Opposition Brief — Geisen v. United States

remo Court, U.S

SUP ILED

MAR h- 2011

FE CLERK

469

No. 10-720

Jn the Supreme Court of the Gnited:

DAVID GEISEN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

(OTHE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicrtor General

Counsel of Record

IGNACIAS. MORENO

Assistant Attorney General

JOHN L SMELTZER

Attorney

Department of Justice

Washington, DC 20580-0001

SupremeCtBhriefs@iusdo) gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court properly instructed

the jury on a deliberate-ignorance theory of knowledge

based on evidence that petitioner knew there was a high

probability that information he submitted to the Nuclear

Regulatory Commission contained false statements or

concealed material facts.

2. Whether the district court erred in finding that

any error in giving a deliberate-ignorance instruction

would have been harmless because there was sufficient

evidence to establish that petitioner had actual knowl-

edge of falsehoods and material concealment.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Kbert v. Unated States:

ee Or ED on 5s nv cos ban eveusaewusebiewess 20

Se ee I ED no a be eee cchacisceeacuwens 21

Griffin v. United States, 502 U.S. 46 (1991) ....... pass~m

Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) .............. 23

Hernandez-Mendoza v. United States, No. 10-6879,

2Ol1 WL GII0T2 Gren. ZB, BULL) . ww ec cect cee w aces 20

Kennard v. United States, 551 U.S. 1148 (2007) ........ 20

Marshall v. Lonberger, 459 U.S. 422 (1983) ............ 21

Parker v. Randolph, 442 U.S. 62 (1979) ............... 21

Richardson v. Marsh, 481 U.S. 200 (1987) ........2.... 21

Skilling v. United States, 130 S. Ct. 2896 (2010) ........23

Sochor v. Florida, 504 U.S. 527 (1992) ................ 23

United States v. Adenyi, 31 F.3d 58 (2d Cir. 1994) . . . 23, 24

United States v. Ayon Corrales, 608 F.3d 654

PIN So nr Ne dls eg eg a yk 24

United States v. Barnhart, 979 F.2d 647 (8th Cir.

2 SERGE SRE SMa antag i Rr 7 Satan, A Ae poner eee a 20, 26

United States v. Beaty, 245 F.3d 617 (6th Cir.),

cert. denied, 534 U.S. 895 (2001) ................... 16

(IIT)

IV

Cases—Continued: Page

United States v. Black, No. 96-20423, 1997 WL

6 er 26

United States v. Campbell, 977 F.2d 854 (4th Cir.

1992), cert. denied, 507 U.S. 938 (1998) .......0..... 16

United States v. Covington, 133 F.3d 639 (8th Cir.

eee ea ewe ks os 000s esse tes oes

Unated States v. Daly, 243 Fed. Appx. 302 (9th Cir.),

cert. denied, 552 U.S. 1070 (2007), and 552 U.S.

Ne ne nce ee bs nbenveccewmen 26

United States v. Delreal-Ordones, 213 F.3d 1263

es ook ns sk cece peueveeens 16, 17

Umnated States v. Francisco-Lopez, 939 F.2d 1405

ec ceca eecsceeevce os euel 24

Unated States v. Hanzlicek, 187 F.3d 1228 (10th Cir.

ee, nade de ces cece see es sane

United States v. Hauert, 40 F.3d 197 (7th Cir. 1994),

cert. denied, 514 U.S. 1095 (1995) .................. 16

United States v. Heredia, 483 F.3d 913 (9th Cir.),

cert. denied, 552 U.S. 1077 (2007) ............ 16, 25, 27

United States v. Hernandez-Mendoza, 611 F.3d 418

eo ck cs eeenusecene™ 26, 27

United States v. Hilliard, 31 F.3d 1509 (10th Cir.

ee ca wo te kee she ee ee a wee 24

Unated States v. Jewell, 532 F.2d 697 (9th Cir. 1976) ....18

l/nited States v. Leahy, 445 F.3d 634 (8d Cir.),

cert. denied, 549 U.S. 1071 (2006) .................. 24

United States v. Mapelli, 971 F.2d 284 (Sth Cir.

1992) 25, 26, Ze

eo ee eer eee eee eee ee ewe eee eer e eee ec ee 0 oe 0 htt, silty

V

Cases—-Continued: Page

United States v. Mari, 47 F.3d 782 (6th Cir.),

cert. denied, 515 U.S. 1166 (1995) ......... 15, 23, 24, 25

United States v. McConnel, 464 F.3d 1152 (10th Cir.

2006), cert. denied, 549 U.S. 1861 (2007) ............ 24

United States v. Nektalov, 461 F.3d 309 (2d Cir. 2006) ..16

United States v. Newell, 315 F.3d 510 (5th Cir. 2002) ....16

Unated States v. Oyebode, 957 F.2d 1218 (5th Cir.

1992), cert. denied, 507 U.S. 923 (1993) ............. 25

United States v. Puche, 350 F.3d 1137 (11th Cir.

Ce lg bacevvetveses 16, 17

United States v. Resendiz-Ponce, 549 U.S. 102 (2007) ...27

United States v. Sanchez-Robles, 927 F.2d 1070 (9th

yc ky skh obdcd ee eaeveseens 25

United States v. Singh, 222 F.3d 6 (1st Cir. 2000) ....... 16

Uneted States v. Stone, 9 F.3d 934 (11th Cir. 1993),

cert. denied, 513 U.S. 833 (1994) ............. 22, 23, 24

United States v. Wert-Ruiz, 228 F.3d 250 (3d Cir.

ane anaccceess 16

United States v. Willaams, 504 U.S. 36 (1992) ... 2.00... 15

United States v. Willis, 277 F.3d 1026 (8th Cir.

ke bse ans sv aeesees 16, 17

Zafiro v. United States, 506 U.S. 534 (1993) ........... 21

Statutes and regulations:

Atomic Energy Act of 1954, 42 U.S.C. 2011 et seg. .....2,5

yey Sa sd een bs cds beasacences 2

eae gas ya vse sete see secseess 2

GG hohe baa Hae sens bs sceees 2,14

Regulations—Continued Page

10 C.F .R.:

Section 50.9(a) .. a

Section 50.10(b) ...... ae eee

Section 50.54(f) ... re ey

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice

(9th ed. 2007) ee eka eee re | ee

Jn the Supreme Court of the Cited States

No. 10-720

DAVID GEISEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-60a)

is reported at 612 F.3d 447. The opinion of the district

court denying petitioner’s motion for judgment of ac-

quittal or new trial (Pet. App. 61a-64a) is unreported

JURISDICTION

The judgment of the court of appeals was entered on

July 15, 2010, and a petition for rehearing was denied on

September 2, 2010 (Pet. App. 139a-140a). The petition

for a writ of certiorari was filed on December 1, 2010.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Ohio, petitioner was

(1}

2

convicted on three counts of knowingly and willfully con-

cealing material information and making false state-

ments to the Nuclear Regulatory Commission (NRC), in

violation of 18 U.S.C. 1001 and 2. Pet. App. 2a. The dis-

trict court sentenced petitioner to probation and im-

posed a fine of $7500. Jd. at 144a-149a. The court of

appeals affirmed. /d. at 1a-60a.

