United States v. Hanzlicek

argue fails When firm I hold the appeal, error on

harmless responsibili- review appellate that our

view carefully examine us to requires

ty whether to us and decide before

record harmless employ

exercise our discretion scope of the on the

error review based certainty

record, our the level of but on my Based was harmless. the error record, sufficiently I am

review of admitting the error

certain harmless with

telephone summaries was the convictions to at least some

respect our discretion I would exercise I analysis. error

conduct harmless dissent. respectfully

therefore America,

UNITED STATES

Plaintiff-Appellee, HANZLICEK, Defendant-

Bill

Appellant.

No. 97-5180. Appeals,

United States Court

Tenth Circuit.

Aug. Tulsa, Oklahoma, for De- Bryant,

Craig Bill Hanzlieek. fendant-Appellant Kirkpatrick, B. Assistant United Neal Lewis, Unit- Attorney, (Stephen C. States brief), him the Attorney, with States ed Oklahoma, Tulsa, Plaintiff-Appellee. KELLY, ANDERSON, and Before MURPHY, Judges. Circuit MURPHY, Judge. Circuit

I. INTRODUCTION convicted, following Bill Hanzlieek conspiracy of one count of § two counts U.S.C. of 18 violation § in violation 18 U.S.C. mail fraud pass attempting count one obligation participation of the United in two falsely anti-govern- made related § groups: of 18 472. ment the Kansas “common law violation U.S.C. a con court” and the Freeman movement Hanzlicek’s convictions arose out of head- quartered in part and others Montana. As of a spiracy part on the of himself engaged supported by scheme through the use of both to avoid their debts groups, the Hanzlieeks mailed counterfeit fraudulent “checks.” Hanzlicek raises the $1,240,000 banks, totaling checks bank following alleged asserting five errors subsidiaries, and others. The Hanzlieeks should be reversed on his convictions acquired fraudulent checks (1) impermissible appeal: variance ex learned the methodology of the scheme indictment, al isted between the Schweitzer, from M. LeRoy the leader of conspiracy, govern and the leged single the Montana Freemen. proof supposedly ment’s multiple established the existence of con Specifically, the Hanzlieeks mailed or (2) spiracies; the district court erred hand following delivered the fraudulent tendering a deliberate instruc attempt satisfy checks to creditors (3) jury; $1,000,000 tion to the the district court personal their debts: to the re- Kansas, allowing government agent erred in a to corder of County, Jackson for a Hahzlicek3; notary public $180,- mil give hearsay testimony regarding bond for $1.8 (a Advisors, Realty 000 to FGB Inc. supposedly wholly lion losses sustained from (4) checks; owned of subsidiary First Nationwide fraudulent similar/related Bank) $56,000 debt; $60,000 to satisfy a government violated its duties under Bra (FOB) Ag satisfy America a of debt dy Maryland, v. 373 U.S. 83 S.Ct. $35,619. Because the checks were for (1963),in failing produce 10 L.Ed.2d 215 greater amounts much than the debts any resulting evidence of losses from the owed, requested the Hanzlieeks refunds of checks; .(5) Schweitzer the evidence remaining amounts. The superseding was not sufficient his conviction Hanzlieeks, charged indictment passing obligation a counterfeit in vio help with the co-conspirator unindicted § lation of 18 472. This court U.S.C. exer Broaddus, jure notary public” Rockie a “de jurisdiction pursuant cises to 28 U.S.C. court,4 juris” and “sui common law § 1291 and affirms. mailed a false and fraudulent “Common II. BACKGROUND protest” Law Affidavit of to some of the victims when the checks were not honored. wife, Hanzlicek and his Karen Hanzlicek (hereinafter Hanzlicek”),1 “Mrs. were Canady, FBI special agent Tommie charged by conspiracy, indictment with who the criminal investigated activities fraud,2 fraud, passing Freemen, bank mail and the Montana tes- Schweitzer obligation counterfeit of the United government. States. tified for the His charges arose out of the Hanzlieeks’ an FBI included information from investi- jointly only 1. The Hanzlieeks were tried and were 3. Such a be in the amount of bond need Although both convicted on the same counts. Mrs. Hanzlicek § $7500. See Stat. Ann. Kan. 53-102. convictions, appealed her also recently appeal this court dismissed her un 4. The common law court is de- movement fugitive der the disentitlement doctrine. See informal, scribed in the indictment as “an Hanzlicek, United States v. organization, falsely [that unofficial is] (10th 1999). Cir. court,' fraudulently styled a 'common law lo- Netawake, Although convicted Hanzlicek on cated in Kansas.” Mrs. Hanzlicek count, grant- the bank-fraud the district court setting up system was involved in such a ed Hanzlicek's motion for dismissal of procedures Kansas based on the Schweitzer govern- bank-fraud conviction because the taught during her his seminar. Hanzlicek Reality ment failed to Advisors, Inc., that the FGB signed identified himself in documents as scheme, the victim of the was a tempore” "justice peace, pro of this required financial institution as under 18 common law court. 1344(1). § U.S.C. Evans, 970 F.2d United States monitoring Schweitzer began gation Cir.1992). of 1995. At in December seminars the use of seminars, discussed Schweitzer when the evi “A variance arises payment to avoid fraudulent checks facts at trial establishes adduced dence of “over- large refunds and to obtain debts in an indict alleged those different from contained “checks” payments.” These Edwards, United States ment.” See Banker’s Check” caption “Certified and/or Cir.1995). Any such num- and bore the “Comptroller Warrant” only if it af reversible error variance is account. Persons Bank ber of a Norwest the accused. rights of fects the substantial received a Freemen seminar attending Ailsworth, “Accordingly, 138 F.3d at 848. meeting, attending the these checks after in the conspiracy charged single where a donation. usually paying after Schweitzer indictment, proves and the addition, taught attendees were seminar conspiracies, a defendant only multiple to whom the against a lien those to file must prejudice substantial who suffers in the presented event checks were Edwards, his conviction reversed.” have July 21 and honored. On checks were not (citing Kotteakos v. United 69 F.3d at 432 4, 1995, Mrs. Hanzlicek attend- November 750, 773-74, States, 66 S.Ct. 328 U.S. present- in Montana Freemen seminars ed (1946)). prej A L.Ed. variance is ed Schweitzer. guilt imputed when to one defen udicial another defendant’s conduct. dant from also introduced and government The Kotteakos, 775-77, at 66 S.Ct. See 328 U.S. Mrs. taped between played conversations These re- Hanzlicek and Schweitzer. government cordings were the result of single a The issue of whether conversations included

