U.S. v. Blair

• Decision Date: 01 May 1995
• Docket Number: No. 94-5003,94-5003
• Citation: 54 F.3d 639
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert John BLAIR, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 639

54 F.3d 639

UNITED STATES of America, Plaintiff-Appellee, v. Albert John BLAIR, Jr., Defendant-Appellant.

No. 94-5003.

United States Court of Appeals Tenth Circuit.

May 1, 1995.

Charles M. McLoughlin, Asst. U.S. Atty. (Stephen C. Lewis, U.S. Atty. for N.D. of Okl., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for defendant-appellant.

Before BALDOCK and BRORBY, Circuit Judges, and BROWN, ^* District Judge.

BRORBY, Circuit Judge.

The defendant, Albert John Blair Jr., brings this appeal challenging the district court's acceptance of his guilty plea and calculation of sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and affirm.

BACKGROUND

The relevant facts are essentially undisputed. Mr. Blair accepted wagers on professional and college basketball games from residents of the Northern District of Oklahoma over the phone via a toll-free number he had established. At the time, Mr. Blair was residing in the Dominican Republic. As part of his gambling operation, Mr. Blair employed a number of people who answered the phones, who used his information and capital, who paid a percentage of the profits from their own customers to him, and whose losses he covered. Mary J. Meyer played an active role in the enterprise. She would take and collect bets and place and lay off bets with other bookmakers for Mr. Blair.

On February 10, 1993, the government filed a two count information against Mr. Blair. Count one charged him with knowingly using a wire communication facility for the transmission of bets or wagers, contrary to 18 U.S.C. Sec. 1084. Count two charged Mr. Blair with knowingly and willfully conspiring to commit the offense of illegal gambling against the United States, contrary to both 18 U.S.C. Sec. 1084 and Sec. 1955. Mr. Blair entered a plea agreement with the United States. On February 11, 1993, Mr. Blair appeared before the district court for the purpose of entering his guilty pleas. In addition to discussing the plea agreement and advising Mr. Blair of his rights, the court inquired as to the factual basis for the plea. Satisfied that there was a factual basis for the pleas, the district court accepted the plea agreement.

A presentence investigation report was prepared, and Mr. Blair filed several objections to it. Of those objections, only one is relevant to this appeal: Mr. Blair should not be assessed a two point increase in his base offense level for obstruction of justice. The factual basis for this increase, which the district court accepted, was Mr. Blair's "sham" marriage to Mary Meyer, intended to enable Ms. Meyer to invoke the marital privilege and thereby avoid testifying against Mr. Blair before the grand jury.

Mr. Blair brings this appeal arguing the district court erred (1) in accepting his guilty pleas as no factual basis was established showing he was guilty of the crimes charged, and (2) in imposing a two point enhancement for obstruction of justice.

DISCUSSION

I.

Mr. Blair argues the district court committed reversible error in accepting his guilty plea. This argument is premised on the contention that 18 U.S.C. Sec. 1084 and Sec. 371 are "specific intent" crimes and, further, that a specific intent crime requires a showing the defendant was cognizant of the illegality of his actions. In short, Mr. Blair argues ignorance of the law is a defense to specific intent crimes generally and to the crimes he plead guilty to specifically. We are not persuaded.

A

Section 1084 provides, in pertinent part:

(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers ... which entitles the recipient to receive money or credit as a result of bets or wagers ... shall be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. Sec. 1084 (emphasis added).

The term "knowledge" as used in the criminal law has long had a very distinct and definite meaning. It specifies that the mens rea needed to establish the crime be that of general intent. E.g., United States v. Bailey, 444 U.S. 394, 405, 100 S.Ct. 624, 632, 62 L.Ed.2d 575 (1980) (the term knowledge corresponds with the concept of general intent); United States v. Hall, 805 F.2d 1410, 1420 (10th Cir.1986) (same); Edward J. Devitt et al., Federal Jury Practice and Instructions Sec. 17.04 (4th ed. 1992). Because Sec. 1084 proscribes the knowing use of wire communication facilities to take bets, the plain language of the statute clearly evinces Congress's judgment that general intent is the mens rea needed to establish a violation of Sec. 1084.

