USA v. Alexander Alli

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11945
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER ALLI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:23-cr-00024-CEH-SPF-1
____________________
Before WILLIAM PRYOR , Chief Judge, and ABUDU and TJOFLAT, Cir-
cuit Judges.
WILLIAM PRYOR , Chief Judge:
This appeal requires us to decide questions about eviden-
tiary rulings and jury instructions and whether sufficient evidence
supports a conviction of conspiracy to commit wire fraud. In 2020,
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2 Opinion of the Court 24-11945
Congress authorized the Small Business Administration to loan
emergency funds to small businesses to mitigate losses from the
COVID-19 pandemic. Almar Sales and Services, Inc., fraudulently
obtained an $80,500 loan through the program. A jury convicted
its principal owner, Alexander Alli, of conspiracy to commit wire
fraud, 18 U.S.C. § 1349, and two counts of wire fraud, id. §§ 2, 1343.
Alli argues that the district court erred by declining to apply the
rule of completeness, F ED. R. EVID. 106, to admit additional ex-
cerpts of his interviews with an agent, that there is insufficient ev-
idence to support his conspiracy conviction, and that the district
court erred by instructing the jury on Pinkerton liability and delib-
erate ignorance. We affirm.
I. BACKGROUND
During the COVID-19 pandemic, Congress authorized the
Small Business Administration to provide low-interest loans to
small businesses under the Economic Injury and Disaster Loan pro-
gram. See Coronavirus Aid, Relief, and Economic Security Act
(CARES Act), Pub L. No. 116-136, § 1110, 134 Stat. 281, 306 (2020).
The purpose of the loans was to mitigate pandemic-related losses,
and businesses with 500 or fewer employees that were in operation
on January 31, 2020, were eligible. Id. § 1110(a)(2)(A), (c)(2). The
amount a business could borrow depended on its working capital
needs, calculated as its gross revenues minus its cost of goods sold
from the previous 12 months. United States citizens and green card
holders were eligible for loans, although the Administration pro-
cessed applications from citizens faster. Congress also authorized
the Administration to provide grants of up to $10,000 per business
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24-11945 Opinion of the Court 3
while their loan applications were pending. Pub L. No. 116-136,
§ 1110(e)(3). A business could receive a grant after self-certifying
under penalty of perjury that it was eligible for a loan. Id.
§ 1110(e)(1)–(2).
To implement the loan and grant programs, the Administra-
tion created an online application, which required the names and
contact information for the business and its owners, its gross reve-
nues and cost of goods sold for the past 12 months, its number of
employees, and its date of establishment. Applicants were not re-
quired to provide any records to substantiate the information they
submitted, but they were required to certify that the information
was true.
In April 2020, Almar Sales and Services, Inc., submitted a
loan application. The application stated that Almar was established
in 2018, engaged in internet sales, and had two employees. It pro-
vided a primary business address in Minnesota. It listed Alexander
Alli as an 80 percent owner and Maria Sostre as a 20 percent owner,
and it stated that both owners were United States citizens. And it
stated that Almar had earned $250,000 in gross revenues and ac-
crued $85,000 in cost of goods sold for the previous 12 months. The
application did not contain the name of the submitter, although it
provided Alli’s phone number as the contact number.
The Administration approved Almar for a $2,000 grant and
later for an $80,500 loan. On July 23, 2020, Alli electronically signed
a closing agreement, promissory note, and security agreement for
the loan. He agreed to use loaned funds “solely as working capital
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4 Opinion of the Court 24-11945
to alleviate economic injury caused by” the pandemic. And four
days later, the Administration disbursed the $80,500 loan, less a
$100 processing fee, to Alli’s personal bank account. Shortly there-
after, Alli wrote two checks for $20,000 each to a Benjamin Marke,
both with a memo line of “Truck.” Alli made only one payment on
the loan for accrued interest, and the Administration later “charged
off” the loan as uncollectable.
Many of the representations on Almar’s loan application
were false. Although the application listed a Minnesota address as
its primary business location, Almar was registered in Florida and
did not do business in Minnesota. Almar appeared to be inactive
because its business bank account had been closed in 2019 with a
negative balance and no one had accessed the business’s email ac-
count after January 26, 2020. Although Almar claimed $250,000 in
gross revenues on the application, it had not filed a business tax re-
turn for 2018, 2019, or 2020, and Alli’s and Sostre’s personal tax re-
turns for 2019 claimed losses from the business. And Alli was not a
United States citizen.
In 2022, Homeland Security Investigations Special Agent
James Pierre interviewed Alli twice about the loan. Alli told Special
Agent Pierre that Sostre was his girlfriend and accountant. Accord-
ing to Alli, he told Sostre that he wanted to start a trucking busi-
ness, and she suggested he fund it through a COVID-19-relief loan.
Alli said he agreed and directed Sostre to apply for a loan. He told
Special Agent Pierre that he used the loan proceeds to purchase
two semi-trucks from a dealership in Daytona, Florida called 206
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24-11945 Opinion of the Court 5
Trucking. He explained that he had leased the trucks to a company
called Brave Freight, but that he was losing money on the venture
and contemplating selling the trucks to repay the loan.
Alli also admitted that the loan application contained false
representations. He told Special Agent Pierre that Almar was in the
business of selling cars, even though the loan application stated
that it conducted internet sales. And he stated that Almar’s gross
revenues for the 12 months before the loan were around $70,000,
well below the $250,000 claimed on the application.
Alli denied knowledge of these misrepresentations. Accord-
ing to Alli, he told Sostre he wanted to borrow about $80,000, and
she completed the application and decided what information to
provide. Alli also denied reviewing the loan documents before sign-
ing them.
A grand jury returned a superseding indictment charging
Alli with one count of conspiracy to commit wire fraud, see 18
U.S.C. § 1349, and two counts of wire fraud, see id. §§ 2, 1343. The
indictment alleged a conspiracy to submit a “false and fraudulent
application and loan agreement,” and substantive wire fraud based
on the same conduct.