1. NRC regulates nuclear power plants pursuant to

the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.

All plants must be licensed by NRC and must operate in

accordance with license conditions. 42 U.S.C. 2131; 10

C.F.R. 50.10(b); see also 42 U.S.C. 2133 (commercial

licenses). The regulations implementing the Atomic

Energy Act require all licensees to “submit * * * writ-

ten statements, signed under oath or affirmation,”

whenever NRC requests information to determine

whether a license should be modified, suspended, or re-

voked. 10 C.F.R. 50.54(f). In addition, all “{i]nforma-

tion provided to the Commission * * * by a licensee

* * * shall be complete and accurate in all maty rial re-

spects.” 10 C.F.R. 50.9(a).

2. This case arises out of events that occurred in

2001 and 2002 at the Davis-Besse Nuclear Power Station

(Davis-Besse) near Toledo, Ohio. Pet. App. 3a. In re-

sponse to a safety incident at a similar plant, NRC re-

quired inspections at all plants by the end of 2001. /bid.

The operator of the Davis-Besse plant successfully peti-

tioned NRC to postpone such an inspection until a

planned refueling shutdown in the Spring of 2002. /did.

When the inspection did take place, Davis-Besse found

five cracked nozzles and a significant cavity caused by

erosion in the head of the nuclear reactor. /bid. Peti-

tioner and two other employees at the plant were in-

dicted for providing false statements and concealing

3

material facts in connection with the plant’s successful

petition to postpone inspection. /bid.

a. Davis-Besse is a two-loop pressurized water reac-

tor. Pet. App. 4a; C.A. App. 813, 839. Uranium-235 rods

at the core of the reactor vessel fuel a nuclear reaction

that heats “coolant water” in a “primary loop,” which

transfers heat to a “secondary” water-to-steam loop that

drives turbines to generate electricity. Pet. App. 4a; Tr.

521-531; C.A. App. 812. The coolant is conditioned with

boric acid to regulate the nuclear reaction and is pres-

surized to approximately 2000 pounds per square inch.

Ibid. At the top of the reactor vessel is a domed carbon-

steel lid or “head” that is approximately ten feet in di-

ameter and six inches thick. C.A. App. 839, 841. Sixty-

nine nozzles (tubes four inches in diameter and several

feet long) penetrate the head. Pet. App. 4a; C.A. App.

839, 841. The nozzles and drive mechanisms above the

reactor head enable operators to lower control rods into

the reactor vessel to control the nuclear reaction. Pet.

App. 4a; Tr. 527-529.

b. In the early 1990s, the nuclear power industry

discovered that the vessel-head nozzles on pressurized

water reactors are susceptible to “stress corrosion

cracking.” Tr. 111-112; Pet. App. 8a. When such stress

corrosion cracking occurred, it initially appeared as

small axial cracks that were not considered an imminent

safety threat. Tr. 111-113, 536, 540-541; Pet. App. 8a.

The NRC believed that the cracks would be identified by

substantial visible evidence of leakage before they would

pose a threat to the structural integrity of a reactor. Tr.

536; Pet. App. 8a-9a. When pressurized coolant escapes

from a reactor or contacts the extremely hot vessel head

within the reactor, the coolant water tends to flash to

4

steam, leaving behind telltale boric-acid deposits and

limiting any corrosion, ‘Tr. 239, 536; Pet. App. Ya.

In early 2001, however, operators of the Oconee Nu

clear Station in South Carolina discovered circumfer-

ential cracking on several nozzles, including a large

through-wall crack that extended 165 degrees around

one nozzle, above the nozzle’s underside weld and within

the vessel head’s “pressure boundary.” Tr. 242-247;

C.A. App. 246-248; Pet. App. 8a-10a. A nozzle thus

weakened is at risk of being “physically blow[n]” out of

the reactor head, Tr. 114-115, which would produce a

sudden rupture of the pressure boundary and rapid re-

lease of coolant, Tr. 289-292. See C.A. App. 251; Pet.

App. 8a-10a. Such a “loss of coolant accident” would

threaten damage to the core of the reactor. Tr. 291-293.

Further, Oconee operators observed only a small “pop-

corn” like boric acid deposit—less than one cubic inch in

size—at the surface where the affected nozzle pene-

trated the vessel head. C.A. App. 247, 251; Tr. 242.

Those observations belied expectations that significant

leaks and large deposits on the topside of the vessel

head would precede any serious cracking underneath.

C.A. App. 251.

In response to this newly discovered risk, NRC is

sued a bulletin alert on August 8, 2001 (NRC Bulletin

2001-01), requiring affected plant licensees to provide

detailed information about susceptibility to cracking and

previous inspections, including a “description of * * *

nozzle and * * * head inspections * * * performed

* * * in the past 4 years,” and “a description of any

limitations (insulation or other impediments) to accessi-

bility of the bare metal of the * * * head for visual ex

aminations.” C.A. App. 246-261; Pet. App. 10a-lla. The

Bulletin advised that plants (including Davis-Besse)

with a “high susceptibility” to stress cracking “need|ed|

to use a qualified visual examination of 100% of the

* * * nozzles” and that “the effectiveness of |such] ex-

amination should not be compromised by the presence

of insulation, existing deposits on the [reactor vessel]

head, or other factors that could interfere with the de-

tection of leakage.” C.A. App. 258. The Bulletin further

directed that any licensee that did not intend to shut

down for inspection before December 31, 2001, must

submit a “basis for coneluding” that its plant could

safely operate in accordance with regulatory require

ments prohibiting “cracked and leaking * * * nozzles”

until the next scheduled outage. /d. at 254-256.

