9 F.3d 934 (11th Cir. 1993), 92-8959, United States v. Stone

Docket Nº:92-8959.
Citation:9 F.3d 934
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James W. STONE, Defendant-Appellant.
Case Date:December 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 934

9 F.3d 934 (11th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


James W. STONE, Defendant-Appellant.

No. 92-8959.

United States Court of Appeals, Eleventh Circuit

December 22, 1993

Page 935

Paul S. Kish, Federal Defender Program, Inc., Atlanta, GA, for defendant-appellant.

Thomas E. Zehnle, Robert E. Lindsay, Alan Hechtkopf, Gregory Davis, U.S. Dept. of Justice, Tax Div., Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON and CARNES, Circuit Judges, and SCHLESINGER [*], District Judge.

CARNES, Circuit Judge:


A federal jury convicted appellant James Stone of violating 18 U.S.C. Sec. 287 by filing a false claim for an income tax refund. On appeal Stone raises two issues that merit discussion. First, was it reversible error for the district court to charge the jury on "deliberate ignorance" in the absence of sufficient evidence to support such a theory? We conclude that any error in giving such a charge in the absence of sufficient evidence is harmless when the instruction itself requires, as a precondition to its application, proof beyond a reasonable doubt of deliberate ignorance. The second issue is whether the district court erred by admitting evidence that Stone refused to provide the IRS with handwriting exemplars. We conclude that under the facts of this case any error in admitting that evidence was harmless.


In 1988 and 1989, the Internal Revenue Service ("IRS") received several suspicious

Page 936

tax refund requests from inmates at a Georgia prison. One such request, signed in Stone's name, sought a refund of taxes supposedly withheld from Stone's 1986 wages. A letter and supporting documentation accompanying the request explained that Stone's incarceration and the intervening bankruptcy of his former employer had prevented him from seeking the refund earlier. The IRS issued Stone a refund check of $1,242, which he deposited in his inmate account. Once the check cleared and prison officials released the funds, Stone forwarded the money to his sister with instructions to send it back to him as he needed. The IRS subsequently discovered that the alleged employer was fictitious and that Stone had spent a significant part of the 1986 tax year in prison.

On three occasions, Jack Wood, an IRS investigator, sought handwriting samples from Stone to compare with the signature on the refund request. On his first visit, June 27, 1989, Agent Wood told Stone that he had a summons for handwriting exemplars from Stone. Agent Wood read Stone the Miranda warnings, which included advice that Stone had the right to an attorney. Stone refused to provide handwriting exemplars. At the sentencing hearing, Stone testified that he called a lawyer "as quick as [Agent Wood] left the first time." 1 On July 11, 1989, Agent Wood returned and advised Stone that handwriting samples "were not protected under the Constitution, as far as self-incrimination was concerned, and that they were just a means of identification, such as fingerprints." Stone indicated that he understood but again refused to cooperate. Agent Wood sought samples of Stone's handwriting a third time on July 25, 1989. On this occasion, a prison official informed Agent Wood that Stone refused to see him.

At trial, the district court allowed the United States to introduce evidence of Stone's repeated refusals to provide handwriting samples. At the Government's request, the district court instructed the jury that, although not dispositive, Stone's refusal to obey the handwriting summons was probative of his consciousness of guilt. The Government relied on this evidence in its closing argument.

At trial Stone argued that the Government had failed to connect him to the false refund request. The defense called an IRS handwriting expert who testified that the envelope in which the refund request was received, as well as certain entries on a supporting document, were written by Michael Perucca, another inmate. Lacking sufficient known samples of Stone's handwriting, the expert was unable to say whether Stone had actually signed the refund request. Although Stone's fingerprints were found on the explanatory letter, the defense presented the testimony of a retired prison official to show that Stone had served as a "squad room orderly," and that in such capacity Stone had distributed stationery and writing materials to other inmates. On cross-examination the Government's fingerprint expert admitted that she could not tell whether Stone's fingerprints were placed on the letter before or after it was written. The fingerprint expert also testified that she had found Michael Perucca's--but not Stone's--fingerprints on the tax return filed in Stone's name.

