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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1895 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                           JOHN BILIS, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Nathaniel M. Gorton, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>Aldrich and Cudahy, Senior Circuit Judges. <br> <br>                      _____________________ <br> <br>     Roger A. Cox, with whom Cox & Cox, was on brief, for <br>appellant. <br>     Heidi E. Brieger, Assistant United States Attorney, with whom <br>Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                         March 10, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  On September 18, 1997, a grand <br>jury returned an indictment charging defendant-appellant John Bilis <br>with violating 21 U.S.C.  856 (a)(2) by knowingly and <br>intentionally managing and controlling a building for the purpose <br>of the unlawful distribution and use of controlled substances.  A <br>trial commenced on April 6, 1998 and the jury ultimately returned <br>a guilty verdict.  The district court sentenced Bilis to a twenty- <br>one month term of imprisonment, to be followed by twenty-four <br>months of supervised release.  On appeal, Bilis claims that the <br>district court erred in giving a willful blindness jury <br>instruction.  We affirm. <br>I.  BACKGROUND <br>          We recite the facts in the light most favorable to the <br>verdict.  United States v. Cunan, 152 F.3d 29, 32 (1st Cir. 1998) <br>(quotations omitted).  In the fall of 1996, the Webster Police <br>Department (the "WPD") received information about narcotics <br>trafficking at the High Street Caf in Webster, Massachusetts.  <br>Specifically, the WPD received information that on September 19, <br>1996, an individual known as William Armstrong would be selling <br>drugs at the High Street Caf.  Pursuant to this information, <br>Webster police officers went to the bar, located Armstrong on the <br>street outside, and followed him into the bar.  Armstrong was then <br>arrested on outstanding warrants.  Subsequent to Armstrong's <br>arrest, WPD officers seized a sandwich bag containing cocaine from <br>the corner space between the men's restroom and the bar. <br>          At the time of Armstrong's arrest, Bilis, the owner and <br>bartender of the High Street Caf, was working behind the bar.  WPD <br>officers questioned Bilis about the bag of cocaine.  Bilis <br>indicated that he knew nothing about it.  WPD officers then warned <br>Bilis that he could be at serious risk of losing his liquor license <br>due to possible drug violations. <br>          Shortly after this incident, Bilis arranged to meet with <br>WPD officers to discuss suspected drug dealing at the High Street <br>Caf.  During this meeting, Bilis suggested that the WPD install a <br>surveillance camera in the bar.  Bilis also agreed to the possible <br>placement of an undercover officer in the bar to investigate the <br>drug problem.  WPD officers asked Bilis to name the drug dealers <br>who frequented his bar.  Bilis responded:  "You know who they are."  <br>When the officers named several individuals they suspected, Bilis <br>nodded.  Following this meeting, WPD officers dropped by the High <br>Street Caf several times a week.  During those visits, Bilis <br>identified several bar patrons he suspected were drug dealers. <br>          Three months later, beginning in December 1996, the WPD <br>launched an undercover investigation of drug dealing at the High <br>Street Caf.  Officer Stephanie Healy, a WPD undercover officer, <br>began frequenting the caf to gain intelligence and to make <br>controlled purchases from suspected drug dealers.  Bilis was not <br>informed of this undercover investigation and did not know that <br>Healy was an undercover officer. <br>          Beginning on February 5, 1997, Healy made numerous <br>controlled cocaine purchases at the High Street Caf.  At trial, <br>Healy testified that there were so many drug dealers working at the <br>High Street Caf that the drug business environment could be <br>characterized as "competitive."  Healy described the caf as a bar <br>with several stools, four or five tables, and a pool table.  Healy <br>testified that she normally made controlled cocaine purchases <br>directly in front of the bar, at one end of the tables, or in the <br>women's restroom.  Bilis was present in the bar almost every night.  <br>          Officer Healy testified that on February 20, 1997, she <br>overheard Bilis tell Michael Plasse, a suspected drug dealer, to <br>"clean up" because he did not want the police to see any plastic <br>baggies lying around on the floor.  