187 F.3d 1228 (10th Cir. 1999)
UNITED STATES OF AMERICA ,  Plaintiff-Appellee ,v.BILL HANZLICEK ,  Defendant-Appellant .
No. 97-5180
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
August 23, 1999

Appeal from the United States District Court for the Northern District of Oklahoma. D.C. No. 96-CR-115-BU [Copyrighted Material Omitted]
Craig Bryant, Tulsa, Oklahoma, for Defendant-Appellant  Bill Hanzlicek.
Neal B. Kirkpatrick , Assistant United States Attorney, (Stephen C. Lewis, United  States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Before ANDERSON, KELLY, and MURPHY, Circuit  Judges.
MURPHY, Circuit Judge.

I.  INTRODUCTION

1
Bill Hanzlicek was convicted, following a jury trial, of one count of  conspiracy in violation of 18 U.S.C. § 371, two counts of mail fraud in violation  of 18 U.S.C. § 1341, and one count of attempting to pass a falsely made  obligation of the United States in violation of 18 U.S.C. § 472.  Hanzlicek's  convictions arose out of a conspiracy on the part of himself and others to avoid  their debts through the use of fraudulent "checks."  Hanzlicek raises the  following five alleged errors in asserting that his convictions should be reversed  on appeal: (1) an impermissible variance existed between the indictment, which  alleged a single conspiracy, and the government's proof at trial, which  supposedly established the existence of multiple conspiracies; (2) the district  court erred in tendering a deliberate ignorance instruction to the jury; (3) the  district court erred in allowing a government agent to give hearsay testimony  regarding $1.8 million in losses supposedly sustained from similar/related  fraudulent checks; (4) the government violated its duties under Brady v.  Maryland, 373 U.S. 83 (1963), in failing to produce evidence of any losses  resulting from the Schweitzer checks; and (5) the evidence was not sufficient to  support his conviction for passing a counterfeit obligation in violation of § 472. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

II. BACKGROUND

2
Hanzlicek and his wife, Karen Hanzlicek (hereinafter "Mrs. Hanzlicek"),1 were charged by indictment with conspiracy, bank fraud,2 mail fraud, and passing  a counterfeit obligation of the United States.  The charges arose out of the  Hanzliceks' participation in two related anti-government groups: the Kansas  "common law court" and the Freeman movement headquartered in Montana.  As  part of a scheme engaged in and supported by both groups, the Hanzlicek's  mailed counterfeit checks totaling $1,240,000 to banks, bank subsidiaries, and  others.  The Hanzliceks acquired the fraudulent checks and learned the  methodology of the scheme from LeRoy M. Schweitzer, the leader of the  Montana Freemen.


3
Specifically, the Hanzliceks mailed or hand delivered the following  fraudulent checks to creditors in an attempt to satisfy their personal debts: $1,000,000 to the recorder of Jackson County, Kansas, for a notary public bond  for Hanzlicek3; $180,000 to FGB Realty  Advisors, Inc. (a wholly owned  subsidiary of First Nationwide Bank) to satisfy a $56,000 debt; $60,000 to Ag  America (FCB) to satisfy a debt of $35,619.  Because the checks were for  amounts much greater than the debts owed, the Hanzliceks requested refunds of  the remaining amounts.  The superseding indictment charged that the Hanzliceks,  with the help of unindicted co-conspirator Rockie Broaddus, a "de jure notary  public" and "sui juris" of the common law court,4 mailed a false and fraudulent  "Common Law Affidavit of protest" to some of the victims when the checks were  not honored.


4
Tommie Canady, a FBI special agent who investigated the criminal  activities of Schweitzer and the Montana Freemen, testified for the government. His testimony included information from an FBI investigation that began  monitoring Schweitzer seminars in December of 1995.  At the seminars,  Schweitzer discussed the use of fraudulent checks to avoid the payment of debts  and to obtain large refunds of "overpayments."  These "checks" contained the  caption "Certified Banker's Check" and/or "Comptroller Warrant" and bore the  number of a Norwest Bank account.  Persons attending a Freemen seminar  received these checks after attending the meeting, usually after paying Schweitzer  a donation.  In addition, seminar attendees were taught to file a lien against those  to whom the checks were presented in the event the checks were not honored. On July 21 and November 4, 1995, Mrs. Hanzlicek attended Freemen seminars in  Montana presented by Schweitzer.


5
The government also introduced and played taped conversations between  Mrs. Hanzlicek and Schweitzer.  These recordings were the result of government  wiretaps.  The conversations included discussion about the checks, liens, and  procedures Schweitzer wanted his classes to follow, the Freemen movement, and  the "common law court" movement in Kansas.

III.  ANALYSIS

6
A.  Variance Between Indictment and Proof at Trial


7
Hanzlicek argues that an impermissible variance exists between the  indictment, which alleged a single, overarching conspiracy, and the evidence  adduced at trial, which demonstrated multiple independent conspiracies.  To  obtain a conspiracy conviction, the government must prove that: (1) there was an  agreement to violate the law; (2) the defendants knew the essential objectives of  the conspiracy; (3) the defendants knowingly and voluntarily participated in the  conspiracy; and (4) interdependence existed among the coconspirators.  See  United States v. Ailsworth, 138 F.3d 843, 850 (10th Cir.), cert.  denied, 119 S. Ct.  221 (1998).  These elements may be proven by direct or circumstantial evidence. See United States v. Evans, 970 F.2d 663, 668 (10th Cir. 1992).


8
"A variance arises when the evidence adduced at trial establishes facts  different from those alleged in an indictment."  See United States v. Edwards, 69  F.3d 419, 432 (10th Cir. 1995).  Any such variance is reversible error only if it  affects the substantial rights of the accused.  Ailsworth, 138 F.3d at 848. "Accordingly, where a single conspiracy is charged in the indictment, and the  government proves only multiple conspiracies, a defendant who suffers  substantial prejudice must have his conviction reversed."  Edwards, 69 F.3d at  432 (citing Kotteakos v. United States, 328 U.S. 750, 773-74 (1946)).  A variance  is prejudicial when guilt is imputed to one defendant from another defendant's  conduct.  See Kotteakos, 328 U.S. at 775-77.


9
The issue of whether a single conspiracy existed is a question of fact for  the jury; this court reviews the jury's decision on the question in the light most  favorable to the government.  See Edwards, 69 F.3d at 432.  The inquiry focuses  on whether the necessary interdependence existed between the coconspirators. See id.  Interdependence exists when each alleged coconspirator's activities  "constituted essential and integral steps toward the realization of a common,  illicit goal."  Id. (quotation omitted).


10
During the trial, evidence was admitted regarding not only the conspiracy  as charged in the indictment, but additional conspiracies involving Schweitzer  and others.  Nevertheless, viewing the evidence in the light most favorable to the  government, there was sufficient evidence to prove a single conspiracy.  The  admissible evidence at trial demonstrates an ongoing course of conduct between  the Hanzliceks, Schweitzer, and others in order to achieve a common illicit  goal to profit from the fraudulent presentation of checks and the filing of liens. In addition, there was sufficient evidence, again viewed in the light most  favorable to the government, to establish the necessary interdependence in this  case.  The scheme depended on the Hanzliceks following the procedures  Schweitzer taught in his seminars.  Schweitzer suggested that Mrs. Hanzlicek  send him some of the excess money after the checks were cashed, and she  considered doing so.  The money returned to Schweitzer from other  coconspirators could also be used to further the scheme.  In addition, any  apparent success of others in cashing these checks assisted the promotion of the  scheme.  Moreover, it should be noted that the jury could infer that Hanzlicek  knowingly assisted Mrs. Hanzlicek in furthering the conspiracy regarding the  worthless instruments.

B.  Deliberate Ignorance Instruction

11
Hanzlicek contends the district court erred in tendering a deliberate  ignorance instruction to the jury.  We examine jury instructions as a whole to  evaluate their adequacy, and review the propriety of tendering an individual  instruction de novo.  See United States v. de Francisco-Lopez, 939 F.2d  1405,  1409 (10th Cir. 1991).  This court has held that the giving of a deliberate  ignorance instruction is appropriate only when the prosecution presents evidence  that the defendant purposely contrived to avoid learning all of the facts in order  to have a defense in the event of a subsequent prosecution.  Id  This court  recognizes that the use of a deliberate ignorance instruction "is rarely appropriate  . . . because it is a rare occasion when the prosecution can present evidence that  the defendant deliberately avoided knowledge."  United States v. Hilliard, 31  F.3d 1509, 1514 (10th Cir. 1994); see also de Francisco-Lopez, 939  F.2d at 1409. That, however, does not require direct evidence of conscious avoidance or  deprive the government of the benefits of inferences from circumstantial  evidence.  See de Francisco-Lopez, 939 F.2d at 1410.  Nor does it change the  appellate perspective that this court views the evidence in the light most  favorable to the government.  See id.


12
In light of these principles, the evidence was sufficient to support the  giving of the instruction in this case.  At trial, the prosecution elicited testimony  from Agent Canady and the Hanzliceks regarding the highly suspicious  circumstances surrounding the Schweitzer check scheme.  This circumstantial  evidence is probative of Hanzlicek's deliberate ignorance.  Id. at 1412 (noting  that in some cases "the clues of association with the crime charged [are] so  obvious that the clues, combined with suspicion, necessarily implicate[] the  defendant").  Moreover, the government elicited testimony that Hanzlicek was, in  fact, suspicious about the validity of the Schweitzer checks.  See United States v.  Lee, 54 F.3d 1534, 1538-39 (10th Cir. 1995) (In evaluating the propriety of a  deliberate ignorance instruction, "'[t]he evidence must establish that the  defendant had subjective knowledge of the criminal behavior.  Such knowledge  may not be evaluated under an objective, reasonable person test.'" (quoting de  Francisco-Lopez, 939 F.2d at 1409)).  In addition, the government adduced  testimony from the Hanzliceks indicating that despite several opportunities to do  so, Hanzlicek "purposely" declined to learn more about the Schweitzer checks or  the common law documents utilized in an attempt to intimidate recipients into  cashing the checks.5  In light of this  circumstantial and direct evidence, we  conclude that the prosecution adduced sufficient evidence to support the giving  of the deliberate ignorance instruction.


