United States of America v. Henry N. Asomani

United States Court of Appeals
For the Eighth Circuit
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No. 20-2842
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United States of America
Plaintiff - Appellee
v.
Henry N. Asomani
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 15, 2021
Filed: August 4, 2021
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Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
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GRUENDER, Circuit Judge.
A federal grand jury indicted Henry N. Asomani on one count of conspiracy
to commit wire fraud, two counts of wire fraud, one count of conspiracy to launder
money, and two counts of money laundering. See 18 U.S.C. §§ 1343, 1349, 1956(h),
1957. The indictment also sought forfeiture of property Asomani obtained as a result
of the wire fraud. See 18 U.S.C. § 981(a)(1)(C). At trial, Asomani proposed a jury
instruction outlining a good-faith defense to the crime of wire fraud, but the district

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court1 declined to include it among the final jury instructions. The jury convicted
Asomani of all six counts, and the district court sentenced him to 120 months’
imprisonment. The Government sought an order of forfeiture in the amount of
$381,339 under § 981(a)(1)(C), which the district court granted, even though during
trial a Government witness had testified that she was unsure how Asomani spent
$91,586 of that amount. Asomani appeals, claiming that the district court
erroneously denied his good-faith instruction and ordered that he forfeit the $91,586
without any proof that it was used for his personal benefit.2 We affirm.
First, we address Asomani’s argument that the district court erred by failing
to give his good-faith-defense instruction. Before reaching the merits, we resolve a
dispute between the parties about the correct standard of review.
Ordinarily, “[w]e review a district court’s formulation of jury instructions for
an abuse of discretion, but if the court’s refusal of a proffered instruction
simultaneously denies a legal defense, the correct standard of review is de novo.”
United States v. Glinn, 863 F.3d 985, 988 (8th Cir. 2017) (internal quotation marks
omitted). Asomani claims that he is entitled to a de novo standard of review because
good faith is a defense to fraud and the district court’s refusal to submit his proffered
instruction denied him that legal defense. The Government asserts that Asomani is
entitled only to abuse-of-discretion review because the district court’s rejection of
Asomani’s proffered instruction did not deny him a good-faith defense. We agree
with the Government.
The jury instructions stated that, for the jury to find Asomani guilty of wire
fraud, it had to find that he “voluntarily and intentionally devised or participated in
a scheme to obtain money or property by means of material false representations or
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
2 Originally, Asomani also appealed the district court’s restitution award, but
he later withdrew this argument. Thus, we do not review it.

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promises.” The district court’s refusal of Asomani’s good-faith instruction did not
deprive him of the good-faith defense because he was still able to argue that, because
he acted in good faith, the Government did not prove the intent element of the
offense. See United States v. King, 898 F.3d 797, 807-08 (8th Cir. 2018) (reviewing
for an abuse of discretion a district court’s denial of a good-faith jury instruction
when “the instructions as a whole described the specific intent necessary to commit
the crime” and therefore “cover[ed] the same ground [as] the good faith
instruction”).
This case is distinguishable from Asomani’s cited case, United States v.
Young, in which we reviewed de novo a district court’s denial of a defendant’s
proffered instructions explaining the affirmative defenses of entrapment and
abandonment. See 613 F.3d 735, 743-44 (8th Cir. 2010). Because the defenses at
issue in Young were affirmative defenses, the defense instructions there were aimed
at something other than negating an element of the offense. See “Affirmative
Defense,” Black’s Law Dictionary (11th ed. 2019) (defining “affirmative defense”
as “[a] defendant’s assertion of facts and arguments that, if true, will defeat the . . .
prosecution’s claim, even if all the allegations in the complaint are true”). Thus, we
review the district court’s refusal to give Asomani’s proffered instruction for an
abuse of discretion. See King, 898 F.3d at 807-08 (reviewing a rejection of a
defendant’s good-faith-defense instruction for an abuse of discretion); United States
v. Anderson, 533 F.3d 623, 631-32 (8th Cir. 2008) (same); United States v. Brown,
478 F.3d 926, 927-28 (8th Cir. 2007) (same).
Proceeding to the merits of this argument, we conclude that the district court
did not abuse its discretion by refusing to give Asomani’s good-faith instruction.
Generally, “[a] defendant is entitled to a specific jury instruction that conveys the
substance of his request if his request is timely, . . . is supported by the evidence in
the case, and is a correct statement of the law.” King, 898 F.3d at 807. But a district
court does not abuse its discretion in refusing a defendant’s proposed instruction “if
the instructions as a whole, by adequately setting forth the law, afford counsel an
opportunity to argue the defense theory and reasonably ensure that the jury