Before trial, the prosecution moved to exclude portions of
Alli’s interviews with Special Agent Pierre. It explained that it
planned to introduce excerpts of the interviews through Special
Agent Pierre’s trial testimony, but that it was “concerned” that Alli
would attempt to introduce “self-serving hearsay and exculpatory
statements” from the interviews during his cross-examination of
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6 Opinion of the Court 24-11945
Special Agent Pierre. It argued that under United States v. Willis, 759
F.2d 1486, 1501 (11th Cir. 1985), and United States v. Cunningham,
194 F.3d 1186, 1199 (11th Cir. 1999), a defendant cannot introduce
exculpatory hearsay through cross-examination of another witness
but must instead subject himself to cross examination. Alli re-
sponded that “the contents of the entire interview[s]” were admis-
sible under the rule of completeness. See FED. R. EVID. 106.
At a hearing on the motion, Alli maintained that the prose-
cution was attempting to “cherrypick out sections [of the inter-
views] which [were] favorable to the Government’s case and ex-
clude everything else,” and that under Rule 106, “the totality of that
interview should be allowed to be played because it puts in context
all of the things that [Alli] is saying and his explanation to many of
the questions that are given to him.” The district court responded
that, as a general rule, the prosecution may “offer the Defendant’s
statements under the rules of evidence,” see FED. R. EVID. 801(d)(2),
but the “Defendant cannot, however, offer his out-of-court state-
ments to prove the truth of the matter asserted unless some excep-
tion to the hearsay rule applies.” The district court explained that
although it “underst[ood] the rule of completeness under Rule 106,
[it was] not sure that it govern[ed] the circumstances here.” But be-
cause the prosecution’s motion did not specify which statements it
sought to exclude, the district court postponed ruling on the mo-
tion. It ordered the parties to file annotated copies of the interview
transcripts with the lines each side sought to introduce highlighted.
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24-11945 Opinion of the Court 7
A week later, the parties filed the annotated transcripts. Alli
narrowed his request, no longer seeking admission of the entire
interview but instead only certain highlighted portions. After re-
viewing the transcripts, the district court concluded that Alli’s re-
quested inclusions were inadmissible hearsay. But the district court
identified some statements the prosecution sought to introduce
that “required some clarification or explanation.” So it ordered the
prosecution to introduce additional lines of testimony from imme-
diately before or after those statements.
At trial, Special Agent Pierre was the prosecution’s lead wit-
ness. His testimony centered around his interviews with Alli, and
the prosecution played excerpts containing Alli’s inculpatory state-
ments. In one excerpt, Alli stated that he had purchased trucks
from 206 Trucking in Florida. But Special Agent Pierre testified
that he could not find any trucks registered to Alli or Almar in Flor-
ida. He also testified that “there were no trucks purchased by . . .
Marke in 2020.” And he testified that Sostre and Marke were cur-
rently under investigation for money laundering.
Near the end of trial, the prosecution moved to instruct the
jury on Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640,
646–47 (1946) (holding that members of a conspiracy are liable for
certain substantive offenses committed by co-conspirators). Over
Alli’s objection, the district court gave the pattern instruction:
During a conspiracy, if a conspirator commits a crime
to advance the conspiracy toward its goals, then in
some cases a coconspirator may be guilty of the
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8 Opinion of the Court 24-11945
crime even though the coconspirator did not partici-
pate directly in the crime.
So regarding Counts Two and Three, and Defendant
Alexander Alli, if you have first found him guilty of
the crime of conspiracy as charged in Count One, you
may also find him guilty of the crime charged in
Counts Two and Three even though the Defendant
did not personally participate in the crime. To do so,
you must find beyond a reasonable doubt:
(1) during the conspiracy a conspirator commit-
ted the additional crime charged to further the
conspiracy’s purpose;
(2) the Defendant was a knowing and willful
member of the conspiracy when the crime was
committed; and
(3) it was reasonably foreseeable that a cocon-
spirator would commit the crime as a conse-
quence of the conspiracy.
When the prosecution requested a deliberate-ignorance in-
struction, Alli objected on the ground that there was insufficient
evidence that he deliberately avoided learning about the fraud. The
district court overruled the objection and instructed the jury using
a modified version of our pattern instruction:
If a Defendant’s knowledge of a fact is an essential
part of a crime, it’s enough that the Defendant was
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24-11945 Opinion of the Court 9
aware of a high probability that the fact existed—un-
less the Defendant actually believed the fact didn’t ex-
ist.
“Deliberate avoidance of positive knowledge”—
which is the equivalent of knowledge—occurs, for ex-
ample, if a defendant is involved in the submission of
false and fraudulent documents but deliberately
avoids learning whether the documents were false
and fraudulent so he or she can deny knowledge of
the false and fraudulent documents.
So you may find that a Defendant knew about the
fraud scheme if you determine beyond a reasonable
doubt that the Defendant (1) actually knew about the
fraud, or (2) had every reason to know but deliber-
ately closed his eyes.
But I must emphasize that negligence, carelessness, or
foolishness isn’t enough to prove that the Defendant
knew about the crime.
The district court also instructed the jury on the good-faith
defense:
“Good faith” is a complete defense to a charge that
requires intent to defraud. A defendant isn’t required
to prove good faith. The Government must prove in-
tent to defraud beyond a reasonable doubt.
An honestly held opinion or an honestly formed be-
lief cannot be fraudulent intent—even if the opinion
or belief is mistaken. Similarly, evidence of a mistake
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10 Opinion of the Court 24-11945
in judgment, an error in management, or carelessness
can’t establish fraudulent intent.
But an honest belief that a business venture would ul-
timately succeed doesn’t constitute good faith if the
Defendant intended to deceive others by making rep-
resentations the Defendant knew to be false or fraud-
ulent.
Alli moved for a judgment of acquittal. See F ED. R. C RIM .
P. 29. The district court denied the motion, and the jury convicted
Alli on all counts. The district court sentenced him to 13 months’
imprisonment and ordered him to pay $82,500 in restitution.
II. STANDARDS OF REVIEW
We review preserved evidentiary challenges for abuse of dis-
cretion and unpreserved challenges for plain error. United States v.
Carthen, 906 F.3d 1315, 1320 (11th Cir. 2018). “We review the suffi-
ciency of evidence to support a conviction de novo, viewing the ev-
idence in the light most favorable to the government and drawing
all reasonable inferences and credibility choices in favor of the
jury’s verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir.
2007). We review a “decision on whether to give a jury instruction”
for abuse of discretion. United States v. Jeri, 869 F.3d 1247, 1268 (11th
Cir. 2017).
III. DISCUSSION
We divide this discussion into three parts. First, we explain
that the district court did not err by declining to apply the rule of
completeness to admit additional excerpts from Alli’s interviews.
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24-11945 Opinion of the Court 11
Second, we explain that sufficient evidence supported Alli’s con-
spiracy conviction. Finally, we explain that the district court did not
err by instructing the jury on Pinkerton liability and deliberate ig-
norance.
A. The District Court Did Not Err by Declining to Admit
Additional Interview Excerpts Under Rule 106.
Under Rule 106, “[i]f a party introduces all or part of a state-
ment, an adverse party may require the introduction, at that time,
of any other part—or any other statement—that in fairness ought
to be considered at the same time.” FED. R. EVID. 106. The rule al-
lows parties to “correct an incomplete and misleading impression”
by compelling the introduction of additional material that is “nec-
essary to qualify, explain, or place into context the portion already
introduced.” United States v. Herman, 997 F.3d 251, 264 (5th Cir.
2021) (citation and internal quotation marks omitted). To use a fa-
mous illustration, if one accused the Psalmist of blasphemy for
writing, “There is no God,” the rule of completeness would com-
pel introducing the preceding clause of the verse: “The fool says in
his heart, ‘There is no God.’” Psalm 14:1 (New American Bible, Re-
vised Edition); 7 J OHN H ENRY WIGMORE , EVIDENCE IN TRIALS AT
C OMMON L AW § 2094, at 601 ( James H. Chadbourn rev. 1978) (cit-
ing Algernon Sidney’s Trial, 9 How. St. Tr. 818, 829, 868 (K.B. 1683))
(discussing the common law precursor to Rule 106). But Rule 106
“does not automatically make [an] entire document admissible
once one portion has been introduced,” United States v. Macrina, 109
F.4th 1341, 1348 (11th Cir. 2024) (citation and internal quotation
marks omitted), and it is not a vehicle for a party “to affirmatively
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12 Opinion of the Court 24-11945
advance [his] own, alternative theory of the case,” Herman, 997 F.3d
at 264.
Alli argues that he was entitled to introduce excerpts from
his interviews with Special Agent Pierre under Rule 106. But be-
cause Alli’s requested excerpts are either duplicative of or unrelated
to the statements the prosecution introduced, they were not “nec-
essary to qualify, explain, or place into context the portion already
introduced.” Macrina, 109 F.4th at 1348 (citation and internal quo-
tation marks omitted).
We begin with the duplicative statements. Alli sought to in-
troduce excerpts in which he claimed that Sostre completed the
loan application, that he signed the loan documents without read-
ing them, and that he did not tell Sostre how much to put down for
Almar’s revenue. He also sought to introduce excerpts in which he
alleged Sostre made the decision to list his personal bank account
on the application and that he used the loan proceeds to purchase
two trucks. But these statements are not “necessary” to correct any
misimpression because “the testimony introduced” by the prosecu-
tion “already discussed” Alli’s same contentions. See United States v.
Langford, 647 F.3d 1309, 1331 (11th Cir. 2011). The prosecution in-
troduced excerpts in which Alli claimed that he “wasn’t . . . the one
that filled” out the application, that he “trusted [Sostre] and just
signed” the loan documents, that he “didn’t tell her to put . . .
down” the $250,000 gross revenue figure on the application, and
that he gave Sostre his “personal bank account” after she told him
he could receive the loan proceeds in “any of [his] bank accounts.”
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24-11945 Opinion of the Court 13
In another excerpt introduced by the prosecution, Alli stated that
he “bought [two] trucks” after he “got” the loan.
Other statements Alli sought to introduce were unrelated to
those introduced by the prosecution. He requested the district
court introduce his statements that he leased the trucks to Brave
Freight, lost money on the venture, and was contemplating selling
the trucks to repay the loan. But the prosecution did not introduce
any statements about what happened to the trucks after Alli pur-
chased them. Alli argues these excerpts are necessary to “provide
the full context of [his] purchase of the trucks.” But Rule 106 serves
to “correct an incomplete and misleading impression,” not “to af-
firmatively advance [a party’s] own, alternative theory of the case.”
Herman, 997 F.3d at 264.
Finally, Alli faults the district court for not introducing an
excerpt in which he stated that although he purchased the trucks
in Florida, he registered them in Tennessee. Yet, Alli did not high-
light that excerpt in his filing, and we require that “a party must
identify for the district court the specific additional parts of a writ-
ing or recording” he seeks to introduce under Rule 106. Macrina,
109 F.4th at 1349.
The district court did not err—much less plainly err—be-
cause the excerpt falls outside the scope of Rule 106. True, Special
Agent Pierre testified that he did not find any trucks registered in
Alli’s name in Florida. And this testimony came after playing a por-
tion of Alli’s interview. But Pierre was testifying about his “investi-
gation” apart from his interviews of Alli. Rule 106 did not apply
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14 Opinion of the Court 24-11945
because “there was nothing to complete.” United States v. Simmons,
122 F.4th 1256, 1264 (11th Cir. 2024).
Even if Alli’s requested excerpts should have been admitted,
“an[y] error had no substantial influence on the outcome.” United
States v. Drury, 396 F.3d 1303, 1315 (11th Cir. 2005) (citation and in-
ternal quotation marks omitted). Alli’s statements about his truck-
ing business, if admitted, would provide only additional evidence
of Alli’s guilt because Alli was permitted to use the loan funds
“solely as working capital to alleviate economic injury caused by”
the pandemic, not to start a new business. And the jury heard the
gist of Alli’s other exculpatory statements through the duplicative
excerpts the prosecution introduced.
Alli also argues that the “district court abused its discretion
per se” by applying an old version of Rule 106. In 2023, an amend-
ment to Rule 106 clarified that a party may introduce evidence un-
der that rule “over a hearsay objection.” F ED. R. EVID. 106 (Dec. 1,
2023). But according to Alli, the district court contravened the
amendment by excluding Alli’s requested excerpts “solely on the
basis of the hearsay rule.”
