Full text
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 1 of 15 PageID #:
3458
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
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 2 of 15 PageID #:
3459
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
2
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 3 of 15 PageID #:
3460
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
3
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 4 of 15 PageID #:
3461
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.
4
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 5 of 15 PageID #:
3462
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
5
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 6 of 15 PageID #:
3463
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
6
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 7 of 15 PageID #:
3464
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
7
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 8 of 15 PageID #:
3465
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.”)
8
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 9 of 15 PageID #:
3466
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
9
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 10 of 15 PageID #:
3467
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.
10
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 11 of 15 PageID #:
3468
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
11
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 12 of 15 PageID #:
3469
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.
12
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 13 of 15 PageID #:
3470
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.
13
Case 4:23-cr-00136-ALM-BD Document 525 Filed 01/13/25 Page 14 of 15 PageID #:
3471
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.
14
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.
15
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE