                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1300
                         ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                Jordan James Davis,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                           Submitted: February 16, 2018
                              Filed: August 28, 2018
                                  ____________

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
                             ____________

COLLOTON, Circuit Judge.

      A jury convicted Jordan Davis of five counts of aiding and abetting mail fraud,
and one count of conspiracy to commit theft from a program receiving federal funds.



      *
       This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth
Circuit Rule 47E.
On appeal, Davis argues that the district court1 erred by not submitting a copy of the
indictment to the jury and by improperly instructing the jury. He also contends that
the evidence at trial was insufficient to support his convictions. We reject these
contentions and affirm the judgment.

                                          I.

       Community Action of Minneapolis, a federally funded, non-profit organization,
ran programs and services for low-income residents of Minneapolis. To provide
employment for low-income, disadvantaged high school students, and to expose the
students to a university atmosphere, the non-profit operated a Ben & Jerry’s ice cream
store on the campus of the University of Minnesota. The store was never profitable
and regularly required funding from the non-profit until the store eventually closed
in 2011.

      The chief executive officer of the non-profit entity was William Davis, Jordan
Davis’s father. William designated his son to manage the store in November 2001,
and Jordan Davis ran the store’s daily operations from 2001 to 2006 as its full-time
manager. At all times, Davis reported directly to his father.

       In October 2006, Davis accepted a full-time position with the Minneapolis
Police Department. Other employees assumed Davis’s daily responsibilities at the
store. Davis intermittently provided assistance to the store for a time; for example,
he purchased supplies if the store ran low and spoke by telephone with an employee
who called for help. Although Davis remained “on-call,” by 2010 he did little to no
work for the store. He testified that he could not recall taking any specific action
during 2010 to support the store.


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

                                         -2-
       Despite Davis’s withdrawal from the business, William approved paying Davis
through the end of 2010 in the same amount that he received as a full-time store
manager. Davis’s income continued on some occasions even when the store was
closed and no other employees were paid. For example, William instructed the non-
profit’s staff to pay Davis even when no other employees were paid during the store’s
closure for the holidays in late 2008 to early 2009. When Davis stopped receiving a
regular paycheck at the end of 2010, William directed that Davis receive a $6,000
“bonus” check. All told, the non-profit paid Davis $149,880 from November 2006
through December 2010 while Davis also worked full time with the local police
department.

      A grand jury charged Davis and William with several offenses arising from
these events. William pleaded guilty; Davis proceeded to trial. The indictment
charged Davis with five counts of aiding and abetting mail fraud, in violation of 18
U.S.C. § 1341 and § 2, and one count of conspiracy to commit theft from a program
receiving federal funds, in violation of 18 U.S.C. § 371. The jury found Davis guilty
on all six counts. The district court sentenced him to twenty-four months’
imprisonment.

                                         II.

       Davis’s first point on appeal is that the district court erred by denying his
request to provide the jury with a copy of the indictment unadorned by a limiting
instruction. Davis asked the court to provide the indictment, but then withdrew the
request after the court explained a limiting instruction that would accompany the
indictment. The indictment stated that Davis had participated in a “no-show job.”
The court said that if the jury received the indictment, then the court would instruct
the jury that even if some money paid to Davis was legitimately for services that he
provided, the government still wins its case if other money paid to Davis was the



                                         -3-
proceeds of fraud. Davis asserts that the court’s proposed instruction essentially
“threatened a directed verdict.”

       We see no abuse of discretion in how the district court handled Davis’s request
to submit the indictment. “Submission of the indictment to the jury is a matter within
the sound discretion of the trial court provided the jury is properly admonished that
the indictment does not constitute evidence of any kind.” United States v. Wagoner,
713 F.2d 1371, 1377 (8th Cir. 1983). The district court here was appropriately
concerned that the indictment, without a limiting instruction, would mislead the jury
about the government’s burden of proof. The thrust of the suggested instruction was
to inform the jury, correctly, that Davis was not innocent under the law just because
he performed some amount of work for the store. Under the governing law, the
government was not required to prove that Davis was entitled to zero compensation.
As the district court put it, “[t]he fact that he showed up at five community events and
scooped ice cream doesn’t mean that there wasn’t” fraud committed. The court’s
refusal to submit the indictment without a limiting instruction was not an abuse of
discretion. The district court never arrived at final wording of a limiting instruction,
and Davis could have objected to the particulars of that instruction if it were flawed.

