Willner: Deliberate Ignorance Instruction Proper

In U.S. v. Willner, No. 12-15322 (Aug. 3, 2015), the Court reversed a medicare fraud conspiracy conviction for insufficient evidence, but otherwise affirmed convictions arising out of a scheme that submitted in excess of $200 million in fraudulent claims. As to one convicted co-conspirator, the Court noted the absence of any direct evidence of her participation in the conspiracy, and rejected as too weak the inferences the government attempted to draw from circumstantial evidence. The Court rejected other defendants’ argument that they should have been a theory-of-defense instruction based on Florida law, finding that this law did not have influenced the jury based on the way the government presented its case. Joining the majority of circuits to have considered the issue, the Court held that it was proper to give a jury a deliberate ignorance instruction with regard to whether a defendant knew the unlawful purpose of a conspiracy, without giving this instruction to whether the defendant willfully joined in the conspiracy. The Court found that the district court abused its discretion when it allowed a government witness to give opinion testimony, and when it not allowing the defense to cross-examine this witness about the basis for his opinions. However, the error was harmless in light of the overwhelming evidence of guilt.