-NOR-
consultant, concerning the legal requirements for running the Center.
Although Berez did not testify, other witnesses offered a series of his
comments, primarily in emails and documents, as evidence that Hungerford
and Milbrath knew that their conduct was unlawful. Hungerford contends
that these statements were inadmissible and that allowing them to be
introduced constituted an abuse of discretion.
The district court did not abuse its discretion in allowing these
statements because the statements were not hearsay. See Fed. R. Evid.
801(c)(2) (“‘Hearsay’ means a statement that . . . a party offers in evidence
to prove the truth of the matter asserted in the statement.”). Simply put, the
prosecution did not offer Berez’s statements for the truth of the matter
asserted; instead, the prosecution argued that the statements went to
Hungerford’s knowledge that his conduct was illegal. ROA.2410; see United
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States v. Chavis, 772 F.2d 100, 106 (5th Cir. 1985). That is not hearsay, and
hence it was not an abuse of discretion to admit the statements.
2.
Second, lay witness Jan Lyons’s testimony. Lyons was a USCIS
official. Hungerford argues the Government improperly used Lyons to
introduce legal opinions about USCIS’s regulations and the agency’s
understanding of its own rules. Most importantly, Lyons testified to USCIS’s
interpretation of the EB-5 program, the regional center program, and its own
guidelines. ROA.2063, 2070, 2129. But Hungerford did not object to
Lyons’s testimony on these grounds below, so we review the testimony for
plain error.
“If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.
Under Rule 701, “[i]t is . . . generally prohibited for a lay witness to interpret
statutes and to give legal opinions.” United States v. El-Mezain, 664 F.3d 467,
511 (5th Cir. 2011).
Even if the district court committed plain error in admitting Lyons’s
testimony, Hungerford cannot show prejudice. Many of the conclusions from
Lyons’s testimony were repeated in other testimony and evidence. For
example, perhaps the most important conclusion from Lyons—that
Hungerford and Milbrath could not use the alien investors’ $500,000 EB-5
funds for anything other than investment in the New Orleans JCEs—also
appeared in Milbrath’s book interview, ROA.6270, in the USCIS letter
responding to the first temporary green card petition, ROA.11985, in NOR’s
response to that letter, ROA.12051, and in testimony from investors,
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ROA.1035–36. Although Lyons’s testimony was no doubt important,
Hungerford cannot show a reasonable probability that, but for Lyons’s
testimony, Hungerford would have been acquitted. Cf. United States v. Mims,
992 F.3d 406, 409 (5th Cir. 2021) (requiring a “reasonable probability of a
different outcome absent the error” in plain error review of a sentencing
error). Therefore, allowing Lyons’s testimony was not reversible plain error.
3.
Third, summary witness Yvonne Evans’s testimony. Here too,
Hungerford cannot show that the district court committed a reversible error
under any standard of review.
The Federal Rules of Evidence allow witnesses to “use a summary,
chart, or calculation to prove the content of voluminous writings, recordings,
or photographs that cannot be conveniently examined in court.” Fed. R.
Evid. 1006. Our precedent allows parties to call witnesses to summarize
large volumes of evidence. United States v. Nicholson, 961 F.3d 328, 335 (5th
Cir. 2020) (citing United States v. Baker, 923 F.3d 390, 397 (5th Cir. 2019)).
As a general rule, summary witnesses of this kind are not supposed to
introduce evidence that has not previously been presented to the jury. Ibid.There is no clear line between what constitutes fact-witness testimony and
summary-witness testimony. See United States v. Hart, 295 F.3d 451, 457 (5th
Cir. 2002); United States v. Lucas, 849 F.3d 638, 644–45 (5th Cir. 2017).
Moreover, we have not held that a summary witness cannot also serve as a
fact witness. See Nicholson, 961 F.3d at 335 (describing a witness as both).
