The opinion of the court was delivered by: CINDRICH
Defendant James Nesser was convicted on April 19, 1996 of conspiracy to distribute drugs, conspiracy to launder money, money laundering, and engaging in illegal monetary transactions. After the trial he timely moved for judgment of acquittal or for new trial; for bail or release pending sentence; and for enforcement of a plea agreement. After a full day of argument and testimony on July 17, 1996, the court at the end of the hearing orally denied the motion for enforcement of a plea agreement. We held another half day of argument on the remaining motions on July 31, 1996. For the reasons stated below, Nesser's motion for judgment of acquittal will be denied. His motion for bail or release pending sentence is considered in a separate memorandum opinion and order.
MOTION FOR JUDGMENT OF ACQUITTAL AND/OR FOR NEW TRIAL
Nesser makes three arguments in his motion for judgment of acquittal. First, he contends that the court improperly instructed the jury on willful blindness. Second, he argues that the evidence was insufficient to convict him. Third, he asserts that he was improperly charged with, and convicted of, two different conspiracies based on the same activity.
Nesser's co-defendant Beverly Whethers made similar arguments with regard to the willful blindness charge. Having rejected her contentions, we reach the same conclusion as to his, which conclusions we essentially repeat below.
At trial and now, Nesser and Beverly Whethers asserted that a willful blindness instruction opened the door to a conviction for negligent, as opposed to knowing, behavior. We believe the language of the instruction met defendants' concerns by explicitly stating, and repeating, that the jury could not convict for stupidity, negligence, or recklessness, and that criminal knowledge was based on subjective knowledge, or its equivalent, narrowly defined. Thus, a review of the willful blindness portion of the court's charge, in context and read as a whole with the remainder of the charge, lays Nesser's contention to rest.
Nesser also argued that willful blindness placed a burden on him to offer proof that he did not have guilty knowledge, contrary to the Fifth Amendment. This argument is based on language in the charge that one aspect of willful blindness is the defendant's deliberate failure to investigate suspicious circumstances. Nesser contends that this language created a burden for him at trial to explain to the jury why he did not investigate the sources of the Whethers' money he handled.
No such burden at trial is created. Nesser confuses conduct that is part of willful blindness at the time of the alleged crimes with his obligations at trial. Following the commands of the willful blindness charge a jury might consider whether a defendant had reason to inquire into suspicious conduct before becoming more deeply involved in it -- i.e., whether he willfully blinded himself to the truth. In that sense, a jury might find that a defendant had some responsibility to act to inform himself at the time the crime was committed, and that his deliberate failure to do so is tantamount to knowledge. This does not, however, translate into either the burden of coming forward or the burden of persuasion at trial.
To the extent that the mere giving of the instruction was objectionable and forms the basis for Nesser's motion for acquittal, our authority for the instruction's use and phrasing was United States v. Caminos, 770 F.2d 361 (3d Cir. 1985), and United States v. One Rolls Royce, 43 F.3d 794 (3d Cir. 1994), both discussed with counsel at the time of the charge. The latter is a forfeiture case, but which examines in detail the meaning and origins of willful blindness, and was cited to us by Nesser as favorable precedent.
The circumstances justifying the giving of a willful blindness charge are much more persuasive here than in Caminos, the controlling case in this circuit. Caminos involved a one-time drug smuggling transaction. This case is based on Nesser's years of association with Ronald Whethers as a client and sometimes social acquaintance. Nesser handled property transactions for Whethers. Nesser represented drug dealers who were part of Whethers' organization. Whethers' minions appeared at Nesser's office. Nesser spent time at Whethers' social club.
Moreover, there was no evidence in Caminos that the defendant had any personal knowledge about being part of the drug transactions for which they were eventually convicted. Here, there was abundant evidence of Nesser's detailed knowledge of Whethers' financial affairs. There was also sufficient evidence to inform Nesser that Whethers' financial affairs were funded by drug money, as we discuss below. In other words, there is a notably narrower range of information about which he could profess ignorance than the defendant in Caminos, and therefore a shorter distance from willful ...