United States v. Bivins , 104 F. App'x 892 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4743
ALTON F. BIVINS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-604)
Argued: June 4, 2004
Decided: July 26, 2004
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: John Christopher Belcher, Oxon Hill, Maryland, for
Appellant. Deborah A. Johnston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States
Attorney, Chan Park, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
2 UNITED STATES v. BIVINS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Alton F. Bivins, Jr. was convicted on federal charges of conspiracy
to commit money laundering, engaging in monetary transactions in
property derived from criminal activity, and wire fraud. Bivins
appeals, arguing that his convictions should be overturned because his
indictment was defective and because the evidence was insufficient.
In the alternative, he argues that he is entitled to a new trial because
of various evidentiary errors and faulty jury instructions. We affirm.
I.
The indictment, returned on December 20, 2000, charged Bivins
with one count of conspiracy to commit money laundering in viola-
tion of 18 U.S.C. § 1956(h); four counts of engaging in monetary
transactions in property derived from criminal activity in violation of
18 U.S.C. § 1957(a); and six counts of wire fraud in violation of 18
U.S.C. § 1343.
Trial began on February 3, 2003, and the government presented the
following evidence. Donald Osorio (Osorio) and Karen Bivins
(Karen) were involved in a conspiracy to import and distribute
cocaine and heroin. Karen was the sister of Alton Bivins (Bivins), the
defendant in this case. During the height of the conspiracy, Osorio
was buying and selling fifteen kilograms of cocaine a week and turn-
ing a profit of approximately $11,000 on each kilogram. Karen was
Osorio’s "right hand person." J.A. 101. She stored drugs in her home
and helped organize drug pickups and deliveries. Karen was also
responsible for managing and investing the money Osorio acquired
through his drug dealing operation. Around 1995 Karen advised
Osorio that he should invest his drug proceeds in real estate. Soon
thereafter, Karen used drug funds to buy a neighborhood grocery
store that served as a front for Osorio’s drug dealing activities. A law
UNITED STATES v. BIVINS 3
enforcement officer described the store as "bare," "without a lot of
product in it." S.J.A. 7-8. Karen also used Osorio’s drug funds to set
up a loan corporation called the Mortgage Corporation of Maryland
(MCM). Osorio’s drug proceeds were used to pay for MCM’s office
space, furniture, phone lines, and advertising. According to Osorio,
"Karen and her brother were going to do the loans of that office." J.A.
154. From 1995-1997 Osorio used MCM to obtain loans in several
real estate transactions.
During the time of Osorio and Karen’s ongoing drug distribution
conspiracy, Bivins was employed as a mortgage loan officer at MCM.
In this role Bivins was responsible for soliciting loans from lenders
and completing loan applications. The applications required him to
submit information regarding an applicant’s wages, residence, and
employment status. Between 1995 and 1997 Bivins served as the loan
officer in six real estate transactions involving the purchase or sale of
property by Osorio. In each of these transactions, Bivins falsified por-
tions of Osorio’s loan application. Specifically, Bivins provided lend-
ers with false information about Osorio, including false W-2 forms,
false pay stubs, and false information about his place of employment
and current residence. In two of the transactions, Bivins used the alias
"Jose Soto" to hide the fact that Osorio was involved in the purchase
or sale of property. All of these real estate transactions were consum-
mated by the use of proceeds derived from Osorio’s drug operation.
Bivins testified in his own defense. He admitted that he knowingly
and willfully submitted false loan applications and false documenta-
tion for Osorio. However, he claimed to have no knowledge that
either Osorio or Karen were engaged in drug distribution or that the
funds used to buy the real estate were derived from drug dealing.
According to Bivins, he "didn’t know [Osorio] did not have any legit-
imate source of income. . . . [He] only knew that it was not derived
from the source stated on the application." S.J.A. 151. Bivins said he
believed Osorio would repay all of the mortgage loans with proceeds
from the grocery store, which Bivins had visited "a couple of times."
J.A. 405. Bivins admitted, however, that he had never requested to see
any financial statements from the store.
At the close of the evidence, Bivins moved for a judgment of
acquittal, arguing that the government had not introduced any evi-
4 UNITED STATES v. BIVINS
dence showing that he knew that Osorio was a drug dealer or that he
knew Osorio was using money derived from criminal activity. The
motion was denied, and the case was submitted to the jury. On Febru-
ary 13, 2003, the jury convicted Bivins on all counts. Bivins now
appeals.
II.
Bivens raises five issues: (1) that the indictment failed to ade-
quately describe his alleged illegal conduct; (2) that the government
relied on an improper theory of knowledge in its effort to convict him
of conspiracy to commit money laundering; (3) that there was insuffi-
cient evidence to support a finding of willful blindness; (4) that cer-
tain evidence was admitted in error; and (5) that there were certain
errors in the jury instructions.
A.
Bivins first argues that counts two through five of the indictment
failed to adequately describe the specific conduct with which Bivins
was charged. These counts charged Bivins with violating 18 U.S.C.
§ 1957(a), which makes it illegal for an individual to "knowingly
engage[ ] . . . in a monetary transaction in criminally derived property
of a value greater than $10,000." Section 1957(f)(1) defines "mone-
tary transaction" as "the deposit, withdrawal, transfer, or exchange . . .
of funds . . . by, through, or to a financial institution . . . including
any transaction that would be a financial transaction under section
1956(c)(4)(B) of this title." Bivins argues that the indictment was
insufficient because it failed to inform him of the specific type of
monetary transaction in which he participated, that is, whether his acts
were a "deposit, withdrawal, transfer, or exchange."
An indictment is sufficient if it "(1) indicate[s] the elements of the
offense and fairly inform[s] the defendant of the exact charges and (2)
enable[s] the defendant to plead double jeopardy in subsequent prose-
cutions for the same offense." United States v. Williams, 152 F.3d
294, 299 (4th Cir. 1998). Bivins’s indictment easily satisfies these
requirements. Counts two through five begin by tracking the language
of 18 U.S.C. § 1957(a), saying that Bivins "did unlawfully, willfully,
and knowingly engage . . . in a monetary transaction in criminally
UNITED STATES v. BIVINS 5
derived property with a value that is greater than $10,000 and derived
from specified unlawful activity, to wit, distribution and possession
with intent to distribute narcotics." J.A. 18-21. Each count goes on to
describe the monetary transaction as "the sale" or "the purchase" of
a piece of property and includes the address of the specific property
at issue. Finally, each count refers to and incorporates other relevant
portions of the indictment to assist in explaining the illegal conduct
charged. For example, count two provides more information about its
money laundering charge by incorporating allegations from count
one, specifically that Bivins "prepared and submitted . . . with false
documentation" a mortgage application for property at 116 13th
Street, N.E., Washington, D.C. J.A. 14, 18.
When the indictment is considered "as a whole," United States v.
American Waste Fibers Co., Inc., 809 F.2d 1044, 1046 (4th Cir.
1987), it is clear that Bivins was charged with violating § 1957(a) for
preparing and providing false mortgage applications for specific prop-
erties, thereby facilitating the purchase and sale of real estate that
derived from criminal activity. We are not sure how the government
could have made the charges any clearer. The fact that the indictment
did not specifically catalog the charged conduct as a "deposit, with-
drawal, transfer, or exchange," see 18 U.S.C. § 1957(f)(1), did not
render the indictment defective. See Williams, 152 F.3d at 299("failure to track the precise language of a statute does not without
more, constitute error"). Accordingly, Bivins had sufficient notice of
the exact charges against him, and we reject his claim to the contrary.
B.
Bivins argues second that his conviction under count one should be
reversed as a matter of law because a conspiracy conviction may not
be based on a willful blindness theory of criminal knowledge and
intent. Essentially, Bivins contends that it is inconsistent for a jury to
find that a defendant knowingly and willfully joined a conspiracy
while simultaneously finding that the defendant was willfully blind to
the conspiracy’s objects and purposes. We disagree.
The district court instructed Bivins’s jury that:
Willful blindness exists when a defendant whose suspicion
has been aroused deliberately fails to make further inquiries.
6 UNITED STATES v. BIVINS
If you find that the defendant had a strong suspicion that
someone withheld important facts yet shut his eyes for fear
of what he would learn, you may conclude that he acted
knowingly.
J.A. 484-85. It is clear from this definition, which Bivins concedes
was correct, that willful blindness is a form of constructive knowl-
edge that "allows the jury to impute the element of knowledge to the
defendant if the evidence indicates that he purposely closed his eyes
to avoid knowing what was taking place around him." United States
v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). See also United States
v. Rodriguez, 53 F.3d 1439, 1447 (7th Cir. 1995) ("It is well settled
that willful blindness . . . is the legal equivalent to knowledge.")
(internal quotation marks and citations omitted); United States v.
Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Because willful blindness
serves as a proxy for knowledge, there is nothing inconsistent in say-
ing that a defendant knowingly joined a conspiracy because he was
willfully blind to the conspiracy’s existence and purpose. Bivins has
not offered any specific reason why willful blindness cannot be used
in the context of conspiracy, and the case law rejects his position. Our
circuit has affirmed conspiracy convictions when the district court
instructed the jury on willful blindness, see Abbas, 74 F.3d at 513-14,
and several other circuits have held that willful blindness may be used
to establish knowledge of a conspiracy’s purposes and objectives, see,
e.g., United States v. Reyes, 302 F.3d 48, 53-54 (2d Cir. 2002); United
States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001); United States v.
Wert-Ruiz, 228 F.3d 250, 255 n.3 (3d Cir. 2000). It was therefore
appropriate to submit the willful blindness theory to the jury.
C.
Bivins’s third argument is that there was insufficient evidence to
prove that he knowingly engaged in a monetary transaction in crimi-
nally derived property, as required under 18 U.S.C. § 1957(a). Bivins
alleges that the government failed to offer any evidence showing that
Bivins either actually knew that Osorio’s funds were derived from
criminal activities or that he was willfully blind to that fact. Although
the government did not introduce any direct evidence of actual knowl-
edge on Bivins’s part, the evidence nevertheless supports a finding of
willful blindness.
UNITED STATES v. BIVINS 7
Section 1957(a) requires the government to prove that the defen-
dant "knew that the [monetary] transaction involved criminally
derived property." United States v. Gabriele, 63 F.3d 61, 65 (1st Cir.
1995). The section’s knowledge element may be established by show-
ing that a defendant was willfully blind. United States v. Campbell,
977 F.2d 854, 857 (4th Cir. 1992). A defendant is willfully blind if
he "purposely closed his eyes to avoid knowing what was taking place
around him," Schnabel, 939 F.2d at 203, or was "deliberate[ly] igno-
ran[t]," Abbas, 74 F.3d at 514. The record in this case supports such
a finding.
The evidence established that Bivins falsified Osorio’s loan appli-
cations in order to obtain real estate mortgages. These fraudulent
applications included false information about Osorio’s employment
status, his home residence, and his various business ventures. On
some of the mortgage applications, Bivins used the alias "Jose Soto"
to hide the fact that Osorio was the person actually buying the prop-
erty. Osorio gave testimony indicating that the mortgage company
where Bivins worked, MCM, was set up by Karen for the express pur-
pose of laundering Osorio’s drug proceeds. Bivins admitted that he
knowingly falsified Osorio’s documents, and he could not give any
legitimate reason for having done so. Furthermore, Bivins said that he
believed Osorio’s only legitimate source of income was a small,
understocked local grocery store. But Bivins also knew that Osorio
was holding a million dollars in real estate. In light of this evidence,
a reasonable jury could find that Bivins was willfully blind to the fact
that Osorio was buying property from funds that were derived from
a criminal activity. Our circuit and others have concluded that there
was sufficient evidence of willful blindness in similar circumstances.
See e.g., Campbell, 977 F.2d at 858-59; Wert-Ruiz, 228 F.3d at 258.
D.
Fourth, Bivins argues that the district court erred in three separate
evidentiary rulings. We review these rulings for abuse of discretion.
See Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997).
1.
Bivins contends that the district court erred when it permitted the
government to introduce extensive evidence showing that Osorio and
8 UNITED STATES v. BIVINS
Karen were engaged in a drug distribution conspiracy. Bivins stipu-
lated that Osorio and Karen were involved in such a conspiracy, and
he stipulated to summaries showing how the drug business operated.
Bivins argues that his stipulations completely established that
Osorio’s funds came from criminally derived activity and that any
additional evidence tending to prove that fact was irrelevant under
Federal Rules of Evidence 401 and 402 and that its admission was
unduly prejudicial under Rule 403.
Bivins’s argument under Rules 401 and 402 need not detain us
long. Rule 402 provides that "[a]ll relevant evidence is admissible
. . . . Evidence which is not relevant is not admissible." Rule 401
defines relevant evidence as that "having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence." The Supreme Court and this circuit have both held that a
stipulation does not render evidence tending to prove the underlying
stipulation irrelevant under Fed. R. Evid. 401 or 402. See Old Chief,
519 U.S. at 178-79; United States v. Dunford, 148 F.3d 385, 394-95
(4th Cir. 1998). Therefore, if the evidence regarding Osorio and
Karen’s drug conspiracy is inadmissible, it is not inadmissible
because Bivins’s stipulation rendered it irrelevant. Rather, "its exclu-
sion must rest . . . on its character as unfairly prejudicial, cumulative
or the like" under Rule 403. Old Chief, 519 U.S. at 179.