13
Hanzlicek argues that the testimony referenced above is irrelevant because  the testimony relates solely to his participation in and connection to common law  courts.  See Appellant Brief at 10 ("Mr. Hanzlicek was being tried for conspiracy  and for attempting to pass falsely made United States obligations, not for his  participation in or knowledge of common law court activities.").  We find this  argument unconvincing.  First, as noted above in discussing Hanzlicek's  challenge to his conspiracy conviction, the Freeman checks and common-law  court documents were all part of the same conspiracy charged in Count One of  the Superseding Indictment.  In fact, the great bulk of the intercepted telephone  conversations between Mrs. Hanzlicek and Schweitzer concerned the use of  common-law court documents to collect on the Freeman checks.6  In light of the  fact that the government adduced sufficient evidence to prove a unified  conspiracy, it would be improper to compartmentalize the common law courts  documents and conclude that Hanzlicek's actions with regard to those documents  is irrelevant to the question of his deliberate ignorance.  Second, Hanzlicek gives  an unduly narrow reading to the above testimony in concluding that it only  relates to common law courts documents.  Read in context, and in a light most  favorable to the government, the testimony could certainly be read to embrace  both the Freeman checks as well as the common-law documents considered  necessary to collect on the checks.


14
Even were this court to conclude that the evidence adduced at trial was not sufficient to support the giving of the deliberate ignorance instruction, the error  would be harmless for those reasons stated by the Eleventh Circuit in United  States v. Stone, 9 F.3d 934, 937-42 (11th Cir. 1993).  In Stone,  the court was  faced with a situation where the jury was instructed on alternate theories of  actual knowledge and deliberate ignorance; the deliberate ignorance instruction  given properly stated the law;7 there was  sufficient, but not overwhelming,  evidence of actual knowledge; and, finally, there was insufficient evidence to  support the giving of a deliberate ignorance instruction.  Id. at 937.  Under these  circumstances, the Stone court held that the giving of an unsupported deliberate  ignorance instruction was harmless error.


15
The Stone court concluded that such a result was dictated by the Supreme  Court's decisions in Griffin v. United States, 502 U.S. 46 (1991) and Sochor v.  Florida, 504 U.S. 527 (1992).  With respect to these cases, the Stone court  noted  as follows:


16
The Supreme Court's holding in [Griffin] substantially informs  and supports our decision in this case.  In Griffin the defendant was  charged with a single count of conspiracy to defraud the federal  government.  The conspiracy had the dual objects of hindering the  IRS and the Drug Enforcement Agency in their official duties.  At  trial, the Government failed to produce any evidence whatsoever to  connect Griffin to an effort to interfere with the Drug Enforcement  Agency.  Over Griffin's objection, the trial court instructed the jury  that Griffin could be convicted of conspiracy if she had participated  in either of the two objects of the conspiracy.  The jury returned a  general guilty verdict against Griffin and her two codefendants.  The  Supreme Court affirmed the conviction.  The Court found no  precedent to support Griffin's contention that a general verdict must  be set aside where "one of the possible bases of conviction was  neither unconstitutional . . . nor even illegal . . . but merely  unsupported by sufficient evidence."  Griffin, 502 U.S. at 56.  The  Court concluded that there is a common sense reason to distinguish  between a jury instruction which misstates the law and one which  presents a theory of conviction not supported by the evidence:


17
Jurors are not generally equipped to determine whether  a particular theory of conviction submitted to them is  contrary to law--whether, for example, the action in  question is protected by the Constitution, is time barred,  or fails to come within the statutory definition of the  crime.  When, therefore, jurors have been left the option  of relying upon a legally inadequate theory, there is no  reason to think that their own intelligence and expertise  will save them from that error.  Quite the opposite is  true, however, when they have been left the option of  relying upon a factually inadequate theory, since jurors  are well equipped to analyze the evidence.


18
Id. at 59 (emphasis in original) (citation omitted).


19
The Supreme Court reiterated that position in Sochor v.  Florida, 504 U.S. 527, 538 (1992).  In Sochor the trial court had  instructed a capital jury on four aggravating factors, one of which  was not supported by the evidence.  If the jury had relied on the  unsupported factor, its death sentence recommendation would have  violated the Eighth Amendment.  However, the Supreme Court  refused to presume jury error and noted that jurors are "indeed likely  to disregard an option simply unsupported by evidence."  Id. According to the Sochor Court, the lesson of Griffin is that due  process is not violated when "a trial court instruct[s] a jury on two  different legal theories, one supported by the evidence, the other  not."  Id.


