USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYSHA S. HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Timothy M. Cain, Chief District Judge. (3:21-cr-00193-TMC-1)
Submitted: May 13, 2024 Decided: June 21, 2024
Before WILKINSON, AGEE, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Adair F. Boroughs, United States Attorney, Andrea G. Hoffman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 2 of 8
PER CURIAM:
Tysha S. Holmes appeals her convictions and five-month sentence imposed for one
count of embezzlement, in violation of 18 U.S.C. § 641 (“Count One”), and one count of
making a false statement to obtain workers’ compensation benefits, in violation of 18
U.S.C. § 1920 (“Count Three”). Holmes first asserts that the district court erroneously
instructed the jury regarding “willful blindness” because such an instruction should only
be given in rare circumstances and the Government failed to present evidence justifying
that the court issue the instruction. Holmes also asserts that the district court erroneously
calculated the restitution amount Holmes was ordered to pay because the amount included
loss resulting from her conduct underlying a § 1920 offense charged in a count of which
she was acquitted (“Count Two”). Finding no reversible error, we affirm.
As Holmes failed to object to the district court’s decision to issue the willful
blindness instruction and did not object to the restitution amount in her presentence report
(“PSR”) or at sentencing, we review for plain error. See United States v. Smithers, 92 F.4th
237, 246 (4th Cir. 2024) (“[A] waived or forfeited objection [to a jury instruction] is
analyzed under plain error.”); United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017)
(“[W]hen, as here, the defendant fails to object to the restitution order, we review for plain
error.”). “Under that standard, [Holmes] may not obtain relief unless: (a) the error was
plain; (b) the error affected substantial rights, meaning that there is a reasonable probability
that, but for the error, the outcome of the proceeding would have been different; and (c)
the error had a serious effect on the fairness, integrity or public reputation of judicial
proceedings.” United States v. Heyward, 42 F.4th 460, 465 (4th Cir. 2022) (internal
2 USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 3 of 8
quotation marks omitted). “This standard is difficult to satisfy.” Id. (internal quotation
marks omitted).
Regarding the willful blindness instruction, “[§] 1920 of the criminal code makes it
unlawful to knowingly and willfully make a false, fictitious, or fraudulent statement or
representation in connection with the application for or receipt of compensation or other
benefit or payment under a federal program.” United States v. Catone, 769 F.3d 866, 872
(4th Cir. 2014) (cleaned up). The parties conceded in the district court, to prove Holmes
violated § 1920, the Government had to establish that (1) Holmes knowingly and willfully
made a false statement; (2) the statement was material; (3) the statement was made to obtain
OWCP benefits; and (4) Holmes received more than $1,000.
As to the false statement element, the Government had the burden to establish that
Holmes “acted knowingly and willfully with the specific intent to deceive.” United States
v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). In this regard, “[i]t is well established that
where a defendant asserts that he did not have the requisite mens rea to meet the elements
of the crime but evidence supports an inference of deliberate ignorance, a willful blindness
instruction to the jury is appropriate.” United States v. Miller, 41 F.4th 302, 314 (4th Cir.
2022) (cleaned up). “Evidence supports an inference of deliberate ignorance if it tends to
show that (1) the defendant subjectively believes that there is a high probability that a fact
exists and (2) the defendant took deliberate actions to avoid learning of that fact.” Id.
(cleaned up). We have explained that “[t]he willful blindness instruction allows the jury
to impute the element of knowledge to the defendant if the evidence indicates that [s]he
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purposely closed h[er] eyes to avoid knowing what was taking place around h[er].”
Schnabel, 939 F.2d at 203.
Holmes is correct that “caution must be exercised in giving a willful blindness
instruction,” which “is appropriate only in rare circumstances.” United States v. Ali, 735
F.3d 176, 187 (4th Cir. 2013). This is so “because the instruction presents the danger of
allowing the jury to convict based on an ex post facto theory (he should have been more
careful) or to convict on a negligence theory (the defendant should have known his conduct
was illegal).” United States v. Lighty, 616 F.3d 321, 378 (4th Cir. 2010). Holmes therefore
asserts that, because there was no evidence she took affirmative action to avoid learning of
her obligations to correctly report her income, the district court’s instruction provided an
avenue for the jury to convict her based on mere recklessness or negligence.