Davis-Besse, like all pressurized water reactors, was

subject to the requirements in the NRC Bulletin. C.A.

App. 388; Pet. App. 10a-lla. Davis-Besse sought per

mission to maintain operations until the next scheduled

shut-down in April 2002 rather than shutting down for

a complete inspection by the end of 2001. Pet. App. 10a.

Davis-Besse was required to provide information dem

onstrating that it could continue to operate safely, in

cluding descriptions of nozzle and vessel! head inspec-

tions that had been performed, any conclusions resulting

therefrom, and a description of any limitations to acces

sibility of the vessel head. /d. at lla. Regulations pov

erning the nuclear industry required that Davis-Besse

respond to the NRC Bulletin with “written statements,

signed under oath or affirmation,” and that all informa

tion provided to NRC “be complete and accurate in all

material respects.” Jd. at lla-1l2a (citing 10 C.F.LR.

50.54(f), 50.9(a); 42 U.S.C. 2011 et seq.). Between Sep-

tember 4 and November 30, 2001, Davis-Besse operators

submitted a series of letters to NRC containing the in-

formation requested in the Bulletin. Several conference

6

calls and meetings also took place between Davis-Besse

employees and NRC between September 4 and Decem-

ber 4, 2001. This case concerns false statements and

material omissions made in those letters and mectings.

3. a. At the time of the NRC Bulletin, Davis-Besse

operators lacked critical information about the condition

of the plant’s nozzles for two reasons. First, due to plant

design, physical access to the surface of the vessel head

and nozzle penetrations was severely restricted. Tr.

837. At all times relevant to this case, the only access to

the surface of the vessel head was through 18 approxi-

mately five-by-seven inch rectangular “weep holes” at

the bottom of the service structure. Tr. 543, 927. In

order to visibly inspect the vessel head and nozzle pene-

trations, therefore, Davis-Besse personne! had to insert

pole-mounted video cameras through the weep holes.

Tr. 881. Given the small size of the weep holes, the

length of the poles, the curvature of the head, the dis-

tance to the top of the head, and the limited space be-

tween the insulation and the top of the head, a substan-

tial portion of the head was inaccessible for inspection or

cleaning. Tr. 612, 928-29, 944-45, 1179-1180; C.A. App.

201, 823.

Second, during biannual refueling outages in 1996,

1998, and 2000, Davis-Besse personnel observed increas-

ing boric acid deposits on the vessel head. Davis-Besse

operators attributed those deposits to leaks from faulty

gaskets on “control rod drive mechanism” (CRDM)

flanges above the insulation, rather than to cracked noz-

zles. C.A. App. 614, 618; Tr. 1202-1203. Whatever their

source, the deposits blanketed substantial areas of the

vessel head, preventing inspection for popcorn-like de-

posits at nozzle penetrations such as those that had been

observed at the Oconee plant in South Carolina. Tr. 248.

7

Significantly, during the 2000 refueling outage, Davis-

Besse personnel encountered rust-stained boric acid

formations that flowed like lava from several weep holes,

completely blocking access for inspection through those

holes. C.A. App. 632, 817; Tr. 179-180. During cleaning

efforts, the plant was forced to use pressurized hot wa-

ter to loosen deposits and “spud” bars to break up

chunks that could not fit through the weep holes. Tr.

175-178.

At trial, the government introduced Davis-Besse’s

inspection videos from 1996, 1998, and 2000, as well as a

report on their content. Tr. 517, 542-553, 658-659. Of

the 69 nozzles on the reactor head, the 1996 video

showed only 51, the 1998 video showed only 43, and the

2000 video showed only 28. Tr. 551; C.A. App. 803-810.

Due to incomplete camera views and boric acid deposits

masking nozzle penetrations, the total number of nozzles

that could be verified to be free of popcorn-like deposits

from the video evidence was only 28 in 1996, 18 in 1998,

and five in 2000. Tr. 551-552; C.A. App. 803-810.

b. In 1998, petitioner began working at Davis-Besse.

Tr. 1520. In 1996, he became a senior reactor operator.

Tr. 1821. In March 2000, he became the Design Basis

Engineering Manager, with responsibility over issues

relating to reactor design. Tr. 1823-1826. Petitioner

supervised the 2000 refueling outage and observed pho-

tos of boric acid flowing from service-structure weep

holes. Tr. 1831-1832. On April 27, 2000, petitioner re-

viewed a “condition report” describing the “lava-like”

flows of boric acid encountered during the 2000 refuel-

ing outage, and authorized removal of the restraint on

returning to operation that had been prompted by that

report. C.A. App. 636, 881. In September 2000, peti-

tioner participated in a management decision to defer

8

action, for financial reasons, on a plan to cut access

doors into the service structure to correct the design

flaw that prevented access to the vessel head and noz-

zles for inspection and cleaning. Tr. 930-969, 1953-1955;

C.A. App. 639, 644, 823.

Shortly thereafter, petitioner learned of the Oconee

findings. Tr. 1501, 1504, 1836-1837. On June 27, 2001,

petitioner executed a decision memo addressing those

findings and concluding that vessel head and nozzle in-

spection at Davis-Besse could be “deferred” until the

next refueling outage, scheduled for April 2002. C.A.

App. 232-239. The memo observed that “[lJarge boron

leakage from a CRDM flange” had prevented “detailed

inspection of” the nozzles during the previous outage,

id. at 233, 237, but concluded that delaying inspection

until April 2002 did not carry a risk of “catastrophic fail-

ure” because Davis-Besse’s nozzles were 2.5 operational

years behind Oconee’s in terms of use and expected deg-

radation, zd. at 234, 238. Approximately one month

later, the NRC issued its Bulletin emphasizing the

“need” for a “a qualified visual examination of 100% of

the * * * nozzles.” Jd. at 253.

ce. Petitioner and a team of others prepared and re-

viewed Davis-Besse’s response to the NRC Bulletin,

which was submitted on September 4, 2001. C.A. App.