20
Stone, 9 F.3d at 938-39.


21
Having reviewed Griffin and Sochor, this court agrees with the  Eleventh  Circuit that a district court does not commit reversible error where it submits a  properly-defined, although factually unsupported, legal theory to the jury along  with a properly supported basis of liability.  See Griffin, 502 U.S. 60 ("What we  have said today does not mean that a district court cannot, in its discretion, give  an instruction of the sort petitioner requested here, eliminating from the jury's  consideration an alternative basis of liability that does not have adequate  evidentiary support.  Indeed, if the evidence is insufficient to support an  alternative legal theory of liability, it would generally be preferable for the court  to give an instruction removing the theory from the jury's consideration.  The  refusal to do so, however, does not provide an independent basis for  reversing an otherwise valid conviction."  (emphasis added)).  Furthermore,  the analysis set forth in Stone is entirely consistent with Tenth Circuit precedent. See United States v. Scott, 37 F.3d 1564, 1578-79 (10th Cir. 1994)  (citing Stone for proposition that giving factually unsupported deliberate ignorance instruction  is harmless if evidence of actual knowledge is sufficient); United States v. Pace,  981 F.2d 1123, 1130 (10th Cir. 1993) (affirming, on the basis of Griffin,  conviction on indictment charging that defendant distributed methamphetamine or amphetamine, despite "total lack of evidence" concerning amphetamine); see  also Stone, 9 F.3d at 941 (asserting that rule announced therein is consistent with  Tenth Circuit precedent).  Accordingly, even assuming that the deliberate  ignorance instruction given in this case was not supported by sufficient evidence,  the giving of the instruction was harmless.


22
C.  Hearsay Testimony Regarding Losses Attributable to Schweitzer Checks


23
Hanzlicek claims the district court abused its discretion in admitting  hearsay evidence that banks paid out $1.8 million on Schweitzer checks similar to  those used by Hanzlicek.  This court upholds the district court's admission of  evidence unless the admission constituted an abuse of discretion.  See United  States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999).


24
During trial, the government elicited testimony from Agent Canady that  banks had paid out $1.8 million on Schweitzer's fraudulent checks.  Defense  counsel objected to the admission of this testimony on hearsay grounds and  because the government had never complied with a discovery order to produce  documentation of these alleged payments.  The district court, however, allowed  this testimony to show "the effectiveness of the scheme."  The district court also  reasoned that Mrs. Hanzlicek's counsel had "opened the door" on this issue by  questioning Agent Canady about several checks written by Schweitzer in an  effort to prove that the Hanzliceks thought the checks were valid because nothing  adverse had happened to Schweitzer.  During closing arguments, the government  repeatedly referred to the $1.8 million, arguing that this evidence indicates that  the checks must have looked "authentic."


25
Federal Rule of Evidence 801(c) defines hearsay as "a statement, other  than one made by the declarant while testifying at the trial or hearing, offered in  evidence to prove the truth of the matter asserted."  Hearsay is not admissible at  trial, unless otherwise provided by the Federal Rules of Evidence or other  statutory authority.  See Fed. R. Evid. 802.  The district court found this evidence  not to be hearsay because it was admitted to show "the effectiveness of the  scheme."  To prove the effectiveness of the check scheme, however, evidence  that $1.8 million in fraudulent checks were actually cashed was necessary.


26
This case provides a prime example of why the hearsay rule is a crucial and  necessary evidentiary safeguard to insure a criminal defendant a fair trial.  "The  hearsay rule seeks to eliminate the danger that evidence will lack reliability  because faults in the perception, memory, or narration of the declarant will not be  exposed."  5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal  Evidence § 802.02[3], at 802-9 (2d ed. 1999).  Here, the jury heard unreliable  testimony regarding $1.8 million in fraudulent checks being paid out.  While the  government may prove this point through the use of admissible evidence,8 Agent  Canady's hearsay testimony is simply not admissible.


27
Having determined that this evidence was erroneously admitted, this court  must now determine whether the error was harmless.  See Fed. R. Crim. P. 52(a). The harmless error inquiry in these circumstances focuses on whether the  erroneously admitted evidence had a substantial influence on the jury's verdict or  leaves this court in grave doubt about whether it did.  See United States v. Cass,  127 F.3d 1218, 1225 (10th Cir. 1997); see also Kotteakos v. United  States, 328  U.S. 750, 765 (1946).  This court reviews the record as a whole de novo to  evaluate whether the error is harmless, examining the context, timing and use of  the erroneously admitted evidence at trial and how it compares to properly  admitted evidence.  See United States v. Glass, 128 F.3d 1398, 1403  (10th Cir.  1997).


