United States v. Victor Arditti, United States of America v. Guillermo AvilaUnited States v. Victor Arditti, United States of America v. Guillermo Avila
Lead Opinion
Guillermo Avila and Victor Arditti were convicted of conspiracy to launder monetary instruments and of the substantive offense. Avila argues that his conduct did not violate the federal monetary instrument laundering statute, that the jury instructions at his trial were inadequate, and that the government entrapped him and engaged in outrageous conduct in the course of its undercover operation. Arditti also challenges the jury instructions and charges entrapment and outrageous conduct, and he claims that in quashing a trial subpoena the district court deprived him of due process. We affirm.
I.
These appeals arise from an Internal Revenue Service (“IRS”) undercover investigation of money-laundering. The defendants were tried separately, but their cases were consolidated on appeal. Because each defendant challenges the conduct of the IRS investigation, we present the facts of the two cases together. We then discuss Avila’s argument that his conduct did not violate the statute, each defendant’s challenges to the jury instructions, the issues of entrapment and outrageous government conduct as they apply to each, and the quashing of Arditti’s subpoena.
II.
In 1988, IRS Special Agent Gary Gall-man began investigating money laundering in El Paso, Texas, using the assumed name of “Gary W. Adams” and portraying himself as a cocaine dealer. Gallman started with information that Gabriel Yanez, who owned a money exchange business, laundered money by handling it to disguise its source. Gallman’s goal was to discover Yanez’s methods and cohorts.
Gallman first contacted Yanez in May 1988, explaining that he wanted Yanez to help him move large amounts of cash offshore, then bring the money back into the United States in usable form, intimating that he and his associates were involved in illegal activity. Gallman and Yanez invented the name “Ricardo Guerra-Battle” and established a Mexican bank account in that name. Yanez twice funneled $100,000 cash through Mexico, arranged for the money to
Yanez next arranged for Gallman to open a Cayman Islands account in the “Adams” and “Guerra” names, using a letter of introduction from an El Paso attorney to a Cayman Islands attorney. Gall-man later asked Yanez to put him in touch with someone who could help him with business in El Paso. In September, Yanez introduced Gallman to Arditti, an El Paso criminal defense lawyer.
During the introductory meeting in September 1988, Gallman told Arditti that he must trust Arditti before he could reveal the nature of his business and explained that Yanez was helping him “get [his money] out and get it back” so that he could use it. Arditti reassured Gallman by mentioning the - attorney-client privilege, his previous work with clients involved in drugs, and his distrustful nature.
Arditti told Gallman that since he was “into that kind of business,” he should fund a war chest in preparation for the day he would need money to get out of jail on bond and hire a lawyer. Gallman explained that he couldn’t spend any of the money “the way it is right now and that he had “to get it out and get it back.” Although Arditti told Gallman that he could not advise him on how to launder any illegal funds, Arditti advised Gallman on structuring transactions to purchase real estate in El Paso without arousing suspicion and assured Gallman that the government would not discover any payments made by Gallman to Arditti.
In October, Yanez channeled another $100,000 of Gallman’s cash to Gallman’s Dallas account after tinkering with the Cayman Islands arrangements. In the meeting discussing the transfer, Gallman told Yanez directly that “he and his group were in the ‘coke business’ and his part was to handle the money they derived from the sales.” Yanez and Gallman seemed to agree that they should follow Arditti’s advice in investing in real estate and stocks by using Mexican cashier’s checks, using the “Guerra” false name, and making purchases in the name of the British Virgin Islands corporation they had opened to facilitate the offshore Cayman Islands account. Gallman asked Yanez to recommend stock or brokerage houses that the corporation could use to invest in the stock market.
In November,
Yanez introduced Gallman and Avila in January 1989 at a hotel in San Antonio. Although Gallman used his undercover name, “Adams,” he signed the client agreement and certificate of foreign status (W-8) as “Guerra.” The W-8 eliminates brokerage house reporting requirements as to the accounts of foreign nationals and, thus, effectively would have prevented the government from knowing that Ricardo Guerra or Gary Adams was transacting business with Pru-Bache. Gallman told Avila that Gallman was both “Adams” and “Guerra” and that this was “untaxed money” from the Mexican mining operation. Additionally, according to the government, Avila knew that Gallman was not a Mexican citizen, yet told Gallman that he would “take whatever you tell me” when asked whether he felt comfortable about the Mexican mining investor story. Further, Avila told Gallman that because client “confiden
The three arranged for investment funds to come from Gallman through Yanez to Avila. Avila repeated that under law and Pru-Bache policy he could not take cash and that investments of under $10,000 did not need to be reported to the government. In February, Gallman executed new, backdated documents to change the brokerage account to the name of the British Virgin Islands corporation at Avila’s request. As with the first forms, Gallman signed the forms in blank, and Avila completed them.