Hungerford cannot show reversible error under any standard. The
parties stipulated to the authenticity of the evidence that Evans reviewed,
such as financial documents. ROA.2680. Insofar as Evans summarized that
evidence, her testimony was admissible under Nicholson. And insofar as
Evans strayed beyond that evidence to testify about new facts, Hungerford
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has not shown that Evans could not serve as both a fact witness and a
summary witness.
D.
Preserved objections to jury instructions are reviewed for abuse of
discretion. United States v. Green, 47 F.4th 279, 288 (5th Cir. 2022). We will
find such an abuse only where “the defendant’s requested instructions
“(1) are substantively correct; (2) are not substantially covered in the charge
given to the jury; and (3) concern an important point in the trial so that the
failure to give them seriously impairs the defendant’s ability to present
effectively a particular defense.” United States v. Hale, 685 F.3d 522, 541 (5th
Cir. 2012) (alterations omitted). Moreover, we will vacate a conviction only
if the requested instruction would have led to an acquittal. Id. at 541–42.
Meanwhile, challenges raised only on motion for new trial or afterward are
reviewed for plain error. Id. at 540.
Hungerford offered alternate instructions for his (1) estoppel
instruction claim but did not object to the trial court’s instructions for his
(2) ignorance of the law instruction, (3) deliberate ignorance instruction, or
(4) failure to cure jury confusion claims. Therefore, we review the first
argument for abuse of discretion but the rest for plain error.
1.
Hungerford requested an estoppel instruction on the basis that USCIS
had “approved” of Hungerford and Milbrath’s conduct. That instruction
read:
The defendants assert the defense of equitable estoppel, on the
grounds that the United States Customs and Immigration
Service approved of their conduct in operating the immigrant
investor program. The Constitution does not permit
convictions to be obtained if the government has assured the
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defendant that his or her conduct is permissible. If you find that
the USCIS approved of the defendants’ conduct in operating
the immigrant investor program, you must find them not
guilty. . . .
ROA.423.
“The defense of entrapment by estoppel is applicable when a
government official or agent actively assures a defendant that certain conduct
is legal and the defendant reasonably relies on that advice and continues or
initiates the conduct.” United States v. Spires, 79 F.3d 464, 466 (5th Cir.
1996) (emphasis added); see also United States v. Treviño-Martinez, 86 F.3d
65, 69 (1996) (“the government must actively mislead the defendant . . .”
(emphasis added)); United States v. Cornejo-Flores, 254 F.3d 1082 (5th Cir.
2001) (table case) (per curiam) (requiring “an affirmative
misrepresentation” by an official). This rule emphasizes that mere approval
by a government official is insufficient to entitle defendants to an estoppel
defense. Hungerford’s proffered instruction did not track our rule, and
therefore, the district court did not abuse its discretion in refusing it.
2.
Hungerford next contends that the district court plainly erred in
issuing an instruction that read: “Ignorance of the law or even a mistake of
law is not a defense.” ROA.4079. Hungerford points to two potential defects
in the instruction. First, he argues that the “maxim” that “ignorance of the
law is no excuse” is subject to exceptions where a mistake of law eliminates
the specific intent to commit a criminal act. Blue Br. 79. Second, Hungerford
argues that even if the instruction was correct, it effectively negated the
following good-faith-defense instruction.
In its entirety, the disputed instruction says:
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It is not necessary for the government to prove the defendants
knew that a particular act or failure to act is a violation of the
law. Ignorance of the law or even a mistake of law is not a
defense. The defendants are entitled to a defense of good faith
as a bar to a finding of criminal intent. Where ‘intent to
defraud’ is a specific element of the count charged, it follows
that a defendant who acts in ‘good faith’ cannot have the
criminal intent required to commit these acts. Thus, if you find
that any defendant acted in good faith in connection with the
‘schemes to defraud’ alleged by the government, you must find
the defendants not guilty of these charges.
ROA.4079. Hungerford is quite right that it would constitute legal error to
instruct the jury that ignorance of the law is no excuse because ignorance can
be an excuse. See, e.g., Rehaif v. United States, 139 S. Ct. 2191, 2198 (2019).