28
Hanzlicek argues that the effectiveness of the scheme was critical to the  government's case.  The bank fraud and mail fraud charges in this case both  require a showing of fraudulent intent.  See United States v. Cochran, 109 F.3d  660, 667 (10th Cir. 1997).  Neither charge, however, requires that the scheme to  defraud result in a monetary loss.  See United States v. Hollis, 971 F.2d 1441,  1451 n.4 (10th Cir. 1992) (holding that success of scheme not an element of mail  fraud); United States v. Young, 952 F.2d 1252, 1257 (10th Cir. 1991)  (holding  that monetary loss not required for bank fraud conviction).  The jury was so  instructed.  Accordingly, the government was not required to prove that the  alleged conspiracy resulted in monetary loss.9


29
While not unmindful of the effect that evidence of an actual loss could  have upon a jury, this court is required to view the record as a whole in the  context of arguments raised.  Although the evidence strengthened the  government's case concerning the existence of a scheme to defraud and the  resemblance of the instruments to genuine obligations, we conclude that the  admission of this evidence was harmless error.  This court cannot overlook that  Mrs. Hanzlicek introduced, over the government's objection and without  objection from Hanzlicek, evidence concerning nine Schweitzer checks totaling  over $35 million that had come to the attention of authorities.  Furthermore, Mrs.  Hanzlicek persisted in this inquiry at some length, including eliciting details  about how some of the checks aroused suspicion.  Mrs. Hanzlicek introduced this  information to establish that she believed the checks were valid and this belief  was supported by the government's inaction against Schweitzer.  Moreover, Mrs.  Hanzlicek testified as to her understanding that the checks had been accepted and  effective.  Although she apparently was attempting to show that she had no  fraudulent intent or knowledge, the evidence directly supports the existence and  effectiveness of the scheme.  Mrs. Hanzlicek's counsel repeatedly characterized  the items as "bogus checks" in his questioning, which also suggests that the  scheme was effective, not merely a ruse that no one would take seriously.  Under  these circumstances, admission of evidence concerning the $1.8 million allegedly  paid is harmless.


30
D.  Brady Violations Relating to Losses Attributable to Schweitzer  Checks


31
Hanzlicek also contends that he was prevented from developing effective  cross-examination of Agent Canady because the government failed to furnish a  summary list, as ordered by the district court, of victims who had received Mr.  Schweitzer's fraudulent checks and information regarding the cashing of those  checks.  The government did not turn over the list to defense counsel until after  the trial.  When asked during oral argument why the list was not turned over to  defense counsel as ordered, the Assistant United States Attorney ("AUSA")  responded, "It would have been better practice. . . .  I don't know why [the list  was not turned over]. . . .  It was a mistake and negligence on my part."  After the  trial, and before sentencing the defendants, the trial judge stated:  "[M]any of  these checks on this 1.8 million dollar list that the agent testified that there had  been losses on, at least it appears that there was no loss, there was in fact no loss  at all."  In addition, at oral argument, the AUSA admitted that there is no  evidence that the checks actually had been cashed.  In upholding Hanzlicek's  conviction, the district court found that the introduction of evidence of $1.8  million in losses was not material to the case.


32
It is certainly troubling that the government never produced the list of  Schweitzer checks resulting in the claimed $1.8 million paid.  Nevertheless, this  court cannot conclude that the government's failure to produce the list resulted in  a violation of Brady.  Hanzlicek argues that he made a specific request for such  information, and that the list of checks would have enabled him to impeach  Agent Canady.  To establish a Brady violation, Hanzlicek must demonstrate that  evidence was (1) suppressed by the prosecution, (2) favorable to him, and (3)  material, meaning that had the evidence been disclosed to the defense, a  reasonable probability exists that the result of the trial would have been different. See Moore v. Reynolds, 153 F.3d 1086, 1112 (10th Cir. 1998), cert. denied, 119 S.  Ct. 1266 (1999).  Materiality is gauged on the basis of the whole record,  considering the undisclosed evidence collectively.  See Kyles v. Whitley, 514 U.S.  419, 436 (1995).  A specific request for information may lower the threshold for  materiality.  See Smith v. Secretary of N.M. Dep't of Corrections, 50 F.3d 801,  826 (10th Cir. 1995).  Nevertheless, we agree with the district court that the  evidence at issue here is not material because it does not create a reasonable  probability that the outcome of the trial would have been different.  Stated  another way, "[t]he mere possibility that an item of undisclosed information  might have helped the defense, or might have affected the outcome of the trial,  does not establish 'materiality' in the constitutional sense."  United States v.  Agurs, 427 U.S. 97, 109-10 (1976).  In the context of what the government was  required to prove, the significance of whether banks actually cashed these checks  is of far less importance than suggested by Hanzlicek.