A few days later in February, Gallman and Avila met again. Gallman plainly told Avila, “I am in the coke business. That’s what I do. Now, you will not ever be involved in that part of it.” Although Gall-man offered Avila the opportunity to back away from the deals because of the source of the funds, Avila responded that Yanez had told him that, as long as Gallman provided the investment funds in check form, there was “[n]o problem as to where that money comes f[rom] or how it was made,” because the corporation, not “Adams,” was Avila’s client. Avila asked Gallman whether he was a law enforcement officer, which Gallman denied.
Gallman purported to have recently collected $15,000, which, the government asserts, Avila admittedly understood were the proceeds from a cocaine deal. Avila, however, maintains that Gallman did not tell Avila that he wanted to violate the law or that he did not want to report the cash. Avila stresses that he told Gallman that he did not want to do anything illegal and that Gallman confirmed that the corporation was “legal” and that Gallman was going to deposit “clean money.”
After Avila repeated that he could not handle cash, he directed Gallman to obtain cashier’s checks in the name of the corporation and told him how to do so. After Gallman obtained the checks, he met Avila outside Avila’s office and gave him two cashier’s checks totaling $15,000, payable to Pru-Bache in care of Avila. Avila deposited the funds in the corporation’s account. In March, Gallman delivered to Avila a $40,000 cashier’s check, which Avila also deposited.
At Gallman’s request; Yanez invited Ar-ditti to meet them for lunch in March 1989. Arditti discussed methods to avoid suspicion and the tracing of money, including not using cash. Gallman offered Arditti the chance to “walk away from the deal” if Arditti had a “problem with the money or what I do.” According to Gallman’s testimony, when Arditti responded that he had not asked what kind of business Gallman did, Gallman then clarified, “You understand this is coke money,” to which Arditti replied, “Yoú don’t see me going anywhere, do you?” Arditti disputes Gallman’s testimony as to this portion of their conversation and notes that the government failed to tape-record this exchange, nor did Gall-man record it in his memorandum concerning the meeting.
In May, Gallman met with Yanez and Arditti. Gallman put aside the idea of real estate investments- in El Paso and told Ya-nez and Arditti about an opportunity to invest $200,000 in an Oklahoma oil deal. Gallman revealed that “this money- we’re doing right now is part of a ten-kilo deal that ... I’m getting paid off for ... now,” and stressed protecting his identity in the oil deal. Arditti outlined a complex arrangement for preventing governmental access to Gallman’s name through the royalty payment.mechanism, perhaps setting up a foreign corporation or, as Gallman suggested, a trust in a foreign bank to receive and invest Gallman’s money. Gall-man repeated that “this is coke money” and wanted to know whether he could count on Arditti not to talk if “I end up ... getting busted.”
Arditti assured Gallman that he would not divulge anything but again warned Gallman against spending large lumps of cash. Arditti agreed to draft documents memorializing the “loan” of money from the corporation to Gallman, which would explain the source of Gallman’s money, and to check on establishing an escrow account to receive Gallman’s money and invest it in the Oklahoma deal.
At the end of May, Gallman delivered $50,000, which Yanez funneled to Gall-man’s Dallas account. At this time, Yanez attributed Arditti’s delay to procrastination but noted that Arditti was “convinced” about how to proceed with the bank in setting up the escrow account. Gallman repeatedly telephoned Yanez over the next few weeks because Gallman wanted Arditti to complete the deal. Yanez continued to insist that Arditti would participate but wanted to take care in structuring the deal.
The first infusion of funds to Oklahoma occurred through Yanez’s own bank account at the end of June, not through the escrow account as envisioned by Gallman. Gallman asked for Yanez’s help in getting the money to Oklahoma using the escrow account procedure. In mid-July, Gallman met in El Paso with Yanez and Arditti, who explained that they had agreed to the method used in the first transfer because the bank had set up some hurdles in establishing the escrow account. Departing from the escrow account idea, Arditti offered to set up. a trust whose funds Arditti would manage, which would also conceal Gall-man’s identity. The three formulated an elaborate plan to invest money from the corporate brokerage account into the Oklahoma oil deal and completed the arrangements for the fraudulent loan.
