United States v. Denson

• Decision Date: 02 August 2012
• Docket Number: Nos. 11–1042,11–1043.,s. 11–1042
• Citation: 689 F.3d 21
• Parties: UNITED STATES of America, Appellee, v. Todd DENSON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

689 F.3d 21

UNITED STATES of America, Appellee,

v.Todd DENSON, Defendant, Appellant.

Nos. 11–1042, 11–1043.

United States Court of Appeals,First Circuit.

Heard May 8, 2012.

Decided Aug. 2, 2012.

James M. Falvey, by appointment of the court, with whom Law Office of James Falvey was on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty, II, United States Attorney, was on brief, for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

WHAT THIS CASE IS ABOUT

Todd Denson spent about a year in federal prison for mail and wire fraud after he got caught up in one of those notorious “Nigerian” money “scams,” as law enforcement calls them. See18 U.S.C. §§ 1341 (mail fraud) & 1343 (wire fraud). The short version of what happened is this.

Apparently persons in Africa emailed Denson saying that he (Denson) had inherited the rights to an overseas company worth $9–plus million. They also said that there was a pile of cash in a Barclays Bank account in London just waiting there for him. All he had to do was send over a few thousand dollars to take care of taxes, wire-transfer fees, and the like, and he would be a very rich man.

Deals that look too good to be true often are, and this one certainly was. Calling a local Secret Service office (in addition to protecting some elected leaders, the Secret Service also investigates certain financial crimes, see18 U.S.C. § 3056), Denson had an agent tell him point blank that this was a scam and that he should not send a dime overseas because, if he did, he would “never see that money again.” Importantly, the agent also added that, “now that I've told you that this is a scam,” if you “solicit[ ] money from others” to send abroad, you “ could ” be on the hook “criminally” for that. (Emphasis added.)

Pouncing on the fact that the agent had said “could” rather than “would,” Denson went ahead and did what he was told not to do, taking tens of thousands of dollars from persons who had trusted him. Convinced (probably rightly) that no one would hand him money if he mentioned the email, Denson had said things like he needed their cash to help with some “window-washing invention” he had “a patent for.” Naturally, he dangled the prospect of a big payback to hook the unsuspecting.

At some point Denson called up the agent again and freely admitted that he had “deceived” others into giving him money. Meeting with some agents two days later, Denson copped to a lot more. To deflect suspicion away from what he was doing, he and his foreign-based attorney, Paul Jones, had created a fictitious company to make it look like he had really earned the $9–plus million, Denson said. A Barclays Bank official, he added, had told him that Jones was “a Nigerian scammer,” that there was no money waiting there for him, and that the email thing “was a scam.” At a follow-up meeting, agents again stressed that all of this “was a scam.” Denson replied that he was done with the scheme because he too had “realized” that “it was a scam.” He said the same thing a week later, but this time agents confronted him with proof that he had tried to get an undercover agent to “invest” $30,000 in an overseas-construction venture. As part of his pitch, Denson had handed the undercover agent false documents showing that he (Denson) had sold over $4 million in construction equipment. Essentially caught red handed, Denson fessed up to what he had done, saying it “was wrong.”

We could go on and on, but this is enough for now to show why Denson ended up doing a year (give or take) behind bars. Incredibly, once out on supervised release, he returned to his old ways, hustling a bunch of people out of thousands of dollars by saying (among other lies) that he had made a killing in the overseas stock markets or had millions sitting in a Scottish bank but that he needed their money—which he would pay back, and then some—to get what he said was rightfully his.¹ Denson got caught, again. And his actions culminated in a jury's convicting him on multiple wire-fraud counts and a district judge's revoking his supervised release.² As for how sentencing went, what matters for our purposes is that the judge imposed concurrent 30–month prison terms for each wire-fraud conviction—a sentence within the 24–30 month advisory guidelines sentencing range. After holding a revocation hearing later that same day, the judge also sentenced him to a total imprisonment term of 15 months for the supervised-release violations—even though the sentencing range was 4–10 months. And the judge made the 30–month term run consecutively with the 15–month term.³

Which brings us to Denson's appeal. His arguments for reversal fall into two general categories—protests about the jury instructions and criticisms about the sentencing. We explain below why all of his arguments fail, adding more information as we move along.