383-410. At trial, petitioner testified that he did not

draft the document, but went through the “pertinent

sections that deal with the design of the plant” to “make

sure that they sounded right.” Tr. 1861, 1905. On the

question of design impediments to inspection, the letter

falsely stated that the insulation structure “does not

impede a qualified visual inspection” and “does not in-

terfere with the visual inspection.” C.A. App. 389. As to

recent inspections, the letter reported only “some accu-

y

mulation of boric acid deposits * * * beneath * * *

leaking flanges,” and did not disclose the “large boron

leakage” and “lava-like” flows encountered the previous

year. Jd. at 389-390. The letter concluded that Davis-

Besse need not shut down for inspection before its next

scheduled refueling outage because: (1) Davis-Besse

was “similar in design” to Oconee, (2) Oconee had “dem-

onstrated an ability to identify leaking CRDM nozzles

by visual inspection,” and (3) Davis-Besse’s 1998 and

2000 video inspections revealed no “indications * * *

similar to [those] seen at [Oconee].” /d. at 390, 392-394.

d. Upon review, the NRC found this response to be

incomplete and confusing, especially as to the extent of

prior inspections. Tr. 122, 233-234. On September 28,

2001, the NRC advised Davis-Besse that the plant would

face a Shutdown order in December if the plant was un-

able to provide a “better justification” for continuing to

operate. Tr. 123. Because a shutdown before comple-

tion of the fuel cycle would have had a negative impact

on operational costs and employee morale, Davis-Besse

managers scrambled to avoid it. Tr. 1222-1225, 1515.

During an October 3, 2001, conference call with NRC

staff, petitioner provided Davis-Besse’s initial answer on

the actual number of nozzles previously inspected,

falsely asserting that the inspections covered “100 per-

cent” of the head, with only four or five nozzles impeded

by boric acid deposits from flange leaks. Tr. 246-247,

393-395, 1227-1229; C.A. App. 656. Sometime thereaf-

ter, petitioner directed co-defendant and reactor coolant

systems engineer Andrew Siemaszko, to prepare a table

reporting nozzle-by-nozzle inspection results. Tr.

1515-1516. Petitioner told NRC investigators that he

viewed inspection video images at Siemaszko’s desk and

was responsible for Siemaszko’s work. Tr. 1516-1517,

10

1522-1523. Petitioner also told a company investigator

that he reviewed inspection videos “while preparing for

the NRC interactions in August, 2001.” C.A. App. 831;

Tr. 482, 505-507. On October 11, 2001, petitioner and

other Davis-Besse managers traveled to NRC headquar-

ters in Rockville, Maryland, to brief NRC staff. Tr.

249-251; C.A. App. 660-681. Petitioner prepared and

presented an exhibit that falsely reported that Davis-

Besse had “verified” all nozzle penetrations “to be free

from ‘popcorn’ type boron deposits using video record-

ings from” 1998 and 2000. Tr. 1236, 1916; C.A. App. 667,

678.

On October 17, 2001, petitioner and others approved

a supplemental response to the Bulletin containing

Siemaszko’s table reporting nozzle-by-nozzle inspection

results. C.A. App. 414-425. In contrast to the October

11 briefing, the October 17 letter reported that Davis-

Besse had not viewed all nozzles in 1998 and 2000, be-

cause some nozzles were “obscured by boric acid crystal

deposits.” /d. at 421. The letter falsely added, however,

that the “the entire [vessel] head was inspected” in 1996,

that the 1996 inspection included “65 of 69 nozzles,”—

i.e., all nozzles that Davis-Besse believed to qualify for

visual inspection—and that the inspections revealed no

indications of leaking nozzles. /d. at 420-421, 425. With

respect to the 1996 inspection, the table contained no

nozzle-specific results, but instead contained a footnote

stating that the “entire” head was viewed, but that “spe-

cifie nozzle view[s]” could not be correlated by nozzle

number, because the video was “void of head orientation

narration.” Jd. at 424-425. At trial, the government

played portions of the 1996 video, which did include au-

dio head-orientation narration—narration NRC used to

1]

correlate nozzle views and determine that all nozzles

were not depicted. Tr. 658-659.

Based on the false report of a whole-head inspection

in 1996, the letter postulated that the “earliest” a crack

could have begun to develop was May 1996, after the

inspection. Tr. 658-659. Citing analysis indicating that

it would take at least 7.5 years for a through-wall cir-

cumferential crack to grow beyond an “allowable” size,

the letter concluded that Davis-Besse could safely oper-

ate through at least 2003, precluding the need for an

inspection before the refueling outage scheduled for

April 2002. C.A. App. 421-422. In a follow-up meeting

with the NRC on October 24, 2001, petitioner again

falsely reported that “the inspection results afford us

assurance that all but 4 nozzle penetrations were in-

spected in 1996” and that “no head penetration leakage

was identified.” /d. at 682-707; Tr. 1247-1250.

Petitioner subsequently reviewed and approved

three additional supplemental responses, each reiterat-

ing the false reports on the scope and quality of the

video inspections. C.A. App. 527-611, 708-710, 712-729.

One submission was designed to provide representative

images from the three video inspections, 7d. at 559-608,

but excluded the most damaging images, as well as the

2000 photos showing rust-colored lava-like flows ema-

nating from the weep holes, Tr. 276-284. Petitioner tes-

tified that he created the photo captions for the report.

Tr. 1519-1521. A caption depicting boric-acid deposits in

1996 describes the deposits as being “in the vicinity of

previous leaking flanges” and “verified to not be active

or wet.” C.A. App. 570. Petitioner attributed this infor-

mation to an employee who had inspected the flanges

above the mirror insulation, not the reactor head below.

Tr. 1428-1442, 1519, 1521. The employee who performed

12

the 1996 vessel head inspection testified that the inspec-

tion was incomplete and that he had told others so. Tr.

1092. Both employees testified that nobody at Davis-

Besse asked them about the images or photo captions

submitted to NRC. Tr. 1157, 1445.

On the evening of November 8, 2001—in advance of

another NRC meeting—petitioner met with NRC staff

to show parts of the inspection videos. Tr. 281-282,

300-304, 332. Petitioner played portions of the 1996 and

1998 videos. Tr. 303-304. An NRC investigator testified

that he learned “in retrospect,” after viewing the videos

as part of the NRC investigation, that petitioner had

shown only the “good portions.” Tr. 281.

e. NRC agreed on December 4, 2001, not to issue a

shut-down order to Davis-Besse, based in part on Davis-

Besse’s submissions regarding its previous inspections

and on its agreement to shut down for refueling in Feb-

ruary 2002. C.A. App. 875. When Davis-Besse did later

shut down for refueling, the plant discovered five

cracked nozzles. /d. at 840-841. During efforts to repair

the cracks, one of the nozzles unexpectedly tilted over,

revealing a large corrosion cavity, approximately seven

inches long, five inches wide, and six and a half inches

deep. /d. at 814, 840-841; Tr. 740. Within this area, the

carbon steel had completely degraded—constituting a

“loss of the design basis structural/pressure retaining

boundary’ —ieaving only the thin layer of cladding,

which had “deflected upward” into the cavity. C.A. App.