With Yanez’s participation, Arditti opened a bank account in the name “V.R. Arditti Trust Account Number 3” several days later. No trust documents were prepared for the account, and Arditti alone had signature authority and the code to validate wire transfers. When Arditti received a check from the corporate brokerage account for $50,000 on August 2, he deposited it in the trust account and told the bank to wire $49,000 to the oil deal bank account in Oklahoma.
In mid-August, Arditti gave Gallman a bill for his services. Gallman found the amount “pretty stout,” so Arditti adjusted it downward but asked Gallman not to pay him in cash because that would appear suspicious. The three then devised a more efficient plan for future transactions, focusing on the need to shield Gallman by using the “Guerra” name and procuring the funds for deposit in the trust account at a Mexican bank in the form of a cashier’s check.
As planned, Arditti received a $50,000 check the next day from a Mexican money exchanger and transferred the money to the oil deal account. On August 29, Ardit-ti, following the same procedure, deposited another $50,000 in the trust account and wired it to Oklahoma.
III.
A grand jury charged Arditti with conspiring with Yanez and Avila in violation of
The indictment charged Avila with conspiring with Arditti and Yanez in violation of
The court granted Avila’s motion for judgment of acquittal on the allegations in count one that Avila conspired to violate
IV.
Avila challenges his substantive and conspiracy convictions on the ground that his conduct did not violate a criminal statute.
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
[to] conduct[ ] or attempt[ ] to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity....
(A) a transaction (i) involving the movement of funds by wire or other means or. (ii) - involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.
The term ‘‘monetary instruments” means (i) coin or currency ..., travelers’ checks, personal checks, bank checks, and money orders, or (ii) investment securities or negotiable instruments, in bearer form or otherwise in such form that title thereto passes upon delivery.
Avila urges reversal of his conviction under
The government agrees with Avila’s characterization of the cashier’s checks as non-bearer instruments and accepts Avila’s distinctions between' cashier’s checks and bank checks. Pointing to the legislative history of
Avila responds that the legislative history contextually refers to cashier’s checks “in such form that title thereto passes upon delivery,” not to all cashier’s checks. Id. Moreover, Avila asserts that Congress’s in
Despite the facts that Congress did not include cashier’s checks in the statutory definition of monetary instruments and that we must construe criminal statutes strictly, see United States v. Daniel,
The acts alleged in these counts plainly fall within the language of
Although we have not previously interpreted the money laundering statute in this way, the plain language dictates such a holding, and this court has found that the statute encompasses a wide range of conduct. See, e.g., United States v. Gallo,
We similarly uphold Avila’s conspiracy conviction. The first count of the indictment charged that Yanez, Arditti, and Avila “willfully, knowingly and unlawfully conspired, combined, confederated and agreed together, and with each other, and with others to the Grand Jury unknown, ... to launder a monetary instrument, in violation of Title
As with the substantive counts, this court need not consider whether cashier’s checks qualify as monetary instruments. Although cashier’s checks were the means through which the conspirators were to launder the funds, the objective of the conspiracy was to launder the cash that “Adams” claimed to have obtained through his drug wholesaling activities. Cash, of course, is “coin or currency of the United States” and thus is a monetary instrument. Because Gallman represented to Avila that he wanted to launder cash, and Avila advised him how to convert the cash into cashier’s checks without having to present his identification, so that Pru-Bache could accept the money, we reject Avila’s argument that no monetary instruments were involved.
V.
Avila further argues that his behavior was not illegal because the government
Avila argues that “[s]trict construction ... requires that the officer make an affirmative representation to the defendant,” not merely a suggestion, or just enough information to create an inference. Nor can the government agent’s perception of the “representation” substitute for satisfaction of the element. Because Gallman did not plainly tell Avila that the $15,000 and $40,000 cashier’s checks were proceeds from cocaine sales, Avila urges reversal of the convictions.
We find Avila’s arguments unconvincing. The record shows that “Adams” told Avila that he was in the cocaine business and that the initial $15,000 was the proceeds of a collection. Because “Adams” represented his business as drug wholesaling, then never represented his relationship with Avila as one involving funds not derived from that illicit industry, the jury could have viewed the later $40,000 as ostensible drug-related funds, believe that Gallman portrays and Avila viewed them as such, and thus convict Avila of money laundering.