The district court charged the jury that knowledge of the false claim was an element of the offense. At the Government's request, the district court also charged the jury as follows on "deliberate ignorance":

When knowledge of the existence of a particular fact is an essential part of an offense, such knowledge may be established if the defendant is aware of a high probability of its existence, unless he actual [sic] believes that it does not exist. So, with respect to the issue of the defendant's knowledge in this case, if you find from all the evidence beyond a reasonable doubt that the defendant believed a false and fraudulent claim was being made against the United States in his name, and deliberately and consciously tried to avoided [sic]

Page 937

learning of such false and fraudulent claim being made against the United States in order to be able to say, if he should be apprehended, that he did not know a false and fraudulent claim was made, you may treat such deliberate avoidance of positive knowledge as the equivalent of knowledge.

In other words, you may find that a defendant acted knowingly if you find beyond a reasonable doubt, either, one, that the defendant actually made a false and fraudulent claim against the United States, or, two, that he deliberately closed his eyes to what he had every reason to believe was the fact.

Defense counsel objected to the deliberate ignorance instruction, arguing that there was no evidence that Stone consciously had closed his eyes to illegal activity. The Government countered that even if Stone himself had not filed the false return, his deposit and forwarding of the proceeds without investigation was an attempt to remain deliberately ignorant of the criminal activity.



    On appeal, Stone argues that it was reversible error for the district court to instruct the jury on deliberate ignorance. Because a challenge to a jury instruction presents a question of law, our review is de novo. See United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993).

    In United States v. Rivera, 944 F.2d 1563, 1570-71 (11th Cir.1991), we cautioned the district courts against instructing juries on deliberate ignorance when the evidence only points to either actual knowledge or no knowledge on the part of the defendant. A deliberate ignorance instruction is appropriate only when there is evidence in the record "showing the defendant purposely contrived to avoid learning the truth." United States v. Barbee, 968 F.2d 1026, 1033 (10th Cir.1992) (citation omitted). The Government argues that Stone's receipt of the refund check made him aware of a high probability that a false return had been filed. According to the Government, Stone's failure to investigate the reasons for the IRS's spontaneous generosity was a deliberate effort to avoid positive knowledge of the false claim. Stone counters that his actions are not evidence of deliberate ignorance at all. We need not determine whether the evidence of deliberate ignorance was nonexistent, insufficient, or sufficient to support the instruction. Even if we accept Stone's characterization of the evidence and assume that there was no evidence of deliberate ignorance, reversal is not required because any error in giving the instruction was harmless beyond a reasonable doubt.

    We have previously applied the harmless error rule to a deliberate ignorance instruction, albeit under different circumstances. In Rivera, the prosecution had presented no evidence at all to prove conscious avoidance of knowledge. See 944 F.2d at 1572. Nonetheless, the Rivera Court held that the trial court's error in giving the deliberate ignorance instruction was harmless because the evidence of actual knowledge was " 'so overwhelming as to compel a guilty verdict.' " Id. at 1572-73 (quoting United States v. Sanchez-Robles, 927 F.2d 1070, 1075 (9th Cir.1991)). Contrary to the Government's position, and in contrast to the Rivera case, the error in this case is not rendered harmless by the quantity of evidence showing Stone's actual knowledge of the false tax return. The evidence of actual knowledge in this case was sufficient to support a guilty verdict but was not overwhelming. The jury twice informed the district court that it was deadlocked and only reached a verdict after it was given an Allen charge. The Rivera Court did not reach the issue we address: whether the error in giving a deliberate ignorance instruction when there is insufficient evidence to support it, and when the evidence supporting actual knowledge is not overwhelming, is nonetheless harmless because of the wording of the instruction.

    In this case, the district court charged the jury that deliberate ignorance may be treated as the equivalent of positive knowledge if the jury found "from all the evidence beyond a reasonable doubt that [Stone] believed a false and fraudulent claim was being made against the United States"...

To continue reading