841.

4. In January 2006, a grand jury indicted petitioner

and two other Davis-Besse employees on five counts of

knowingly and willfully concealing material information

and making false statements to the NRC, in violation of

18 U.S.C. 1001 and 2. Pet. App. 2a, 22a. At trial, peti-

13

tioner acknowledged conveying false information to

NRC, Tr. 1986, 1995-1996, 2000, but denied doing so

knowingly and with an intent to deceive. Tr. 1817-1818,

1848. Among other things, petitioner acknowledged

erroneously assuring NRC staff at the October 11, 2001,

meeting that the 1998 and 2000 inspections combined

covered all nozzles. Tr. 1917-1918, 1989-1990. Petition-

er testified that this assurance was based on Siemasz-

ko’s review of the video inspections and that he knew

Siemaszko’s work was not complete when the assurance

was made. /bid. Petitioner also testified that Siemasz-

ko’s review was the source of petitioner’s subsequent

false assurances that the 1996 inspection included

the entire head. Tr. 1992. Yet petitioner denied that he

ever “actually spoke face-to-face [with Siemaszko] re-

garding that.” J/bid. Petitioner testified that he

“stopped by” Siemaszko’s cubicle only once when Sie-

maszko was reviewing still images, to learn how Sie-

maszko was attributing boric acid deposits to flange

leaks rather than to cracked nozzles (an issue distinct

from the completeness of the video inspections), and

claimed that he did not view the videos until he showed

them to NRC. /d. at 1912-1915. This contradicted peti-

tioner’s statement to the company investigator that he

had reviewed the videos “while preparing for the NRC

interactions.” C.A. App. 831.

At the request of the government, the district court

gave the jury a “deliberate ignorance” instruction based

on Sixth Circuit Pattern Jury Instruction 2.09. Pet.

App. 26a. The court advised the jury that:

No one can avoid responsibility for a crime by delib-

erately ignoring the obvious. If you are convinced

that [petitioner] deliberately ignored a high proba-

bility that the submissions and presentations to the

14

NRC concealed material facts or included false state-

ments, then you may find that he knew that the sub-

missions and presentations to the NRC concealed

material facts or included false statements. * * *

But to find this, you must be convinced beyond a rea-

sonable doubt that the defendant was aware of a high

probability that the submissions and presentations to

the NRC concealed material facts or included false

statements and that the defendant deliberately

closed his eyes to what was obvious. Carelessness,

or negligence, or foolishness on his part is not the

same as knowledge and is not enough to convict.

This, of course, is all for you to decide.

Tr. 2338-2339. The jury convicted petitioner on three

counts of violating 18 U.S.C. 1001 and 2. Pet. App. 26a,

142a-143a. Petitioner filed a motion for a judgment of

acquittal and for a new trial, arguing that the evidence

was insufficient to warrant the deliberate-ignurance

instruction. See id. at 62a-63a. The district court de-

nied the motion, reasoning that the decision to give the

instruction, if error, was harmless given the sufficiency

of the evidence proving petitioner’s actual knowledge.

Id. at 63a-64a.

5. The court of appeals affirmed. Pet. App. la-60a.

The court concluded that the district court “properly

instructed the jury” that it could find that petitioner had

the requisite knowledge under a deliberate-ignorance

theory because the instruction was a correct statement

of the law and because the court gave a limiting instruc-

tion that “foreclose[d] the possibility” that the conviction

was “improperly based on negligence or carelessness.”

Id. at 28a-29a (brackets in original) (citation omitted).

The court also concluded that the government had pre-

sented ample evidence to support a conviction based on

15

either actual knowledge or on a conclusion that peti-

tioner acted with deliberate ignorance. /d. at 30a-338a.

In addition, the court determined that, even if it had

been error for the district court to give a deliberate-

ignorance instruction, any error was harmless because

the court’s instructions correctly stated the law and be-

cause the evidence was sufficient to prove “actual”

knowledge. /d. at 29a-30a (citing Griffin v. United

States, 502 U.S. 46, 55-56 (1991) and United States v.

Mari, 47 F.3d 782, 785-787 (6th Cir. 1995)).

ARGUMENT

1. Petitioner contends (Pet. 16-19) that the govern-

ment presented insufficient evidence to justify the dis-

trict court’s giving a deliberate-ignorance instruction to

the jury. He asks (Pet. 17) this Court to “[rJestrict[] the

deliberate ignorance instruction to cases in which there

is evidence that the defendant took affirmative steps to

avoid gaining knowledge based on a motive to escape

conviction.” That argument does not warrant further

review because it is incorrect and because it does not

implicate any disagreement among the courts of appeals.

a, Petitioner does not appear to argue that jury in-

structions on deliberate ignorance must require the jury

to find that the defendant avoided learning the truth

because of a motive to avoid criminal liability." The

' Petitioner has waived such an argument in any case by failing to

raise it in the district court or court of appeals See Eugene Gressman

et al., Supreme Court Practice § 6.26(b), at 465 (9th ed. 2007) (noting

that this Court “generally declines to review issues not pressed or

passed upon by the lower courts ”) (emphasis omitted); see also United

States v. Walliams, 504 U.S. 36, 41 (1992). Petitioner did argue in the

court of appeals that the court’s pattern jury instruction on deliberate

ignorance should not be given unless the evidence supports an inference

that a defendant remained deliberately ignorant because he was moti-

16

courts of appeals generally agree that a deliberate-

ignorance instruction need not include a requirement

that the defendant’s motive was to create a defense to

criminal conviction. See, e.g., United States v. Singh,

222 F.3d 6, 11 (1st Cir. 2000) (upholding deliberate-

ignorance instruction similar to model instruction given

in this case); United States v. Nektalov, 461 F.3d 309,

313-314 (2d Cir. 2006) (same); United States v. Wert-

Ruiz, 228 F.3d 250, 255 (3d Cir. 2000); United States v.

