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Home Source documents Court filing — No. 4:23-cr-00136 (Dkt. 525, E.D. Tex.)

Court filing — No. 4:23-cr-00136 (Dkt. 525, E.D. Tex.)

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Case 4:23-cr-00136-ALM-BD          Document 525 Filed 01/13/25             Page 1 of 15 PageID #:
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                           United States District Court
                                  EASTERN DISTRICT OF TEXAS
                                      SHERMAN DIVISION

 UNITED STATES OF AMERICA                         §
                                                  §
 V.                                               §    Case Number 4:23-CR-136
                                                  §    Judge Mazzant
 OLAMIDE OLATAYO BELLO (1)                        §
 OLABODE THOMAS AJIBOLA (2)                       §
 DUMBOR JOSEPHINE BARIBE (11)                     §

                          MEMORANDUM OPINION AND ORDER

        Pending before the Court is Defendant’s Additional Requested Jury Instructions and

 Objections to the Government’s Requested Instructions (Dkt. #489). Through it, Defendant

 Baribe and Defendant Ajibola (the “Joint Defendants”), move the Court to instruct the jury on (1)

 willfulness and (2) good faith (Dkt. #489 at p. 3). After considering the Motion, the Government’s

 Response (Dkt. #508), and the applicable law, the Court determines that the Motion should be

 DENIED in part, as it relates to the issue of willfulness. The remainder of the Motion that

 contemplates a good faith instruction and the Government’s additional requested instructions is

 taken under advisement and will be addressed after the Court’s final charge conference.

                                         BACKGROUND

        This is a conspiracy to commit wire fraud and conspiracy to commit money laundering

 case. Trial is set for January 13, 2025. On June 15, 2023, the Grand Jury returned a single-count

 Indictment against eleven co-defendants, charging each with conspiracy to commit wire fraud in

 violation of 18 U.S.C. § 1349, alleging that Defendants conspired to violate 18 U.S.C. § 1343 (Dkt.

 #1). As the case rapidly marched toward trial, all but three defendants entered guilty pleas.

 Defendant Bello (“Bello”), Defendant Baribe, and Defendant Ajibola (collectively,

 “Defendants”) proceed to trial. On December 11, 2024, the Grand Jury returned, and the
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 Government filed, its First Superseding Indictment (the “Indictment”) (Dkt. #376). Through it,

 the Government now charges the three remaining Defendants with one count of conspiracy to

 commit wire fraud in violation of 18 U.S.C. § 1349 (alleging that Defendants conspired to violate

 18 U.S.C. § 1343) and one count of conspiracy to commit money laundering in violation of 18

 U.S.C. § 1956(h) (alleging that Defendants conspired to violate 18 U.S.C. § 1957) (Dkt. #376).

        As relevant here, on January 6, 2025, the Government filed its Joint Proposed Jury

 Instructions and Verdict Form as to all three Defendants (Dkt. #481). Bello, acting pro se, did not

 confer with the Government or counsel for the Joint Defendants regarding those instructions (Dkt.

 #481 at p. 1 n.1.). That same day, the Government also filed its Opposed Proposed Jury Instructions

 as to all three Defendants (Dkt. #482). Through it, the Government proposes a deliberate

 ignorance instruction (Dkt. #482 at p. 1). The Joint Defendants objected via the instant Motion,

 also filed on January 6, 2025 (Dkt. #489 at pp. 4–6). Bello has not objected to that instruction. In

 the instant Motion, Joint Defendants also request an instruction on “willfulness” and good faith

 (Dkt. #489 at pp. 3–4). On January 7, 2025, the Government filed its Objections to Defendant’s

 Additional Requested Jury Instructions (Dkt. #508).

        On January 8, 2025, the Court held a final pretrial conference. There, the Court entertained

 some argument on the Joint Defendants’ proposed “willfulness” instruction after the Court

 alerted the parties that the inclusion of that instruction would also impact its preliminary jury

 instructions. At the pretrial conference, consistent with its written objection against the Joint

 Defendants’ proposed “willfulness” instruction, the Government argued that the instruction is

 improper because neither offense carries a “willful” mens rea requirement, by each offense’s

 respective statutory text. (See Dkt. #489 at pp. 1–5). The Court did not understand Counsel for the



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 Joint Defendants to dispute that position at the pretrial conference. Instead, consistent with the

 Joint Defendants’ written arguments in favor of the instruction, Counsel argued that because the

 Fifth Circuit has approved of that instruction in cases involving healthcare fraud and anti-kickback

 schemes, and because this case also involves an alleged conspiracy to defraud a government

 program, perhaps a “willfulness” instruction is appropriate. (See Dkt. #489 at p. 3).