33
E.  Sufficiency of the Evidence Relating to the 18 U.S.C. § 472 Conviction


34
Hanzlicek argues that the evidence adduced at trial is insufficient to  support his conviction for attempting to pass a falsely made obligation of the  United States in violation of 18 U.S.C. § 472.  In particular, he claims that the  instruments in question were not falsely made obligations or securities of the  United States as required by § 472.  In challenging his conviction on  sufficiency-of-the-evidence grounds, Hanzlicek is "faced with a high hurdle: in reviewing the  sufficiency of the evidence to support a jury verdict, this court must review the  record de novo and ask only whether taking the evidence both direct and  circumstantial, together with the reasonable inferences to be drawn therefrom in  the light most favorable to the government, a reasonable jury could find the  defendant guilty beyond a reasonable doubt."  See United States v. Voss, 82 F.3d  1521, 1524-25 (10th Cir. 1996) (quotations omitted).


35
This court concludes there was sufficient evidence admitted at trial to  sustain Hanzlicek's conviction under § 472.  First, contrary to his contentions,  the "Certified Bankers Check" in this case clearly falls within the definition of  "obligation or other security of the United States" which includes "checks, or  drafts for money, drawn by or upon authorized officers of the United States."  18  U.S.C. § 8.  The instrument involved in the indictment was purportedly drawn on  the  "Treasurer united [sic] States of America" and "Redeemable at office of  Postmaster."  A reasonable jury could easily conclude that it attempted to imitate  a United States government obligation.


36
Hanzlicek also claims that the evidence is insufficient because the  instruments were not of such a quality to be calculated to deceive an honest and  sensible person of ordinary care, as required under § 472.  In so doing, he states  the standard for and derives support from cases involving uttering or possessing  counterfeit currency.  See United States v. Cantwell, 806 F.2d 1463, 1470 &  n.5  (10th Cir. 1986); United States v. Grismore, 546 F.2d 844, 849  (10th Cir. 1976); United States v. Drumright, 534 F.2d 1383, 1385-86 (10th Cir. 1976).  Hanzlicek,  however, was convicted of "attempt[ing] to pass, utter, and publish a falsely  made obligation or security of the United States, namely, a false and fraudulent  'Certified Bankers Check' 'Comptroller Warrant', number 1310, in the amount of  $180,000.00."  As this court discusses below, the terms "falsely made" and  "counterfeit" are not synonymous in these circumstances.  See United States v.  Parnell, 581 F.2d 1374, 1381 (10th Cir. 1978).


37
Hanzlicek argues the government must prove that an actual government  obligation was replicated to support a conviction under § 472.  An attempt to  pass a falsely made obligation does not, however, require similitude where the  obligation is most charitably described as a hybrid instrument given its non-standard form and  nomenclature.  Unlike a case involving possession or uttering  counterfeit currency where the instrument must bear a likeness to the  original,  here no original exists.  The government does not issue obligations of the form  devised by Schweitzer and utilized by the Hanzliceks.  It is sufficient that the  government prove the instrument is falsely made, one that purports to be what it  is not: an obligation of the United States, apparently in the form of a check.

IV.  CONCLUSION

38
For those reasons set forth above, Hanzlicek's convictions are hereby  AFFIRMED.



Notes:


1
  The Hanzliceks were tried jointly and were  both convicted on the same  counts.  Although Mrs. Hanzlicek also appealed her convictions, this court  recently dismissed her appeal under the fugitive disentitlement doctrine.  See  United States v. Hanzlicek, 187 (10th Cir. 1999).


2
  Although the jury convicted Hanzlicek on the  bank-fraud count, the  district court granted Hanzlicek's motion for dismissal of the bank-fraud  conviction because the government failed to prove that the FGB Reality  Advisors, Inc., the victim of the scheme, was a financial institution as required  under 18 U.S.C. § 1344(1).


3
 Such a bond need only be in the amount of  $7500.  See Kan. Stat. Ann. §  53-102.


4
 The common law court movement is  described in the indictment as "an  informal, unofficial organization, [that is] falsely and fraudulently styled a  'common law court,' located in Netawake, Kansas."  Mrs. Hanzlicek was  involved in setting up such a system in Kansas based on the procedures  Schweitzer taught her during his seminar.  Hanzlicek identified himself in signed  documents as a "justice of the peace, pro tempore" of this common law court.


5
 In particular, the United States relies on the  following testimony of  Hanzlicek:
Q     Mr. Hanzlicek, you just testified that you didn't agree with  everything that was written by the common law courts?
A     Correct.
Q     So there were some things that you read and understood?
A     No, that's the reason I didn't agree with them, because I  couldn't understand them.
Q     How can you disagree with something you don't understand?
A     Well, I guess I was too lazy to go look it up, there were words  there that I didn't understand.
. . . .
Q    You purposely avoided going into what was behind these  documents?
A     Purposely I had -- I didn't care because I didn't enjoy  researching all of this common law stuff that I didn't understand.
Q    So as long as you got the money for your loans, for your  piano, for your land, for your telephone bill, it didn't matter what  was in those documents?   Is that what you are saying?
. . . .
A    Yes.
Q    That your concern was with getting the money for the piano,  the telephone bill, for the land, and it wasn't concerned with how  you were doing it through these documents.
A    I wasn't the one that went to the seminars to be informed on  how everything was supposed to work.
Q    You could have read the documents before you signed them,  couldn't you have?
A    I could have read -- yes.
Q    But you chose not to?
A    I didn't have an interest to.
Q    So it was your choice based on your interest not to look into  the documents before you signed them.  Right?
A    Yes.
Q    Even though it was free money, you didn't want to see how  you were going to get the free money?
A    The man was wanting to help the farmer.
Q    Help the farmer by pianos, pay off $3,000.00 telephone bills?
. . . .
A     It was his decision to decide who he was going to help and a  piano wouldn't be any different than a pickup or a cow.