The district court did not abuse its discretion. True, the dis-
trict court determined that “[m]ost of [Alli’s requested excerpts
were] going to be excluded . . . [as] hearsay.” But it also considered
whether those statements should be admitted under Rule 106. In-
deed, it ruled that several statements offered by the prosecution
“needed to be edited” to provide additional context and ordered the
prosecution to introduce additional testimony from before or after
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24-11945 Opinion of the Court 15
those excerpts. The district court considered and rejected admit-
ting the other excerpts under Rule 106, despite their hearsay char-
acter.
We also reject Alli’s argument that the 2023 amendment ab-
rogated our decisions in Willis and Cunningham and that the district
court erred by applying those “outdated” precedents. Both deci-
sions are consistent with revised Rule 106. In Willis, we held that,
absent a hearsay exception, a defendant cannot elicit his own “ex-
culpatory statements [made] at the time of his arrest” during the
cross-examination of the arresting officer. 759 F.2d at 1501. We re-
affirmed that rule in Cunningham. 194 F.3d at 1199. The 2023
amendment clarified only that the hearsay rule does not bar the
admission of a statement that satisfies Rule 106. Because the district
court ruled that Rule 106 was not satisfied, it did not err by exclud-
ing Alli’s hearsay under Cunningham and Willis.
We respectfully disagree with our concurring colleague that
Alli could have introduced the exculpatory statements under Fed-
eral Rule of Evidence 803(3). That rule allows for the admission of
an otherwise-hearsay “statement of the declarant’s then-existing
state of mind (such as motive, intent, or plan).” F ED. R.
EVID. 803(3). But it does not apply to “a statement of memory or
belief to prove the fact remembered or believed.” Id. In other
words, Rule 803(3) allows “statements of a ‘then-existing’ state of
mind, not an earlier one.” C HARLES ALLEN WRIGHT & JEFFREY
B ELLIN, 30B FED. PRAC. & PROC. EVID. § 6834 (2026 ed.). So Alli
could not rely on statements he made to law enforcement “after
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16 Opinion of the Court 24-11945
the fact” to prove his state of mind when he submitted the loan
application. United States v. De La Cruz Suarez, 601 F.3d 1202, 1216
(11th Cir. 2010).
B. Sufficient Evidence Supports Alli’s Conspiracy Conviction.
To convict a defendant for conspiracy to commit wire fraud,
18 U.S.C. § 1349, the government must prove “(1) a conspiracy to
commit wire fraud; (2) knowledge of the conspiracy; and (3) that
[the defendant] knowingly and voluntarily joined the conspiracy.”
United States v. Feldman, 931 F.3d 1245, 1257 (11th Cir. 2019) (altera-
tion adopted) (citation and internal quotation marks omitted). A
person is guilty of wire fraud, 18 U.S.C. § 1343, if he “(1) intention-
ally participated in a scheme or artifice to defraud another of
money or property, and (2) used or caused the use of [interstate]
wires for the purpose of executing the scheme or artifice.” United
States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013). “In review-
ing the sufficiency of the evidence underlying a conviction, we con-
sider the evidence in the light most favorable to the government,
with all inferences and credibility choices drawn in the govern-
ment’s favor, and our review inquires only whether a reasonable
trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Feldman, 931 F.3d at 1257 (alteration adopted)
(citation and internal quotation marks omitted).
Alli argues “the evidence is insufficient to prove that [he]
knowingly and voluntarily agreed to participate in a conspiracy to
commit wire fraud.” He does not dispute that the loan application
was materially false. He instead maintains that he “relied on
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24-11945 Opinion of the Court 17
[Sostre’s] expertise in applying for the loan” and did not know he
was ineligible for it. He asserts that he did not agree to commit wire
fraud, but “[a]t most” agreed for Sostre to “help [him] apply for the
. . . loan in her capacity as his tax advisor/accountant.”
A reasonable jury could find that the evidence established
Alli knowingly participated in a conspiracy to commit wire fraud.
Alli acknowledged that he signed the loan documents, which re-
stricted the use of the loan proceeds “solely as working capital to
alleviate economic injury caused by” the pandemic. The jury could
reasonably infer that Alli, by signing the agreement, was aware of
its content or at least deliberately ignorant of it. See United States v.
Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (“This Court has consist-
ently recognized deliberate ignorance of criminal activity as the
equivalent of knowledge.” (citation and internal quotation marks
omitted)). It also could infer that Alli knew about the fraudulent
object of the conspiracy because he profited from it by obtaining a
loan he never paid back. Alli responds that he did not profit from
the loan because he used the funds for his trucking business. But
the fact that Alli may have reinvested the money into his other busi-
ness does not mean he did not profit from the scheme. And Alli’s
discussions with Sostre about applying for the loan provide evi-
dence of an agreement, and the fact that Alli and Sostre “were da-
ting” undercuts Alli’s contention that he was misled by an arms-
length “tax advisor/accountant.”
Although Alli told Special Agent Pierre that he was ignorant
of the misrepresentations on the loan application, he did not read
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18 Opinion of the Court 24-11945
the loan documents, and he was unaware of the restrictions on the
use of the loaned funds, “‘a statement by a defendant, if disbelieved
by the jury, may be considered as substantive evidence of the defend-
ant’s guilt,’ particularly when the ‘elements to be proved for a con-
viction include highly subjective elements like the defendant’s in-
tent or knowledge.’” United States v. Shabazz, 887 F.3d 1204, 1220
(11th Cir. 2018) (alteration adopted) (quoting United States v. Brown,
53 F.3d 312, 314, 315 (11th Cir. 1995)). This rule “applies . . . to false
exculpatory statements made pre-trial.” United States v. Hughes, 840
F.3d 1368, 1385 (11th Cir. 2016). A reasonable jury could find that
Alli was not telling the truth and “infer that the opposite of what
he was said was true.” Shabazz, 887 F.3d at 1220 (alteration
adopted) (citation and internal quotation marks omitted).
Alli also faults the prosecution for not introducing direct ev-
idence “such as text messages or emails” from which “the jury
could infer the existence of a conspiracy.” But Alli acknowledges
that a jury may infer the existence of an agreement from indirect
or circumstantial evidence. United States v. Silvestri, 409 F.3d 1311,
1328 (11th Cir. 2005). “[V]iewing the evidence in the light most fa-
vorable to the prosecution,” we conclude that a “rational trier of
fact could have found . . . beyond a reasonable doubt” the existence
of a conspiracy. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
C. The District Court Did Not Err by Instructing the Jury on Pinkerton
Liability and Deliberate Ignorance.