        The propriety of issuing the instruction is answered by the elements of each offense.

 Because the Court’s preliminary jury instructions will turn on the same, the Court takes up this

 issue now, rather than after the final charge conference. The Court will save for another day the

 other proposed instructions by the Defendants and the Government. As explained below, while

 the Joint Defendants raise a clever analogy between this case and those where a “willfulness”

 instruction is appropriate (healthcare fraud and anti-kickback cases), neither the text of the

 controlling statutes, nor the Fifth Circuit, appear to require, let alone approve of, such an

 instruction in this case. Accordingly, the Joint Defendants’ requested willfulness instruction

 should be denied.

                                      LEGAL STANDARD

        The task of crafting and issuing appropriate jury instructions is largely left to the sound

 discretion of the district court. United States v. De Leon, 170 F.3d 494, 498 (5th Cir. 1999), cert.

 denied, 528 U.S. 863 (1999). “District courts enjoy substantial latitude in formulating a jury

 charge.” United States v. Webster, 162 F.3d 308, 321–22 (5th Cir. 1998); see also United States v.

 Rios, 636 F.3d 168, 171 (5th Cir. 2011); United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009);

 United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994). A court’s refusal to issue a proposed

 jury instruction constitutes reversible error “only if the rejected instruction (1) is substantively



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 correct; (2) is not substantially covered in the charge given; and (3) pertains to an important point

 in the trial such that the failure to give the instruction impairs the defendant’s ability to present a

 g given defense effectively.” De Leon, 170 F.3d at 498 (citing United States v. Garcia Abrego, 141

 F.3d 142, 153 (5th Cir. 1998), cert. denied, 525 U.S. 878 (1998); United States v. Pipkin, 114 F.3d

 528, 535 (5th Cir. 1997). Thus, in analyzing the instructions the Court ultimately gives the jury, the

 Fifth Circuit would “consider whether [each] instruction, taken as a whole, is a correct statement

 of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual

 issues confronting them.” United States v. Ebron, 683 F.3d 105, 151–52 (5th Cir. 2012) (citing

 United States v. Whitfield¸590 F.3d 325, 347 (5th Cir. 2009)) (cleaned up).

         But the Court is not alone in crafting the appropriate instructions in each case. Indeed, the

 Fifth Circuit’s Pattern Jury Instructions (“PJIs”) guide the Court. And “[i]t is well settled that a

 district court does not err by giving a charge that tracks this Circuit’s pattern jury instructions and

 that is a correct statement of the law.” United States v. Turner, 96 F.2d 461, 464 (5th Cir. 1992).

 Ultimately, “[a] jury instruction must: (1) correctly state the law, (2) clearly instruct the jurors,

 and (3) be factually supportable.” United States v. Diaz, 941 F.3d 729, 741 (5th Cir. 2019) (quoting

 United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018)); United States v. Piper, 912 F.3d 847,

 860 (5th Cir. 2019) (same); United States v. Green, 47 F.4th 279, 294 (5th Cir. 2022) (same). With

 these principles in mind, the Court turns to the issue at hand: whether a “willful” instruction in

 this case would be correct under the law. It would not.




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                                            ANALYSIS

        The Joint Defendants argue that the Fifth Circuit Pattern Jury Instruction (“PJI”) for

 “willfully” (5th Cir. PJI 1.43) is proper in this case. The Joint Defendants propose that the Court

 issue the following instruction:

        The word “willfully,” as that term has been used from time to time in these
        instructions, means that the act was committed voluntarily and purposely, with the
        specific intent to do something the law forbids; that is to say, with bad purpose
        either to disobey or disregard the law.

