Court rejects sufficiency challenge to knowledge of conspiracy; finds no error in not granting new trial, use immunity, or suppression

Court rejects sufficiency challenge to knowledge of the conspiracy; finds no error in not granting a new trial, refusing to grant use immunity to a co-conspirator, and not suppressing statements and weapons; and affirms sentences.

In United States v. Whiteford, 10-1023 & 10-1373 (3d Cir. Apr. 13, 2012), two defendants were convicted after a jury trial of conspiracy, 18 U.S.C. § 371, involving bid rigging and contract steering, and related offenses. Both defendants were officers in the U.S. Army Reserves deployed to Iraq from 2003 to 2004 who held positions in a regional office of the Coalition Provisional Authority which made them responsible for selecting and managing reconstruction projects and overseeing disbursement of millions of dollars. Six other people, including two businessmen, other reserve officers, and contract employees, were also charged with and pleaded guilty to this conspiracy. The Third Circuit affirmed the convictions and sentences.

First, the Court found there was sufficient evidence to establish each defendant’s participation in the conspiracy. The defendants conceded there was adequate proof of an agreement and an overt act but contested knowledge. The Court noted that willful blindness can satisfy the knowledge prong of a conspiracy charge. See also Third Circuit Model Criminal Jury Instructions § 5.06 (“No one can avoid responsibility for a crime by deliberately ignoring what is obvious.”). The Court also rejected that the government had to prove the United States was an intended target of the conspiratorial scheme because the defendants had been charged with the offenses, not defraud, prong of the conspiracy statute, which only required an intent to violate federal law.

The Court rejected that the jury charge was deficient because it failed to name the co-conspirators. The indictment included the names of more than one co-conspirator and so the identity of the co-conspirators was not treated as an element of the offense.

The Court rejected that the trial court erred in not granting a new trial because a private attorney (a new associate not yet barred) might have appeared to be coaching a key government witness from the audience during trial. If this information could be considered newly discovered evidence, it would not “probably produce an acquittal” because there was no evidence the witness falsified his testimony.

The Court rejected that it was error for the court to refuse to grant use immunity to a co-conspirator. The government was not intentionally disrupting the fact-finding process by not granting immunity but instead wanted to avoid having a Kastigar hearing when it prosecuted this co-conspirator. The testimony was not essential to the defense because it was not “clearly exculpatory”: multiple portions of the witness’s statements to the police had inculpated the defendant.

The Court rejected defendant Wheeler’s argument that his motion to suppress statements and weapons was erroneously denied. Some of the conspirators considered starting their own company and received a shipment of weapons in the United States that they moved them from one location to another. Wheeler kept some of the weapons. FBI agents contacted Wheeler and eventually went to his home to investigate. When the agents arrived, Wheeler informed them he had consulted an attorney and that the attorney directed him to cooperate unless he “got stumped.” The Court determined these remarks were not an objectively identifiable request for counsel, and did not amount to invocation of Fifth Amendment rights. In addition, Wheeler’s Miranda waiver was sufficient because he signed an Advice of Rights form, and there was no evidence of intimidation or coercion. The Court rejected the proposition that a defendant must know the charges against him to validate a Miranda waiver.

Finally, the Court affirmed that the loss calculations appropriately attributed to defendants the value of the bribes they reasonably could have foreseen their co-conspirators receiving.