The question of whether Rule 403 bars the admission of evidence
offered to prove stipulated facts was examined in Old Chief v. United
States, 519 U.S. 172. The defendant in Old Chief was charged with
illegal possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). The Old Chief defendant stipulated, for purposes
of trial, that he was a convicted felon within the meaning of
§ 922(g)(1). Despite the stipulation the government sought to intro-
duce court records indicating that the defendant’s prior offense
involved assault causing serious bodily harm. The defendant argued
that in light of the stipulation to the prior conviction, the arrest
records were overly prejudicial under Rule 403. The Supreme Court
held that as a general matter "a criminal defendant may not stipulate
or admit his way out of the full evidentiary force of the case as the
Government chooses to present it." Id. at 186-87. The Court reasoned
that "the prosecution, with its burden of persuasion, needs evidentiary
UNITED STATES v. BIVINS 9
depth to tell a continuous story." Id. at 190. In Old Chief, however,
the Court invoked an exception to that general rule. It concluded that
the general rule of admissibility had "virtually no application when
the point at issue is a defendant’s legal status, dependent on some
judgment rendered wholly independently of the concrete events of
later criminal behavior charged against him." Id.
Our circuit has interpreted Old Chief to apply only in cases where
the disputed evidence "relate[s] . . . to facts far removed in time from
the underlying [crimes] with which [the defendant] was charged."
Dunford, 148 F.3d at 396. Bivins’s case does not fall within this
exception. In order to secure Bivins’s conviction, the prosecution had
to show that Osorio was using drug funds to purchase real estate and
that Bivins knew the funds were derived from this criminal activity.
Therefore, the drug distribution conspiracy, which was occurring at
the very same time Bivins was conducting his illegal monetary trans-
actions, was "a relevant part of the very transactions leading to
[Bivins’s] arrest and indictment in this case." Id. at 396. Under these
circumstances, it was not an abuse of discretion to admit evidence
showing that Osorio and Karen were engaged in a drug conspiracy
despite Bivins’s willingness to stipulate those facts.
2.
Bivins also argues that the district court erred when it admitted
hours of taped telephone conversations between Osorio and Karen.
Bivins argues that none of the conversations should have been admit-
ted or, in the alternative, that it was error to admit the conversations
in their entirety. We disagree on both counts.
During its case-in-chief, the government sought to introduce
recordings and transcripts of numerous intercepted telephone conver-
sations between Osorio and Karen. The conversations covered a wide
range of topics, including Osorio’s real estate investments, Bivins’s
role and involvement in Osorio’s real estate transactions, and MCM
(the loan company). The government argued that the conversations
were admissible under Federal Rule of Evidence 801(d)(2)(E), which
says that "a statement by a coconspirator of a party during the course
and in furtherance of the conspiracy" is not hearsay. The district court
admitted the evidence over Bivins’s objection.
10 UNITED STATES v. BIVINS
To admit a statement under Rule 801(d)(2)(E), a court must con-
clude "(1) that there was a conspiracy involving the declarant and the
party against whom admission of the evidence is sought and (2) that
the statements at issue were made during the course of and in further-
ance of that conspiracy. The government must establish these ele-
ments by a preponderance of the evidence." United States v. Neal, 78
F.3d 901, 905 (4th Cir. 1996) (internal quotations marks and citations
omitted). Bivins argues that the district court failed to make these pre-
liminary findings before admitting the statements. Even assuming the
district court made no such findings, our circuit has repeatedly held
that "although [it is] preferable for [a] trial court to make explicit rul-
ings, [the appellate] court may affirm if [its] review of the record
shows that the statement was made during the course of and in fur-
therance of the conspiracy." Id. (citing United States v. Blevins, 960
F.2d 1252, 1256 (4th Cir. 1992).
A review of the record indicates that, by a preponderance of the
evidence, there was a conspiracy to launder money involving the
declarants (Osorio and Karen) and the party against whom admission
of the evidence was sought (Bivins). Osorio testified that Karen was
responsible for overseeing and disbursing Osorio’s drug proceeds. In
that role Karen helped Osorio buy several pieces of real estate.
Bivins, in turn, testified that Karen had prepared numerous false loan
applications for Osorio, which she handed over to Bivins. Bivins
admitted that he then submitted those applications to various lenders
knowing they contained false information. We believe this testimony
showed, by a preponderance of the evidence, that Osorio, Karen, and
Bivins were all engaged in a conspiracy to launder money.