But Hungerford is wrong to focus on the “ignorance of the law” sentence in
isolation because the rest of the instruction specifies that good-faith
ignorance can negate intent. We cannot say this instruction, taken as a whole,
constituted a clearly erroneous statement of the law.
But even assuming that the instruction was erroneous, there is little to
suggest that it affected Hungerford’s substantial rights. The prosecution
offered substantial evidence of Hungerford’s fraudulent scheme, and
Hungerford responded with attempts to negate the specific intent element of
his charges. And the trial court further clarified the jury instructions by
reemphasizing the importance of the specific intent element, stating “if the
evidence in this case leaves you with a reasonable doubt as to whether the
defendants acted with an intent to defraud, then you must find them not
guilty.” ROA.4079. The jury therefore had ample opportunity to consider
Hungerford’s defense, and so he cannot show that this alleged error
impacted his substantial rights.
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3.
Hungerford next argues that the district court plainly erred by giving
a deliberate-ignorance instruction. A deliberate-ignorance instruction allows
the jury to find that the defendant knew a fact if the defendant deliberately
turned a “blind eye” to it. To warrant a deliberate-ignorance instruction, the
trial record must support “inferences that (1) the defendant was subjectively
aware of a high probability of the existence of illegal conduct; and (2) the
defendant purposely contrived to avoid learning of the illegal conduct.”
United States v. Oti, 872 F.3d 678, 697 (5th Cir. 2017) (citation omitted). In
making that fact-based determination, “the court reviews the evidence and
all reasonable inferences that may be drawn therefrom in the light most
favorable to the government.” Id.Here, viewed in the light most favorable to the Government, the
record supported the instruction. At a bare minimum, there was sufficient
evidence that Milbrath deliberately ignored evidence of Hungerford’s
fraudulent conduct, such as backdating invoices. Because the two defendants
were tried together, we cannot say that it was clear or obvious error to issue
the deliberate ignorance instruction based on this evidence.
4.
Finally, Hungerford argues that the trial judge erred in referring the
jury back to the original instructions when the jury sent a note expressing its
confusion about the term “cause.” Hungerford’s counsel affirmatively
consented to the district court’s response, ROA.4112, which forecloses our
review. See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)
(“Waived errors are entirely unreviewable, unlike forfeited errors, which are
reviewable for plain error.”).
But even if we could review for plain error, we would find none. “[A]
trial judge, of course, enjoys wide latitude in deciding how to respond to such
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questions.” United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994) (citation
omitted). In reviewing a trial judge’s instructions, “we ask whether the
court’s answer was reasonably responsive to the jury’s question and whether
the original and supplemental instructions [if any] as a whole allowed the jury
to understand the issue presented to it.” Id. Finally, it is not an error to refer
the jury back to the original instructions “if the original charge is an accurate
statement of the law.” United States v. Marshall, 283 F. App’x 268, 279 (5th
Cir. 2008) (citing United States v. Arnold, 416 F.3d 349, 359 n.13 (5th Cir.
2005)).
Here, the original instructions defined “to cause” as “to cause
interstate wire communications facilities is to do an act with knowledge that
the use of the wire communications facilities will follow in the ordinary
course of business or where such use can reasonably be foreseen.”
ROA.4085, 4112. This is an accurate statement of the law under the wire
fraud statute. See Pereira v. United States, 347 U.S. 1, 8–9 (1954) (using this
definition of “cause” in the context of mail fraud). Therefore, it was not an
error (much less plain error) to refer the jury back to the original instruction.
E.
Hungerford’s final argument is that, even if his other claims fail
individually, they succeed cumulatively. To prove reversible cumulative
error, Hungerford must show that the alleged errors “so fatally infect[ed] the
trial that they violated the trial’s fundamental fairness.” Oti, 872 F.3d at 690
n.10 (quoting United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012)).
Hungerford cannot make that showing. The evidence of Hungerford’s guilt
was overwhelming. And he cannot show prejudice from any of his alleged
errors.
AFFIRMED.
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