 (Dkt. #489 at p. 3). That language tracks the Fifth Circuit’s PJI. Compare (Dkt. #489 at p. 3) with

 5th Cir. PJI 1.43. The Government responds, arguing that the Court ought not give the above

 instruction because neither conspiracy to commit wire fraud nor conspiracy to commit money

 laundering, under Fifth Circuit precedent, include an element of “willfulness” (Dkt. #508 at pp.

 1–4). The Government is correct.

        In support of their request, the Joint Defendants cite United States v. Nora and United States

 v. Willet—two healthcare fraud and kickback scheme cases (Dkt. #489 at p. 3) (citing Nora, 988

 F.3d 823 (5th Cir. 2021); Willet, 751 F.3d 335, 339 (5th Cir. 2014)). Those cases involved

 conspiracy to commit fraud charges under 18 U.S.C. § 1349, and the Fifth Circuit, in articulating

 the elements of each healthcare fraud or kickback offense, included the term “willfully” (See Dkt.

 #489 at p. 3). Joint Defendants appear to read the Fifth Circuit’s use of the term in those cases to

 require the Government prove that the defendant join the conspiracy purposely and voluntarily

 (See Dkt. #489 at p. 3). But a close reading of Nora and Willet does not support the Joint

 Defendants’ position. Further, both Nora and Willet—and any other case involving a conspiracy

 to commit healthcare fraud or violate an anti-kickback statute—are distinguishable from this case




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 in one simple respect: whereas the statutory text of those offenses include the word “willful,” the

 statutory text of the statutes at issue in this case do not.

         As relevant here, in Nora, the Government charged the defendant with conspiracy to

 commit health care fraud in violation of 18 U.S.C. § 1349, conspiracy to pay or receive illegal

 healthcare kickbacks in violation of 18 U.S.C. § 1371 and 42 U.S.C. § 1320a-7b(b)(2), and aiding

 and abetting healthcare fraud in violation of 18 U.S.C. §§ 1347 and 2. Nora, 988 F.3d at 825. The

 defendant appealed, arguing that there was insufficient evidence to sustain his conviction. Id. In

 articulating the elements of each offense against which to weigh the sufficiency of the evidence,

 the Fifth Circuit, naturally, turned to the language of each statute. See id. at 829–30. The Fifth

 Circuit noted that both 18 U.S.C. § 1347(a)(1) and 42 U.S.C. § 1320a-7b(b)(2) carry a “knowingly

 and willfully” mens rea requirement. Id. at 829. The Fifth Circuit then stated that:

         as a general matter, when used in the criminal context, a “willful” act is one
         undertaken with a “bad purpose.” In other words, in order to establish a “willful”
         violation of a statute, “the Government must prove that the defendant acted with
         knowledge that his conduct was unlawful.”

 Id. at 830 (quoting Bryan v. United States, 524 U.S. 184, 191–92 (1998)).

         Then, the Fifth Circuit acknowledged, consistent with PJI 1.43, that “[a]lthough the

 precise meaning of the term ‘willfully can vary depending on context, [the Fifth Circuit] has held

 that the general understanding of the term applies to its use in the general health care fraud statute

 and the health care anti-kickback statute.” Id. (citing United States v. Ricard, 922 F.3d 639, 648

 (5th Cir. 2019) (“Willfulness in the Medicare kickback statute means that the act was committed

 voluntarily and purposely with the specific intent to do something that law forbids; that is to say,

 with bad purpose either to disobey or disregard the law.”); United States v. St. John, 625 Fed.

 App’x 661, 666 (5th Cir. 2015) (per curiam) (accepting the district court’s 18 U.S.C. § 1347

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 willfulness instruction, which stated that “willfully . . . means that the act was committed voluntarily

 or purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose

 either to disobey or disregard the law”) (emphasis added); Willet, 751 F.3d at 339 (holding that 18

 U.S.C. § 1347 requires a “specific intent to defraud”); see also 5th Cir. PJI 1.43 (noting that the

 meaning of the term “willfully” is context dependent).

         Finally, in Nora, the Fifth Circuit, applying these principles to a conspiracy, stated that

 “[n]either conspiracy nor aider and abettor liability lowers this [willfulness] mens rea

 requirement.” Id. “Conspiracy ‘has two intent elements—intent to further the unlawful purpose

 and the level of intent required for proving the underlying substantive offense.’” Id. (quoting

 United States v. Brooks, 681 F.3d 678, 699 (5th Cir. 2012)) (and citing Willet, 751 F.3d at 339 (“To

 prove conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, the government must

 prove . . . that the defendant joined in the agreement willfully, that is, with intent to further the

 unlawful purpose.”)).