6
 The following excerpt from Hanzlicek's own  trial testimony demonstrates  the close connection between the common-law courts materials and the  Schweitzer checks.
Q.  During that particular period of time, and I'm talking  about the months between July and November of 1995, what were  you doing during that period of time?
A.  I was working eight to five, probably helping a son.
. . . .
Q.  What was you wife doing during that period of time"
A.  Most of the time she was   she stayed home and typed up  documents, papers, in from of the computer all of the time
Q.  All of the time?
A.  A big share of the day, yes.
Q.  Well, did you see the kinds of documents that she was  typing?
A.  I might have saw the papers.
Q.  Did you
A.  I didn't read them, no.  I'm not saying that there were  stacks, but there were documents or papers that she was always  working on.
Q.  And what were those papers in connection with?  Why was  she doing all of this typing?
A.  To get the rest of the checks ready to go.
. . . .
Q.  Was she typing documents in connection with the common  law court?
A.  Correct.  It was   a lot of it was involved with the common  law court.


7
 As Hanzlicek correctly recognizes in his  brief, the deliberate ignorance  instruction given in this case, properly stated the law and avoided the problems  identified by this court in earlier opinions that is, the instruction does not imply  that negligence or mistake is enough to support a conviction and does not shift  the burden to the defendant to prove his innocence.  See United States v. Sasser,  974 F.2d 1544, 1552 (10th Cir. 1992); United States v. Barbee, 968  F.2d 1026,  1033-34 (10th Cir. 1992).  The instruction given here provided as follows:
The government may prove that a defendant acted  "knowingly" by proving, beyond a reasonable doubt, that the  defendant deliberately closed his or her eyes to what would  otherwise have been obvious to him or her.  No one can avoid  responsibility for a crime by deliberately ignoring what is obvious. A finding beyond reasonable doubt of an intent of the defendant to  avoid knowledge or enlightenment would permit the jury to infer  knowledge.  Stated another way, a defendant's knowledge of a  particular fact may be inferred from a deliberate or intentional  ignorance or deliberate or intentional blindness to the existence of  that fact.
It is, of course, entirely up to you as to whether you find any  deliberate ignorance or deliberate closing of the eyes and the  inferences to be drawn from any such evidence.
You may not infer that a defendant had knowledge, however,  from proof of a mistake, negligence, carelessness, or a belief in an  inaccurate proposition.


8
 Cf. United States v. Kelley, 929  F.2d 582, 585 (10th Cir. 1991) (allowing,  but not requiring, evidence of actual pecuniary loss).


9
 The effectiveness of the scheme would tend  to show that the falsely made  obligation imitated or resembled a genuine obligation of the United States.  This  is how the government characterized the $1.8 million loss evidence at trial,  while, at the same time, reminding the jury that it was not required to prove any  loss at all.  Nevertheless, as set out below, this court rejects the contention that  the government must prove that an actual government obligation was replicated  to support a conviction under 18 U.S.C. § 472.  See infra Section III. E.



39
KELLY, Circuit Judge, concurring.


40
I concur in the court's opinion, except the portion of § III(B) that upholds  use of a deliberate ignorance instruction.  Even viewing the evidence in the light  most favorable to the government, see United States v. de Francisco-Lopez,  939  F.2d 1405, 1409 (10th Cir. 1991), the evidence in this case fell short of proving  that the defendant purposely contrived to avoid learning the truth.  See United  States v. Hilliard, 31 F.3d 1509, 1514 (10th Cir. 1994).  Though the prosecution  attempted to elicit such evidence, the responses it received did not suffice.


41
For a deliberate ignorance instruction to be appropriate, the evidence must  show that the defendant subjectively knew that the activity was criminal, not that  a "reasonable person" would have known.  See de Francisco-Lopez, 939 F.3d at  1409.  It is not enough that the defendant should have known about the criminal  venture, recklessly disregarded the truth, or was negligent in failing to inquire. See id. at 1410-11.