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appropriately considers it.” United States v. Gilmore, 968 F.3d 883, 886 (8th Cir.
2020).
Here, even assuming that Asomani’s instruction was timely requested,
supported by the evidence, and a correct statement of the law, the district court did
not abuse its discretion by omitting it from the jury instructions because the
instructions as a whole adequately submitted the issues to the jury by properly
instructing the jury on the intent element of wire fraud. See Brown, 478 F.3d at 928
(holding that the district court did not abuse its discretion when it denied the
defendants a specific good-faith jury instruction because the instructions given
“amply described the specific intent necessary for [the defendants] to be convicted
of conspiracy to commit wire fraud”); United States v. Sanders, 834 F.2d 717, 719
(8th Cir. 1987) (same). “The essence of a good-faith defense is that one who acts
with honest intentions cannot be convicted of a crime requiring fraudulent intent.”
Brown, 478 F.3d at 928. “Based on the instructions given in this case and the
resulting jury verdict, the jury necessarily found that [Asomani] did not act with
honest intentions in [his] transactions . . . .” Id. Thus, the district court did not abuse
its discretion in refusing Asomani’s good-faith instruction.
Asomani claims that we must come to the opposite conclusion because Brown
and Sanders conflict with our prior decision in United States v. Casperson, 773 F.2d
216 (8th Cir. 1985), and we should follow Casperson. See Degnan v. Burwell, 765
F.3d 805, 809 n.6 (8th Cir. 2014) (explaining that, “when faced with conflicting
panel opinions, the earliest opinion must be followed as it should have controlled the
subsequent panels that created the conflict” (quoting Mader v. United States, 654
F.3d 794, 800 (8th Cir. 2011) (en banc))). We disagree with Asomani that
Casperson conflicts with Brown and Sanders. Casperson itself noted that it was
“well-established that defendants are not entitled to a particularly worded instruction
when the instructions actually given by the trial court adequately and correctly cover
the substance of the requested instruction.” 773 F.2d at 223. As the Brown panel
explained, Casperson simply “found that the trial court’s specific intent instruction
was not sufficient to cover the substance of the defendants’ good-faith defense.”

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Brown, 478 F.3d at 928. Casperson thus does not compel us to hold that a district
court abuses its discretion by refusing a proffered good-faith instruction even if, as
here, “the instructions given adequately covered the same ground that any good-faith
instruction would have covered.” Id.
Even if Brown and Sanders conflicted with our earlier-in-time decision in
Casperson, Asomani’s argument would fail because the principle upon which Brown
and Sanders relied predates Casperson. For instance, in United States v. Nance, we
affirmed the district court’s rejection of the defendants’ good-faith instruction
because the jury instructions contained a mens rea requirement that made “clear that
good faith would be an absolute defense to the crime.” 502 F.2d 615, 619-20 (8th
Cir. 1974).
Asomani also argues that the Supreme Court’s decision in United States v.
Mathews requires a district court to give a good-faith defense instruction even if a
mens rea instruction fairly covers the substance of the good-faith defense. See 485
U.S. 58 (1988). Mathews states that, “[a]s a general proposition a defendant is
entitled to an instruction as to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor.” Id. at 63. But we have held that
Mathews does not require that “the instruction . . . be the defendant’s preferred
formulation” and that “there is no error if the instructions as a whole, by adequately
setting forth the law, afford counsel an opportunity to argue the defense theory and
reasonably ensure that the jury appropriately considers it.” Gilmore, 968 F.3d at
886. That is, where, as here, the defendant’s proposed instruction “reiterate[s]
information . . . already communicated adequately in the other instructions,” the
district court does not abuse its discretion in rejecting it. Id. at 886-87.3
3 Asomani also argues that because there is an Eighth Circuit Model Jury
Instruction for the good-faith defense, it must be the case that a good-faith instruction
is required where, as here, the evidence supports it, it is timely requested, and it is a
correct statement of the law. We disagree. “The model jury instructions are not
promulgated by this court. Unless mandated by this court in a decision, they . . . are