To hold that a government agent must recite the alleged illegal source of each set of property at the time he attempts to transfer it in a “sting” operation would make enforcement of the statute extremely and unnecessarily difficult; “legitimate criminals,” whom undercover agents must imitate, undoubtedly would not make such recitations before each transaction. In this case, it is enough that sufficient evidence was presented that the jury could have found beyond a reasonable doubt that “Adams” represented, and Avila understood, that the funds they were laundering were the proceeds of the specified illegal activities.
VI.
Avila and Arditti challenge the district court’s jury instructions at their respective trials. We find their argument to be without merit.
A district court possesses broad discretion in framing the instructions to the jury; we will not reverse unless the instructions taken as a whole do not “correctly reflect the issues and law.” United States v. Casto,
The district court defined the offense of conspiracy (count one) in relevant part as follows, essentially tracking the Fifth Circuit Pattern Jury Instructions § 2.21 at 89 (West 1990):
You must be convinced that the government has proved each of the following beyond a reasonable doubt ... Second: That the defendant knew the purpose of the agreement and joined in it with the intent to further the illegal purpose So, if the defendant ... knowingly and willfully joins in that unlawful plan on one occasion, that is sufficient to convict him for conspiracy.
The court defined the substantive offense under
Avila requested that the jury be instructed that “willfully” “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”; and that “[t]o establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.” On appeal Avila argues that the district court’s refusal to issue the instructions he requested constituted reversible error, arguing that “willfulness” is a substantive element of a
First, we find that the conspiracy instruction, as a whole, adequately addressed the burden the government had to bear. The requested instruction as to “willfully” was not necessary. The meaning of “willfully” varies depending upon the context. See United States v. Bishop,
“Willfulness” appears in neither the
The district court’s conspiracy instruction required the jury to find (1) that there was an agreement between two or more persons; (2) that Avila joined the agreement knowing its purpose and with the intent to further the illegal purpose; and (3) that an overt act was committed. Further, the court instructed, “If the defendant knows about a plan, knows that it is an unlawful plan, and knowingly and willfully joins in the unlawful plan ... that is sufficient to convict him for conspiracy.” These instructions cover the necessary elements of the conspiracy offense, including the requisite mental state. They thus differ from the charges we rejected in United States v. Burroughs,
Second, we find that to the extent Avila’s requested instruction of specific intent was correct, it too was included in the district court’s instructions. The court told the members of the jury that they could not find Avila guilty unless they found that
VII.
Avila next argues that the district court erred in not instructing the jury as to his ignorance of the law. In United States v. Davis,
In 1989 this court ordered a new trial for defendants who had been convicted of conspiring to commit tax fraud under
Avila asks us to apply Buford to the case at hand, but the reasoning in that case and the others Avila cites does not support such an extension. Avila urges us to hold that the district court erred because it failed to instruct the jury that it could consider Avila’s ignorance of the law, despite the critical distinction that its instructions, and the applicable statute, did not require the government to prove that Avila intentionally violated a known legal duty, nor, for that matter, did the court issue an instruction that the jury should presume that Avila knew what the law was.
As we discussed above, such a concept of “willfulness” is not an element of the offenses with which Avila was charged. Because the instruction Avila requested is not a “substantially correct” statement of the law in this context, we affirm the refusal to include it.
Additionally, to the extent the requested instruction might accurately reflect the law, it was included in the instructions the district court issued. The conspiracy instruction told the jury that it could convict Avila only if it found that he joined the plan knowing that it was unlawful, and the substantive offense instructions provided that the defendant must have had represented to him that the funds were proceeds from specified unlawful activities and that he must have participated with the intent to further those activities or to conceal the funds. Lastly, we note that the entrapment instruction allowed the jury to consider whether the government agent imper-missibly coaxed Avila into breaking the law, either through convincing him that his acts would be lawful or otherwise.
VIII.
Arditti challenges the district court’s entrapment instructions. The instructions paralleled Fifth Circuit Pattern Jury Instructions § 1.28 at 40 (West 1990), and in relevant part provided that
if the evidence in the case should leave you with a reasonable doubt whether the defendants had the previous intent or purpose to commit an offense of thecharacter charged apart from the inducement or persuasion of some officer or agent of the government, then it is your duty to find him not guilty.... The burden is on the government to prove beyond a reasonable doubt that the defendants were not entrapped.