         Willet is consistent with these principles. As pertinent here, in Willet, the Government

 charged the defendant with one count of conspiracy to commit healthcare fraud under 18 U.S.C.

 § 1349. 751 F.3d at 337. Upon being convicted, the defendant appealed, arguing, inter alia, that the

 evidence was insufficient to sustain his conviction. Id. at 339. Once more, in articulating the

 standard by which to adjudge the evidence presented against the defendant at trial, the Fifth

 Circuit noted that a conspiracy to commit healthcare fraud includes a “willful” mens rea

 requirement. Id. (quoting United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (“To prove a

 conspiracy to commit health-care fraud in violation of 18 U.S.C. § 1349, ‘the government must

 prove beyond a reasonable doubt that (1) two or more persons made an agreement to commit



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 healthcare fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that

 the defendant joined in the agreement willfully, that is, with the intent to further the unlawful

 purpose.’”)). That makes sense, given that the underlying substantive offense—a violation of 18

 U.S.C. § 1347—includes a “willful” element. Id. (citing 18 U.S.C. § 1347). Neither Nora nor

 Willet—or any of the authority cited therein, for that matter—decided for the ages that all

 conspiracies under 18 U.S.C. § 1349 carry a “willful” mens rea. That conclusion would run afoul

 of some statutory text in the subchapter that does not include the term. See, e.g., 18 U.S.C. § 1343

 (conspiracy to commit wire fraud).

        To be sure, as the Government observes, there is no question that, in the Fifth Circuit, the

 use of the term “willful” has been applied to the healthcare fraud and anti-kickback arena (See Dkt.

 #508 at pp. 2–3). See also 5th Cir. PJI 1.43; Grant, 683 F.3d at 643. The Government, for its part,

 cites ample authority that the elements of a conspiracy under 18 U.S.C. § 1349 do not carry a willful

 mens rea. The Court begins with United States v. Beacham (Dkt. #508 at pp. 1–2) (citing 774 F.3d

 267, 272 (5th Cir. 2014)). There, the defendant was charged with and convicted of conspiracy to

 commit wire fraud under 18 U.S.C. § 1349. Beacham, 774 F.3d at 272. Upon his conviction, the

 defendant appealed, arguing, inter alia, that the evidence was insufficient to sustain his conviction.

 Id. In describing the elements of the offense against which to assess the sufficiency of the evidence

 adduced against him at trial, the Fifth Circuit did not include a “willful” element. Id. (citing Grant,

 683 F.3d at 643) (“To be convicted of a conspiracy [to commit wire fraud] under § 1349, the jury

 must find: (1) two or more persons agreed to commit fraud; (2) the defendant knew the unlawful

 purpose of the agreement; and (3) the defendant joined the agreement with the intent to further

 the unlawful purpose.”)



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         Notably, Grant, which the Fifth Circuit in Beacham cited for its recitation of the elements,

 involved a conspiracy to commit healthcare fraud—not wire fraud. See Grant, 683 F.3d at 641

 (defendants convicted of conspiracy to commit healthcare fraud and aiding and abetting healthcare

 fraud under 18 U.S.C. §§ 1349, 1347). In Grant, the Fifth Circuit defined the elements of a

 conspiracy to commit healthcare fraud in violation of 18 U.S.C. §§ 1347 and 1349 as follows:

         To prove a conspiracy to commit health care fraud, the government must prove
         beyond a reasonable doubt that (1) two or more persons made an agreement to
         commit health care fraud; (2) that the defendant knew the unlawful purpose of the
         agreement; and (3) that the defendant joined in the agreement willfully, that is, with
         the intent to further the unlawful purpose.

 Id. at 643. Thus, in different cases, with different offenses, the Fifth Circuit omitted the “willfully,

 that is” language in its recitation of each offense’s respective elements. Compare id. with Beacham,

 774 F.3d at 272. Unfortunately, the Fifth Circuit did not explain the omission of that language. No

 less, the Government argues that that shift is “significant” (Dkt. #508 at p. 2 n.1). The Court

 agrees. After all, expressio unius est exclusio alterius (the expression of one thing implies the exclusion

 of others). See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

 LEGAL TEXTS 107 (2012). Further, the Court presumes that the Fifth Circuit means what it says.