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Next, Asomani argues that the district court erred by including $91,586 of
“miscellaneous” expenditures from Asomani’s bank account in its forfeiture order
because the Government admitted that it did not know whether the expenditures
were used for Asomani’s “personal benefit.” We “review the district court’s factual
findings for clear error but apply a de novo standard of review to . . . whether or not
those facts render [an asset] subject to forfeiture.” United States v. Peithman, 917
F.3d 635, 651 (8th Cir. 2019). Before the district court, “[t]he government bears the
burden of proving by a preponderance of the evidence the amount of the proceeds”
subject to forfeiture. Id.
Under § 981(a)(1)(C), which provided the basis for the district court’s
forfeiture order, “[a]ny property, real or personal, which constitutes or is derived
from proceeds traceable to a violation of [§ 1343] of this title . . . or a conspiracy to
commit such offense” is subject to forfeiture. See §§ 981(a)(1)(C), 1956(c)(7)(A),
1961(1). As relevant here, “proceeds” is defined as “property of any kind obtained
directly or indirectly, as the result of the commission of the offense giving rise to
forfeiture, and any property traceable thereto, and is not limited to the net gain or
profit realized from the offense.” § 981(a)(2)(A).
Asomani claims that the Supreme Court’s holding in Honeycutt v. United
States limits forfeiture to “property the defendant himself obtained,” and he argues
that he did not “obtain” the $91,586 because the Government’s witness was unsure
whether that amount was used for Asomani’s “personal benefit.” See 581 U.S. ---,
137 S. Ct. 1626 (2017). We initially note that “the reasoning of Honeycutt is not
applicable to forfeitures under 18 U.S.C. § 981(a)(1)(C).” Peithman, 917 F.3d at
652. But in any event, Asomani’s argument overreads Honeycutt. In Honeycutt, the
Court considered whether, under a different forfeiture statute, a defendant could be
held jointly and severally liable for property that his co-conspirator derived from the
crime but that the defendant himself did not acquire. Id. at 1630-33 (discussing 21
not binding on the district courts.” United States v. Owens, 966 F.3d 700, 705 (8th
Cir. 2020) (internal quotation marks omitted).

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U.S.C. § 853(a)(1)). Section 853(a)(1) mandates forfeiture of “any property
constituting, or derived from, any proceeds the person obtained, directly or
indirectly, as the result of” certain crimes. The Court reasoned that, “[a]t the time
Congress enacted § 853(a)(1), the verb ‘obtain’ was defined as ‘to come into
possession of’ or to ‘get or acquire.’” Honeycutt, 137 S. Ct. at 1632. Thus, the Court
concluded that a defendant could not be held jointly and severally liable for property
obtained by a coconspirator that the defendant had never used or acquired. Id. at
1632-33.
This case is not like Honeycutt, in which the defendant never acquired the
forfeited property. See id. at 1635. Here, Asomani acquired the $91,586 because it
was in his bank account. Whether Asomani went on to use this money for his
“personal benefit” is irrelevant, as this is not required by Honeycutt or by
§ 981(a)(1)(C), (a)(2)(A). Thus, the district court did not err in ordering Asomani
to forfeit the $91,586.
For the foregoing reasons, we affirm.4
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4 The Government filed a motion requesting that we use victims’ initials in this
opinion. As this opinion does not name any of the victims, we deny the motion as
moot.

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