Campbell, 977 F.2d 854 (4th Cir. 1992), cert. denied, 507

U.S. 938 (1993); United States v. Newell, 315 F.3d 510,

528 (5th Cir. 2002); United States v. Beaty, 245 F.3d 617,

622 (6th Cir.), cert. denied, 534 U.S. 895 (2001); United

States v. Hauert, 40 F.3d 197, 203 (7th Cir. 1994), cert.

denied, 514 U.S. 1095 (1995); United States v. Heredia,

483 F.3d 913, 919-920 (9th Cir.) (en bane), cert. denied,

552 U.S. 1077 (2007).

Petitioner asserts instead that three courts of ap

peals “have squarely held that” evidence of a defen-

dant’s “motive to escape prosecution” is an “indispens-

able foundation for the giving” of a deliberate-ignorance

instruction. Pet. 16 (citing United States v. Puche, 350

F.3d 1137, 1149 (11th Cir. 2003); United States v. Willis,

277 F.3d 1026, 1032 (8th Cir. 2002); United States v.

Delreal-Ordones, 213 F.3d 1263, 1268-1269 (10th

Cir. 2000)). That is incorrect. It is true that the three

decisions petitioner cites observe that a deliberate.

ignorance instruction is proper “when the Government

presents evidence that the defendant purposely con

trived to avoid learning all of the facts in order to have

vated by a desire to escape criminal conviction. Pet. C.A. Br 48. But

petitioner neither asked the district court to instruct the jury on motive

nor argued in the court of appeals that the district court’s failure to do

so Was error

] 7

a defense in the event cf prosecution.” Delreal-Ordones,

213 F.8d at 1268 (internal citation omitted); accord

Puche, 350 F.3d at 1149; Willis, 277 F.3d at 1032. But

all of those cases upheld the district court’s decision to

instruct the jury on deliberate ignorance without inquir-

ing whether the government had presented any direct

evidence of the defendant’s motive in remaining igno

rant. Instead, the courts found sufficient evidence to

justify the instruction in each ease because the govern

ment had established that the defendant “purposely” or

“deliberately” avoided acquiring information that would

have supplied knowledge of the fact at issue. See Puche,

350 F.3d at 1149; Willis, 277 F.3d at 1032; Delreal

Ordones, 213 F.3d at 1268-1269.

b. The same is true in petitioner’s case. Petitioner

argues (Pet. 18-19) that there was insufficient evidence

to support the deliberate-ignorance instruction because

petitioner might have had “innocent reasons” for re

maining ignorant about the falsity of the information he

conveyed to NRC. But so long as the record contained

sufficient evidence from which a rational jury could infer

that the defendant was aware of a high probability that

the submissions to the government were false and that

he deliberately closed his eyes to that fact, the possibil

ity that he might have had “innocent reasons” for his

actions does not preclude the giving of a deliberate

ignorance instruction. Deliberate ignorance satisfies the

knowledge element of the offense regardless of the de

fendant’s asserted reason for remaining deliberately in

the dark about lies to the government. The statute doe:

not require that a defendant’s intent to deceive have

been motivated by an intent to avoid conviction. A defen

dant’s intentional decision to remain ignorant of relevant

facts because he wishes to effect a particular regulatory

1s

outcome is no less “knowing and willful,” and therefore

no less a violation of Section 1001.

Not every failure to investigate a suspicion about a

representation that turns out to be false will constitute

a “knowing and willful” deception. But that issue is for

the jury to resolve. Here, the district court properly

instructed the jury that, in order to prove that petitioner

acted “knowingly and willfully,” 18 U.S.C. 1001, when he

made false statements to and concealed material facts

from NRC, the government needed to prove beyond a

reasonable doubt that petitioner acted “with the intent

to deceive.” Tr. 2384. The court further instructed the

jury that “good faith” constituted a complete defense,

and that petitioner could not be convicted on “an opinion

honestly held.” Tr. 2387. That instruction, taken to

gether with the court’s instructions on knowledge and

deliberate ignorance, was sufficient to ensure that the

jury did not convict petitioner based on a finding that

petitioner “innocent|ly|” remained ignorant of the oper

ative facts.

Kstablishing proof of deliberate ignorance throug!

proof of “an awareness of a high probability” establishes

more than proof of “merely a reckless disregard, or a

suspicion followed by a failure to make further inquiry

(/nited States v. Jewell, 582 F.2d 697, 707 (9th Cir. 1976)

(en banc) (Kennedy, J., dissenting). Rather, it “estab

lishes knowledge as a matter of subjective belief.” /bid

Moreover, the instruction here specifically advised that

the jury could not find knowledge based on mere

“[cJarelessness, or negligence, or foolishness.” ‘Tr. 2339

The evidence before the jury was more than sufficient to

establish that petitioner had the mental state necessary

to violate Section 100]

with “de iberate mrnorance

nviction.” Accordingly, |

20

fered “less that 50% accessibility to the reactor vessel

head.” C.A. App. 823. Petitioner was aware of the rec-

ommended modification and had direct responsibility for

design issues. Tr. 1823-1824, 1953. Petitioner was also

aware that the previous inspections had been impeded

by borie acid deposits presumed to be from leaking

flanges. C.A. App. 233, 237. And petitioner knew that all

previous inspections had been conducted before the

Oconee findings and thus before the industry (and

Davis-Besse operators) was on notice of the need for

close inspection of all nozzle penetrations. Tr. 1837-

1838; C.A. App. 246-254. Finally, petitioner made false

assurances that Davis-Besse was able to inspect the en-

tire vessel head before he had even assigned Siemaszko

the task of reporting nozzle-specific results, Tr. 246-247,

393-395, 1227-1229, and before Siemaszko had com-

pleted the table, Tr. 1916-1918; C.A. App. 667, 678.

Thus, the jury had ample evidence from which to

infer not only that petitioner was aware of the high

probability that his representations were false, but also

that he avoided asking questions that would have re-

vealed such falsity in order to retain the ability to deny

culpability in the event NRC discovered the truth.

2. Petitioner also urges (Pet. 19-22) that the court of

appeals applied an incorrect standard for determining

whether a deliberate-ignorance instruction that lacks an

adequate evidentiary basis constitutes harmless error;

he argues that review is warranted to resolve a conflict

in the circuits on this issue. This Court previously has

denied review of cases involving the identical circuit con-

flict alleged here. See Hernandez-Mendoza v. United

States, No. 10-6879, 2011 WL 677072 (U.S. Feb. 28,

2011); Kennard v. United States, 551 U.S. 1148 (2007)

(No. 06-10149); Ebert v. United States, 534 U.S. 832

21

(2001) (No. 00-9596); Ebert v. United States, 529 U.S.

