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United States v. Farrell

United States Court of Appeals, Fourth Circuit

April 5, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Argued: November 1, 2018

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:15-cr-00562-RWT-1)


          Barry Coburn, COBURN & GREENBAUM, PLLC, Washington, D.C., for Appellant.

          Sandra Wilkinson, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland for Appellee.

         ON BRIEF:

          Robert K. Hur, United States Attorney, Lynn Juan, Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          David B. Smith, Vice Chairperson, Elizabeth Franklin-Best, Vice Chairperson, Amicus Curiae Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Washington, D.C.; Catherine E. Creely, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Amicus Curiae.

          Before KING, FLOYD, and THACKER, Circuit Judges.


         James Michael Farrell was convicted after an early 2017 jury trial in the District of Maryland for ten offenses of money laundering conspiracy, substantive money laundering, and related charges of obstruction of justice. Farrell, a former lawyer, was prosecuted for his role as the so-called "consigliere" of an elaborate multi-state marijuana trafficking organization. On appeal, Farrell contests several rulings made by the district court concerning evidence sufficiency, evidence admissibility, and jury instructions. As explained below, we reject his contentions of error and affirm the judgment.



         In October 2015, the federal grand jury in Maryland indicted Farrell for twelve offenses. Count One alleged that, from 2009 to 2013, Farrell was involved in a money laundering conspiracy that conducted financial transactions relating to monetary proceeds generated by the unlawful activity of marijuana trafficking, which transactions were used to conceal and disguise the illegal source of such proceeds, in violation of 18 U.S.C. § 1956(h).[1] The indictment alleged that the monetary proceeds used in the conspiracy offense came from a marijuana trafficking organization led by a man named Matt Nicka, and which maintained a primary hub in Maryland (hereinafter, the "Nicka Organization" or the "Organization"). The Nicka Organization was responsible for distributing and selling thousands of pounds of marijuana in the eastern and southern United States, and it generated millions of dollars from those illicit transactions.

         Counts Two, Three, Five, Six, Seven, and Twelve of the indictment made substantive allegations of money laundering against Farrell, pursuant to 18 U.S.C. § 1956(a)(1)(B)(i).[2] More specifically, Counts Two, Three, Five, and Six charged Farrell with writing checks on his law firm's bank account - wherein he had deposited funds received from Nicka and the Nicka Organization - to assist several of its drug dealers, or so-called "members," in obtaining legal services. In Counts Seven and Twelve, the indictment alleged that Farrell laundered drug trafficking proceeds by securing money orders that he used to support an imprisoned member of the Organization.

         Counts Four, Nine, and Eleven charged Farrell with attempting to obstruct proceedings of the Drug Enforcement Administration (the "DEA") (Count Four), and also to obstruct proceedings in the federal court in Maryland (Counts Nine and Eleven), in contravention of 18 U.S.C. § 1512(c)(2).[3] Pertinent to this appeal, Count Four alleged that Farrell corruptly attempted to influence a DEA administrative forfeiture proceeding involving a Nicka Organization drug dealer by, inter alia, advising the drug dealer not to disclose the source of certain property and by forging affidavits submitted to the DEA. Count Nine charged that Farrell had corruptly attempted to influence the federal prosecution of Organization drug dealers in Maryland by meeting with one such drug dealer - who was then represented by another lawyer - to discuss ongoing federal investigations and criminal prosecutions, by agreeing to assist with the drug dealer's legal expenses, and by directing the drug dealer "to meet with federal law enforcement officers and federal prosecutors . . . but to only tell them what they already knew rather than sharing all information known to [that member] about the [Organization's] drug conspiracy and money laundering conspiracy." See J.A. 33, 35.[4]

         Counts Eight and Ten alleged offenses of attempted witness tampering, in violation of 18 U.S.C. § 1512(b)(3).[5] As relevant here, Count Eight charged that Farrell contravened § 1512(b)(3) by engaging in the activities that formed the bases for Count Nine, that is, by meeting with a Nicka Organization drug dealer he did not represent to discuss the drug dealer's criminal case, by agreeing to obtain funds for the drug dealer's legal fees, and by directing the drug dealer - in his cooperation with the federal authorities - to withhold relevant information. Count Eight further alleged that Farrell's conduct was an illegal effort to corruptly persuade the Organization drug dealer to withhold relevant information from the federal authorities that related to Organization members.