wiretaps. of fact for question existed is a conspiracy checks, liens, and about the discussion jury’s this court reviews the jury; the wanted his classes procedures Schweitzer light in the most question on the decision movement, follow, and the Freemen Ed government. to the See favorable movement in the “common law court” wards, inquiry F.3d at 432. The focus Kansas. necessary interdepen on whether the es coconspirators. between the dence existed III. ANALYSIS Interdependence exists when each See id. and A. Variance Between Indictment “consti alleged coconspirator’s activities at Trial integral steps toward tuted essential and Proof common, goal.” a illicit the realization of imper argues Hanzlicek omitted). (quotation Id. the indict variance exists between missible ment, overarching alleged single, which trial, was admitted During the evidence conspiracy, and the evidence adduced only conspiracy the as regarding not trial, multiple inde demonstrated indictment, additional charged in the but conspir pendent conspiracies. To obtain and oth- conspiracies involving Schweitzer conviction, prove government the must acy Nevertheless, in viewing the evidence ers. (1) agreement to violate that: there was an govern- to the light the most favorable (2) law; defendants knew the es the the ment, evidence to there was sufficient (3) the objectives conspiracy; of the sential conspiracy. The admissible single voluntarily par knowingly and ongoing defendants trial demonstrates an evidence at (4) Hanzliceks, conspiracy; in inter ticipated the the course of conduct between Schweitzer, among coconspira the dependence existed and others in order to achieve Ailsworth, profit from the goal tors. See United States a common illicit —to - denied, Cir.), cert. of checks and the presentation fraudulent addition, U.S. -, 142 L.Ed.2d 181 of liens. In there was suffi- filing 119 S.Ct. evidence, (1998). light viewed in the may proven by again cient These elements to es- government, favorable to the or circumstantial evidence. most direct however, interdependence require does direct necessary evidence tablish the depended deprive gov on the of conscious avoidance or the The scheme this case. procedures the ernment of the benefits of inferences following Hanzliceks from seminars, in his circumstantial evidence. See de taught Francis Schweitzer co-Lopez, that Mrs. Hanzlicek 939 F.2d at 1410. Nor it suggested does Schweitzer change perspective money appellate after the that this him some of the excess send cashed, court the in the light consid- views most the checks were she government. favorable to the money See id. doing so. The returned to ered c'oconspirators from other Schweitzer light principles, In of these the evidence the could also be used to further scheme. giving was sufficient to of the addition, any apparent success of others pros- instruction this case. At pro- assisted cashing these checks testimony Agent ecution elicited from Ca- Moreover, motion of the scheme. should nady and the Hanzliceks regarding jury could infer that be noted suspicious highly circumstances surround- HanzlN knowingly assisted Mrs. ing the Schweitzer check scheme. This conspiracy furthering regarding cek in circumstantial probative evidence is instruments. the worthless ignorance. Hanzlicek’s deliberate Id. at (noting that in some eases “the clues Ignorance B. Deliberate Instruction of association with crime charged [are] Hanzlicek contends the district clues, so obvious that the combined with in tendering igno court erred a deliberate suspicion, necessarily implicate[] de- fendant”). jury. rance instruction to the We examine Moreover, elic- was, to evaluate fact, instructions as whole ited that Hanzlicek propriety adequacy, suspicious their review validity about tendering an instruction de individual Schweitzer checks. See United States (10th Cir.1995) Lee, novo. See United States v. de Francisco- 54 F.3d 1538-39 (10th Cir.1991). (In Lopez, evaluating propriety 939 F.2d the of deliberate “ instruction, giving ignorance court has held that of a evidence ‘[t]he This ignorance appro deliberate instruction is must establish that the defendant had sub- only prosecution presents jective the criminal priate knowledge when the behavior. purposely knowledge may that the defendant con not be evaluated un- Such ” objective, learning person trived to avoid all of the facts in der an reasonable test.’ (quoting Francisco-Lopez, order to have a defense in the event of a de 939 F.2d at 1409)). addition, In subsequent prosecution. government Id This court ad- recognizes testimony that the use of a deliberate duced from the Hanzliceks indi- opportunities ignorance rarely appropri-' cating despite instruction “is that several to so, “purposely” ate ... it is a rare occasion when do Hanzlicek declined to because prosecution present can evidence that learn more about the checks or Schweitzer documents, deliberately the common utilized in an the defendant avoided knowl law Hilliard, edge.” attempt recipients to intimidate into cash- United States v. Cir.1994); In circum- ing light see also de the checks.5 of this That, evidence, we conclude Francisco-Lopez, 939 F.2d at 1409. stantial and direct Q particular, you disagree something In the United States relies on the How can with you don’t understand? following testimony of Hanzlicek: Well, guess lazy go it A I I was too look Q Hanzlicek, you just that Mr. testified up, were there that I didn't there words you agree everything didn’t with that was understand. by