Alli challenges the Pinkerton and deliberate-ignorance jury
instructions. He does not contest the accuracy of either instruction
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24-11945 Opinion of the Court 19
but instead argues that there was insufficient evidence to support
giving them. We disagree.
1. Sufficient Evidence Supported the Pinkerton Instruction.
Under the Pinkerton doctrine, “each party to a continuing
conspiracy may be vicariously liable for” the reasonably foreseeable
“substantive criminal offenses committed by a co-conspirator dur-
ing the course and in the furtherance of the conspiracy, notwith-
standing the party’s non-participation in the offenses or lack of
knowledge thereof.” Shabazz, 887 F.3d at 1219 (alteration adopted)
(citation and internal quotation marks omitted); Pinkerton, 328 U.S.
at 646–47. Alli contends that the district court erred as to the wire
fraud counts by instructing the jury on Pinkerton liability.
Alli makes two arguments on appeal. First, Alli argues that
“the Pinkerton instruction was not supported by a sufficient factual
basis because . . . the evidence was insufficient to prove the exist-
ence of a conspiracy.” We reject that argument because, as ex-
plained above, there was sufficient evidence to support Alli’s con-
spiracy conviction. Second, Alli argues that the “Pinkerton instruc-
tion . . . encouraged the jury to infer the existence of the conspir-
acy from the substantive wire fraud offenses—the inverse of the
purpose of Pinkerton—thereby opening the door for the jury to
consider the evidence in an improper light.” But Shabazz “re-
ject[ed]” an identical argument that a Pinkerton instruction
“prompted the jury to extrapolate backwards and find [the defend-
ant] guilty of the conspiracy charge.” 887 F.3d at 1220 (internal quo-
tation marks omitted). Moreover, the jury instruction required the
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20 Opinion of the Court 24-11945
jury to “first f[i]nd [Alli] guilty of the crime of conspiracy as
charged in Count One” before considering his liability under Pink-
erton for the substantive counts. That instruction negated any risk
that the jury would improperly infer the existence of a conspiracy
from the substantive offenses, and “[w]e presume that juries follow
the instructions given to them.” United States v. Lopez, 649 F.3d 1222,
1237 (11th Cir. 2011).
2. Sufficient Evidence Supported the
Deliberate-Ignorance Instruction.
A deliberate-ignorance instruction is appropriate if there is
sufficient evidence to support an “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.” United
States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991) (citation omit-
ted). A “district court should not instruct the jury on ‘deliberate
ignorance’ when the relevant evidence points only to actual
knowledge, rather than deliberate avoidance.” Id. But “if there is ev-
idence in the record to support both actual knowledge and deliber-
ate ignorance, then both instructions may be given.” Jeri, 869 F.3d
at 1268.
There was sufficient evidence that Alli “was aware of facts
that should have put [him] on notice of the fraudulent activity, but
[that he] deliberately insulated [himself ] from positive knowledge.”
United States v. Arias, 431 F.3d 1327, 1335 (11th Cir. 2005). A reason-
able jury could infer that Alli would want to know more about the
conditions of an $80,500 loan before accepting it. Indeed, Alli told
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24-11945 Opinion of the Court 21
Special Agent Pierre that he was cautious about taking on debt,
which supports an inference that he would have investigated the
loan conditions but for his deliberate ignorance. And the jury could
reasonably infer that Alli’s alleged ignorance of the fraud and reli-
ance on Sostre was contrived. See United States v. Puche, 350 F.3d
1137, 1149 (11th Cir. 2003) (holding that “a jury could have found
that the failure to inquire” about the source of suspicious funds
“amounted to deliberate ignorance”).
Any error in giving the instruction was also harmless for two
reasons. First, the language of the deliberate-ignorance instruction,
along with the good-faith instruction, mitigated the risk that the
jury “w[ould] convict on a basis akin to a negligence standard.” The
deliberate-ignorance instruction stated that “negligence, careless-
ness, or foolishness isn’t enough to prove that the Defendant knew
about the crime.” And the good-faith instruction explained that
“[a]n honestly held opinion or an honestly formed belief cannot be
fraudulent intent—even if the opinion or belief is mistaken,” and
that “evidence of a mistake in judgment, an error in management,
or carelessness can’t establish fraudulent intent.” We presume the
jury followed these instructions. Lopez, 649 F.3d at 1237. Second,
“the jury was also instructed and could have convicted on an alter-
native, sufficiently supported theory of actual knowledge.” United
States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008); see also United States
v. Stone, 9 F.3d 934, 938 (11th Cir. 1993) (assuming the jury con-
victed on actual knowledge grounds if “there was insufficient evi-
dence of deliberate ignorance to prove that theory beyond a rea-
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22 Opinion of the Court 24-11945
sonable doubt”). A reasonable jury could have disbelieved Alli’s ex-
culpatory statements and treated them as substantive evidence of
Alli’s guilt. Shabazz, 887 F.3d at 1220. Alli responds that even if he
had read the agreement, he still would not have known of “the false
and misleading information submitted in the application” because
the agreement contained only “the terms and conditions of the
loan.” But the “terms and conditions” would have informed him
that he could not obtain a loan to fund a new business.
IV. CONCLUSION
We AFFIRM Alli’s convictions.
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24-11945 TJOFLAT, J., Concurring 1
TJOFLAT, Circuit Judge, concurring:
I write separately to say that Federal Rule of Evidence 106
should have played no role in the prosecution of this case.1
I. I NTRODUCTION
The indictment alleged that between April and July 2020, Al-
exander Alli conspired with “others”2 to commit, and did commit,
wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. He did so by
submitting a fraudulent application and loan agreement to the
Small Business Administration (“SBA”) to obtain an Economic In-
jury Disaster Loan (“EIDL”) of $80,400.
To obtain Alli’s conviction on the conspiracy offense, the
Government had to prove beyond a reasonable doubt that Alli, con-
spiring with his friend and tax preparer, Maria Sostre, “knew the
unlawful purpose of the plan [to obtain the SBA loan] and willfully
1 Rule 106. Remainder of or Related Statements, states:
If a party introduces all or part of a statement, an adverse party
may require the introduction, at that time, of any other part—
or any other statement—that in fairness ought to be consid-
ered at the same time. The adverse party may do so over a
hearsay objection.
