                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0619n.06

                                           No. 09-3624                                   FILED
                                                                                     Sep 17, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
STEPHEN J. PULLEY,                                       )    THE NORTHERN DISTRICT OF
                                                         )    OHIO
       Defendant-Appellant.                              )
                                                         )
                                                         )


       Before: MERRITT, ROGERS and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. In 2001, Stephen Pulley applied for a $100,000 real-estate

loan from the First National Bank of Pandora, Ohio. In his application, Pulley told the bank that he

worked as an “administrative assistant/closer” for Lawyers Title Company and that he earned $3,000

per month. He also signed a release authorizing his employer to complete the bank’s employment-

verification form. Pulley’s supervisor, Tina Crish, certified that he earned $13.50 per hour, worked

50 hours per week on average, and was paid time-and-a-half for his overtime. That certification was

false: Pulley’s wage never exceeded $8.50 per hour. Based on Pulley’s application and Crish’s

certification, however, the bank gave Pulley the loan and took a mortgage on the property he

purchased. When Pulley later defaulted on his payments, the bank foreclosed and sustained a

$52,097 loss.
No. 09-3624
United States v. Pulley

       The government indicted Pulley for bank fraud, in violation of 18 U.S.C. § 1344. A federal

jury found him guilty following a short trial. He thereafter filed motions for acquittal and for a new

trial, which the district court denied. The court then sentenced him to one day in prison, followed

by a five-year term of supervised release, and ordered him to pay restitution. This appeal followed.

       Pulley argues that the district court erroneously instructed the jury regarding deliberate

ignorance. He first contends that the evidence did not justify giving the instruction at all. That

contention, however, gives us no basis to reverse the court’s decision to give the instruction. See

United States v. Beaty, 245 F.3d 617, 621 (6th Cir. 2001) (explaining that a deliberate-ignorance

instruction that accurately states the law, but is unsupported by the evidence, is “at most, harmless

error”). Moreover, the evidence here did support the instruction. Crish testified that Pulley was

present when one of the title company’s co-owners, Bob Honigford, told her what to write on the

form. The jury easily could have concluded that, if Pulley truly did not know what Crish actually

wrote, it was only because he deliberately avoided finding out.

       Pulley also contends that the instruction’s wording was flawed. The instruction largely

mirrored Sixth Circuit Pattern Jury Instruction § 2.09. It differed in one significant respect: The

pattern instruction explains that deliberate ignorance allows the jury to “find that [the defendant]

knew” a particular fact, while the court’s instruction allowed the jury to “find that the defendant

acted willfully.” (Emphasis added.) “Knowingly” (or “knew”) and “willfully” describe different

mental states, and the court’s instruction improperly conflated the two.

       Nevertheless, that error does not justify reversal unless the “‘instructions, viewed as a whole,

were confusing, misleading, or prejudicial.’” See Beaty, 245 F.3d at 621 (quoting United States v.

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No. 09-3624
United States v. Pulley

Harrod, 168 F.3d 887, 892 (6th Cir. 1999)). For several reasons, we think they were not. By the

time the court gave this instruction, it had already given detailed, accurate instructions on both intent

and knowledge. Shortly thereafter, the court further distinguished the two concepts, explaining that

“[p]roof that the defendant may have known about the crime” was not enough to support a guilty

verdict on an aiding-and-abetting theory; rather, the defendant must have had “the intent that the

crime be committed.”        The court then introduced the deliberate-ignorance instruction as

“explain[ing] something about a defendant’s knowledge.” And the instruction itself used the phrases

“ignoring,” “ignored,” and “disregard”—phrases that obviously go to knowledge rather than intent.

Finally, the court never equated “willfully” with “intentionally” or, for that matter, used the word

“willfully” at any other time during the trial. On the whole, then, the jury instructions were not

misleading and do not warrant reversal.

        Pulley next challenges the sufficiency of the government’s evidence. On appeal, “the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Pulley

argues that the government failed to produce evidence that he did not act in good faith.

        To be precise, however, what the government needed to produce was evidence that Pulley

acted “with the intent to defraud.” See United States v. Everett, 270 F.3d 989, 989 (6th Cir. 2001);

see also United States v. McGuire, 744 F.2d 1197, 1201-02 (6th Cir. 1984) (explaining that a good-

faith instruction simply “direct[s] the jury’s attention” to the defendant’s theory of the case) (internal

quotation marks, citation, and emphasis omitted). Pulley’s own testimony supplied such evidence

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No. 09-3624
United States v. Pulley

here. He admitted that, in his loan application, he intentionally represented his current income as

$3,000 per month when it actually was less than $1,800 per month. He said the difference was

income he expected to earn from a budding home-inspection business. But he acknowledged that

he never disclosed that expectation, or that he had yet to earn any money in the business, or even the

business’s very existence. A rational juror could conclude, based on this evidence, that Pulley meant

to deceive the bank about either the amount of his income or its source. Moreover, Crish testified

that Pulley knew the employment-verification form was inaccurate but made no effort to correct the

form or notify the bank. That testimony also supports an inference of fraudulent intent. So this

claim fails.

        Finally, Pulley argues that his trial counsel’s failure to present a particular witness at trial

deprived him of his constitutional right to the effective assistance of counsel. We typically do not

review ineffective-assistance claims on direct appeal. United States v. Lopez-Medina, 461 F.3d 724,

737 (6th Cir. 2006). Moreover, Pulley completely failed to develop this argument in his opening

brief, devoting only two conclusory sentences to the allegedly defective representation. See United

States v. Johnson, 430 F.3d 383, 397 (6th Cir. 2005) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived”) (internal quotation

marks and citation omitted). We therefore decline to review the argument here.

        The district court’s judgment is affirmed.




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