the written common law courts? Q A Correct. going purposely avoided what You into Q things you there that So were some was behind these documents? read and understood? Purposely A I had—I didn’t care because I No, agree enjoy researching A I didn't with that’s the reason didn’t all of this common them, law stuff that I didn't understand. because I couldn’t understand them. the use of common- evi- Schweitzer concerned adduced sufficient prosecution that the to collect on the law court documents deliber- giving of the dence In the fact that light Freeman checks.6 instruction. ate sufficient evi- adduced testimony ref- argues that the Hanzlicek it conspiracy, a unified dence to irrelevant because above is erenced improper compartmentalize would be participation solely to his testimony relates law courts documents the common law courts. to common in and connection with re- that Hanzlicek’s actions conclude (“Mr. Hanzlicek at 10 Appellant Brief is irrelevant to those documents gard and for conspiracy for being tried ignorance. question of his deliberate falsely made United attempting pass Second, unduly narrow gives participation not for his obligations, testimony in conclud- reading to the above ac- of common law court knowledge in or law ing only that it relates to common tivities.”). argument uncon- We find this context, Read in and in courts documents. First, in discuss- vincing. as noted above government, most favorable to the light conspiracy challenge Hanzlicek’s to his certainly be read to could conviction, checks and com- the Freeman checks as well embrace both the Freeman part all court documents were mon-law documents considered as common-law conspiracy charged Count One the same necessary to collect on the checks. fact, Superseding of the Indictment. intercepted telephone were this court to conclude great bulk of the Even adduced at trial was not Hanzlicek and that the evidence conversations between Mrs. Q ma- long you got money nection between the common-law courts So as as for land, loans, piano, your your your for for and the Schweitzer checks. terials bill, your telephone it didn't matter for Q. time, During particular period what was in those documents? Is talking and I’m about the months between saying? you are what you July and November of what were doing during period of time? A Yes. five, probably working eight to A. I was Q your getting the That concern was with helping bill, a son. money piano, telephone for the land, and it wasn’t concerned with how the you Q. during doing through doing you were these documents. “What was wife to the semi- A I wasn’t the one went period of time’’ everything was nars to be informed on how stayed A. of the time she was—she Most supposed to work. documents, typed up papers, home and in Q be- You could have read documents computer all the time from of them, signed you you couldn’t have? fore Q. All of the lime? yes. I could have A read— big day, yes. A. A share of the Q you But chose not to? Q. Well, you did the kinds of docu- see A I didn’t an interest to. have typing? ments that she was Q your your So it was choice based might papers. A. I have saw the the documents be- interest not to look into Q. you— Did signed Right? you them. fore them, say- I didn't read no. I'm A. A Yes. stacks, there were but there were Q you though money, Even it was free papers always that she was documents or you going want to see how were to didn’t get working on. money? the free Q. papers in con- And what were those wanting help A was to the farm- The man Why doing with? was she all of nection er. typing? Q pianos, pay Help by off the farmer ready to get To the rest of the checks A. $3,000.00 telephone bills? go. who he A It was his decision to decide Q. typing in con- going help piano a Was she documents to and wouldn't any pickup different a cow. than or with the common law court? nection It lot of it was in- A. Correct. was—a following excerpt from Hanzlicek’s own The law volved with the common court. trial demonstrates the close con- of the de- official duties. At the Government support giving sufficient to instruction, produce any the error failed to evidence whatsoev- ignorance liberate those reasons stated er to connect to an effort be harmless for Griffin to States v. with the by Drug the Eleventh Circuit United interfere Enforcement Cir.1993). Stone, objection, Agency. 937-42 Over Griffin’s Stone, was faced with a situa- jury In the court trial court instructed the that Grif- al- jury was instructed on conspiracy tion where the fin could be convicted of if knowledge theories of actual participated ternate in either of the she had two igno- ignorance; the deliberate objects deliberate conspiracy. jury of the The re- properly stated the given rance instruction general guilty against turned a verdict law;7 sufficient, but not over- there was and her two codefendants. The Griffin knowledge; evidence of actual whelming, Supreme Court affirmed the conviction. and, finally, there was insufficient evidence precedent sup- The Court found no igno- giving of deliberate port general contention that a Griffin’s at 937. rance instruction. Id. Under verdict must be set aside where “one of circumstances, the court held Stone possible bases of conviction was nei- deliber- giving unsupported that the illegal ther unconstitutional ... even nor was harmless er- ignorance ate instruction ... merely unsupported by but suffi- ror. Griffin, cient evidence.” 502 U.S. at 112 S.Ct. 466. The Court concluded court that such a

