Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

Joseph Gieniec, a former United States Deputy Marshal, appeals his conviction for accepting illegal gratuities. We reverse.

Gieniec, a United States Deputy Marshal, was responsible for the Marshal's office contracting with Lyons Security, a private security firm owned by Joseph Rydzewski, to assist the Marshal's service in seizing and guarding assets. During the time Rydzewski held this contract, he gave Gieniec $3000 to pay for Gieniec's vacation and made Gieniec's mortgage payments while Gieniec was vacationing. Rydzewski also made other loans and cash payments to Gieniec, provided members of Lyons Security as guards for Gieniec's house, and paid for a lawyer for Gieniec in an unrelated matter. Rydzewski testified Gieniec threatened him with termination of Rydzewski's Marshal's service contract unless Rydzewski continued to pay him, and when Rydzewski refused to make further payments and abandoned the contract, Gieniec threatened to expose his prior payments. Gieniec claimed the two were close friends and he assumed Rydzewski did the favors out of friendship; Rydzewski, however, testified that while he originally liked Gieniec, he became increasingly disenchanted with Gieniec's demands for money and their purported friendship dissolved not long after Rydzewski stopped working for the Marshal's service.

At trial, a jury found Gieniec guilty of violating 18 U.S.C. section 201(g), which provided a maximum $10,000 fine and two years' imprisonment for " [w]hoever, being a public official, former public official, or person selected to be a public official, otherwise than provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him ..." 18 U.S.C. § 201(g) (1969).

Gieniec raises several challenges to the court's jury instructions. We review a district court's jury instructions as a whole for abuse of discretion and to determine if the instructions are misleading or inadequate. "However, whether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989).

Gieniec first takes issue with the wording of jury instruction # 18, dealing with intent. The government correctly points out that the instruction complained of by Gieniec was never given to the jury. Gieniec's more substantial argument is that the district court erred by giving the jury a "Jewell " or "wilful blindness" instruction to the effect that the jury could find that Gieniec knew of Rydzewski's illicit intent if "you find beyond a reasonable doubt that the defendant was aware of a high probability that the thing of value was provided [for] an unlawful purpose and he deliberately avoided learning the truth."

"A Jewell instruction is properly given only when [the] defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance." United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1988), citing United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir. 1985). " [A] Jewell instruction should not be given when the evidence is that the defendant has either actual knowledge or no knowledge at all of the facts in question." United States v. Sanchez-Robles, 927 F.2d 1070, 1074 (9th Cir. 1991), citing United States v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988) (per curiam).

The Jewell instruction was inappropriate in this case. Rydzewski testified Gieniec made explicit demands for money and threatened Rydzewski that he would take the Marshal's contract away. Gieniec's defense was that the payments were made out of friendship or in consideration for repayment of loans and favors, and that he had no knowledge of any illicit intent on Rydzewski's part. Therefore, the choice for the jury was whether Gieniec knowingly extorted payments or was merely an innocent recipient of the monies. There was no evidence suggesting a middle ground of conscious avoidance. See Sanchez-Robles, 927 F.2d at 1075 (where a "defendant's senses either give rise to a direct knowledge of illegality, or there is nothing to raise suspicions of illegality at all," Jewell instruction inappropriate).

We must determine whether the instruction was harmless error. "An improperly given Jewell instruction requires reversal unless it was 'logically harmless ... beyond any reasonable doubt'.... If the 'record accomodates a construction of events that supports a guilty verdict, but it does not compel such a construction,' then reversal is necessary." id. (citations omitted). Although there was a good deal of evidence that Gieniec actually knew he was being bribed, "we cannot say that the evidence against [Gieniec] is so overwhelming as to compel a guilty verdict." Id. Because the erroneous instruction was not harmless, we REVERSE.