Arditti requested that the district court include a sentence immediately after its instruction on the elements of monetary instrument laundering to explain the link between the elements and entrapment: “Even if you find that the government has proved each element of this offense beyond a reasonable doubt, you must acquit the defendant if you find that he was entrapped.” First, Arditti asserts that the charge as a whole confused the jury; he relies upon jurors’ affidavits to show that they did not understand the entrapment instruction and, thus, could not consider the defense. Second, Arditti claims that because, after the defendant makes a pri-ma facie showing of entrapment, the burden shifts to the government to prove that the defendant was predisposed to commit the offense, see United States v. Johnson,
We find that the jury instruction on entrapment was adequate. We first note that the affidavits of juror confusion are not relevant for our decision, as whether a jury misunderstands its instructions is not to be re-examined after the verdict. Robles v. Exxon Corp.,
Although the district court would not have erred in issuing the requested instructions, Arditti was not entitled to them. In Allibhai we did say that including an entrapment instruction after each count increases the burden the government must bear, but in context the statement merely meant that the defendants could not claim prejudice because the jury was instructed to consider the entrapment defense separately as to each count.
IX.
Avila and Arditti moved to dismiss their respective indictments prior to trial and timely moved for judgment of acquittal based upon entrapment and outrageous conduct, motions that the district court denied. The entrapment defense involves examination of two factors: (1) government inducement; and (2) the defendant’s predisposition, before contact with government agents, to commit the crime charged.
Entrapment as a matter of law is established only where a reasonable jury could not find that the government discharged its burden of proving the defendant was predisposed to commit the charged crime. United States v. Nations,
A.
Arditti argues that the government “offered no evidence of predisposition” prior to Arditti’s involvement in the offense, disputing the district court’s focus upon Arditti’s “willing and active participation] in the scheme” as evidence of his predisposition toward the crime. Looking at the evidence in the light most favorable to the government, though, a reasonable jury could have found beyond a reasonable doubt that Arditti was predisposed to money laundering and thus was not entrapped.
As in Nations,
B.
Avila similarly argues that the government’s evidence of predisposition falls short. Our response is the same: Despite Gallman’s initiation of contact with Avila and Gallman’s provision of the opportunity to launder drug funds, Yanez’s testimony that he told Gallman that Avila “has a lot of clients from Mexico in the same business you are,” Avila’s complete lack of resistance, and Avila’s energetic participation in the plan to launder “drug” money show that a reasonable jury could have found that he was predisposed to engage in money laundering. The entrapment defense in this case, “as in most cases, was not resolvable by the court as a matter of law.” Nations,
C.
Both appellants also charge that their convictions should be overturned because the government investigation constituted outrageous conduct. We traced the evolution of the “outrageous conduct” defense in United States v. Allibhai,
A defendant must prove not only “government overinvolvement in the charged crime,” but also that he has not been an “active participant in the criminal activity which gave rise to his arrest.” Nations,
D.
Arditti maintains that the government engaged in outrageous behavior by targeting him without a reasonable suspicion of predisposition to launder monetary instruments. We already have rejected a similar argument, however. This court applies the prohibition against governmental targeting of defendants in an investigation “only where the government employs a contingent fee informant and directs him to implicate specific individuals.” United States v. Nissen,
Arditti also argues that the government’s overinvolvement in the offense and the pressure its agents exerted on him constituted outrageous conduct. This argument also fails, as the quantum of governmental activity did not exceed levels previously condoned by this and other courts, see, e.g., United States v. Tobias,
E.
Avila asserts that the government’s conduct was outrageous because Gallman initiated all contacts and meetings with Avila and, further, misrepresented the legality of Avila’s participation and the business of the corporation. Avila seemingly confuses the predisposition element of establishing the entrapment defense with the necessary proof of outrageous conduct. Avila actively participated in the money laundering, and he has far less of an argument for government overinvolvement than does Ar-ditti.
F.
Arditti further invokes a Ninth Amendment argument that “a person’s liberty, or right to be left alone, is violated when the government persists in attempts to engage the individual in criminal conduct after he has declined to become involved.” He suggests that we adopt a bright-line rule that once a subject of investigation states that he does not wish to participate in illegal activity, government agents must leave him alone. Cf. Minnick v. Mississippi, — U.S. —,
Nothing in the case law, the statutes, or the constitution requires such a rule, however. In Allibhai we rejected the claim that the right to be left alone forbids the government from targeting an individual in an investigation without a preexisting reasonable suspicion that the subject has been involved in wrong-doing.