The Stone concluded that there is a common sense reason to Supreme result was dictated distinguish between a instruction Court’s decisions United Griffin which misstates the law and one which States, 502 U.S. S.Ct. (1991) presents theory sup- Florida, of conviction L.Ed.2d 371 and Sochor v. ported by the evidence: 119 L.Ed.2d 504 U.S. S.Ct. (1992). cases, respect to these equipped With generally Jurors are not as follows:

the Stone court noted particular theory whether a determine Supreme holding in of conviction submitted to them is con- The Court’s [Grif- whether, example, supports trary substantially informs ] law— fin question protected by the action in is our decision this case. Griffin Constitution, barred, charged single with a is time or defendant was statutory defi- conspiracy count to defraud the feder- fails to come within the therefore, When, conspiracy had nition of the crime. government. al option objects jurors have been left the hindering dual the IRS upon legally inadequate the- Drug Agency relying Enforcement their recognizes by deliberately ignoring what correctly in his a crime 7. As Hanzlicek brief, giv- finding beyond instruction obvious. A reasonable deliberate case, properly en in this stated the law and doubt of an intent of the defendant avoid by problems this court knowledge enlightenment permit avoided the identified or is, opinions the instruction in earlier jury knowledge. to infer Stated another —that negligence imply that or mistake is does not knowledge particu- way, a defendant’s of a enough and does not to a conviction may a deliberate lar fact be inferred from defendant to his shift the burden to the ignorance deliberate or or intentional or Sasser, v. 974 innocence. See United States that to the existence of intentional blindness 1544, Cir.1992); (10th United F.2d fact. Barbee, F.2d 1033-34 States v. is, course, up you entirely as to It (10th Cir.1992). given here The instruction you any ignorance whether find deliberate provided as follows: eyes closing of the and the or deliberate any such evi- inferences to be drawn from government may prove that a defen- The dence. "knowingly” by proving, beyond acted dant may had doubt, infer that a defendant You de- a reasonable that the defendant however, knowledge, proof a from of mis- eyes what liberately closed his or her carelessness, take, negligence, or a belief in been to him would otherwise have obvious responsibility proposition. an inaccurate or her. No one can avoid reversing pendent an otherwise think basis for is no reason to that ory, there added)). expertise intelligence (emphasis own their valid conviction.” Quite them from that error. Furthermore, will save set forth in analysis true, however, is when opposite with Tenth entirely consistent Stone is rely- they option have been left the States v. precedent. See United Circuit factually inadequate theo- ing upon a Scott, 1564, 1578-79 Cir. 37 F.3d jurors equipped well ry, since are 1994) proposition giv (citing Stone for the evidence. analyze factually unsupported igno deliberate (emphasis in at 112 S.Ct. 466 Id. if instruction is harmless evidence of rance (citation omitted). original) sufficient); United knowledge actual is Supreme Court reiterated Pace, v. States Florida, 504 U.S. position Sochor Cir.1993) (affirming, on basis Grif 538, 112 2114, 119 L.Ed.2d 326 S.Ct. fin, charging on indictment conviction (1992). In the trial court had Sochor methamphetamine defendant distributed capital jury aggra on four instructed lack of amphetamine, despite or “total evi factors, was not vating one of which amphetamine); see also concerning dence” supported by jury the evidence. If the Stone, (asserting at 941 that rule 9 F.3d factor, unsupported had relied on the its announced therein is consistent with Tenth recommendation would death sentence precedent). Accordingly, even as Circuit Eighth have violated the Amendment. in suming deliberate However, Supreme Court refused to sup was not given struction this case ju presume jury error and noted evidence, giving ported by sufficient likely disregard rors are “indeed the instruction was harmless. by option simply unsupported evidence.” Court, to the According Id. Sochor Hearsay Testimony Regarding Losses C. process lesson of is that due Griffin Attributable to Schweitzer Checks when “a trial court in- violated legal on two different struet[s] Hanzlicek claims the district evidence, theories, supported by the one admitting its discretion in court abused the other not.” Id. hearsay paid evidence that banks out $1.8 Stone, at 9 F.3d 938-39. million on checks similar to Schweitzer up Hanzlicek. This court those used Having reviewed and So Griffin admission of evi chor, holds district court’s agrees this court with the Eleventh unless the admission constituted an Circuit that a district court does not com dence mit error where it submits a reversible of discretion. United abuse See properly-defined, factually unsup although (10th Cir.1999). Lugo, ported, legal theory jury along to the with elicited During liability. properly supported basis of testimony Agent Canady from that banks Griffin, 502 U.S. S.Ct. 466 paid had out million on Schweitzer’s $1.8 (“What today we have said does not mean fraudulent checks. Defense counsel ob- cannot, in that a district court its discre jected of this admission tion, give peti an instruction of the sort hearsay grounds gov- and because the here, requested eliminating tioner from complied ernment had never with discov- an alternative ba jury’s consideration ery produce order to documentation of liability adequate that does not have sis alleged payments. The district Indeed, if evidentiary support. the evi court, however, allowed this to dence is insufficient to an alterna show “the effectiveness of the scheme.” legal theory liability, gen tive it would court reasoned that Mrs. district also erally preferable give be for the court to “opened Hanzlicek’s counsel had the door” theory an removing instruction from Canady by questioning Agent on this issue The refusal jury’s consideration. to so, however, provide inde- written Schweitzer do does not about several checks