 Under Fifth Circuit precedent, the elements of wire fraud under 18 U.S.C. § 1349 do not include

 a willful element. See, e.g., United States v. Comstock, 974 F.3d 551, 557 (5th Cir. 2020); United

 States v. Chaney, 839 Fed. App’x 903, 904 (5th Cir. 2021) (per curiam).

         Going beyond the authority cited by the parties before the Court does not settle the issue,

 however. In United States v. Greenlaw, for example, defendants were convicted of conspiracy to

 commit wire fraud affecting a financial institution, conspiracy to commit securities fraud, and

 aiding and abetting securities fraud. 84 F.4th 325, 339 (5th Cir. 2023). The conspiracy to commit



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 wire fraud charge was brought under 18 U.S.C. § 1349 (18 U.S.C. § 1343). Id. The conspiracy to

 commit securities fraud charge was also brought under 18 U.S.C. § 1349 (18 U.S.C. §§ 1348 & 2),

 as were the aiding and abetting charges. Id. None of these statutes’ text include the word “willful.”

 See 18 U.S.C. §§ 1343, 1349, 1956(h), 1957. Rather, “each conspiracy count requires that the act

 be completed with a ‘specific intent to defraud.’” Id. As to the substantive aiding and abetting

 securities counts, “the statutes both require, inter alia, that the act be complete with a specific

 ‘intent to defraud’ and prohibit the execution of a ‘scheme to defraud.’” Id.

        One defendant challenged the sufficiency of the evidence relating to his mens rea. Id. at 340.

 As relevant here, the Fifth Circuit tested the sufficiency of the evidence, including for the

 defendant that claimed the evidence did not prove he had the requisite mens rea against the

 following standard. “Along with specific intent to defraud, to prove a conspiracy the Government

 must prove that ‘(1) two or more persons made an agreement to commit an unlawful act; (2) the

 defendant knew the unlawful purpose of the agreement; and (3) the defendant joined in the

 agreement willfully, with the intent to further the unlawful purpose.” Id. (quoting United States v.

 Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (citing Grant, 683 F.3d at 643 (emphasis added))).

        Hence, tension emerges. Whereas Grant defined “willfully” as “that is, with the intent to

 further the unlawful purpose” of a conspiracy, see Grant, 683 F.3d at 643, Greenlaw removed the

 “that is” language, stating that a defendant must “join in the agreement willfully, with the intent

 to further the unlawful purpose.” Greenlaw, 84 F.4th at 339. Simpson does the same. See 741 F.3d

 at 547. Those words make a difference, and the Court cannot reconcile the removal of that

 language. Thus, the Court returns to the statutory language at issue and the Fifth Circuit pattern

 instructions for guidance.



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        The Fifth Circuit’s PJI regarding “willfully” (PJI 1.43) is clear that: “[a]n instruction

 defining ‘willfully’ should be given only when, by statute or court decision, ‘willfully’ is made a

 mental state element of the offense charged. An instruction on ‘willfully’ should not be given . . .

 unless it is a legal element of the offense charged.” (emphasis added). The cases cited above

 (except for Greenlaw and Simpson) suggest, and the language of the applicable statutes in this case

 confirm, that conspiracy to commit wire fraud does not include the “willfully” element. See 18

 U.S.C. §§ 1343, 1349. And in identifying the mens rea for conspiracy to commit a substantive

 offense, the Supreme Court has instructed that the “‘conspiracy to commit a particular

 substantive offense cannot exist without at least the degree of criminal intent necessary for the

 substantive offense itself.’” United States v. Shaddix, 693 F.2d 1135, 1139 (5th Cir. 1989) (quoting

 Ingram v. United States, 360 U.S. 672, 678 (1959)). Thus, the Fifth Circuit has held that conspiracy

 generally “has two intent elements—intent to further the unlawful purpose and the level of intent

 required for proving the underlying substantive offense.” Nora, 988 F.3d at 830 (quoting United

 States v. Brooks, 681 F.3d 678, 699 (5th Cir. 2012) (internal citations omitted)).