1005 (2000) (No. 99-6789). There is no reason for a dif-

ferent result in this case. In any event, the court of ap-

peals’ decision is correct, and the purported conflict (if

it still exists) does not presently require this Court’s

attention. Moreover, this case is an unsuitable vehicle

for addressing the question petitioner presents.

a. As discussed supra, the court of appeals found

that there was sufficient evidence to support the district

court’s giving a deliberate-ignorance instruction in this

ease. Pet. App. 3la-33a. The court of appeals also held

in the alternative that, even if there had not been suffi-

cient evidence to support the instruction, any error in

giving the instruction would have been harmless because

there was sufficient evidence to support petitioner’s con-

victions on an actual-knowledge theory. /d. at 30a. That

alternative conclusion was correct.

The instruction on deliberate ignorance in part in-

formed the jury that it could convict petitioner based on

a deliberate-ignorance theory if it was “convinced be-

yond a reasonable doubt that the defendant was aware

of a high probability that the submissions and presenta-

tions to the NRC concealed material! facts * * * or

included false statements and that the defendant delib-

erately closed his eyes to what was obvious.” ‘Tr.

2338-2339. “(T]he ‘crucial assumption’ underlying the

system of trial by jury ‘is that juries will follow the in-

structions given them by the trial judge.’” Marshall v.

Lonberger, 459 U.S. 422, 438 n.6 (1983) (quoting Parker

v. Randolph, 442 U.S. 62, 73 (1979)); see Zafiro v.

United States, 506 U.S. 534, 540-541 (1993); Rachardson

v. Marsh, 481 U.S. 200, 206 (1987). A jury following the

district court’s instruction (as a reviewing court must

assume it did) and finding no evidence of deliberate ig-

22

norance could not have convicted petitioner by finding

he was deliberately ignorant. See, e.g., United States v.

Stone, 9 F.3d 934, 938 (11th Cir. 1993), cert. denied, 513

U.S. 833 (1994). Accordingly, if the deliberate-ignorance

instruction was not warranted on the facts, then giving

the instruction was harmless because a properly in-

structed jury would have rejected it and instead relied

on an alternative theory supported by the evidence.

That is precisely the logic of this Court’s decision in

Griffin v. United States, 502 U.S. 46 (1991), on which the

court of appeals correctly relied. Pet. App. 30a & n.3.

In Griffin, the Court rejected the defendant’s claim that

a general verdict must be set aside where “one of the

possible bases of conviction was neither unconstitutional

* * * nor even illegal * * * but merely unsupported

by sufficient evidence.” 502 U.S. at 56. As the Court

explained, it is “ settled law * * * that a general jury

verdict {i]s valid so long as it [i]s legally supportable on

one of the submitted grounds—even though that

glilve[s] no assurance that a valid ground, rather than

an invalid one, was actually the basis for the jury’s ac-

tion.” /d. at 49. The Court distinguished between a jury

instruction that misstates the law and one that merely

presents one theory of conviction (out of several) that is

not supported by the evidence. The Court explained:

When * * * jurors have been left the option of rely-

ing upon a legally inadequate theory, there is no rea-

son to think that their own intelligence and expertise

will save them from that error. Quite the opposite is

true, however, when they have been left the option of

relying upon a factually inadequate theory, since ju-

rors are well equipped to analyze the evidence.

23

Id. at 59 (emphasis omitted); see Sochor v. Florida, 504

U.S. 527, 538 (1992) (“We reasoned [in Griffin] that al-

though a jury is unlikely to disregard a theory flawed in

law, it is indeed likely to disregard an option simply un-

supported by evidence.”).

Here, petitioner does not claim that any of the jury

instructions—on actual knowledge or deliberate igno-

rance—was legally faulty. Rather, petitioner claims

that the deliberate-ignorance theory was unsupported

by the evidence offered at trial. But under Griffin, the

submission to the jury of the deliberate-ignorance the-

ory—even if the evidence at trial had been insufficient

to support that theory—would not warrant reversal.

See Stone, 9 F.3d at 937-942; see also United States v.

Adenzji, 31 F.3d 58, 63-64 (2d Cir. 1994).

Petitioner’s reliance (e.g., Pet. 18, 21-22) on cases like

Skilling v. United States, 130 S. Ct. 2896 (2010), and

Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam),

is misplaced. Those cases, unlike this case, involved jury

instructions that were legally erroneous because they

omitted or misdescribed an element of the offense. See

Skilling, 1308S. Ct. at 2934; Hedgpeth, 1298. Ct. at 530-

531. When a jury returns a general guilty verdict after

being instructed on one legally sound theory of guilt and

one legally unsound theory, a reviewing court ordinarily

cannot have confidence that the verdict rests on the le-

gally sound theory, and thus the verdict may stand only

if the reviewing court determines that any error was

harmless on the particular facts of the case. By con-

trast, this case does not involve a legally erroneous jury

instruction. As the court of appeals correctly recog-

nized, Griffin supplies the appropriate framework for

review. Pet. App. 30a (citing Sixth Circuit’s decision in

United States v. Mari, 47 F.3d 782, cert. denied, 515

24

U.S. 1166 (1995), which applies Griffin). Under Griffin,

any error in issuing a deliberate-ignorance instruction

that lacks adequate evidentiary support is rendered

harmless beyond a reasonable doubt if sufficient evi-

dence supports a valid alternative theory of guilt. See

502 U.S. at 56-60; see also Stone, 9 F.3d at 937-242. Ac-

cordingly, given that petitioner’s convictions “can be

upheld under an actual knowledge theory,” the court of

appeals properly determined that petitioner did not suf-

fer any prejudice as a result of the district court’s issu-

ance of both actual-knowledge and deliberate-ignorance

instructions. Pet. App. 30a.

b. At least five circuits have held that instructing

the jury on deliberate ignorance when there is insuffi-

cient factual support for the charge is harmless if the

instruction is legally correct (e.g., the instruction per-

mits the jury to rely on deliberate ignorance only if the

evidence shows such ignorance beyond a reasonable

doubt, and it explains that deliberate ignorance requires

more than negligence). See United States v. Ayon

Corrales, 608 F.3d 654, 657-658 (10th Cir. 2010); United

States v. Leahy, 445 F.3d 634, 654 n.15 (8d Cir.), cert.

denied, 549 U.S. 1071 (2006); Man, 47 F.3d at 786;