Bilis instructed Plasse to <br>flush all baggies down the toilet. <br>          In April 1997, the United States Drug Enforcement <br>Administration (the "DEA") took over the WPD investigation.  On <br>April 30, 1997, DEA agents conducted surveillance of the High <br>Street Caf while Healy made a controlled purchase of cocaine <br>inside the bar.  During Healy's purchase a DEA agent was located in <br>an undercover surveillance van parked outside the bar.  At trial, <br>Healy testified that while she was in the bar it became clear from <br>the commotion that some bar patrons had spotted the DEA <br>surveillance van.  Tina LeMay, a bar patron, testified that whoever <br>was tending bar that night closed the shutters of the window <br>overlooking the street after patrons spotted the van.  William <br>Sblacers, another patron, testified that Bilis warned him to be <br>careful because there was a police surveillance van parked outside.  <br>          On May 29, 1997, Bilis became a target of the DEA <br>investigation.  On that date, Healy approached Sblacers at the High <br>Street Caf to make a controlled cocaine purchase.  Sblacers <br>informed Healy that he did not have any cocaine but that he and <br>several others -- including Bilis -- were waiting for a delivery <br>from cocaine distributor Stephen Reyes. <br>          On August 29, 1997, Healy entered the High Street Caf to <br>make a controlled cocaine purchase from Reyes.  Healy sat at the <br>bar, where she was joined by Bilis.  Healy asked Bilis if he knew <br>of Reyes's whereabouts.  Bilis told Healy that he had seen Reyes <br>earlier in the week, but he did not know where he was now.  Healy <br>then asked Bilis if he knew whether there was anyone else in the <br>bar who could get her "a little something."  In response, Bilis <br>looked around the bar and replied: "No, I do not.  That's what I'm <br>down here for." <br>     At trial, Sblacers testified that he was arrested on <br>September 27, 1997 and was currently in jail on drug charges.  <br>Sblacers hoped to "get a break" at sentencing because of his <br>testimony for the government.  According to his testimony, Sblacers <br>usually sold at least six packages of cocaine to High Street Caf <br>customers between midnight and 1:00 AM three to four times per <br>week.  Sblacers testified that Bilis bought cocaine directly from <br>him at the bar.  Sblacers testified that he also sold cocaine to <br>Bilis through another bartender, Lynn DuFault.  At one point, Bilis <br>asked Sblacers to talk to "the guys" and tell them to be more <br>careful because he did not want to lose his liquor license.  Bilis <br>also warned Sblacers about the DEA surveillance van parked outside <br>of the bar on April 30, 1997. <br>     Tina LeMay was also arrested on September 27, 1997 for <br>possession of controlled substances with intent to distribute.  At <br>trial, she testified that she passed cocaine over the bar to Bilis <br>in a folded dollar bill.  According to her testimony, she also sold <br>cocaine to Bilis through Lynn DuFault.  LeMay testified that <br>although drug dealing at the High Street Caf was covert, she did <br>not try to conceal it from Bilis. <br>     Leonardo Gonzlez testified that he sold drugs to Bilis <br>two to three times a week, so many times that "it would be <br>impossible to count."  Gonzlez further testified that he observed <br>Bilis watch as a bar patron tasted cocaine from an open bag in the <br>men's room.  Finally, Gonzlez testified that Bilis sold him a <br>$2,000 lottery ticket so that Gonzlez could "clean" his drug <br>proceeds.  At the time of his testimony, Gonzlez was serving a <br>three to five year sentence in Massachusetts for drug-related <br>offenses. <br>     During his trial testimony, Bilis denied having ever <br>participated in the sale of illegal drugs.  Specifically, he denied <br>having ever purchased cocaine from Sblacers, LeMay or Gonzlez.  <br>Bilis further testified that he never observed any hand-to-hand <br>drug transactions at the bar.  He denied seeing a bar patron taste <br>cocaine from a plastic bag in the men's room.  He denied warning <br>anyone about a police surveillance van parked outside the bar on <br>April 30, 1997.  Finally, he denied having ever suggested that the <br>sale of the lottery ticket would "clean" Gonzlez's drug money. <br>     With respect to the plastic baggies, Bilis testified that <br>he recalled seeing Plasse exit the men's room with plastic tops or <br>knot tops, but that he did not specifically know that Plasse was <br>selling cocaine.  Bilis admitted that he was concerned about the <br>plastic bags but refused to admit that he knew the baggies <br>contained (or had contained) cocaine.  