We conclude that the district court did not commit plain error in issuing the willful
blindness instruction. First, the Government’s evidence established that Holmes was aware
of her obligation to report any employment in the 15 months preceding her completion of
the 1032 Forms underlying the charged § 1920 offenses. The 1032 Forms also contained
a warning, in all capital letters, that failure to accurately report all work activities could
result in severe penalties, including criminal prosecution, and Holmes received the cover
letters and 1032 Forms containing these instructions and warnings multiple times between
2012 and 2017.
Holmes correctly argues that to justify issuance of a willful blindness instruction,
this court has looked to affirmative conduct a defendant has taken to avoid discovering a
legal obligation. See, e.g., United States v. Ravenell, 66 F.4th 472, 491 (4th Cir. 2023)
4 USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 5 of 8
(concluding that evidence of defendant’s “machinations to maintain plausible deniability,”
including testimony that the defendant instructed an associate of a drug dealer “not to give
him cash from drug proceeds and instead to give him checks and money orders,”
demonstrated deliberate avoidance), cert. denied, No. 23-638, 2024 WL 1607762 (U.S.
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USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYSHA S. HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Timothy M. Cain, Chief District Judge. (3:21-cr-00193-TMC-1)
Submitted: May 13, 2024 Decided: June 21, 2024
Before WILKINSON, AGEE, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Adair F. Boroughs, United States Attorney, Andrea G. Hoffman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 2 of 8
PER CURIAM:
Tysha S. Holmes appeals her convictions and five-month sentence imposed for one
count of embezzlement, in violation of 18 U.S.C. § 641 (“Count One”), and one count of
making a false statement to obtain workers’ compensation benefits, in violation of 18
U.S.C. § 1920 (“Count Three”). Holmes first asserts that the district court erroneously
instructed the jury regarding “willful blindness” because such an instruction should only
be given in rare circumstances and the Government failed to present evidence justifying
that the court issue the instruction. Holmes also asserts that the district court erroneously
calculated the restitution amount Holmes was ordered to pay because the amount included
loss resulting from her conduct underlying a § 1920 offense charged in a count of which
she was acquitted (“Count Two”). Finding no reversible error, we affirm.
As Holmes failed to object to the district court’s decision to issue the willful
blindness instruction and did not object to the restitution amount in her presentence report
(“PSR”) or at sentencing, we review for plain error. See United States v. Smithers, 92 F.4th
237, 246 (4th Cir. 2024) (“[A] waived or forfeited objection [to a jury instruction] is
analyzed under plain error.”); United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017)
(“[W]hen, as here, the defendant fails to object to the restitution order, we review for plain
error.”). “Under that standard, [Holmes] may not obtain relief unless: (a) the error was
plain; (b) the error affected substantial rights, meaning that there is a reasonable probability
that, but for the error, the outcome of the proceeding would have been different; and (c)
the error had a serious effect on the fairness, integrity or public reputation of judicial
proceedings.” United States v. Heyward, 42 F.4th 460, 465 (4th Cir. 2022) (internal
2 USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 3 of 8
quotation marks omitted). “This standard is difficult to satisfy.” Id. (internal quotation
marks omitted).
Regarding the willful blindness instruction, “[§] 1920 of the criminal code makes it
unlawful to knowingly and willfully make a false, fictitious, or fraudulent statement or
representation in connection with the application for or receipt of compensation or other
benefit or payment under a federal program.” United States v. Catone, 769 F.3d 866, 872
(4th Cir. 2014) (cleaned up). The parties conceded in the district court, to prove Holmes
violated § 1920, the Government had to establish that (1) Holmes knowingly and willfully
made a false statement; (2) the statement was material; (3) the statement was made to obtain
OWCP benefits; and (4) Holmes received more than $1,000.
As to the false statement element, the Government had the burden to establish that
Holmes “acted knowingly and willfully with the specific intent to deceive.” United States
v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). In this regard, “[i]t is well established that
where a defendant asserts that he did not have the requisite mens rea to meet the elements
of the crime but evidence supports an inference of deliberate ignorance, a willful blindness
instruction to the jury is appropriate.” United States v. Miller, 41 F.4th 302, 314 (4th Cir.
2022) (cleaned up). “Evidence supports an inference of deliberate ignorance if it tends to
show that (1) the defendant subjectively believes that there is a high probability that a fact
exists and (2) the defendant took deliberate actions to avoid learning of that fact.” Id.