42
In my view, none of the evidence in this case establishes a direct or  circumstantial inference that Mr. Hanzlicek deliberately acted to avoid actual  knowledge of the illegality of the checks he signed or the collection procedures  employed.  Mr. Hanzlicek testified that he discussed the checks with his wife and  expressed some skepticism to her, but she reassured him, explaining that the  checks helped others pay off bills and Mr. Schweitzer wanted to help farmers in  trouble.  He stated that he was not interested in reading the documents his wife  gave him to sign, and that he customarily signed documents he did not read or  fully understand because his wife asked him to and she had not steered him  wrong before.  Such conduct does not rise to the level of intentionally failing to  learn facts that would reveal that Mr. Schweitzer's checks or collection scheme  were fraudulent.  Mr. Hanzlicek could be characterized as negligent or reckless in  his actions.  However, this does not support a deliberate ignorance instruction. See id.  In addition, Mr. Hanzlicek's testimony goes to actual knowledge of  whether the checks and other documents were illegal, and this evidence cannot be  used to prove deliberate ignorance of their illegality.  See id. at 1410.


43
The government relies heavily upon the following testimony of Mr.  Hanzlicek in support of the deliberate ignorance instruction:


44
Q: You purposely avoided going into what was behind these  documents?


45
A: Purposely I had I didn't care because I didn't enjoy researching  all of this common law stuff that I didn't understand.


46
Q: So long as you got the money for your loans, for your piano, for  your land, for your telephone bill, it didn't matter what was in those  documents?  Is that what you're saying?


47
. . . .


48
A: Yes.


49
Ct. Op. at 1233-34 n.5.  When Mr. Hanzlicek gave these answers, he was being  questioned about "everything that was written by the common law courts," not  about the fraudulent checks or common law court documents specifically used to  collect on the fraudulent checks.  It is a stretch to say that Mr. Hanzlicek's failure  to read and understand every document produced or relied upon by the common  law court movement, including the Magna Carta and the Montana Constitution,  provides evidence of deliberate ignorance.  Surely not every unidentified  document connected to the common law court is inculpatory, even given a  conspiracy.  Under this circuit's precedent, the answers to the prosecutor's  questions hardly show that Mr. Hanzlicek purposely contrived to avoid learning  the truth about the checks or collection documents in order to have a defense in  the event of prosecution.


50
To be sure, the prosecution tried to elicit testimony from Mr. Hanzlicek  that he deliberately avoided inquiry into the illegality of the documents he  signed, but Mr. Hanzlicek's response merely indicates that he did not carefully  scrutinize all of the common law court documents because he was not interested  in these documents and did not understand them.  Disinterest and lack of  understanding on a defendant's part do not become deliberate ignorance merely  because the scheme would benefit him, even when the benefits may be substantial.  Taken in context and in the light most favorable to the government,  the testimony simply does not support deliberate ignorance with respect to the  checks and the collection documents.


51
Assuming error in the tendering of the deliberate ignorance instruction, the  next inquiry is harmless error.  According to our precedent, this determination  should be made by examining the strength of the evidence against Mr. Hanzlicek,  the wording of the deliberate ignorance instruction, and whether the other  instructions negate any adverse effects of the improper instruction.  SeeHilliard,  31 F.3d at 1516; United States v. Sasser, 974 F.2d 1544, 1552 (10th Cir. 1992); United States v. Barbee, 968 F.2d 1026, 1033 (10th Cir. 1992).  We are also  bound by the decision in United States v. Scott, 37 F.3d 1564, 1578-79 (10th Cir.  1994), which applied the rationale of United States v. Stone, 9 F.3d 934, 941  (11th Cir. 1993).  The Scott panel cited that portion of Stone explaining how  Tenth Circuit cases were consistent with Stone.  See Scott, 37 F.3d at  1578.


52
Here, the deliberate ignorance instruction has a proper subjective focus,  and the instructions as a whole contain language regarding knowing and  intentional conduct.  Looking at the strength of the evidence against Mr.  Hanzlicek in the light most favorable to the government, a rational jury could  convict Mr. Hanzlicek of the charged offenses.  Mr. Hanzlicek endorsed the  checks, and certainly would have benefitted had the scheme been successful. Regarding actual knowledge, Mr. Hanzlicek testified to his awareness of a 1993  "common law lien" (on which his signature appeared) that was an attempt to  avoid a debt.  See XVII R. at 521-24.  Where evidence of actual knowledge is  lacking, it is reversible error to give a deliberate ignorance instruction.  SeeUnited States v. Ebert, 178 F.3d 1287, 1999 WL 261590, *31-33 (4th Cir.1999)  (unpublished) (applying Stone).  That is not the case here; hence, any error in  giving the deliberate ignorance was harmless.  See United States v. Adeniji, 31  F.3d 58, 62-63 (2d Cir. 1994) (considering evidence of actual knowledge in  applying Stone).  Of course, even with the Stone harmless error analysis, the  deliberate ignorance instruction should be used cautiously.  See United States v.  Mari, 47 F.3d 782, 786 (6th Cir. 1995) ("We do, however, admonish the district  courts against giving the deliberate ignorance instruction indiscriminately.").