1237 that this Having determined Hanzliceks prove that the an effort to admitted, erroneously this evidence was valid because checks were thought whether court must now determine happened to Schweit- had nothing adverse gov- was harmless. See Fed.R.Crim.P. error closing arguments, During zer. 52(a). in these inquiry The harmless referred to error repeatedly $1.8 ernment indi- on whether the er million, this evidence circumstances focuses arguing that looked admitted had a sub roneously must have evidence that the checks cates jury’s on the verdict or stantial influence “authentic.” about grave this court doubt leaves 801(c) defines Rule of Evidence Federal Cass, v. it whether did. See United States statement, than one other hearsay as “a (10th Cir.1997); 1218, see 127 F.3d testifying at while by the declarant made States, 328 U.S. Kotteakos v. United also to in evidence hearing, offered the trial or 1239, L.Ed. 1557 S.Ct. matter asserted.” truth of the prove the (1946). the record as This court reviews trial, at unless admissible Hearsay is not whether whole de novo to evaluate Rules by the Federal provided otherwise context, harmless, examining the error authority. statutory or other of Evidence erroneously admitted and use of the timing The district court Fed.R.Evid. 802. compares at trial and how evidence hearsay to be be- evidence found this not admitted evidence. See United properly “the effec- admitted to show cause it was (10th Glass, v. States prove the the scheme.” To tiveness Cir.1997). scheme, howev- check of the effectiveness in fraudulent er, that million evidence $1.8 that the effectiveness argues neces- actually cashed was checks were govern- to the of the scheme was critical - sary. and mail The bank fraud ment’s case. require a in this case both charges fraud exam provides prime This case intent. See United showing fraudulent hearsay rule is a crucial why the ple of (10th Cochran, v. 109 F.3d States evidentiary safeguard to insure necessary Cir.1997). however, re- charge, Neither “The a fair trial. criminal defendant scheme to defraud result quires that the danger hearsay rule seeks to eliminate v. States monetary loss." See United reliability because that evidence will lack Hollis, 1451 n. 4 971 F.2d narra memory, or perception, faults in the Cir.1992) of scheme (holding success exposed.” not the declarant tion of will fraud); United an element of mail A. Ber Margaret B. Weinstein & 5 Jack 1252, 1257 Young, 952 F.2d Evidence Federal ger, Weinstein’s Cir.1991) monetary loss not (holding that (2d ed.1999). Here, 802.02[3], § at 802-9 conviction). The for bank fraud required testimony re jury heard unreliable Accordingly, the jury was so instructed. fraudulent checks million in garding $1.8 required prove was government government being paid out. While in mone- conspiracy resulted alleged the use of point through may prove this tary loss.9 evidence,8 Canady’s Agent admissible of the effect not unmindful simply While testimony is not admissi hearsay upon could have of an actual loss evidence ble. time, while, reminding the at the same Kelley, United States Cf. any (10th Cir.1991) required prove loss (allowing, requiring, but not it was not loss). below, Nevertheless, pecuniary of actual as set out all. govern- that the rejects the contention court would tend of the scheme 9. The effectiveness government an actual ment must obligation imi- falsely made show that the support a convic- obligation replicated obligation genuine of the or resembled a tated Section § 472. See under 18 U.S.C. tion infra . how the United States. This is III.E. evidence at $1.8 million loss characterized 1238 ordered, the Assistant to view the fense counsel as jury, required this court is (“AUSA”) argu- in the context of Attorney

