PER CURIAM.
Alexander Xavier appeals his convictions for mail fraud, 18 U.S.C. § 1341, major fraud,
From 2008 to 2010 Xavier received around $400,000 in fees for signing as surety on performance and payment bonds for government construction contracts.
In 2008 Xavier signed as surety on performance and payment bonds for a construction contract between Angel Menendez Environmental Services and the Department of Labor. Each bond was worth the full contract amount of $5,118,295, and Angel Menendez paid a four percent premium of $204,731.80 on both. In his Affidavit of Individual Surety Xavier pledged "$10,236,950 in cash and/or cash equivalents evidenced by attached irrevocable trust receipt issued by Guardian One Capital Trust" and swore that "[s]uch assets are held [in an account] at Bank of America" located in Sacramento, California.
Xavier neither deposited nor held in escrow the assets he had pledged. The holder of the Bank of America account, David H. Fredrickson, testified that he had signed an agreement with Xavier to open an escrow account, but the account was never funded, and he had never held $10,236,950 in support of bonds for Angel Menendez or the Department of Labor. The Department of Labor later cancelled the construction contract with Angel Menendez, and the contractor sought a refund on the $409,463.60 in premiums paid to Xavier. Xavier denied the request, stating that he would not issue a refund because the trust had incurred expenses transferring the assets to the Sacramento account.
That same year Xavier also signed as individual surety on performance and payment bonds for a construction contract between Better Built Construction Services, Inc. and the Army. Each bond was initially worth $1,000,000. In the Affidavit of Individual Surety Xavier again swore that he had sufficient assets to support the bonds, attached an irrevocable trust receipt issued by Guardian One Capital Trust, and pledged assets held at the Sacramento Bank of America. Xavier also stated in the affidavit that he had been employed at Guardian One Capital Corporation for five years. Frederickson again testified that he had never held assets in a trust account for either Better Built or the Army.
In 2009 the Army continued the contract with Better Built. To cover the increase in work, Better Built sought an increase of $2,832,174 on the performance and payment bonds, and Xavier again signed as individual surety. In the Affidavit of Individual Surety, Xavier swore that there were sufficient assets to support the bonds, attached an irrevocable trust receipt issued by 1st Capital Lending Trust, and pledged assets held at Capital Bank & Trust in Lithonia, Georgia. There was no Capital Bank & Trust in Lithonia, Georgia. Xavier also stated in the affidavit that he had been employed for the last five years at 1st Capital Lending Trust, a different employer than the one he previously listed.
In 2010 the Army continued the contract with Better Built for another year. To cover the increase in work, Better Built sought supplemental performance and payment bonds totaling $231,594.61. Xavier again signed as individual surety, swore that he had sufficient assets to support the bonds, attached an irrevocable trust receipt issued by 1st Capital Lending Trust, and pledged assets held at Regions Bank in Boca Raton, Florida. This time Xavier identified his employer as Quantum Partners, Inc. Xavier's employee, Kelly Spillman, testified that Quantum Partners never had the amount of money that was being pledged by Xavier in the bonds. And the account holder, William H. Batallas, testified that he had never held assets for the benefit of the Army, and his bank records showed that there were no accounts in which $231,594.61 had been deposited. Batallas also testified that Xavier had not discussed the assets with him even though Batallas worked for Quantum Partners and had an office next to Xavier's.
Xavier was the sole witness in his defense. He testified that others had input the information onto the forms, that he did not know at the time that the statements in the bond documents were false, and that he had merely signed them. Xavier claimed that when he worked at Guardian One he believed the bonds were backed by assets held by a man named Mel DeRutledge and DeRutledge's business partner because DeRutledge had a multimillion dollar home. As for the supplemental bonds for Better Built, he testified that Joe, Linda, and Brian Garrahan at Quantum Research had shown him an account statement for their business, which had between $20 and $30 million in assets. Based on that balance, Xavier believed that the assets existed to support the bonds. He also testified that he believed the government would verify the information contained within the bonds.
After the close of evidence, the court asked for the parties' opinions on the proposed jury instructions, which included an instruction on deliberate ignorance. Xavier objected to the deliberate ignorance instruction, arguing that the government provided no evidence that he avoided knowing that the statements in the documents were false and that giving the instruction would allow the jury to convict on a less-stringent theory of negligence. The court overruled the objection and asked whether Xavier objected to the instruction's wording. Xavier responded that he did not, and the court gave this instruction to the jury:
After deliberation, the jury found Xavier guilty on all counts. This is his appeal.
We review
Xavier contends for the first time on appeal that the wording of the instruction was erroneous and that it allowed the jury to convict him on a theory of reckless indifference. Jury instructions that are challenged for the first time on appeal are reviewed for plain error.
A defendant acts with deliberate ignorance when he is "aware of a high probability of the existence of the fact in question and purposely contrive[s] to avoid learning all of the facts."
Xavier argues that the instruction was incorrect because under it, the jury was not required to find that Xavier subjectively believed the statements in the bond documents were false. But the jurors did not have to find that Xavier subjectively believed that the claims were false to conclude that he acted with deliberate ignorance. Instead they needed to find only that Xavier "subjectively believe[d] that there [wa]s a high probability" that the claims were false.
Xavier also argues that the language of the instruction was insufficient because it did not require the jury to find that Xavier took "active steps" to avoid learning whether the statements in the bond documents were true, which allowed the jury to convict on a finding that Xavier was reckless. He relies on the Supreme Court's opinion in
Xavier next contends that even if the wording of the deliberate ignorance instruction was not plainly incorrect, the district court erred by giving the instruction because it was not justified by the evidence. We need not decide that issue. Any error in giving the deliberate indifference instruction was harmless because "the jury could have convicted on an alternative, sufficiently supported theory of actual knowledge."
The government showed that Xavier made around $400,000 in a span of a few years by signing his name to pledge millions of dollars in assets that did not exist. He swore that those nonexistent assets were held at banks which had no record of them or at banks which did not exist. And Xavier admitted that certain statements in the bond documents were false, but testified that he did not know they were false when he swore to them.