         During the post-indictment period leading to Farrell's trial, he moved the district court for suppression of his inculpatory recorded conversations with two Nicka Organization drug dealers: Jacob Harryman and Ryan Forman (hereinafter, the "Tapes"). In cooperating with federal agents, Harryman and Forman met separately with Farrell on several undercover occasions and taped their conversations with him. Farrell asserted in his suppression motion that the Tapes should be suppressed because they constituted attorney-client communications intercepted by the government in violation of the Sixth Amendment.[6]

         On January 10, 2017 - the first day of trial - the district court orally denied Farrell's suppression motion. In explaining its bench ruling, the court questioned whether either Harryman or Forman - who were then cooperating witnesses of the government - had attorney-client relationships with Farrell when the Tapes were made. Assuming one or both of such relationships existed, however, the court recognized that the asserted privilege belongs to the clients, who could waive it and divulge otherwise privileged statements. The court then ruled that the federal agents were entitled to direct Harryman and Forman - in their cooperation with the federal authorities - to meet in undercover settings with Farrell and record their conversations without running afoul of the Sixth Amendment. After the court's denial of the suppression motion, the trial began.


         During Farrell's fourteen-day trial, the prosecution called more than thirty witnesses, and the defense called several of its own. The prosecution witnesses included state and federal law enforcement officers who had investigated the Nicka Organization, former Organization drug dealers who were cooperating with the government, lawyers who represented cooperating witnesses, and federal agents who had examined and analyzed Farrell's records.

         The trial evidence established the sophisticated nature of the Nicka Organization, which involved at least fifteen coconspirators and collected millions of dollars - over a period of at least six years - from marijuana sales in multiple states. The evidence showed that Farrell functioned as an illegal "consigliere" of the Organization and as a "fixer" and adviser to its organizer and drug kingpin, Matt Nicka.[7] From Farrell's role in the Organization, he received more than $100, 000 from marijuana sales made by the Organization's drug dealers. He then utilized those drug proceeds to fund legal fees for the members and drug dealers and to support an incarcerated Organization member. In the course of receiving and distributing those unlawful proceeds, Farrell falsified his client transaction records and misrepresented the source of those funds. Although Farrell was involved in assisting Nicka and the Organization by seeking to maintain what he called a "collapsed defense," he was never a lawyer of record for Nicka or any Organization drug dealer in the Maryland prosecutions. See J.A. 756.

         Farrell's statements on the Tapes constituted the most compelling and damning trial evidence against him.[8] The Tapes established beyond peradventure that Farrell knew the details of the illicit drug trafficking business of the Nicka Organization. In fact, the Tapes revealed Farrell's specific knowledge and recognition that he was "at risk" because he was the consigliere of the Organization. See J.A. 3041-42. The Tapes also proved that Farrell sought to obstruct the federal investigations and prosecutions of Organization drug dealers by forging and filing affidavits, and by attempting to persuade the Organization's members and drug dealers to withhold relevant information from the federal authorities.[9] We will summarize with some specificity the trial evidence, reciting it - as we must - in the light most favorable to the prosecution. See United States v. Hassan, 742 F.3d 104, 115 (4th Cir. 2014).


         In the initial aspect of the trial, the government called several law enforcement officers who had been involved in investigating the Nicka Organization and its illicit conduct over the years. The evidence revealed, inter alia, that a search warrant was executed in March 2009 at a suspected stash house in Baltimore that was being used by a major marijuana trafficking conspiracy. The stash house contained several large cardboard boxes of marijuana, ledgers reflecting more than fourteen million dollars in marijuana sales, thousands of dollars in cash, and approximately thirty cell phones, one of which listed Farrell as a contact. This drug trafficking evidence was seized, and the investigation confirmed that the stash house was used by the Organization.

         In December 2010, an indictment was returned in the District of Maryland charging Nicka and twelve other drug dealers of the Organization with conspiracy to distribute and possess with intent to distribute 1000 kilograms or more of marijuana.[10]That indictment did not name Farrell as a defendant. As related above, Farrell was indicted about five years later, in 2015, and tried in 2017.


         After establishing before the jury the nature and background of the Nicka Organization, the government called several cooperating witnesses who had been drug dealers therein, several of whom had been prosecuted earlier. It also called as witnesses three lawyers who had represented drug dealers in the earlier prosecutions and who had interacted with Farrell during those representations.