Fed. R. Evid. 106.
2 The indictment never identifies who Alli’s co-conspirators are. We are left to
assume, based on his interview with Agent Pierre, that Maria Sostre was the
co-conspirator the Government had in mind.
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2 TJOFLAT, J., Concurring 24-11945
joined in it.”3 And to obtain Alli’s conviction of wire fraud, the
Government had to prove that Alli acted with “the intent to de-
fraud” the SBA by participating in a scheme to obtain money or
property by using false pretenses, representations, or promises.4
Specific intent crimes such as these raise a series of questions
about proof. Specifically, how would the Government prove that
Alli knew of the unlawful purpose of the plan he and Sostre alleg-
edly conjured up? How would the Government show what was in
Alli’s mind while he and Sostre were discussing the possibility of
obtaining a loan for a new trucking business? What about later,
when Sostre gave Alli the loan application and instructed him to
sign it? And how would the Government prove that Alli’s intent at
those times was to defraud the SBA by submitting a loan applica-
tion with false or fraudulent representations and then to sign a loan
agreement based on false promises?
Would the Government prove these elements of the conspir-
acy and wire fraud offenses with direct evidence? Hardly. If the Gov-
ernment were to prove intent at all, it would do so indirectly with
circumstantial evidence. The Government would use what Alli and
Sostre said and did while preparing the loan application and there-
after. These bits and pieces of evidence, cobbled together, would
presumably yield the inference that Alli knowingly and willfully
3 See District Court’s jury instruction on conspiracy to commit wire fraud.
4 See District Court’s jury instruction on wire fraud.
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24-11945 TJOFLAT, J., Concurring 3
conspired to participate, and participated, in a scheme to defraud
the SBA.
The Government’s circumstantial evidence was contained
primarily in the transcripts of two interviews Special Agent Pierre
had with Alli.5 Pierre questioned Alli at length about what crossed
his mind while he and Sostre were deciding to apply for the SBA
loan and what took place thereafter. Alli’s answers were forthright.
He appeared to have nothing to hide.
Some of Alli’s answers to Pierre’s questioning were inculpa-
tory. For example, Alli readily admitted that he signed the loan ap-
plication and agreement and used the loan proceeds to purchase
two trucks. From this, a jury could infer that Alli intended to de-
fraud the SBA.
At the same time, some of Alli’s answers were exculpatory.
Sostre told Alli about the loan and nothing she said gave Alli reason
to suspect, much less believe, that applying for the loan would be
illegal. Sostre alone prepared the loan application and instructed
Alli to sign it. Alli relied on Sostre’s apparent expertise, providing
only his social security number and address. From all of this, a jury
might make an inference, or have a reasonable doubt, as to
whether Alli intended to defraud the SBA.
The law of evidence would treat Alli’s inculpatory state-
ments as non-hearsay and therefore admissible. See Fed. R. Evid.
5 The SBA loan documents also contained circumstantial evidence.
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4 TJOFLAT, J., Concurring 24-11945
801(d)(2)(A).6 By the same token, the law of evidence would con-
sider Alli’s exculpatory statements to be non-hearsay if they consti-
tuted circumstantial evidence of Alli’s then-existing state of mind,
such as his intent, from the moment he told Sostre that he would
like to go into the trucking business and thereafter. See Fed. R. Evid.
803(3).7
6 Rule 801. Definitions That Apply to This Article; Exclusions From Hearsay,
states:
(d) Statements That Are Not Hearsay. A statement that meets
the following conditions is not hearsay:
(2) An Opposing Party’s Statement. The statement is of-
fered against an opposing party and:
(A) was made by the party.
Fed. R. Evid. 801(d)(2)(A).
7 Rule 803. Exceptions to the Rule Against Hearsay, states:
The following are not excluded by the rule against hearsay, re-
gardless of whether the declarant is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. A
statement of the declarant’s then-existing state of mind (such as
motive, intent, or plan) or emotional, sensory, or physical con-
dition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or
terms of the declarant’s will.
Fed. R. Evid. 803(3) (emphasis added).
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24-11945 TJOFLAT, J., Concurring 5
I assume the Government was aware that the District Court,
in the exercise of its discretion, could hold Alli’s exculpatory state-
ments admissible because they tended to establish his then-existing
state of mind. Regardless of whether the Government was aware
of Rule 803, it did not want the jury to hear Alli’s exculpatory state-
ments because the jury might blame Sostre, not Alli, for concocting
the alleged scheme to defraud the SBA.8
8 Here is one example of the exculpatory statements the Government moved
the District Court to exclude:
ALLI: Yes. She just told me just sign everything, I just
signed, that’s all.
S.A. PIERRE: So you did not review the loan document.
ALLI: I’m not going to lie to you, I didn’t review
nothing.
S.A. PIERRE: Did you provide her your social security num-
ber.
ALLI: Yes.
S.A. PIERRE: Did you provide her your address.
ALLI: Yes, I did.
S.A. PIERRE: Did you provide her how much the company
makes.
ALLI: No.
S.A. PIERRE: So that’s the only thing you did not provide
her.
ALLI: No.
S.A. PIERRE: So you tell her just make that up.
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6 TJOFLAT, J., Concurring 24-11945
In an attempt to avoid that outcome, the Government
moved in limine to exclude Alli’s exculpatory statements. As pre-
trial litigation progressed, the District Court’s decision-making was
hindered by a lack of information from the parties. Specifically, the
District Court ruled on the motion in limine without a clear picture
of what Alli’s defense would be. The result was a misapplication of
the law of evidence and a deep injustice against Alli’s case. I high-
light several stages of the pre-trial litigation process––the motion
in limine, the proposed jury instructions, and the Court’s in limine
ruling––to illustrate my point.
II. MOTION IN LIMINE
On January 11, the Government moved in limine to exclude
Alli’s exculpatory statements as hearsay. The Assistant United
States Attorney (“AUSA”) explained:
At trial, the United States anticipates calling . . . Spe-
cial Agent James Pierre as a witness to testify about,
among other information, various admissions and in-
culpatory statements made by the defendant during
two separate recorded consensual interviews. During
ALLI: No, I didn’t -- you’re not getting my point. I
didn’t tell her make anything up.