record as a whole re- United States the evidence Although ments raised. prac- “It have been better sponded, case con- strengthened government’s the why .... I don’t know list was [the tice of a to de- cerning the existence scheme It was a mistake over].... not turned the resemblance of the instru- fraud and my part.” After the negligence obligations, we conclude genuine ments to sentencing the defen- and before the of this evidence was that admission dants, judge “[M]any trial the stated: court cannot over- harmless error. This million dollar list these checks on this 1.8 introduced, Mrs. Hanzlicek over look that had agent that the testified that there objection and without government’s the on, appears at that been losses least Hanzlicek, objection from evidence con- loss, in fact no there was no there loss was totaling checks cerning nine Schweitzer addition, argument, all.” In at oral the at over million that had come to the $35 admitted that there is no AUSA evidence Furthermore, attention of authorities. actually that the checks had been cashed. persisted inquiry Mrs. Hanzlicek at conviction, upholding Hanzlicek’s length, including eliciting details some district court found that the introduction of about how some of the checks aroused million in was not losses $1.8 suspicion. Mrs. Hanzlicek introduced this material to the case. information to establish that she believed were valid and this belief was checks that certainly troubling It is supported by government’s inaction produced the government never the list of Moreover, Mrs. Han- against Schweitzer. resulting Schweitzer checks in the claimed understanding zlicek testified as to her Nevertheless, paid. million this court $1.8 accepted had the checks been fail government’s cannot conclude that Although apparently effective. she was produce list in a viola ure resulted attempting to show that she had no fraud- Brady. argues tion of Hanzlicek that he knowledge, ulent intent or the evidence specific request made a such for informa directly and effec- supports existence tion, and that the list checks would have tiveness of the scheme. Mrs. Hanzlicek’s impeach Agent Canady. enabled him to repeatedly counsel characterized the items violation, Brady To establish a “bogus questioning, as checks” his (1) must demonstrate evidence was suggests also that the scheme was effec- (2) suppressed by prosecution, favor tive, merely a ruse that no one would (3) him, material, able to meaning take circum- seriously. Under had the evidence been disclosed to the stances, concerning admission of evidence defense, probability a reasonable exists allegedly paid million is harmless. $1.8 trial result of the would have been Reynolds, different. See Moore v. D. Brady Relating Violations to Losses denied, Cir.1998), F.3d cert. Attributable to Schweitzer Checks - -, U.S. S.Ct. Hanzlicek also contends that he (1999). Materiality gauged L.Ed.2d 362 prevented developing from effective record, on the basis of the whole consider Agent Canady cross-examination of be collectively. the undisclosed evidence government cause failed to furnish 419, 436, Kyles Whitley, 514 U.S. list, summary ordered the district as (1995). A S.Ct. 131 L.Ed.2d 490 court, Mr. of victims who had received specific request may for information lower Schweitzer’s fraudulent cheeks and infor materiality. threshold See Smith regarding cashing mation of those Corrections, Secretary Dep’t N.M. not turn checks. did over (10th Cir.1995). Never the list to defense counsel until after the theless, agree we with the district court trial. during argument When asked oral why the list was not turned over to de- the evidence issue here is not mate-