In arguing to the contrary, Mr. Blair relies exclusively on Cohen v. United States, 378 F.2d 751, 756-57 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). While the court in Cohen did not conclude that Sec. 1084 was a specific intent crime, the court did hold that "Congress intended knowledge of the statutory prohibition to be an element of the offense under section 1084(a)." Id. at 757. We do not find the analysis of Cohen compelling and thus, decline to adopt it.

First, the Cohen case contains no discussion of the plain meaning of Sec. 1084 or the clearly established import of the term "knowledge." The language of the statute is, in our judgment, dispositive on the question of the mens rea needed to establish the crime. Second, we disagree with the Cohen court's conclusion Congress intended the statute to require knowledge of the statutory prohibition to support a conviction for its violation. The court reached this conclusion simply by observing that wagering is legal in the state of Nevada and thus, were the court to read the statute as requiring knowledge of its prohibition, "those innocent of intentional wrongdoing are afforded a defense." Id. at 756. While this undoubtedly is true, Congress nowhere manifested its intent to provide such a defense. Our duty is to apply the law as written, not rewrite it as we see fit. We decline to adopt the rule laid out in Cohen, and hold that the mens rea required to establish a violation of Sec. 1084 is that of general intent. Accordingly, we reject Mr. Blair's allegation that reversible error was committed in accepting his plea to count one because no factual basis existed to establish he acted with specific intent.

B

Mr. Blair argues there was no factual basis to support his guilty plea with respect to the conspiracy charged in count two. Again, he asserts conspiracy is a specific intent crime that requires proof the defendant acted with knowledge his conduct was prohibited by law.

A specific intent crime is one in which an "act was committed voluntarily and purposely with the specific intent to do something the law forbids." Hall, 805 F.2d at 1420, see also Apodaca v. United States, 188 F.2d 932, 937 (10th Cir.1951) (specific intent requires "a conscious purpose to do wrong ... not only [with] knowledge of the thing done, but a determination to do it with bad intent or with an evil purpose or motive"). In contrast, a general intent crime is one in which an "act was done voluntarily and intentionally, and not because of mistake or accident." Hall, 805 F.2d at 1420; accord Bailey, 444 U.S. at 404, 100 S.Ct. at 631 (discussing the Model Penal Code's distinction between acting "purposely" as opposed to "knowingly" and noting the two concepts correspond loosely to the common law concepts of general and specific intent). In short, a specific intent crime is one in which the defendant acts not only with knowledge of what he is doing, but does so with the objective of completing some unlawful act.

There can be no doubt, therefore, that conspiracy is a specific intent crime. The general federal conspiracy statute provides, "[i]f two or more persons conspire ... to commit any offense against the United States ... each shall be fined not more than $10,000 or imprisoned not more than five years, or both." 18 U.S.C. Sec. 371. "[T]he specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy." United States v. Haldeman, 559 F.2d 31, 112 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); see also, United States v. Feola, 420 U.S. 671, 688, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975) (Sec. 371 requires "the conspirators agree to participate in the prohibited conduct") (citing Anderson v. United States, 417 U.S. 211, 226, 94 S.Ct. 2253, 2263, 41 L.Ed.2d 20 (1974)); United States v. Nall, 949 F.2d 301, 305 (10th Cir.1991) (elements of the crime of conspiracy include "an agreement[,] the purpose of [which] must be to break the law").

While we agree with Mr. Blair that the crime of conspiracy outlawed by Sec. 371 is a specific intent crime, we do not accept the significance he and the government place on this fact. Specific intent crimes do not, as a rule, necessitate a showing the defendant intentionally violated a known legal duty. While it is true that such a requirement has been imposed in the context of income tax crimes and violations of the Bank Secrecy Act, see, e.g., Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (applying the Internal Revenue Code); Ratzlaf v. United States, --- U.S. ----, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (applying the Bank Secrecy Act), such a requirement has been imposed only in those circumstances where there was a clear directive from Congress. E.g., United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976) (per curiam); Ratzlaf, --- U.S. at ----, 114 S.Ct. at ----, 126 L.Ed.2d at 622-23. Absent such an intent, the general rule, "deeply rooted in the American legal system," is "that ignorance of the law or a mistake of law is no defense to...