MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANT'S OBJECTION TO

THE DELIBERATE IGNORANCE INSTRUCTION

COMES NOW, the Defendant, *, by and through his undersigned counsel, hereby files this his Memorandum of Law in Support of the Defendant's Objection to the Deliberate Ignorance Instruction in the above-styled cause of action and would state as follows:

The government has requested that this Court charge the jury in relation to the deliberate ignorance theory in regards to the proof of the "knowingly" element. The Defendant strenuously objects to such an instruction and submits that such an instruction is inappropriate. Deliberate indifference "as used denotes a conscious effort to avoid positive knowledge of a fact which is an element of an offense charged, the defendant choosing to remain ignorant so he can plead lack of positive knowledge in the event he should be caught." United States v. Restrepo-Granda, 575 F.2d 524, 528 (5th Cir. 1978).

"A 'deliberate ignorance' instruction is appropriate when the facts ...support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution." United States v. Perez-Tosta, 36 F 3d 1552, 1565 (11th Cir.1994). Negligence is not sufficient to prove specific intent. United States v. Adames, 878 F2d 1374, 1377 (11th Cir. 1989).

A deliberate ignorance instruction is not appropriate in the situation where the government's only proof is that the defendant had actual knowledge rather than conscious avoidance. United States v. Rivera, 944 F.2d 1563, 1572 (l1th Cir. 1991). The United States Court of Appeals, for the Eleventh Circuit has cautioned courts against giving a deliberate ignorance instruction "when the evidence only points to either actual knowledge or no knowledge on the part of the defendant. A deliberate indifference instruction is appropriate only when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth' " (citation omitted). United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993).

"The Second Circuit has ruled that the knowledge requirement is satisfied by proof of a conscious purpose to avoid learning the truth, indicating that this is the type of "deliberate ignorance" at issue. See United States v. Jacobs, 475 F.2d 270 (2nd Cir. 1973)." United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979). Reckless indifference to the truth is insufficient. " In order for a conscious avoidance instruction to be proper, it must be based upon facts which would "point in the direction of deliberate ignorance. " United States v. Batencort, 592 F.2d 916, 918 (5th Cir.1979).

*'s case can be favorably compared to United States v. Frade, 709 F.2d 1387 (11th Cir. 1983). In Frade, the defendant was charged with violating the Trading with the Enemy Act. That act criminalizes certain behavior that is subsequently prohibited by regulation. The Frade defendants had arranged for Cuban refugees to be brought to America during the Mariel boatlift.

Shortly after the Defendant's first meeting with Cuban representatives at a foreign government's embassy (not Cuba's) the defendants' realized that the United States' original, positive viewpoint had regarding the boatlift turned negative. The defendants' then realizing that they would be unable to make any further boatlift efforts from Cuba, flew to Cuba and conducted two weeks of intense negotiations attempting and succeeding at getting an improved ratio of desirable Cubans on their ship. Upon the defendants and the ship full of Cubans arriving in Key West they were arrested and the ship was seized for forfeiture.The element of intent in Frade was at least as strenuous as that in the instant case, the intent requirement being willfulness. The Frade court disagreed with the government's argument that the defendants' knowledge that they "might be liable for repeat trips or boat safety violations; or that they might be subject to forfeiture of their vessel under civil statutes; or that the government generally disapproved of the boatlift as dangerous and inadvisable constitutes the requisite specific intent. Crimes are not to be created by inference from the combination of civil statutes and government disapproval.' " Id. At 1392.

The Frade court found that the defendants did not possess the requisite intent despite the fact that government officials had told the defendants that their activities were against the law. Id. at 1393. The defendants were told by a government official "that he could not give the defendants' permission to go to Cuba to pick up refugees 'because it was a violation of the law'."

While Frade did not discuss the issue of a deliberate ignorance instruction, it did specifically address and disapprove of the government's argument "that once the appellants realized that conduct similar to what they contemplated might be illegal it was incumbent upon them to make further inquiry." The criticism of the government's deliberate ignorance argument was due at least partially to the fact that the defendants' had at least partially attempted to ascertain the legality of their actions. Id at 1394. See, United States v. OrtizdeZevallos, 748 F. Supp. 1569 (S.D. Fla. 1990); United States v. Markovic, 911 F.2d 613 (11th Cir. 1990); United States v. Adames, 878 F. 2d 1374 (11th Cir. 1989) and United States v. Fuentes-Coba, 738 F.2d 1191 (11th Cir. 1984).