Rather, Bilis testified that <br>he merely "speculated" that drug dealers were selling drugs in his <br>bar.  Throughout his testimony, Bilis maintained that he did not <br>have any direct, actual knowledge of drug activity in his bar. <br>     At the conclusion of trial, the government filed its <br>proposed jury instructions, requesting that the district court give <br>the jury a willful blindness instruction.  At the jury charge <br>conference, defense counsel objected to the government's request.  <br>At the start of the next day's proceedings, the district judge <br>announced his decision to grant the government's request and give <br>the willful blindness instruction.  At the conclusion of the jury <br>instructions, defense counsel renewed his objection to the <br>instruction.  Bilis now appeals. <br>II.  DISCUSSION <br>     In order to convict Bilis of violating 21 U.S.C.  856 <br>(a)(2), the government needed to prove three elements beyond a <br>reasonable doubt: (1) that Bilis managed or controlled the High <br>Street Caf; (2) that Bilis knowingly and intentionally made the <br>High Street Caf available for use to others; and (3) that Bilis <br>made the High Street Caf available for the purpose of unlawfully <br>possessing or distributing a controlled substance.  See 21 U.S.C. <br> 856 (a)(2).  The government requested the willful blindness <br>instruction in order to prove the second element.  Pursuant to the <br>government's request, the district judge instructed the jury that: <br>                    the word "knowingly," as that term has been <br>                    used from time to time in these instructions, <br>                    means that the act was done voluntarily and <br>                    intentionally and not because of mistake or <br>                    accident. <br>                     <br>                    In deciding whether the defendant acted <br>                    knowingly, you may infer that he had knowledge <br>                    of a fact if you find that he deliberately <br>                    closed his eyes to a fact that otherwise would <br>                    have been obvious to him.  In order to infer <br>                    knowledge, you must find that two things have <br>                    been established; first, that the defendant <br>                    was aware of a high probability of unlawful <br>                    possession or distribution of controlled <br>                    substances in the High Street Caf; and, <br>                    second, that he consciously and deliberately <br>                    avoided learning of that fact; that is to say, <br>                    the defendant willfully made himself blind to <br>                    that fact.   <br>                     <br>                    It is entirely up to you to determine whether <br>                    Mr. Bilis deliberately closed his eyes to the <br>                    fact and, if so, what inference, if any should <br>                    be drawn.  However, it is important to bear in <br>                    mind that mere negligence or mistake in <br>                    failing to learn the fact is not sufficient.  <br>                    There must be a deliberate effort to remain <br>                    ignorant of the fact. <br>                     <br>          Because Bilis made a timely objection to this instruction, we <br>review for abuse of discretion.  See Cunan, 152 F.3d at 39.  <br>     This court has previously identified the circumstances <br>warranting a willful blindness instruction: <br>                    A willful blindness instruction is warranted <br>                    if (1) the defendant claims lack of knowledge; <br>                    (2) the evidence would support an inference <br>                    that the defendant consciously engaged in a <br>                    course of deliberate ignorance; and (3) the <br>                    proposed instruction, as a whole, could not <br>                    lead the jury to conclude that an inference of <br>                    knowledge was mandatory. <br>                     <br>          United States v. Gabriele, 63 F.3d 61, 66 (1st Cir. 1995).  More <br>specifically, a willful blindness instruction is proper when there <br>is evidence to "support the inference that defendant was aware of <br>a high probability of the existence of the fact in question and <br>purposely contrived to avoid learning all of the facts in order to <br>have a defense in the event of a subsequent prosecution."  United <br>States v. Brandon, 17 F.3d 409, 452 (1st Cir. 1994) (quoting United <br>States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1973)). <br>     Bilis challenges the propriety of the willful blindness <br>instruction on two grounds.  