Defendant’s Request to Amend Joint Instruction No. 34 — United States v. Baver (Dkt. 137, D. Utah)

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Defendant's Request to Amend Proposed Joint Final Instruction No. 34 in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520, in the U.S. District Court for the District of Utah, dated June 12, 2023. Through Assistant Federal Defenders Kristen R. Angelos and Robert K. Hunt, the defendant asks to amend the joint instruction defining willfulness for the contempt charge under 18 U.S.C. § 401(3). The request states that counsel has since realized that the jointly proposed definition misstates the mens rea for a violation of § 401(3). The proposed amended instruction requires the jury to agree unanimously on the same court order that was disobeyed or disregarded.

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Case 2:21-cr-00520-JNP Document 137 Filed 06/12/23 PageID.1859 Page 1 of 4




SCOTT KEITH WILSON, Federal Defender (#7347)
KRISTEN R. ANGELOS, Assistant Federal Defender (#8314)
ROBERT K. HUNT, Assistant Federal Defender (#5722)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: kris_angelos@fd.org and robert_hunt@fd.org
_____________________________________________________________________________

                         IN THE UNITED STATES DISTRICT COURT

                                       DISTRICT OF UTAH


  UNITED STATES OF AMERICA,                           DEFENDANT’S REQUEST TO AMEND
                                                          PROPOSED JOINT FINAL
                 Plaintiff,                                 INSTRUCTION NO. 34

         v.

  ALLISON MARIE BAVER,                                           Case No. 2:21-cr-00520

                 Defendant.                                        Judge Jill N. Parrish


       Defendant, Allison Marie Baver, by and through her attorneys of record, Kristen R.

Angelos and Robert K. Hunt, submits Defendant’s Request to Amend Proposed Joint Final

Instruction No. 34.

       Joint Instruction Number 34 defines “willfulness” for purposes of a contempt charge

under 18 U.S.C. § 401(3). Although Ms. Baver jointly proposed this instruction with this

definition, counsel has since realized that that definition misstates the mens rea for a violation of

§ 401(3).

       The current instruction defines “willfulness” as “a volitional act done by one who knows

or should reasonably be aware that his conduct is wrongful.” In support of this definition the

 Case 2:21-cr-00520-JNP Document 137 Filed 06/12/23 PageID.1860 Page 2 of 4




instruction cites United States v. Themy-Kotronakis, which in turn quotes the definition in a

Seventh Circuit case from 1974. 140 F.3d 858, 864 (10th Cir. 1998) (quoting United States v.

Greyhound Corp., 508 F.2d 529, 531–32 (7th Cir.1974)). The Seventh Circuit has since

concluded that a finding that a defendant should have been aware that his conduct was wrongful

is inadequate to support a conviction under § 401. A defendant must at a minimum act recklessly

for conviction under § 401, and the “should have been aware” formulation in Greyhound permits

a conviction based on a defendant’s negligence: “criminal recklessness is present only if the

actor is conscious of a substantial risk that the prohibited events will come to pass.” United

States v. Mottweiler, 82 F.3d 769, 771 (7th Cir. 1996). See also id. at 772 (“negligence does not

support a criminal conviction under § 401.”); United States v. Britton, 731 F.3d 745, 750 (7th

Cir. 2013) (“we agree that negligence ... is insufficient to sustain a conviction under 18 U.S.C. §

401(3).”) (cleaned up); In re Gates, 600 F.3d 333, 342 (4th Cir. 2010) (“Negligence … is

insufficient to sustain a conviction under 18 U.S.C. § 401(3).”); United States v. Allen, 587 F.3d

246, 255 (5th Cir. 2009) (clear error where district court “seems to have used a standard closer to

negligence, rather than recklessness.”).

       The Fifth Circuit has reached the same conclusion, finding that a district court had clearly

erred in including “should have been aware” in the mens rea for § 401(3): “ ‘willfulness’ in the

context of the criminal contempt statute at a minimum requires a finding of recklessness, which

requires more than a finding that an individual ‘reasonably should have known’ that the relevant

conduct was prohibited.” Allen, 587 F.3d at 255. See also United States v. Marquardo, 149 F.3d

36, 43 n.4 (1st Cir. 1998) (“The ‘willfulness’ required for criminal contempt is the knowledge

that one is violating a court order, not the knowledge that the violation of the order is a crime.”).




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 Case 2:21-cr-00520-JNP Document 137 Filed 06/12/23 PageID.1861 Page 3 of 4




       Nor has the Tenth Circuit interpreted the standard in Themy-Kotronakis to permit a

conviction based on negligence. The defendant in Hayes v. SkyWest Airlines complained on

appeal that the district court’s willfulness instruction permitted conviction “on the basis of

negligence.” 789 F. App’x 701, *704 (10th Cir. 2019). The Tenth Circuit disagreed, observing

that the district court had quoted the standard from Themy-Kotranakis and then found

defendant’s conduct “was ‘willful in this relevant sense’ because she ‘purposefully and

deliberately directed the witness not to answer questions.’ ” Id. The “appropriate standard of

willfulness” is one that doesn’t permit conviction for “ ‘accidental, careless, or unintentional

acts.’ ” Id. at 705 (quoting United States v. Voss, 82 F.3d 1521, 1530 (10th Cir. 1996)).

Moreover, Themy-Kotranakis involved a defendant who knew of the orders at issue and two

times “affirmed to FDA inspectors that he understood what the orders required.” Themy-

Kotronakis, 140 F.3d at 864. There was no occasion for the court to consider the standard for a

defendant who didn’t know of the court’s orders.

       Ms. Baver therefore asks the court to amend Joint Instruction No. 34 to include the

language highlighted below:

                            JOINT FINAL INSTRUCTION NO. 34

                                  Contempt, 18 U.S.C. § 401(3)

          The defendants are charged in count ten with Contempt, in violation of 18 U.S.C.

§ 401(3). This law makes it a crime to violate a court order. To find a defendant guilty of

this crime you must be convinced that the government has proved each of the following

beyond a reasonable doubt:

             •   First: The court entered a reasonably specific order;

             •   Second, The defendant had actual knowledge of the court order;


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Case 2:21-cr-00520-JNP Document 137 Filed 06/12/23 PageID.1862 Page 4 of 4




          •   Third, The defendant disobeyed or disregarded the order; and

          •   Fourth: The defendant acted willfully in disobeying or disregarding the court
              order.

       For purposes of this contempt charge, “willfully” means the defendant either knew

or was aware of a substantial risk that his conduct was wrongful.

       Your verdict must be unanimous. Count 10 of the Second Superseding Indictment

alleges that the defendants disobeyed or disregarded two specific court orders - a June 14,

2022 order and a June 28, 2022 order. The government does not have to prove that a

defendant disobeyed or disregarded both court orders for you to return a guilty verdict on

Count 10. But, in order to return a guilty verdict on Count I0, you must unanimously agree

that at least one court order was disobeyed or disregarded, and you must unanimously

agree on the same court order that was disobeyed or disregarded. In addition, you must all

agree that the government proved each of the other three elements.

       DATED this 12th day of June, 2023.


                                         /s/ Kristen R. Angelos
                                         KRISTEN R. ANGELOS
                                         Assistant Federal Public Defender


                                         /s/ Robert K. Hunt
                                         ROBERT K. HUNT
                                         Assistant Federal Public Defender




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