S.A. PIERRE: So she didn’t -- so she didn’t say how much the
-- she didn’t ask you how much the company
make for that year.
ALLI: No.
S.A. PIERRE: She never did.
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24-11945 TJOFLAT, J., Concurring 7
Agent Pierre’s testimony, the United States will seek
to admit and publish excerpts of these recorded inter-
views, which have been provided to defense counsel
in discovery. The United States is concerned that the
defense will attempt to introduce through the record-
ings or cross-examination of Agent Pierre defendant’s
self-serving hearsay and exculpatory statements—
that is, the other contents of the recordings beyond
the excerpts [of the interviews the United States will
introduce].
The Eleventh Circuit Court of Appeals has made
clear that a defendant cannot elicit the defendant’s
own exculpatory hearsay statements through cross-
examination.
The AUSA cited our decisions in United States v. Willis, 759
F.2d 1486 (11th Cir. 1985), and United States v. Cunningham, 194 F.3d
1186, 1199 (11th Cir. 1999), in support of her argument that Alli’s
exculpatory statements were inadmissible under the hearsay rule.
But neither decision held that Alli’s exculpatory statements would
not be admissible under Federal Rule of Evidence 803(3). This is
because Alli’s statements tended to establish his “then-existing state
of mind []such as . . . intent.” Fed. R. Evid. 803(3).9
9 Neither Willis nor Cunningham would preclude the argument that Alli’s ex-
culpatory statements were relevant to prove his then-existing state of mind—
that is, his state of mind in applying for the SBA loan and, later, in disposing
of the loan’s proceeds. In Willis, the hearsay rule properly precluded defense
counsel from eliciting on cross-examination his client’s out-of-court statement
that he “believed only mail was aboard the plane” because the statement was
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8 TJOFLAT, J., Concurring 24-11945
As a fallback position, in the event the District Court re-
jected her hearsay argument, the AUSA turned to Rule 106 and
submitted that “under the rule of completeness in Fed. R. Evid.
106,” it would not be necessary to admit the exculpatory state-
ments into evidence.
Defense counsel, responding to the Government’s motion
in limine, ignored the Government’s hearsay argument, and con-
tended that the transcripts were “relevant” to Alli’s “theory of the
case” and “the theory of [his] defense in the case.” In his response,
defense counsel never explained what Alli’s defense was. Instead,
he argued that Alli’s exculpatory statements should be admitted
under Rule 106 in their entirety as a matter of “fairness.”
III. J URY I NSTRUCTIONS
On March 1 and 5, respectively, the parties filed proposed
jury instructions pursuant to the Court’s request. In addition to
offered to prove its truth about the client’s present belief. 759 F.2d at 1501; See
Fed. R. Evid. 803(3).
In Cunningham, the prosecution made a hearsay objection to defense
counsel asking Deputy Balzer on cross-examination about a statement the de-
fendant made during his arrest: “Oh, I thought that was over with. They let
Oscar [his brother and codefendant] go.” Defense counsel argued that the
statement fit the Rule 803(3) “hearsay exception . . . , because it demon-
strate[d] [Cunningham’s] then-existing state of mind.” Cunningham, 194 F.3d
at 1199. The District Court disagreed and sustained the prosecution’s objec-
tion. We affirmed, stating: “Cunningham fails to note that Rule 803(3) explic-
itly excludes ‘a statement . . . of belief to prove the fact . . . believed,’ which
describes Cunningham’s statement and his motive for seeking its introduc-
tion.” Id.
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24-11945 TJOFLAT, J., Concurring 9
Eleventh Circuit Pattern Jury Instructions on conspiracy to commit
wire fraud (O54) and wire fraud (O51), defense counsel included a
pattern instruction on the good-faith defense (S17), which reads:
“Good faith” is a complete defense to a charge that
requires intent to defraud. A defendant isn’t required
to prove good faith. The Government must prove in-
tent to defraud beyond a reasonable doubt.
An honestly held opinion or an honestly formed be-
lief cannot be fraudulent intent—even if the opinion
or belief is mistaken. Similarly, evidence of a mistake
in judgement, an error in management, or careless-
ness can’t establish fraudulent intent.
But an honest belief that a business venture would ul-
timately succeed doesn’t constitute good faith if the
Defendant intended to deceive others by making rep-
resentations the Defendant knew to be false or fraud-
ulent.
The Government’s proposed instructions on conspiracy to
commit wire fraud, wire fraud, and the good-faith defense were
identical to the instructions defense counsel proposed. The Gov-
ernment also proposed an instruction on “Deliberate Ignorance as
Proof of Knowledge” (S8). Along with that instruction, the Gov-
ernment commented:
Based on conversations with defense counsel and the
jury instructions proposed by the defendant, it is an-
ticipated that the defendant will argue at trial that he
did not know the unlawful purpose of the wire fraud
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10 TJOFLAT, J., Concurring 24-11945
conspiracy and that he did not know that the docu-
ments (application and loan agreement) submitted to
the SBA were false and fraudulent.
(citations omitted).
* * *
In his response to the Government’s motion in limine, de-
fense counsel argued that Alli’s exculpatory statements were “rele-
vant to” Alli’s “theory of [his] defense.” And in his proposed in-
structions, he told the Court what Alli’s defense was: the good-faith
defense. Through their respective proposed jury instructions, de-
fense counsel and the Government agreed, as Instruction S17
states, that if Alli, relying on Sostre, held “an honestly formed be-
lief” that applying for the SBA loan was above board, then that be-
lief “cannot be fraudulent intent.” Indeed, not even Alli’s “careless-
ness” in not reading the loan application could “establish fraudu-
lent intent.”
The Government did not object to defense counsel’s argu-
ment to the jury that Alli did not know the unlawful purpose of the
wire fraud conspiracy and that he did not know that the application
and loan agreement submitted to the SBA were false and fraudu-
lent.
But how could defense counsel argue to the jury that Alli did
not know he was a member of a conspiracy to commit wire fraud
or that the documents submitted to the SBA were false and fraud-
ulent if defense counsel was precluded from bringing to the jury’s
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24-11945 TJOFLAT, J., Concurring 11
attention the exculpatory statements Alli had made in response to
Special Agent Pierre’s questioning?