         Andrew Sharpeta, an Organization drug dealer who packaged marijuana and kept financial ledgers for the Organization, confirmed that Nicka himself had consistently collected drug proceeds from its members that were reserved and used as a fund to hire defense lawyers for those "who got in trouble" (hereinafter, the "defense fund"). See J.A. 385. For example, around December 2009, Sharpeta - acting on Nicka's instructions - connected Farrell with Organization member Joseph Spain. Spain had received a federal grand jury subpoena in relation to a federal investigation of the Organization and took advantage of Nicka's promise of legal representation for those in trouble. Sharpeta thereafter listened in on a phone call between Nicka and Farrell, during which Farrell gave Nicka information about what Spain had told the grand jury and what Spain was planning to tell the federal authorities. Because Spain had mentioned Sharpeta to the grand jury, Farrell advised Nicka that "it would be in [Sharpeta's] best interest if [he] took a vacation somewhere." Id. at 366.


         Next, Amy Mitchell and Adam Constantinides testified about their interactions with Farrell during their involvement with the Nicka Organization. Constantinides had sold large quantities of marijuana for the Organization, and Mitchell was Constantinides's girlfriend and an Organization member. After the stash house raid in March 2009, Constantinides and Mitchell were short on cash. Another drug dealer in the Organization put them in touch with Farrell. Farrell - whom neither Constantinides nor Mitchell had ever met - then conferred with them and gave them $500 in cash. Soon thereafter, Constantinides received in the mail a magazine containing $9000 of hidden cash.

         Mitchell related that, in October 2010, she was subpoenaed to the federal grand jury in Maryland investigating the Nicka Organization. She called Farrell, who advised her that the Organization's drug dealers were not cooperating with the federal authorities. Mitchell then met with Farrell at his Philadelphia office, where he gave Mitchell $100 for expenses and referred her to an attorney named Brown. When Mitchell inquired about paying lawyer Brown for his legal services, Farrell responded that "everything will be taken care of." See J.A. 550. Farrell then advised Mitchell that if she married Constantinides, they would not need to testify against each other. Mitchell was then represented by Brown, but did not pay him for any legal services. She married Constantinides in November 2010, after her discussion with Farrell and before her grand jury appearance.

         Adam Constantinides explained that, in April 2011, he was arrested on a state charge and - like Mitchell - knew to call Farrell. After that phone call, a lawyer named Tully represented Constantinides in connection with the state charge. Constantinides, however, never paid Tully for anything. Although Constantinides did not know how Tully came to represent him without charge, Tully's office manager explained that Farrell had paid for Constantinides's representation. More specifically, Tully received two checks from Farrell, one for $1250 in April 2011, and another for that same amount in June 2011.[11] The money that Farrell used to pay Tully came from the defense fund.

         Warren Brown testified about his representation of Amy Mitchell. Farrell had called lawyer Brown about referring Mitchell to him. Farrell requested that Brown represent Mitchell and help her avoid testifying before the federal grand jury. Brown confirmed that he received two checks from Farrell, one for $1000 in October 2010, and another for $1500 in November 2010.[12] Although Farrell's financial records did not document the source of the $2500 that was paid to Brown, the money came from the defense fund. Farrell later mailed Brown a package containing a proposed motion to quash Mitchell's grand jury subpoena, along with supporting documents (including a draft affidavit for Brown's signature). Brown said it was unusual to receive such a package from another lawyer, and he did not use the proposed motion or related documents. In February 2011, Farrell asked Brown to represent another Nicka Organization drug dealer and promptly gave Brown $5000 in cash from the defense fund. Although Brown later advised Farrell that he could not represent that drug dealer, Farrell did not seek the return of the $5000.

         On cross-examination, Farrell's counsel asked Brown if lawyers representing codefendants in a criminal conspiracy case commonly communicate with each other, a fact that Brown confirmed. On redirect examination, the prosecutor followed up by inquiring: "[W]hen there are lots of participants in a drug conspiracy, sometimes lawyers representing different members of the conspiracy communicate amongst each other. Is that right?" See J.A. 632. Brown responded in the affirmative. The prosecutor then asked Brown: "Do lawyers commonly communicate with the clients without the lawyers present?" Id. In response, Brown stated that a lawyer should not communicate directly with a criminal defendant or witness who is represented by another lawyer. He observed that it would be "a violation of the Code of Professional Responsibility, the rules of ethics" to do so. Id.