        Further, as to the conspiracy to commit money laundering count under 18 U.S.C. § 1956(h)

 in this case, neither the Government nor any Defendant appear to argue that the statute

 contemplates a “willfulness” mens rea. Rightly so, because neither the Fifth Circuit nor the

 statute’s language requires a “willful” mens rea in such cases. See, e.g., United States v. Alaniz, 726

 F.3d 586, 601 (5th Cir. 2013) (“The elements of a conspiracy to commit money laundering, in

 violation of 18 U.S.C. § 1956(h), are: (i) that there was an agreement between two or more persons

 to commit money laundering; and (ii) that the defendant joined the agreement knowing its purpose

 and with the intent to further the illegal purpose.”); United States v. Fuchs, 467 F.3d 889, 906 (5th



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 Cir. 2006) (same); United States v. Garcia Abrego, 141 F.3d 142, 163 (5th Cir. 1998) (same), cert.

 denied, 535 U.S. 878 (1998) overruled on other grounds by Crawford v. Washington, 541 U.S. 36

 (2004); United States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999) (same); United States v. Cessa,

 785 F.3d 165, 173 (5th Cir. 2015) (same).

        Because the statutes do not contain the word “willfully,” at least to mean “voluntarily or

 purposely” as the Joint Defendants submit, the Court is hesitant to include the instruction the

 Joint Defendants request. The Fifth Circuit PJIs offer some guidance. The Fifth Circuit does not

 have a PJI for conspiracy to commit wire fraud. It does, however, for conspiracy to commit money

 laundering. See 5th Cir. PJI 2.76(C). That instruction states:

        Title 18, United States Code, Section 1956(h), makes it a crime for anyone to
        conspire to commit money laundering.

        A “conspiracy” is an agreement between two or more persons to join together to
        accomplish some unlawful purpose.

        For you to find the defendant guilty of this crime, you must be convinced that the
        government has proved each of the following beyond a reasonable doubt.

        First: That the defendant and at least one other person made an agreement to
        commit the crime of ______________ (specify elements of the offense charged in
        the indictment);

        Second: That the defendant knew the unlawful purpose of the agreement; and

        Third: That the defendant joined in the agreement willfully, that is, with the intent to
        further the unlawful purpose.

 (emphasis added). Thus, the Fifth Circuit included the “willfully, that is” language in its PJI for

 conspiracy to commit money laundering, the statute for which does not include a “willful” mens

 rea requirement. Neither the Government nor the Joint Defendants offer any tenable basis for

 deviating from this instruction, and the Court sees no reason to do so sua sponte.



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        While the Court cannot rely upon a Fifth Circuit PJI for conspiracy to commit wire fraud,

 it can turn to the Fifth Circuit PJI regarding “willfully,” which the Joint Defendants invoke in their

 Motion (See Dkt. #489 at p. 3) (citing 5th Cir. PJI 1.43).

        That instruction states that the “traditional definition” of “willfully” means “voluntarily

 and purposely, with the specific intent to do something the law forbids; that is to say, with bad

 purpose either to disobey or disregard the law.” 5th Cir. PJI 1.43. PJI 1.43 also states that “this

 definition is not always accurate in every situation.” Id. It further notes that “willfully” “connotes

 a higher degree of criminal intent that knowingly.” Id. Whereas “‘knowingly’ requires proof of

 knowledge of the facts that constitute the offense,” “‘willfully’ requires proof that the defendant

 acted with knowledge that his or her conduct violated the law.” Id.

        Fifth Circuit PJI 1.43 chronicles how the Fifth Circuit has applied the “willful” element to

 cases involving healthcare fraud and violations of the anti-kickback statute. The inclusion of that

 element stays true to the underlying statutes’ text.

        PJI 1.43 further notes that while prosecutors often use the word “willfully” in indictments

 (which the Government did here) even though the offense does not require a “willful” mens rea,

 that practice should be discouraged, and it is (seemingly) ignored in crafting jury charges. 5th Cir.

 PJI 1.43 “The Supreme Court has cautioned that the required mental state may be different even

 for different elements of the same crime, and that the mental element encompasses more than just

 the two possibilities of ‘specific’ and ‘general’ intent,” the PJI states. 5th Cir. PJI1.43 Accordingly,

 “[t]he [Fifth Circuit PJI] Committee has therefore abandoned the indiscriminate use of the term

 ‘willfully’ accompanied by an inflexible definition of that term.” 5th Cir. PJI 1.43.