IV. R ULING ON MOTION IN L IMINE
On March 8, after reviewing the transcripts of Special Agent
Pierre’s interviews with Alli, the District Court held a status con-
ference and announced its ruling on the Government’s motion in
limine. The Court implicitly placed limits on what defense counsel
could argue to the jury by announcing that “[m]ost of [Alli’s excul-
patory statements] are going to be excluded because [they are]
hearsay.” In the Court’s view, the statements were hearsay because
Alli’s counsel sought to introduce them to prove their truth, not
because they were relevant to Alli’s intent to defraud.
The Court memorialized its ruling in a March 11 order, is-
sued on the eve of trial. It began by explaining the parties’ respec-
tive positions:
The Government seeks to exclude from trial evidence
of Defendant’s exculpatory statements from two in-
terviews with Government agents. As context, the
Government seeks to introduce, through a federal
law enforcement agent, various admissions and incul-
patory statements that Defendant made during these
two separate recorded consensual interviews. The
Government indicated that its motion was filed out
of concern that the defense would attempt to intro-
duce through recordings or cross-examination De-
fendant’s own self-serving hearsay and exculpatory
statements from the remainder of the interview.
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12 TJOFLAT, J., Concurring 24-11945
Defendant responds that the contents of the entire in-
terview are relevant to the allegations against him and
his defense. Therefore, he argues that under Fed. R.
Evid. 106, the rest of the interview should be intro-
duced as well because it explains his actions and the
involvement of an uncharged co-conspirator.
(citations omitted).
Following these explanations, the District Court granted the
Government’s motion in limine to the extent that Defendant’s
statements (highlighted in orange to indicate that the defense coun-
sel wanted them included), would be excluded as inadmissible
hearsay. As to several other portions of the transcript, the Court
indicated that certain questions from the interview should also be
included for the sake of clarity, instead of beginning an excerpt with
an answer. Issues as to the anticipatory objections, highlighted in
red in the sealed transcript, would be resolved at trial.
The statements “highlighted orange” included, as inadmissi-
ble hearsay, the statements appearing supra, in note 8. The “antici-
pated objections” never materialized for resolution at trial.
* * *
The District Court had apparently not read the parties’ pro-
posed jury instructions when it ruled on the Government’s motion
in limine. If it had read them, the Court would have realized that
Alli’s defense was the good-faith defense. Consequently, the Court
did not consider whether Alli’s exculpatory statements were pro-
bative of that defense—that is, the Court did not consider whether
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24-11945 TJOFLAT, J., Concurring 13
Alli’s exculpatory statements had the purpose not to prove the
truth of their contents but, rather, to prove Alli’s “then-existing
state of mind,” when he submitted the SBA loan application as
Sostre instructed. Fed. R. Evid. 803(3).
Both the AUSA and defense counsel knew that the Court
was ruling on the motion in limine without the benefit of review-
ing the proposed jury instructions. Let us consider what each coun-
sel’s responsibilities were as officers of the Court under these cir-
cumstances. It is not necessary to catalogue the rules of ethics and
canons of conduct that govern the responsibilities of members of
the bar when appearing before a court. Nor is it necessary to add
to that catalogue the AUSA’s responsibility in representing the
United States. Or defense counsel’s responsibility to provide his cli-
ent with the effective assistance of counsel mandated by the Sixth
Amendment. As officers of the court, the AUSA and the defense
counsel were required to inform the Court that the evidentiary
landscape of the case had changed, as their proposed jury instruc-
tions indicated.
As it turned out, though, the case was tried and submitted
to the jury in accordance with the evidentiary rulings the District
Court made from the bench on March 8 and memorialized on
March 11. The jury returned verdicts against Alli on all charges. On
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14 TJOFLAT, J., Concurring 24-11945
appeal, Alli’s briefs are silent on his good-faith defense and Rule
803(3).10
V. C ONCLUSION
I fully concur in the Court’s judgment with the exception of
its treatment of the Rule 106 issue. Rule 106 should not have come
into play. Alli’s exculpatory statements, like his inculpatory state-
ments, were plainly admissible under Rule 803(3) as relevant to
Alli’s “then-existing state of mind,” his knowing participation in a
conspiracy to commit wire fraud, and his intent to defraud the SBA.
10 The Government’s brief mentions the good-faith defense twice in connec-
tion with the District Court’s jury instructions. First, it says:
Because the court decided to give the deliberate-ignorance in-
struction, the court also found it appropriate to give an instruc-
tion on good faith. The court instructed the jury that “‘[g]ood
faith’ is a complete defense to a charge that requires intent to
defraud” and “[a]n honestly held opinion or an honestly
formed belief,” even if mistaken, “cannot be fraudulent in-
tent.”
Appellee’s Brief at 47 (citations omitted). Later, the brief states:
The jury was entitled to disbelieve Alli’s statements about his
lack of knowledge and consider them as substantive evidence
of his guilt. The jury was also instructed that negligence was
not enough to sustain a conviction and that good faith was a
complete defense, which further ensured that the jury under-
stood the government’s burden of proof on the intent require-
ment.
Appellee’s Brief at 61 (citations omitted).
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24-11945 TJOFLAT, J., Concurring 15
The District Court should have recognized that, given the time and
effort it devoted to the Government’s motion in limine and defense
counsel’s response.
The AUSA created the Rule 106 argument as an irrelevant
fallback argument to be advanced if the District Court rejected her
principal argument––that defense counsel wanted to introduce
Alli’s exculpatory statements for the truth of their contents. De-
fense counsel took the bait, hook, line and sinker. If counsel had
focused on the two cases the AUSA cited in support of her hearsay
argument, Willis and Cunningham, he would have discovered Rule
803(3)’s application.
The AUSA was justifiably concerned with the possibility that
Alli’s exculpatory statements coupled with the Government’s deci-
sion not to indict Sostre might have prompted the jury to acquit
Alli. But that possibility never came to pass. The lawyers’ failures
as officers of the court precluded the jury from deliberating over
the possibility of an acquittal.
I agree with the Court’s treatment of the Pinkerton and de-
liberate ignorance jury instruction issues and its disposition of the
sufficiency of the evidence of conspiracy issue.
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