       Second, Davis argues that the district court erred in denying his proposed
“good character” instruction. Davis’s proposed instruction stated, in relevant part,
that each juror was “permitted to conclude that the government has not proved the
charges against Mr. Davis beyond a reasonable doubt solely on the basis of evidence
of Mr. Davis’s good character, or in combination with other evidence presented.”

      This circuit has disapproved a jury instruction saying that a defendant’s good
character, standing alone, is enough in itself to warrant acquittal. United States v.
Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987). A “good character” instruction is
unnecessary, moreover, when other jury instructions permit the jury to consider
character evidence. Id. at 1188. The district court here instructed the jury to “give

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all evidence the weight and value you believe it is entitled to receive,” and to consider
“all the facts and circumstances in evidence which may aid in a determination of the
defendant’s knowledge or intent.” Davis was able to argue that he was an “honest
hard worker” and “a truthful person who[m] you could take at his word.” The district
court did not abuse its discretion by refusing the proposed instruction.

       Third, Davis contends that the district court improperly gave a willful blindness
instruction. The instruction provided, in part, that “[k]nowledge may be inferred if
the defendant deliberately closed his eyes to what would otherwise have been obvious
to him.” This type of instruction is proper if the evidence “support[s] the inference
that the defendant was aware of a high probability of the existence of the fact in
question and purposely contrived to avoid learning all of the facts in order to have a
defense in the event of a subsequent prosecution.” United States v. Aleman, 548 F.3d
1158, 1166 (8th Cir. 2008) (alteration in original) (quoting United States v. Barnhart,
979 F.2d 647, 652 (8th Cir. 1992)). Stated differently, the instruction is appropriate
where the evidence supports an inference of “deliberate ignorance”—that is, where
the defendant was presented with facts that placed him on notice that criminal activity
was particularly likely, yet intentionally failed to investigate. United States v.
Lundstrom, 880 F.3d 423, 442 (8th Cir. 2018). In evaluating the propriety of the
instruction, we consider whether the evidence—viewed in the light most favorable
to the prosecution—could support the inference of willful blindness. United States
v. Hiland, 909 F.2d 1114, 1131 (8th Cir. 1990).

       The government here was required to prove, among other things, that Davis
knew the purpose of the charged conspiracy was to commit theft concerning programs
receiving federal funds. Davis’s defense was that he did not know about his father’s
scheme to defraud the non-profit entity. Davis argues that the willful blindness
instruction was improper because the evidence implied that he could have had either
actual knowledge or no knowledge of the fraud, but not willful blindness. See United
States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008).

                                          -5-
       At trial, however, Davis objected to the instruction on a different ground. He
argued that a willful blindness instruction is appropriate only in “a failure-to-act
case,” and maintained that it was not appropriate here because the government alleged
affirmative acts of fraud by Davis. Davis has abandoned this theory on appeal and
raises a new objection instead. We thus review the new claim for plain error. United
States v. Oakie, 12 F.3d 1436, 1442 (8th Cir. 1993). To obtain relief, Davis must
show an obvious error that caused prejudice and seriously affected the fairness,
integrity, or public reputation of the proceedings. United States v. Olano, 507 U.S.
725, 732 (1993).

