‘Deliberate Ignorance’ Jury Instruction Focus of Sweepstakes Fraud Appeal

(CN) — The 11th Circuit on Tuesday considered whether prosecutors are trying to have their cake and eat it, too, if they argue for a defendant's active knowledge of a crime but fall back on a "deliberate ignorance" jury instruction to convict.

The issue arose in the case of Shameer Hassan, who is appealing his convictions on charges of money laundering, wire fraud conspiracy and aggravated identity theft in connection with a sweepstakes scheme.

The scheme involved calling up victims and duping them into believing they had won a sweepstakes prize. The fraudsters, who had a call center in Jamaica, extracted millions of dollars from victims by telling them they needed to pay taxes and upfront fees before collecting their prize.

For sentencing purposes, the trial judge estimated the fraudsters stole more than $3.6 million from victims, many of whom were elderly.

Five defendants pleaded guilty to the scheme. Among them was Robert Blake Madurie, who prosecutors portrayed as a primary organizer of the fraud. 

Hassan's alleged role entailed using a money-transfer station at his Caribbean restaurant in central Florida to send money on behalf of the scheme's operators including Madurie, a former employee of the restaurant. Hassan took his case to trial and lost, with the judge sentencing him to 12 years in prison.

On appeal Tuesday, Hassan's attorney Jason Wandner argued that the trial judge erred by giving the jury a "deliberate ignorance" instruction. This type of instruction explains to a jury that they can infer a defendant is aware of a crime if he or she deliberately avoids learning about the crime to avoid culpability.    

Wandner argued that deliberate ignorance instructions should not be given in cases where prosecutors focus on a defendant's "actual knowledge" of a crime.

"The government wants to have its proverbial cake and eat it too," Wandner wrote in a reply brief. "On the one hand, it argues there was 'ample' evidence of Hassan’s supposed actual knowledge in the form of letters, repeated transactions, use of identities, 10% [cut of the money transfers], etc. On the other, it defends the deliberate ignorance instruction as an alternative means of conviction in the event the jury was not persuaded by this evidence."

Hassan's overarching argument is that Madurie revealed to him neither that identities used for the money transfers were stolen, nor that the funds being transferred were tied to fraud.

Sara Sweeney, attorney for the Department of Justice, contended that prosecutors were entitled to the jury instruction because at trial they pursued the legal theory that Hassan was sticking his head in the sand to avoid knowing the details of the fraud. Sweeney told the panel Tuesday that there was a "direct and explicit agreement" between Madurie and Hassan that Hassan would not ask questions about the source of the funds.

Sweeney claims that there was strong evidence that Hassan participated in the crime notwithstanding his attempts to distance himself from it. In addition to using stolen identities provided to him for funds transfers, he pulled identities from a money transfer company's database and falsely inputted them as purported senders of funds, Sweeney said.  

U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee, pressed the Department of Justice on the jury instruction issue Tuesday. He anecdotally recounted a series of instances, similar to the current case, where prosecutors seek to include a jury instruction on "deliberate ignorance" but then, when an appellant challenges the instruction, contend that any error in its inclusion would be harmless.

Hassan's appeal is being fielded alongside the appeal of defendant Nadine Bromfield Alexander, who was accused of stealing the identities that the fraud's key players used to move cash around. She was sentenced to seven years after being convicted of wire fraud conspiracy, money laundering conspiracy and aggravated identity theft in connection with the scheme. 

On appeal Tuesday, Alexander's attorney, assistant federal public defender Adeel Bashir, painted her as an ancillary figure who did not participate in calling and defrauding victims. He told the panel during oral arguments that there is not "a single piece of evidence that Ms. Alexander was even in the room when these calls were made."

The Department of Justice maintains that Alexander's interactions with Madurie's co-conspirator Vivroy Kirlew, Alexander's one-time boyfriend, supports the finding that she knew about the extent of the scheme.

"The jury reasonably could find that Alexander would not have risked her job by stealing identities, provided debit cards in her name to receive funds from unknown sources, or repeatedly wired money to people she did not know in Jamaica if she had not known about the scheme," the government's brief states. 

Alexander is also challenging the amount of the fraud loss attributed to her during sentencing, as well as a sentencing enhancement applied for defrauding vulnerable victims.

Bashir claims that while Alexander may have stolen identities, she did not participate in the sweepstakes fraud and did not know its victims were elderly or otherwise vulnerable.

During oral arguments, when Judge Adalberto prodded Sweeney on whether Alexander knew about elderly victims being targeted, Sweeney turned to the sentencing guideline text. She noted that the guideline states that the enhancement can be applied if the defendant "knew or should have known" that victims were vulnerable.

Adalberto was joined on the panel by U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, and Senior U.S. Circuit Judge Bard Tjoflat, a Gerald Ford appointee.

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