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        PJI 1.43 holds that this approach is anchored in United States v. Jobe, 101 F.3d 1046, 1059

 (1985), “which found no error when the trial court declined to separately define ‘willfulness’ but

 did give the pattern jury definition of ‘knowingly’ and otherwise ‘correctly charged the jurors on

 the element of intent in each offense.’” That case concerned a conspiracy charged under 18 U.S.C.

 § 371 for conspiracy to commit bank fraud under 18 U.S.C. § 1344, which requires a mens rea of

 “knowingly”—not “willfully.” See Jobe, 101 F.3d at 1059. “Nevertheless,” according to PJI 1.43,

 “the historical definition of ‘willfully’ . . . was given and approved in a money laundering and

 misapplication of bank funds case,” United States v. Giraldi, 86 F.3d 1368, 1376 (5th Cir. 1996).

 There, the trial court stated that:

        its charge would incorporate in a general sense everything that both sides had
        requested and would “make each count subject to the requirement that the term
        ‘knowingly’ and ‘willfully’ be proven.” The charge given defined the term
        “knowingly” as “the act was done voluntarily and intentionally” and “not by
        accident or mistake.” The term “willfully” was defined as “the act was committed
        voluntarily and intentionally, that you did it because you wanted to do it and with a
        specific intent to do something that the law forbids.”

 Giraldi, 86 F.3d at 1376. But that decision did not turn on a “willfulness” instruction.

        The net sum of the statutory text, the pertinent Fifth Circuit PJIs, and the caselaw

 discussed above suggest that because 18 U.S.C. §§ 1346, 1343, 1956(h), and 1957 do not include a

 “willful” mens rea requirement, the jury should not be charged on the Joint Defendants’ proposed

 definition of “willfully.” But because the Fifth Circuit PJI for money laundering includes the

 “willfully, that is” language and defines the term to mean that the defendant “joined in the

 agreement . . . with the intent to further the unlawful purpose [of that agreement],” that language

 will be reflected in the Court’s preliminary instructions and final charge for Count 2, conspiracy

 to commit money laundering. That is consistent with the relevant statutory text.



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    Case 4:23-cr-00136-ALM-BD           Document 525 Filed 01/13/25               Page 15 of 15 PageID #:
                                                 3472



             Similarly, because the Fifth Circuit approved of that language for purposes of conspiracy

     to commit money laundering, and because the Fifth Circuit has rejected an inflexible meaning of

     “willful,” the language will also be reflected in the preliminary instructions and final charge as to

     Count 1, conspiracy to commit wire fraud. That too can be reconciled with the relevant statute,

     which requires a specific intent to further the conspiracy’s unlawful purpose, as the Fifth Circuit

     has stated. United States v. Kuhrt, 788 F.3d 403, 414 (5th Cir. 2015). In short, in an abundance of

     caution, the Court will stay true to the Fifth Circuit’s PJI for conspiracy to commit money

     laundering (2.76(C)) and will otherwise track that language, along with the statutory elements for

     conspiracy to commit wire fraud. See Turner, 96 F.2d at 464.

                                               CONCLUSION

             It is therefore ORDERED that the Joint Defendant’s Additional Requested Jury

     Instructions and Objections to the Government’s Requested Instructions (Dkt. #489) is DENIED

     in part. Specifically, the Motion is DENIED in part as to the proposed issuance of a “willfulness”

     instruction. For each of the Indictment’s two Counts, the Court will include the following

     instruction in its recitation of the elements to the jury: “for you to find the defendant guilty of this

     crime, you must be convinced that the [G]overnment has proved each of the following beyond a

     reasonable doubt . . . the defendant joined in the agreement willfully, that is, with the intent to
.
     further the unlawful purpose.” All other aspects of the Motion are hereby taken under

     advisement and will be ruled on at a later date pending a final charge conference.

             IT IS SO ORDERED.

            SIGNED this 13th day of January, 2025.




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                                             ___________________________________
                                             AMOS L. MAZZANT
                                             UNITED STATES DISTRICT JUDGE


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