X.
Both before and at trial, Arditti subpoenaed IRS documents including those showing the “nature, goals and targets of its operation,” asserting their relevance to his lack of predisposition for his entrapment and outrageous-conduct defenses. Arditti maintains that he needed the information to complete his defense and to summon all minimally reliable evidence in that regard, as guaranteed by the Due Process Clause of the Fifth Amendment and the Compulsory Process Clause of the Sixth Amendment. Following the government’s statement that the internal memoranda and documents generated by an agency are privileged and thus not subject to discovery, the district court granted the government’s motion to quash the trial subpoena because the subpoena constituted a discovery request, bordering on a fishing expedition. Arditti asserts that because the district court neither held a hearing on the motion to quash nor availed itself of the opportunity offered by the government to view the documents in camera, his rights were violated, and he requests a hearing wherein the government will be required to show that its privilege as to the documents should overcome his right to present evidence in his defense.
We review a grant of a motion to quash a subpoena for abuse of discretion. Cf. United States v. Reeves,
Our analysis of this issue begins with Bowman Dairy Co. v. United States,
The Court enunciated the burden a party must bear to gain access to materials under rule 17 in United States v. Nixon,
We conclude that Arditti did not meet his burden under rule 17 and Nixon. In quashing the subpoena, the district court found that “I think it’s not only discovery, but borders on a fishing expedition.” This finding is supported by Arditti’s argument before us: “The government’s purpose, method and means of targeting and then pursuing Mr. Arditti are relevant to both the entrapment and the due process defenses. To ascertain these particulars, Ardit-ti sought the documents that would set forth the objectives of the undercover operation and the intended targets of that operation.” (Emphasis added.)
Arditti thus has failed to establish with sufficient specificity the evidentiary nature of the requested materials. He has demonstrated why he wants to look into the material, but he has not set forth what the subpoena’s materials contain, forcing the court to speculate as to the specific nature of their contents and its relevance. Accordingly, it appears that Arditti was attempting to use the subpoena to gain knowledge that he could not obtain under rule 16(a)(1), as much as to obtain evidence, i.e., that he was trying “to use the subpoena duces tecum as a discovery device, which it is not.” United States v. Nixon,
AFFIRMED.
Notes
. The district court instructed the jury that it could not consider any acts prior to November 18, 1988, the effective date of
. To buttress his claims of entrapment and outrageous government conduct, Arditti has pointed out several facts regarding the contacts between Yanez and Arditti after the May transaction, specifically: (1) Yanez told Gallman that he contacted Arditti or visited his office every day; (2) Arditti seemed so reluctant to do Gall-man’s work that Yanez suggested hiring another lawyer to complete Gallman’s work; and (3) Gallman contacted Yanez three times on May 30 and 13 times in June to ask about Arditti.
. All references herein are to the 1988 version of
. See also Fifth Circuit Pattern Jury Instructions § 2.21, at 91 (West 1990) (proposed conspiracy instruction "adequately addresses the requirement of a specific intent to violate the law” if no "special state of mind,” e.g., premeditation, required by substantive offense); id. § 1.36 at 52 ("we have attempted to define clearly what state of mind is required, i.e., what the defendant must know and intend to be guilty of the particular crime charged”).
. See Allibhai,
Concurrence Opinion
specially concurring:
When one door closes, fortune will usually open another.6
The
The issue is whether Arditti satisfied the requirements of
Certainly a
However, “[a]ny document or other materials, admissible as evidence ... is subject to subpoena” under
The rule allows “[t]he court on motion made promptly [to] quash or modify the subpoena if compliance would be unreasonable or oppressive.”
To this end, a party demanding materials must unfasten three locks to free the 17(c) door. The rule requires not only that the materials be relevant and admissible, but also that the demand must be sufficiently specific as to the documents requested. Nixon,
In the ordinary case, I would expect the district court to review the material in camera to determine whether the specificity, relevancy and evidentiary nature of the material warrants its production.
. Fernando de Rojas, La Celestina act XV.
. The Arabian Nights (A Thousand and One Nights) — The History of Ali Baba (Galland trans.); cf. William Shakespeare, Macbeth act IV, sc. i ("Open, locks, Whoever knocks.").
. See United States v. Komisaruk,
. See, e.g., Nixon,