# Opposition Brief — Geisen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 917

## Text

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
NN ee gre ag oe atds Se DOR RTE l
SEI EET EEE PE ee Ee PLE Try ee aa l
SI fr aac 4's Sara gt and 4 y-ray OR NSS Goce ed ke ee l
| Le ee er eae ee re eee 15
SR ce ie wey tees ae ee a ee ee eee 28

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2813%3A2. Public record. Not legal advice.