         Jacob Harryman, another Nicka Organization marijuana dealer who was cooperating with the United States Attorney, testified regarding his conversations with Farrell, two of which were among the undercover Tapes that Farrell had unsuccessfully sought to suppress. Harryman recounted that, in November 2010, he was arrested on state drug charges. Harryman was represented by a lawyer named Leonard Shapiro on those charges. After being released on bond in December 2010, Harryman met with his marijuana supplier - another member of the Organization - outside of lawyer Shapiro's office. The drug supplier told Harryman that Shapiro had been paid $9000 from the defense fund on Harryman's behalf. The supplier encouraged Harryman to contact Farrell and assured Harryman that the Organization would - according to the supplier - pay Harryman's legal fees.

         Shortly thereafter, Harryman began cooperating with the local authorities in Baltimore. As part of his cooperation with those authorities, Harryman met with Farrell on January 13, 2011, in Farrell's Philadelphia law office. Farrell knew at that time that Harryman was represented by lawyer Shapiro, but did not know that Harryman was then cooperating with the Maryland authorities. During the meeting, Farrell told Harryman that his legal fees were "being taken care of," and Farrell explained what he called a "collapsed defense." See J.A. 756, 758. In conducting the collapsed defense, Farrell said, drug dealer coconspirators are to "stand[] strong" and "stick[] together." Id. at 756. Farrell warned Harryman that sticking with the collapsed defense was important, and would be much better than "someone coming to see [Harryman]." Id. at 757. Harryman took Farrell's statement about "someone coming to see [him]" to be an explicit threat of physical harm. About two weeks after that meeting, Harryman's drug supplier urged him to fire Shapiro. As the supplier explained to Harryman, lawyer Shapiro was not cooperating with Farrell.

         About a month later, in February 2011, Harryman began cooperating with the federal authorities in Maryland. At the behest of federal agents, Harryman scheduled another meeting with Farrell, ostensibly to discuss the seizure of some of Harryman's personal property by the DEA. On February 16, 2011, Harryman and Farrell met at a rest area on Interstate 95 in Maryland.[13] During their taped undercover conversation about the property seizures, Farrell asked Harryman whether he had any "legitimate[]" (i.e., not drug related) sources of revenue. See J.A. 823-24, 2994. Harryman and Farrell also discussed property the DEA had seized from Harryman, including an expensive wristwatch. Harryman told Farrell that the watch was a gift from his marijuana supplier, and Farrell responded, "well you can't really say who gave you that." Id. at 825-26, 2994. Farrell then explained that Harryman had to file an affidavit with the DEA with respect to each seized item that he sought to have returned. Farrell later filed affidavits with the DEA on Harryman's behalf that purportedly bore Harryman's signature. Harryman, however, had not signed any of the affidavits, nor authorized Farrell or anyone to sign his name.[14] The filing of the forged affidavits caused the DEA to forgo the administrative forfeiture of Harryman's seized property.[15]

         Lawyer Shapiro's evidence corroborated his client Harryman's account of the $9000 cash payment for Harryman's legal representation. In December 2010, Shapiro was informed by his assistant that the $9000 payment was left at his office. Shapiro believed that the money came from a Nicka Organization drug dealer, and not from his client Harryman. Shapiro therefore delivered the $9000 in cash to another lawyer who actually represented the other drug dealer. The day after Shapiro redelivered the $9000 cash payment, Farrell called for Shapiro, who was unavailable. Farrell had never called Shapiro before or since.

         The prosecutor asked Shapiro whether it was his usual practice to pay another lawyer when referring a client. Shapiro answered that he would not do so. When the prosecutor inquired whether Shapiro had "ever paid another lawyer cash related to a case," Shapiro responded: "Not one time ever." See J.A. 1049.


         Michael Phillips, a former marijuana dealer for the Nicka Organization, also cooperated with the federal prosecutors and was a trial witness. When Phillips was arrested in Pennsylvania on state drug charges in 2009, Farrell appeared at the jail and sought to assist Phillips, even though Phillips had not contacted Farrell. Farrell represented Phillips in his Pennsylvania proceedings, but Phillips never paid for the representation.[16] After Phillips pleaded guilty in state court and began serving his sentence, Farrell twice deposited money into his commissary account at the prison.