1239 ‘ [sic] the united drawn on Treasurer a reasonable create it does not rial because trial at of the America” and “Redeemable the States of outcome probability another jury different. Stated A have been office of Postmaster.” reasonable that an item of possibility mere way, attempted to easily “[t]he that it could conclude helped have might information undisclosed obli- government a States imitate United the defense, have affected might or gation. not establish of the does outcome the evidence Hanzlicek also claims that sense.” in the constitutional ‘materiality’ insufficient because the instruments is 109- Agurs, v. U.S. States United a to calculated quality were not of such (1976). L.Ed.2d 342 96 S.Ct. person of to deceive an honest sensible was government of what the In the context care, § 472. required as under ordinary significance prove, required In the standard for and doing, so he states these actually cashed banks whether support involving from cases utter derives sug importance than is of far less checks currency. possessing or counterfeit by Hanzlicek. gested Cantwell, v. 806 F.2d See United States (10th Cir.1986); 1463, 1470 & n. 5 United Relating Evidence Sufficiency E. (10th Grismore, F.2d States v. § the 18 Conviction U.S.C. U72 Cir.1976); Drumright, v. United States the evi argues Hanzlicek (10th Cir.1976). 1385-86 is insufficient dence adduced trial however, Hanzlicek, “at convicted of was attempting to for support his conviction utter, pass, publish a tempt[ing] to obligation made Unit pass falsely security or of the falsely obligation made § 472. in of 18 U.S.C. violation ed States States, a false and fraudu namely, United the instru he claims particular, ‘Comptrol lent Bankers Check’ ‘Certified falsely made question were ments Warrant’, 1310, in the amount number ler of the United or securities obligations $180,000.00.” court discusses As this challeng § 472. In required by as States below, sufficiency-of-the-evi “falsely made” and “coun the terms ing his conviction “faced with a Hanzlicek is cir grounds, synonymous dence terfeit” are sufficiency of reviewing Parnell, high hurdle: States cumstances. United verdict, this support Cir.1978). the evidence to 1374, 1381 F.2d de novo and must record court review the argues govern only taking whether evidenee-both ask govern an actual must ment circumstantial, together with direct replicated was obligation ment inferences to be drawn the reasonable attempt § An 472. a conviction under favorable to light most therefrom-in not, falsely obligation made does pass a jury could government, reasonable however, the obli require where similitude beyond a reason guilty find the defendant charitably described as most gation is Voss, able doubt.” See United given its non-standard hybrid instrument Cir.1996) (quota 1524-25 a case Unlike form and nomenclature. omitted). tions counterfeit uttering involving possession or there was sufficient This court concludes must bear currency the instrument where Han- admitted at trial to sustain original here no original, a likeness to the First, § 472. conviction under zlicek’s does not issue government exists. contentions, the “Certified contrary to his by devised obligations of form Schweit clearly case falls Check” Bankers It is utilized Hanzliceks. zer and or other “obligation the definition of within prove the sufficient in- States” which security of the United made, pur one that falsely instrument “checks, money, drawn cludes or drafts obligation what it is not: ports to be of the Unit- upon authorized officers by or States, form in the apparently the United § The instrument -18 ed States.” U.S.C. of a check. purportedly in the indictment involved learn reveal that Mr.

IY. CONCLUSION facts checks or collection scheme Schweitzer’s above, Han- For those reasons set forth were fraudulent. Mr. Hanzlicek could be hereby zlicek’s convictions are AF- negligent characterized as or reckless in FIRMED. However, sup- his actions. this does not KELLY, Jr., Judge, PAUL Circuit port ignorance a deliberate instruction. concurring. addition, id. In Mr. See Hanzlicek’s testi- mony to actual goes knowledge whether opinion, except I concur in the court’s III(B) § the checks and other documents were ille- portion upholds use of ignorance instruction. Even cannot gal, deliberate this evidence be used to in viewing light the evidence most prove ignorance deliberate of their illegali- government, favorable to the see United ty. See id. at 1410. Francisco-Lopez, States v. de heavily upon relies Cir.1991), the evidence in testimony of Mr. following Hanzlicek proving this case fell short of ignorance of the deliberate in- purposely defendant contrived to avoid struction: learning the truth. United Q: purposely going You avoided into