       The government does not explain clearly in its brief on appeal what it believes
that Davis intentionally failed to investigate in order to remain blind to the criminal
activity. Perhaps the point is that Davis, while he was performing little work for the
ice cream store, should have inquired of his father about the justification for
continuing substantial payments to him. That basis for the instruction is not
obviously insufficient. But even if this was not the classic case for a willful blindness
instruction, Davis has not established prejudice from any error. There was abundant
evidence that Davis had actual knowledge of fraud, and the jury rejected his
testimony that he was unaware of it. If Davis is correct that a willful blindness theory
was not supported by the evidence, then it is unlikely that the jury relied on it. Jurors
are well equipped to analyze the evidence, and they presumably adopted a factually
adequate ground for conviction. See Griffin v. United States, 502 U.S. 46, 59-60
(1991). There was no plain error warranting relief.

                                          III.

      Davis next contends the evidence is insufficient to support his convictions. We
review the sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the verdict and making all reasonable inferences in favor of the verdict.
United States v. Koss, 769 F.3d 558, 562 (8th Cir. 2014). We will reverse only if no

                                          -6-
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Id.

      The mail fraud charges required the government to prove, in part, that Davis
knowingly aided and abetted a scheme to defraud with the intent to defraud. See
United States v. Louper-Morris, 672 F.3d 539, 555 (8th Cir. 2012); United States v.
Pennington, 168 F.3d 1060, 1064 (8th Cir. 1999). Davis argues that there was no
scheme to defraud the non-profit entity. And if there was a scheme, he says that he
did not know about it.

       There was sufficient evidence from which a reasonable jury could infer that
Davis had knowledge that William engaged in a scheme to defraud. Davis knew that
William controlled employment at the non-profit, and that he approved the
continuation of Davis’s manager-level paychecks after Davis began full-time
employment elsewhere. Davis also knew that he was performing minimal work, and
that other employees had assumed his previous responsibilities. And Davis knew that
he alone was paid during the holiday closure in 2008 while other employees were not.
Davis was aware that William authorized a $6,000 bonus for Davis when he left the
payroll, even though the store continued to lose money. There was sufficient
evidence to support an inference that Davis knew of a scheme to defraud.

       Davis also complains that there was insufficient evidence of intent to defraud.
Intent, of course, may be proved by circumstantial evidence, and “[t]he scheme itself
often serves as evidence of a defendant’s intent to defraud.” United States v.
Whitehead, 176 F.3d 1030, 1038 (8th Cir. 1999). Davis cashed more than 100
paychecks from 2006 to 2010, despite knowing that he was performing minimal work
and that other employees had undertaken his former duties. While Davis testified he
believed the paychecks were legitimate because he was “on-call,” the jury was free
to disbelieve Davis’s denials in light of the amount of pay and work actually
performed.

                                         -7-
       Davis argues that because neither he nor his father attempted to conceal the
paychecks, the jury could not reasonably infer that he had the requisite intent. Efforts
at concealment might provide evidence of conscious wrongdoing, see United States
v. Nelson, 988 F.2d 798, 803 (8th Cir. 1993), but lack of concealment does not
necessarily establish innocence. William was a powerful figure at the non-profit
entity, and there was evidence that staff was afraid to challenge him. The jury
reasonably could have found that the Davises were brazen but guilty, and that they
declined to hide their activity because there was no effective oversight. See United
States v. Addison, 708 F.3d 1181, 1190 (10th Cir. 2013). There was sufficient
evidence to support a finding that Davis had the requisite intent to defraud.

       Davis also asserts that there was insufficient evidence to prove that he
conspired to commit theft from a federally funded program. The government was
required to prove that there was an agreement to commit theft, that Davis voluntarily
and intentionally joined the agreement, that Davis knew the purpose of the agreement,
and that a conspirator knowingly did an overt act. Final Jury Instruction 15; see
generally United States v. Bassett, 762 F.3d 681, 685 (8th Cir. 2014). There was
sufficient evidence to prove these elements. A conspiratorial agreement may be tacit,
and it may be proved by circumstantial evidence. A reasonable jury could have found
that Davis had knowledge of his father’s scheme, and that he voluntarily and
intentionally joined a conspiracy with William by receiving and cashing paychecks
that he did not earn.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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