         Phillips was released from state prison in November 2010, but was soon thereafter arrested on federal charges in Maryland. Farrell attended Phillips's initial hearing on the federal charges but did not enter an appearance as counsel for Phillips. While Phillips was in jail awaiting resolution of his federal case, another attorney, Todd Henry, arrived at the jail and offered to represent Phillips. Phillips had not contacted Henry, but nevertheless accepted Henry's offer of legal representation. Henry later told Phillips that Farrell had paid Henry's fees for representing Phillips.

         Farrell also deposited money into Phillips's commissary account while he was in federal custody. On at least four occasions in 2012, Farrell - or one of Farrell's employees acting at his direction - obtained money orders using cash from the defense fund and deposited them into Phillips's jail commissary account. As pertinent here, Farrell deposited $100 in June 2012, plus another $150 in December 2012.[17] Farrell also gave cash money to a friend of Phillips for money orders that were deposited into Phillips's jail commissary account on other occasions.[18]


         Perhaps the government's most important trial witness was Ryan Forman, who had been a member of the Nicka Organization but later turned against the Organization and cooperated with the government. Forman had connected marijuana buyers with Nicka and purchased rental properties for Organization members by using drug trafficking proceeds. Forman also assisted Nicka and other Organization drug dealers in the purchase of an airplane that was used for the transportation of large amounts of marijuana.

         In March 2009, a Nicka Organization drug dealer told Forman to call Farrell if he ever needed counsel and gave him Farrell's business card. About three months later, in June 2009, Forman received a grand jury subpoena and contacted Farrell. Forman soon met with Farrell to discuss the subpoena, but they never discussed payment for Farrell's legal services. Those events confirmed Forman's understanding - from his prior conversations with Matt Nicka - that he would not have to pay Farrell. Indeed, the only exchange between Forman and Farrell that resembled a payment of fees occurred in May 2011, when - at Farrell's request - Forman wrote Farrell a check for $10, 000 and promptly exchanged the check for a $10, 000 cash payment from Farrell. Farrell told Forman that the transaction was made "[s]o it could show on the books that [Farrell had] been paid." See J.A. 1749. Although records of several cash deposits appeared in Farrell's client transaction records under Forman's name, Forman never made any cash payments to Farrell.[19]

         Although Farrell continued to meet with Forman on a monthly basis after Forman was subpoenaed, Forman said that Farrell kept Nicka in the loop and fully advised. On at least one occasion, Farrell put Nicka on a speakerphone so that the three men (Farrell, Nicka, and Forman) could discuss Forman's grand jury subpoena in the federal investigation of the Nicka Organization. About the same time, Farrell admitted to Forman that he kept in touch with all of the Organization suppliers and drug dealers who had been indicted - as well as their attorneys - and that his role was to "protect the family, the group of us," referring to the indicted and unindicted conspirators in the Organization. See J.A. 1744.

         After Forman was arrested on federal charges in May 2012, he retained a new lawyer, Joseph Murtha. Forman personally paid Murtha, who acted independently of Farrell and the Nicka Organization and solely on behalf of Forman. Forman soon agreed to cooperate with United States Attorney Rosenstein and, as part of that agreement, attended a proffer meeting with federal prosecutors and agents in June 2012.[20] The meeting was governed by his agreement with the United States Attorney, which provided that the information disclosed at the meeting by Forman would not be used against him in any criminal trial, provided he was completely truthful and candid, and did not "withhold[] material information." See J.A. 3056.

         Forman thereafter agreed with the federal authorities to arrange an undercover meeting with Farrell in July 2012, which was recorded and later became part of the Tapes that Farrell unsuccessfully sought to suppress.[21] At that meeting, Farrell tried to obtain information from Forman about the discovery materials that lawyer Murtha had received from the prosecutors in connection with Murtha's representation of Forman. Farrell asserted to Forman that sharing the government's discovery materials with Farrell would benefit the Nicka Organization and its suppliers and drug dealers. Farrell also advised Forman that, in a proffer meeting Forman was to have with the federal agents, he should not provide any new information to them. Rather than provide new information, Forman should "get the information of their questions." See J.A. 3034. According to the tape, Farrell instructed Forman to "only go into a proffer [meeting] prepared enough to give them nothing more than what they already know." Id. at 3039. He then added, "I've been preparing you all along, kind of, okay?" Id. at 3044.