JURY INSTRUCTIONS

The parties—who agree on little else—agree that the elements of wire fraud are a “scheme to defraud,” the accused's “knowing and willful participation in the scheme with the intent to defraud,” and the use of interstate or foreign “wire communications” to further that scheme. See United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir.1993). The judge instructed the jury to that effect. Critically for our purposes, the judge gave a willful-blindness instruction too— i.e., an instruction that (broadly speaking) allowed the jury to infer that Denson had acted knowingly if he had deliberately closed his eyes to obvious facts. See, e.g., United States v. De Jesús–Viera, 655 F.3d 52, 59 (1st Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1045, 181 L.Ed.2d 768 (2012). Then the judge also told the jury that Denson's “good faith” was a complete defense to the charges against him.⁴

Denson complains that the willful-blindness instruction likely confused the jury into thinking that it could convict based on what a reasonable person in his shoes should have known rather than on what he actually believed or intended. He is right about one thing: “[t]he focus of [a] willful blindness instruction must be on the particular defendant and not on the hypothetical reasonable person.” United States v. Griffin, 524 F.3d 71, 80 (1st Cir.2008); see generally Global–Tech Appliances, Inc. v. SEB S.A., ––– U.S. ––––, 131 S.Ct. 2060, 2070 & n. 9, 179 L.Ed.2d 1167 (2011) (distilling from willful-blindness cases “two basic requirements”—“(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact”) (citing, among other cases, United States v. Pérez–Meléndez, 599 F.3d 31, 41 (1st Cir.2010)). Faced with a properly preserved challenge like this one, we give fresh review to whether the instructions contained “an error of law” but abuse-of-discretion review to whether they “adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.” ⁵United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir.2010) (internal quotation marks omitted); accord United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.2009). Ultimately, despite what Denson says, we believe that the instructions focused the jury's attention on him.

What the judge said (emphasis ours) is that the jury could find that “ the defendant acted knowingly ... if he deliberately” turned a blind eye “to a fact that otherwise would have been obvious to him.” “[T]o infer knowledge,” the judge added, the jury had to conclude “that the defendant was aware of a high probability of the fact in question” and “that the defendant consciously and deliberately avoided” confirming that fact—in other words, “ the defendant willfully made himself blind to that fact.” And it was up to the jury “to decide whether he deliberately closed his eyes to the fact and, if so, what inference, if any,” to draw. Obviously, fairly read, the charge's references to “the defendant,” “he,” “his,” “him,” and “himself” all refer to Denson, and not to some generic reasonable person, as Denson would have us believe. The long and the short of it is that this instruction squares with our cases ⁶—even Denson does not suggest otherwise—and could not have misled the jury into applying a reasonable-person standard. Consequently, Denson's first argument goes nowhere.

Targeting the good-faith instruction, Denson tells us next that that charge was less than what he deserved because (despite his request) it did not “clarify” that good faith turned on what he subjectively believed instead of what some reasonable person would have believed. We will reverse a decision like this one only if the rejected charge was (a) substantively correct, (b) not substantially covered by other instructions, and (c) so essential to an important point in the trial that failure to give it seriously impaired the defendant's ability to defend himself. See, e.g., United States v. Dunbar, 553 F.3d 48, 62 (1st Cir.2009) (discussing an abuse-of-discretion standard of review). It is a rare case where all of these conditions are met, see United States v. Prigmore, 243 F.3d 1, 17 (1st Cir.2001), and this is not that case—not by a long shot.

To speed things up, we focus in on (b)—whether Denson's rejected instruction was covered by the given charge—and remind the reader that the judge told the jury (again, emphasis ours) that “if the defendant ”—meaning Denson—“acted in good faith” then “ he ” could hardly be guilty of wire fraud. The judge had the jury concentrate on Denson's actual, subjective beliefs after all, which means that his charge basically did what Denson wanted it to do. Conscious that judges generally need not mimic the precise wording of a party's preferred instruction, see, e.g., United States v. Barnes, 251 F.3d 251, 260 (1st Cir.2001), we easily reject Denson's whole line of attack on the good-faith charge.

In a parting shot,...