Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

USA v. Diamond
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3837




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"USA v. Diamond" (2009). 2009 Decisions. Paper 1491.
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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-3837


          UNITED STATES OF AMERICA

                          v.

                MICHAEL DIAMOND
            a/k/a JERMAINE D. BURTON
               a/k/a KEITH DIAMOND

             Michael Anthony Diamond,
                                Appellant


    On Appeal from the United States District Court
             for the District of New Jersey
            (D.C. Crim. No. 06-cr-00892)
       District Judge: Hon. Susan D. Wigenton


      Submitted Under Third Circuit LAR 34.1(a)
                   April 21, 2009

Before: SCIRICA, Chief Judge, SLOVITER and FISHER,
                   Circuit Judges

                (Filed: April 23, 2009)


                      OPINION
SLOVITER, Circuit Judge.

       Michael Anthony Diamond, who was convicted by a jury of three counts of mail

fraud in violation of 18 U.S.C. § 1341, appeals his conviction and sentence. We will

affirm.1

                                             I.

       During the pendency of Diamond’s appeal of his 2004 conviction for wire fraud,

he sent a series of mailings to the persons involved in his prosecution as well as the

presiding federal judge. Diamond sought to create a basis for his filing of UCC-1

financing statements against the judge and Assistant United States Attorney (“A.U.S.A.”)

for $10,000,000 each. Diamond had one such mailing, titled Certificate of Satisfaction,

notarized and mailed to the District Court; it was received by the court on December 12,

2005, and entered on the docket of Diamond’s then-pending criminal action. It purported

to establish that the District Judge who presided over the 2004 wire fraud trial had, inter

alia, consented to involuntary bankruptcy.

       Diamond argues that because this document, charged in Count Two, was not

identified in the testimony given by the Assistant United States Attorney, the government

failed to prove the intended victim of the fraud received the mailing, and, therefore, there

was insufficient evidence to support the conviction. We reject Diamond’s challenge,



                    1
                     This Court has jurisdiction to review a challenge to a
            conviction under 28 U.S.C. § 1291. We have jurisdiction to review
            an appeal of a sentence pursuant to 18 U.S.C. § 3742(a).

                                              2
which we review under the plain error standard because it was not properly preserved at

trial. There was ample evidence of the mailing and that it furthered Diamond’s scheme to

eliminate his $75,000 restitution obligation.

                                                II.

       Diamond next argues that his conviction should be vacated because the District

Court erroneously instructed the jury. We review a district court’s jury instructions for

abuse of discretion. United States v. Hoffecker, 

, 167 (3d Cir. 2008) (citing

United States v. Leahy, 

, 642 (3d Cir. 2006)).

       Diamond first contends the District Court erred in failing to give an instruction on

good faith. We uphold a District Court’s denial of a requested good faith instruction,

“where the instructions given already contain a specific statement of the government’s

burden to prove the elements of a ‘knowledge’ crime,” including the intent requirements.

(citing United States v. Gross, 

, 1102-03 (3d Cir.

1992)). Here, the jury instructions adequately defined the intent element of the crime,

therefore obviating the need for a separate instruction on good faith. After the District

Court defined the terms “knowingly” and “willfully,” App. at 396-97, it instructed jurors

that to convict Diamond they had to find beyond a reasonable doubt that he had acted

“knowingly, willfully and with intent to defraud.” App. at 403. The court went on to

explain the various ways requisite intent could be established. The instruction was

adequate.



                                                3
       Diamond also argues the jury was improperly instructed because the District Court

refused to give an instruction stating that “mailings that serve to put the defrauded party

on notice, or make the execution of the fraud less likely, are not covered under this

section.” App. at 681. Under the abuse of discretion standard, this Court will order a

new trial based on a district court’s refusal to give a proposed jury instruction “only when

the requested instruction was correct, not substantially covered by the instructions given,

and was so consequential that the refusal to give the instruction was prejudicial to the

defendant.” 

(quoting 

).

       Here, Diamond’s claim must fail, as there is no evidence the proposed jury

instruction was correct. Diamond gleaned the language of the instruction from a factually

distinct case from another circuit. Moreover, this Circuit’s Model Criminal Jury

Instructions do not contemplate such an instruction. See 3d Cir. Model Crim. Jury

Instructions § 6.18.1341-5. Commentary in the model instructions stating that routine,

innocent or even counterproductive mailings may form the basis of a mail fraud

conviction suggests the instruction proffered by Diamond was an incorrect statement of

the law in this Circuit. See 

argues the District Court erred in instructing the jury on willful

blindness. We have held that a willful blindness charge does not lower the government’s

burden of proving intent when the charge “‘emphasize[s] the necessity of proving a

subjective awareness.’” United States v. Stewart, 

, 126 (3d Cir. 1999)



                                              4
(quoting United States v. Caminos, 

, 365 (3d Cir. 1985)). In this case, the

District Court properly instructed the jury that if it found “the defendant was subjectively

aware of a high probability of the existence of a fact and deliberately tried to avoid

learning that fact . . . you may find that the government has satisfied its burden of proving

the element of knowledge of that fact.” App. at 396. We reject all of Diamond’s

challenges to the jury instructions.

                                             III.

       In challenging his sentence, Diamond argues the District Court erred in failing to

grant a two-level downward adjustment for acceptance of responsibility. We review for

clear error a district court’s factual findings underlying a denial to adjust a sentence for

acceptance of responsibility. United States v. Lessner, 

, 199 (3d Cir. 2007).

We will “reverse only if we are left with a definite and firm conviction that a mistake has

been committed.” 

is devoid of any acceptance of responsibility by Diamond. Not only

did he challenge the case on its merits during trial in the District Court, at sentencing he

argued vigorously that he did not intend to perpetrate a fraud. Thus, the District Court did

not clearly err in refusing to grant a downward adjustment for acceptance of

responsibility.

                                             IV.

       For the reasons set forth, we will affirm the District Court’s judgment of



                                               5
conviction and sentence.