The more difficult question is whether the admitted telephone con-
versations were all made "in furtherance of the conspiracy." It is clear
that certain statements were in furtherance of the conspiracy. For
example, portions of the conversations discuss Osorio and Karen’s
relationship to MCM, and other segments show Bivins’s role in
Osorio’s real estate transactions. However, it is equally clear that cer-
tain portions of the admitted conversations had nothing to do with fur-
thering the money laundering conspiracy. For example, at one point
in the transcripts, Osorio and Karen discuss at length whether Osorio
should purchase contact lenses. Later in the conversation they debate
the talents of various rap artists. These far-flung discussions had noth-
UNITED STATES v. BIVINS 11
ing to do with furthering the conspiracy and therefore should not have
been admitted under Rule 801(d)(2)(E).
Although the district court erred in admitting certain portions of the
transcripts, that does not automatically entitle Bivins to any relief. If
"such errors or defects . . . d[id] not affect the substantial rights of the
parties, we must not reverse." United States v. Siers, 873 F.2d 747,
749 (4th Cir. 1989) (citing 28 U.S.C. § 2111). See also Fed. R. Crim.
Proc. 52(a). The Supreme Court has held that an error "affects sub-
stantial rights" if it was "prejudicial," meaning that "[i]t must have
affected the outcome of the district court proceedings." United States
v. Olano, 507 U.S. 725, 734 (1993). In this case the erroneously
admitted evidence was, by Bivins’s own description, "idle chatter."
Appellant’s Br. at 54. It is unclear how Osorio and Karen’s discus-
sions about topics as far ranging as contact lenses and rap artists could
have possibly affected the outcome of Bivins’s trial. After reviewing
the record as a whole, we conclude that any of the admitted Rule
801(d)(2)(E) statements that prejudiced Bivins were also made in the
furtherance of the conspiracy. Accordingly, any error committed by
the district court in this area was harmless.
3.
Bivins’s last argument about evidentiary rulings is that the district
court abused its discretion when it permitted the government to ask
Bivins’s character witnesses certain hypothetical questions during
cross-examination. Bivins called several character witnesses who tes-
tified that they believed Bivins was a law abiding person who would
not knowingly cheat. On cross-examination the prosecutor asked each
witness if his view of Bivins would change if he knew that Bivins had
lied under penalty of perjury on a bankruptcy petition or that he had
provided false W-2 forms to obtain a loan. Bivins objected, but the
district court permitted the witnesses to answer.
Bivins claims that the district court should have barred the prosecu-
tor’s line of questioning under United States v. Mason, 993 F.2d 406(4th Cir. 1993). In Mason the defendant was charged with distributing
drugs. There, the defendant called a character witness who testified
that his "reputation was one of an honest and reliable person." Id. at
407. On cross the prosecutor asked the witness, "Would your opinion
12 UNITED STATES v. BIVINS
of [the defendant] change if you knew he distributed drugs? . . . If you
did, if that were, in fact, true, and this jury thought it was true, would
your opinion of him change?" Id. at 408. The district court allowed
the question to be answered over the defendant’s objection. We
reversed, holding that "questions put to defense character witnesses
that assumed a defendant’s guilt of the crime for which he was
charged were improper." Id.Bivins’s case is notably different from the Mason case. During his
own testimony, Bivins admitted that he had lied under penalty of per-
jury on a bankruptcy application and that he had submitted false W-2
forms on a loan application. The prosecution thereafter asked Bivins’s
character witnesses whether their view of him would change in light
of these admitted acts. The prosecutor’s questions did not assume
Bivins was guilty of the crime charged. In fact, the questions did not
assume anything because they were based on admissions Bivins had
made in open court. Accordingly, we find no error.
E.
Finally, Bivins argues that the district court made two errors in
instructing the jury. We review jury instructions to insure that they
"fairly state[ ] the controlling law." United States v. Cobb, 905 F.2d
784, 789 (4th Cir. 1990). A judgment will be reversed for error asso-
ciated with the jury instructions "only if the error is determined to
have been prejudicial, based on review of the record as a whole."
Sturges v. Matthews, 53 F.3d 659, 661 (4th Cir. 1995) (internal quota-
tion marks and citations omitted).
1.