Hilliard, Cir. what was behind these documents? 1994). Though prosecution attempted A: I Purposely had-I didn’t care evidence, be- responses to elicit such enjoy cause I researching not didn’t all of received did suffice. this common law that I un- stuff didn’t For a deliberate instruction to derstand. appropriate, the evidence must show subjectively Q: that the defendant long you got money knew that So as for criminal, activity loans, land, not that a “rea- your your piano, your for for person” sonable would have known. See bill, your telephone it didn’t matter Francisco-Lopez, de 939 F.2d at It what inwas those documents? Is that enough is not the defendant should you’re saying? what venture, have about known the criminal truth, recklessly disregarded the or was A: Yes. negligent inquire. in failing to See id. at Op. Ct. at 1233-34 n. 5. When Mr. Hanzli- 1410-11. answers, gave being cek he was view, my none of the evidence this questioned about “everything that was case establishes a direct or circumstantial courts,” by written law common inference that deliberately Mr. Hanzlicek about the fraudulent or checks common acted to avoid actual knowledge of the law court documents specifically used to illegality signed of the checks he or the collect on the fraudulent checks. It is a procedures collection employed. Mr. Han- say stretch to that Mr. Hanzlicek’s failure zlicek testified that he discussed the every to read and understand document expressed checks with his wife and some produced or upon relied the common her, skepticism him, but she reassured movement, law court including Magna explaining that helped the checks others Constitution, pro- Carta and Montana pay off bills and Mr. Schweitzer wanted to vides evidence of deliberate ignorance. help farmers trouble. He stated that he Surely every unidentified document was not interested in reading the docu- connected to the common law court in- gave ments wife him sign, his and that culpatory, given conspiracy. even Under customarily signed he documents he did precedent, circuit’s the answers to the fully not read or understand because his prosecutor’s questions hardly wife asked him to show that and she had not steered wrong him before. Mr. purposely Such conduct does not Hanzlicek contrived to avoid rise to the intentionally failing level of learning the truth the checks or about been suc had the scheme have benefitted to have a order documents collection knowledge, Mr. Regarding cessful. actual prosecution. in the event defense of a testified to his awareness sure, tried to elicit prosecution To be (on sig his law lien” 1993'“common he de- Mr. Hanzlicek testimony from attempt that was an appeared) nature illegality into the inquiry liberately avoided R. at 521-24. a debt. See XVII avoid Han- signed, but Mr. he the documents knowledge is evidence of actual that he Where merely indicates response zlicek’s give the com- error to lacking, all of is reversible carefully scrutinize not did he was because instruction. See ignorance documents mon law court deliberate interested,in Ebert, 1287, and did documents 178 F.3d 1999 not States v. United (4th Cir.1999) and them. Disinterest 261590, understand (unpub *31-33 WL a defendant’s Stone). understanding lished) lack of the That is not (applying ignorance not become deliberate part do here; hence, the any giving error in case benefit the merely because scheme harmless. See ignorance was deliberate may be sub- him, the benefits even when Adeniji, 31 F.3d 62-63 States v. United light in the Taken context stantial. (2d Cir.1994) actu (considering evidence of the tes- the government, most favorable Stone). applying Of knowledge al deliberate timony simply does course, harmless error even with the Stone checks and respect to the with ignorance instruc ignorance the deliberate analysis, documents.' the collection cautiously. See Unit tion should be used the tendering (6th error Assuming Mari, F.3d 786 v. ed States instruction, next ignorance deliberate Cir.1995) (“We however, do, admonish According to error. inquiry is harmless deliberate giving the against district courts should this determination precedent, our indiscriminately.”). ignorance instruction strength by examining made Hanzlicek, word Mr. against instruction, ignorance of the deliberate negate the other instructions and whether in improper adverse effects of

any Hilliard, 1516; F.3d at See

struction. Sasser, F.2d v.

United States (10th Cir.1992); v. States United Barbee, Cir. 968 F.2d EQUAL OPPOR EMPLOYMENT 1992). by the decision We are also bound COMMISSION, TUNITY Scott, v. United Appellee, Plaintiff - (10th Cir.1994), applied 1578-79 Stone, 9 F.3d rationale of United States STORES, INC., Cir.1993). panel The Scott WAL-MART Appellant. how explaining portion Stone cited Defendant - with cases consistent Circuit were Tenth Appellee. Amaro, Eduardo Intervenor - Scott, at 1578. Stone. 98-2015, 98-2030. Here, instruc- Nos. deliberate focus, and the subjective proper has a tion Appeals, Court United States language contain as a whole instructions Tenth Circuit. con- intentional knowing regarding of the evi- strength at the Looking duct. 23, 1999. Aug. light in the against Mr. Hanzlicek dence ra- government, favorable most Mr. Hanzlicek jury could convict

tional Hanzlicek en- Mr. charged offenses. checks, certainly would

dorsed

Case Details

Case Name: United States v. Hanzlicek

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 23, 1999

Citation: 187 F.3d 1228

Docket Number: 97-5180

Court Abbreviation: 10th Cir.