First, Bilis argues that he never <br>claimed lack of knowledge of the drug dealing taking place in the <br>High Street Caf.  Bilis points to the fact that he voluntarily met <br>with officers of the WPD to discuss the issue of drug dealing in <br>his bar.  Bilis claims that this visit, by itself, wholly negates <br>the possibility that he lacked knowledge of the drug activities in <br>the bar.  Second, Bilis argues that his visit to the police also <br>undermines any claim that he "consciously engaged in a course of <br>deliberate ignorance" of the drug dealing taking place in the High <br>Street Caf.  <br>     With respect to Bilis's first argument, we conclude that <br>his 1996 visit to the WPD did not preclude the giving of the <br>willful blindness instruction.  During Bilis's visit to the police <br>he admitted only that he "speculated" that individuals were dealing <br>drugs in the bar.  Bilis disclaimed any specific or definite <br>knowledge of drug activities or dealers.  He testified: "I don't <br>think I actually seen anything where I could say I had knowledge <br>. . . Speculation is one thing.  Knowing is a different thing."  We <br>conclude that Bilis's denial of specific or definite knowledge <br>satisfies the first prerequisite for the giving of the willful <br>blindness instruction. <br>     Bilis's second argument fares no better.  Bilis's own <br>testimony clearly supports the inference that he purposely avoided <br>learning details about the drug dealing in the bar.  Specifically, <br>Bilis testified that he observed plastic baggies in the bathroom <br>and that he mentioned something to Michael Plasse about them: "And <br>I got in an argument . . . with him [and] he ended up being thrown <br>out [of the bar] for sixty days."  When asked what he thought the <br>plastic bags were used for, Bilis responded: "I have no idea . . . <br>What was on the other end of [the plastic knot top], I don't know."  <br>This testimony clearly supports the inference that Bilis purposely <br>avoided learning about the drug dealing taking place in his bar. <br>     Officer Healy's testimony further supports this <br>inference.  She described the drug business environment at the High <br>Street Caf as "competitive" and testified: "There were several <br>people there, all selling drugs . . . . Sometimes there were so <br>many of them there . . . I had to wait until one person left so I <br>could make a drug purchase."  Officer Healy further testified that <br>she made several drug transactions while sitting on a stool <br>directly in front of the bar.  This testimony coupled with Bilis's <br>own admission that he "speculated" about drug activity in his bar  <br>further supports the inference that Bilis was aware of a high <br>probability of drug dealing in the High Street Caf and purposely <br>contrived to avoid learning all of the facts.  See Brandon, 17 F.3d <br>at 452. <br>     The fact that the government also offered evidence to <br>support the theory that Bilis possessed direct knowledge of drug <br>dealing did not render the willful blindness instruction <br>inappropriate.  This court has rejected the argument that proof of <br>direct knowledge precludes a willful blindness instruction that is <br>otherwise appropriate: <br>                    As long as separate and distinct evidence <br>                    supports a defendant's deliberate avoidance of <br>                    knowledge and the possibility exists that the <br>                    jury does not credit the evidence of direct <br>                    knowledge, a willful blindness instruction may <br>                    be appropriate. <br>                     <br>          Brandon, 17 F.3d at 452 n.74.  Two of the government witnesses who <br>testified as to Bilis's direct knowledge of and participation in <br>drug activities had an incentive to cooperate with the government.  <br>As the district judge noted at sentencing, it is possible that the <br>jury did not find some or any of their testimony credible.  For <br>example, the jury could have credited the witnesses' testimony <br>concerning the extent of the drug dealing in the High Street Caf, <br>while rejecting the testimony related to Bilis's actual involvement <br>in drug deals.  Even without the testimony of these witnesses, <br>separate and distinct evidence supported the government's alternate <br>theory of willful blindness.  The instruction was warranted under <br>the circumstances. <br>III.  CONCLUSION <br>     Based on the foregoing, we affirm the judgment of the <br>district court.</pre>

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