Bivins claims that the district court erred when it instructed the jury
on how it should weigh Osorio’s accomplice testimony. The specific
instruction is this:
You have heard a witness [Osorio] who testified that he was
actually involved in planning and carrying out the crimes
charged in the indictment. . . . [I]t is the law in federal courts
that the testimony of accomplices may be enough in itself
UNITED STATES v. BIVINS 13
for conviction, if the jury finds the testimony establishes
guilt beyond a reasonable doubt. However, it is also the case
that accomplice testimony is of such nature that it must be
scrutinized with great care and viewed with particular cau-
tion when you decide how much of that testimony to
believe.
J.A. 459. Bivins argues that it was error to say that Osorio "testified
that he was actually involved in planning and carrying out the crimes
charged in the indictment." Bivins believes this statement was
improper because Osorio never actually admitted that he was part of
any conspiracy to launder money. Rather, Bivins argues, Osorio only
admitted to being a drug dealer. We believe the district court’s
instruction accurately reflected the nature of Osorio’s testimony.
Osorio plainly testified that he and Karen used drug proceeds to buy
the real estate listed in the indictment. Therefore, Osorio literally
admitted that he was involved in planning and carrying out the money
laundering conspiracy charged in the indictment. As discussed above,
the evidence showed that Bivins decided to join that conspiracy
through his willful blindness. Although Osorio did not say that he had
conspired directly with Bivins, that does not change the fact that
Osorio planned the conspiracy which Bivins eventually decided to
join. Accordingly, we find no error in the district court’s instruction.
2.
Bivins argues that the district court erred when it refused to submit
his requested instruction relating to the wire fraud counts. At trial
Bivins admitted that he prepared or assisted in preparing a number of
false documents that were submitted to financial institutions in con-
nection with loans. Bivins maintained, however, that the government
had failed to show that he had the mens rea necessary to convict
under the federal wire fraud statute. See, e.g., United States v. Loney,
959 F.2d 1332, 1337 (5th Cir. 1992) (conviction for wire fraud
requires government to show "that the defendant intended for some
harm to result from his deceit"). Specifically, Bivins tried to convince
the jury that he never intended to cause financial harm or loss to any
financial institution because he believed Osorio would pay back all of
the secured loans. In order to highlight his lack of intent to cause loss
or harm, Bivins requested a jury instruction stating:
14 UNITED STATES v. BIVINS
As to Counts VI through XI of the indictment, the defen-
dant agrees that he prepared, signed, and caused to be sub-
mitted to mortgage lenders various loan documents that he
knew to be inaccurate and untrue. However, the defendant
claims that he did not engage in such conduct with an intent
to defraud any mortgage lender because at the time he pre-
pared, signed, and caused to be submitted the loan docu-
ments in question, he didn’t actually intend to cause any
mortgage lender any harm or loss.
If you find that the government has failed to prove
beyond a reasonable doubt, as to any wire fraud count, that
the defendant intended to cause a loss or harm to the mort-
gage lender named in that count then you must find the
defendant not guilty as to that count.
J.A. 513. The district court declined to give the instruction.
We have held that "a district court’s refusal to provide an instruc-
tion requested by a defendant constitutes reversible error only if the
instruction . . . was not substantially covered by the court’s charge to
the jury." United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995). See
also United States v. Fowler, 932 F.2d 306, 316-17 (4th Cir. 1991).
Likewise, we have held that "[t]he district court is not required to give
defendant’s particular form of instruction, as long as the instruction
the court gives fairly covers a theory that the defense offers." United
States v. Smith, 44 F.3d 1259, 1270-71 (4th Cir. 1995).
The instruction Bivins requested was adequately covered in the dis-
trict court’s charge to the jury. The jury was instructed that "the gov-
ernment must prove beyond a reasonable doubt that [Bivins] . . .
participated in the scheme to defraud knowingly, willfully, and with
the intent to defraud." J.A. 493 (emphasis added). The jury was then
told that "intent to defraud means to act knowingly with the specific
intent to deceive for the purpose of causing some financial or property
loss to another." J.A. 494. The court later repeated these instructions,
telling the jury: "if you find the defendant . . . lacked the specific
intent to defraud, you should acquit the defendant. On the other hand,
if you find that the government has proven beyond a reasonable doubt
. . . that the defendant . . . acted with the specific intent to defraud . . .
UNITED STATES v. BIVINS 15
then you have sufficient basis upon which to convict." J.A. 497.
Because the district court repeatedly referred to the government’s
duty to establish a specific intent to defraud, it was not an abuse of
discretion to deny Bivins’s requested instruction.
III.
For the reasons stated, we affirm Alton F. Bivins, Jr.’s conviction.
AFFIRMED