Adeniji, 31 F.3d at 63- 64; Stone, 9 F.3d at 938.7 Those

> The Tenth Cirewt in United States v. Francisco-Lopez. 939 F.2d

1405, 1412-1413 (1991), concluded that the use of the particular instruc-

tion in that case was not harmless error because the evidence of actual

knowledge was not so compelling that the jury would necessarily have

convicted the defendant on that theory. See United States v. Hilliard,

31 F.3d 1509, 1517 (10th Cir. 1994) (applying Franczsco-Lopez). More

recently, though, the Tenth Circuit has reliably applied Griffiv princi-

ples to find harmless error where the jury was instructed on a factually

unsupported deliberate-ignorance theory, but the evidence was suffi-

cient on an actual-knowledge theory See Ayon Corrales, 608 F.3d at

657-658; Unated States v. McConnel, 464 F.3d 1152, 1159-1160 (2006),

25

courts reason, like the Sixth Circuit here and in accord

with Griffin, that if the evidence is insufficient to sup-

port a theory of deliberate ignorance but is sufficient to

support a finding of actual knowledge, then the jury

“must not have convicted the defendant on the basis of

deliberate ignorance” but rather “on the basis of [the

defendant’s] positive knowledge.” Mari, 47 F.3d at 785

(emphasis omitted).

As petitioner notes (Pet. 20), some courts of appeals

have addressed the application of harmless-error review

to a deliberate-ignorance instruction slightly differently.

The Eighth Circuit in United States v. Barnhart, 979

F.2d 647 (1992), concluded that instructing a jury on

deliberate ignorance does not constitute harmless error

if the evidence of actual knowledge, although sufficient

to support the jury’s finding, is not overwhelming. See

id. at 652-653 & n.1; United States v. Covington, 133

F.3d 639, 644-645 (8th Cir. 1998) (following Barnhart,

but finding the error in giving deliberate-ignorance in-

struction to be harmless where evidence of actual knowl-

edge was overwhelming). The Ninth Circuit also

reached that conclusion. See United States v. Mapelli,

971 F.2d 284, 287 (1992); United States v. Sanchez-

Robles, 927 F.2d 1070, 1075-1076 (1991), disapproved on

other grounds by United States v. Heredia, 483 F.3d 913

(2007) (en banc).*® Those cases express a concern that,

cert. denied, 549 U.S. 1361 (2007); Unated States v. Hanzlicek, 187 F.3d

1228, 1234-1236 (1999).

* Petitioner contends (Pet. 20) that the Fifth Circuit also “imphcit-

{ly]” takes that approach, pointing to United States v. Ojebode, 957 F.2d

1218 (1992), cert. denied, 507 U.S. 923 (1993). Oyebode, however, makes

no mention of the harmless-error doctrine and does not reveal what

harmless-error standard the Fifth Circuit employs in cases of this sort.

The Fifth Circuit has since apphed Griffiz principles to conclude that

26

absent evidence to support a deliberate-ignorance in-

struction, juries may incorrectly employ a negligence or

recklessness standard. See, e.g., Barnhart, 979 F.2d at

652; Mapelli, 971 F.2d at 287.

For the reasons given above, the government dis-

agrees with the standard used in cases like Barnhart

and Mapellz. But review is unwarranted because the

outlier circuits that have in the past failed to apply Grif-

fin—the Eighth and Ninth Circuits—are reevaluating

their cases, to the point that any division of authority

that existed in the past may nearly be repaired. In

United States v. Hernandez-Mendoza, 611 F.3d 418,

418-419 (2010), the Eighth Circuit retreated from its

analysis in Barnhart and effectively overruled Barnhart

because Barnhart failed to consider and apply Griffin.

Similarly, the Ninth Circuit decisions purportedly in

conflict with this case do not mention Griffin, and do not

reject its application. And the Ninth Circuit in a more

recent unpublished case has applied Griffin in evaluat-

ing the harmlessness of a deliberate-ignorance instruc-

tion unsupported by the evidence. United States v.

Daly, 243 Fed. Appx. 302, 309, cert. denied, 552 U.S.

1070 (2007), and 552 U.S. 1211 (2008). In addition, the

en bane Ninth Circuit has rejected the view that giving

a deliberate-ignorance instruction “risks lessening the

state of mind that a jury must find to something akin to

recklessness or negligence,” and has concluded that

where (as here) the jury is instructed that it may not

convict based on a finding that the defendant was mere-

ly careless, “{rjJecklessness or negligence never comes

into play, and there is little reason to suspect that juries

the issuance ofa factually unsupported deliberate-ignorance instruction

was harmless. See United States v. Black, No. 96-20423, 1997 WL

367451, at *4 (June 9, 1997) (unpublished but noted at 119 F 3d 1).

27

will import these concepts, as to which they are not in-

structed, into their deliberations.” Heredia, 483 F.3d at

924. That en banc pror ouncement so far undermines the

reasoning of Mapelli and Sanchez-Robles that any nomi-

nal division of authority is illusory. At a minimun,, it is

reasonable to expect that in time the Ninth Circuit will,

like the Eighth Circuit in Hernandez-Mendoza, recog-

nize in a published opinion the application of Griffin to

cases like this. At that point, there would clearly be no

split for this Court to resolve.

c. Regardless, this case does not present a suitable

vehicle for determining the proper approach to the

harmless-error issue, for two reasons.

First, petitioner’s claim is based on the premise that

there was an insufficient factual basis for the deliberate-

ignorance instruction. As discussed, the court of appeals

properly found otherwise. Because this Court could

affirm the judgment by affirming the court of appeals’

fact-bound holding that there was no error at all, this is

not an appropriate vehicle for reaching the harm-

less-error issue petitioner would present. Cf. United

States v. Resendiz-Ponce, 549 U.S. 102, 104 (2007) (de-

clining to reach harmlessness issue on which review was

granted after finding no error).

Second, any error would be harmless even on the

standard most favorable to petitioner. That most favor-

able standard asks whether the evidence at trial of ac-

tual knowledge was overwhelming. See, e.g., Covington,

133 F.3d at 645 (finding the error in giving deliberate

ignorance instruction to be harmless where evidence of

guilt was overwhelming). That is the case here. As the

court of appeals concluded, the circumstantial evidence

clearly supported a finding by the jury of actual knowl-

28

edge. Pet. App. 35a-48a (detailing evidence demonstrat-

ing actual knowledge as to each count of conviction).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

IGNACIAS MORENO

Assistant Attorney General

JOHN L SMELTZER

Attorney

MARCH 2011