         During the July 2012 taped meeting between Forman and Farrell, Farrell repeatedly admitted that he considered himself to be "at risk." See J.A. 3041-42. Farrell indicated that those risks arose from his involvement in the Nicka Organization. As the transcript recites, Farrell actually said to Forman, "you know I know everything" about the Organization. Id. at 3042. Farrell was worried that the federal investigators might examine the May 2011 check-for-cash, $10, 000 transaction between Forman and Farrell. He predicted that Forman might be questioned on that topic: "If you go in, and [the federal agents] say okay, . . . did you ever . . . pay Farrell any money? Uh, yes I gave him [a] $10, 000 check. Did he give you cash back for it?" Id. at 3041. Forman interrupted, "So I gotta just say no, I mean that's not even . . . a[n] on the table story." Id.

         Farrell offered during the taped undercover meeting to obtain $25, 000 from the defense fund for Forman's legal fees. Farrell followed up that offer with a prompt text message to Forman confirming that Farrell had received "a positive response" to his funding request (though he did not say from whom). See J.A. 1770. Near the end of July 2012, Forman met Farrell again. This undercover meeting was also recorded and is in evidence as part of the Tapes. Farrell delivered $19, 800 in cash to Forman at that meeting. When Forman remarked that Matt Nicka had come through, Farrell responded in the affirmative, stating: "I mean he's a lot of things . . . [but] frankly he's a standup guy." Id. at 1771-72, 3050.

         Lawyer Murtha's trial testimony corroborated Forman's account of their professional relationship and Forman's continuing cooperation with the federal authorities. As Murtha explained, Forman made his cooperation agreement with the United States Attorney in June 2012 and agreed to be completely truthful and candid with the federal agents. Murtha said that he always advised his clients to be completely truthful, candid, and forthright in proffer meetings, and not to withhold any information.

         On cross-examination, Murtha confirmed "that one thing [a lawyer] cannot do is, you know, bring a client in to cooperate and tell them to lie. Right?" See J.A. 1679. Murtha emphasized that "both ethically and legally . . . you cannot do that." Id. The prosecutor later asked, "would you ever tell a client to withhold information when they went into the proffer [meeting]?" Id. at 1683. Murtha said "no," explaining that doing so would contravene the proffer agreement and would probably violate federal law and ethics rules, in that such omissions could well equate to lying. Id. When the prosecutor inquired whether Murtha would ever tell his client "to only tell the government what [it] already knows," Murtha emphatically responded with a "no." Id.


         In addition to the foregoing evidence describing the Nicka Organization, the earlier indictments and prosecutions, plus Farrell's relationship to those events, the government introduced evidence of Farrell's questionable and false recordkeeping. For example, IRS agent Timothy Greene explained his analysis of bank deposit records of Farrell's law firm bank account and a comparison to Farrell's client transaction reports. Greene said that, from 2009 to 2011, Farrell's client transaction reports attributed to Organization drug dealers tens of thousands of dollars of cash deposits made into Farrell's bank account. Several of those drug dealer conspirators testified at Farrell's trial, however, that they had never paid him for legal services. Greene also described the lack of receipts in Farrell's receipt book for any such transactions. Greene explained that, in 2012, Farrell deposited more than $57, 000 in cash into his law firm account without any corresponding client transaction reports.


         At the close of the government's case-in-chief, Farrell moved for judgment of acquittal on each of the twelve charges in the indictment, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. After argument, the acquittal motion was denied. The defense then called character witnesses and a couple of others, and the government called a rebuttal witness. Farrell - who did not testify - renewed his Rule 29 acquittal motion at the close of the evidence, and it was again denied.

         Thereafter, the trial court instructed the jury in oral and written form. As part of those instructions, the court gave - over objection - a willful blindness instruction. That instruction advised the jury:

In determining whether the defendant acted knowingly, you may consider whether the defendant deliberately closed his eyes to what otherwise would have been obvious to him. If you find beyond a reasonable doubt that the defendant acted with a conscious purpose to avoid learning the truth, for example, that the statement was false, then this element may be satisfied. However, guilty knowledge may not be established by demonstrating that the defendant was merely negligent, foolish, mistaken[, ] or reckless. If you find the defendant was aware of a high probability, for example, that the statement was false and that the defendant acted with deliberate disregard to the ...

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