While Frade is an unusual case, it is applicable to this case because Dr. Pickett just as the defendants in Frade, was dealing with an unclear situation criminalized by regulation, normally proscribed by civil prohibitions, which required specific intent and covering actions which thedefendant had been advised was a grey area but had never been told were criminal. In Frades the defendant had even been told that their actions were illegal, a statement that was never made to Dr. Pickett.

This case is unlike the normal case in which a deliberate ignorance instruction is read. For example, the situation in which a boat captain is arrested for possession of drugs with intent to sell and he gives an admission that he knew something was amiss and he had thought he was carrying drugs although he did not know what type, United States v. Peddle, 821 F.2d 1521 (11th Cir.1987); or where defendants have a totally illogical explanation on how they came to possess a container containing drugs, United States v. Arias, 984 F.2d 1139, 1143-44 (11th Cir. 1993);or in which drug couriers have avoided knowledge of the contents of their packages in unusual circumstances, United States v. Aleman, 728 F.2d 492,492 (11th Cir. 1984); or in which a "large amount of money (is) paid or promised to a drug courier who uses a false passport and an alias; displays suspicious conduct while in the customs line; and then acknowledges "upon being informed that the cocaine had been discovered, that he knew "what he had gotten himself into" (citation omitted) and, subsequently admits that "he had something in the suitcase that he shouldn't, but he didn't know exactly what,"

United States v. Batencort, 592 F.2d 916, 918 (5th Cir. 1979).

The Circuit court's rationale in other cases is also enlightening on the issue of when a court should give a deliberate ignorance instruction. For example,"According to the statement which Aleman gave customs agents, he met the man who gave him a briefcase on Thursday before returning to the United States on Sunday, he did not know the man's last name, he did not know who was to pick up the briefcase, and no arrangements were made for actual delivery of the briefcase. Aleman had actual possession of the briefcase for three days but denied knowledge of its contents.

These facts "point in the direction of deliberate ignorance" and the contested instruction was properly given." United States v. Aleman, 728 F.2d 492, 494 (11th Cir. 1984). The facts in *'s case are also distinguishable from those medicare cases in which the Eleventh Circuit has upheld the reading of a deliberate ignorance instruction. In United States v. Gold, 743 F. 2d 800 (11th Cir. 1984), the court upheld the reading of a deliberate ignorance instruction in a factual situation in which the defendants' had been specifically told that what they were doing was illegal, the defendants' had taken direct actions to circumvent the Medicare laws and fraud permeated the entire practice.

There was clearly enough evidence presented here on the issue of conscious avoidance or deliberate ignorance to justify supplying an instruction on this issue to the jury. The entire defense case, after all, rested on the argument that the defendants--despite their supervisory responsibilities and "hands-on" management style--were innocently oblivious to the endemic fraud that permeated Opti-Center's entire Tampa Bay area operation. In addition, the record was replete with testimony that suggested indifference by the defendants at best and deliberate criminality at worst. Despite warnings from a number of Opti-Center employees that their claims practices were illegal. (emphasis added) for example, none of the defendants even picked up a telephone to call Blue Cross's toll-free number to determine what expenses were covered by Medicare. There was also direct testimony from Sue Conway that on one occasion when she tried to tell Warren that she had done some illegal (emphasis added) things with Medicare billings, Warren responded that she did not want to hear about it. We therefore have no difficulty concluding that the "conscious avoidance" instruction here was amply justified by the evidence presented at trial."

United States v. Gold, 743 F.2d 800, 822 (11th 1984). Likewise, Dr. Pickett's case is distinguishable from the situation in which the doctor is taking affirmative steps to commit fraud and deliberately avoids looking at any coding information to preserve a lack of knowledge defense. See United States v. Hooshmand, 931 F.2d 725, 732 (11th Cir. 1991).

In the case at bar, the Defendant had merely been told that the billings were a grey area and had never been told that what he was doing was illegal or fraudulent. The evidence was unequivocal that * was relying on CompMed, to determine the appropriate codes to use and CompMed let him down. Critically in the only situation in which CompMed told him that his billing needed to be corrected (mammograms) he did so. In*'s case, in which the only evidence supports either actual knowledge or no knowledge, the charging of a jury with a deliberate indifference instruction comes close to charging the jury with a negligence standard which would be an inappropriate reduction of the beyond a reasonable doubt standard. See, United States v. Perez-Tosta 36 F.3d 1552,1565 (11th Cir. 1994); United States v. Rivera, 944 F.2d 1563, 1572 (11th Cir.1991).

WHEREFORE, for the reasons stated above, the Defendant, *, respectfully requests that this Honorable Court grant this Memorandum of Law for the above stated reasons.

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