(cleaned up). We have explained that “[t]he willful blindness instruction allows the jury
to impute the element of knowledge to the defendant if the evidence indicates that [s]he
3 USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 4 of 8
purposely closed h[er] eyes to avoid knowing what was taking place around h[er].”
Schnabel, 939 F.2d at 203.
Holmes is correct that “caution must be exercised in giving a willful blindness
instruction,” which “is appropriate only in rare circumstances.” United States v. Ali, 735
F.3d 176, 187 (4th Cir. 2013). This is so “because the instruction presents the danger of
allowing the jury to convict based on an ex post facto theory (he should have been more
careful) or to convict on a negligence theory (the defendant should have known his conduct
was illegal).” United States v. Lighty, 616 F.3d 321, 378 (4th Cir. 2010). Holmes therefore
asserts that, because there was no evidence she took affirmative action to avoid learning of
her obligations to correctly report her income, the district court’s instruction provided an
avenue for the jury to convict her based on mere recklessness or negligence.
We conclude that the district court did not commit plain error in issuing the willful
blindness instruction. First, the Government’s evidence established that Holmes was aware
of her obligation to report any employment in the 15 months preceding her completion of
the 1032 Forms underlying the charged § 1920 offenses. The 1032 Forms also contained
a warning, in all capital letters, that failure to accurately report all work activities could
result in severe penalties, including criminal prosecution, and Holmes received the cover
letters and 1032 Forms containing these instructions and warnings multiple times between
2012 and 2017.
Holmes correctly argues that to justify issuance of a willful blindness instruction,
this court has looked to affirmative conduct a defendant has taken to avoid discovering a
legal obligation. See, e.g., United States v. Ravenell, 66 F.4th 472, 491 (4th Cir. 2023)
4 USCA4 Appeal: 23-4700 Doc: 34 Filed: 06/21/2024 Pg: 5 of 8
(concluding that evidence of defendant’s “machinations to maintain plausible deniability,”
including testimony that the defendant instructed an associate of a drug dealer “not to give
him cash from drug proceeds and instead to give him checks and money orders,”
demonstrated deliberate avoidance), cert. denied, No. 23-638, 2024 WL 1607762 (U.S.
Apr. 15, 2024). But we conclude that the evidence presented at trial, including Holmes’
testimony that her husband had to complete the 1032 Form underlying Count Three
because of stress and medical conditions she was experiencing at the time, justified the
district court’s willful blindness instruction. Id. Moreover, although Holmes does not
challenge the substance of the district court’s willful blindness instruction, the court’s
instruction carefully tracked the applicable standard and explained that the jury could not
infer knowledge if the only proof established that Holmes was negligent or mistaken
regarding her reporting obligations. We presume that the jury followed the court’s
instruction, see United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009), especially
since it acquitted Holmes of providing false statements on the 1032 Forms underlying the
§ 1920 charges of which Holmes was acquitted.
Turning our attention to the district court’s restitution order, the Mandatory Victims
Restitution Act (“MVRA”), codified at 18 U.S.C. § 3663A, requires “defendants convicted
of certain crimes to pay their victims restitution.” Lagos v. United States, 584 U.S. 577,
580 (2018). These crimes include “any offense committed by fraud or deceit,”
§ 3663A(c)(1)(A)(ii), and “in which an identifiable victim . . . has suffered a . . . pecuniary
loss,” § 3663A(c)(1)(B). Thus, the statute “authorizes an award of restitution only for the
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loss caused by the specific conduct that is the basis of the offense of conviction.” United
States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996) (cleaned up).
Holmes’ PSR expressly indicated that $18,649.39 in restitution should be ordered
to be paid to OWCP since that amount was required under the MVRA. As Holmes made
no objections to the PSR, the district court was entitled to rely upon the “undisputed
portion” of the PSR in determining restitution. See Fed. R. Crim. P. 32(i)(3)(A); United
States v. Roy, 88 F.4th 525, 533 (4th Cir. 2023) (A district court may “accept any
undisputed portion of the presentence report as a finding of fact.”).
Moreover, Holmes was convicted of Count Three and embezzlement as alleged in
Count One. Count One charged Holmes with embezzling more than $1,000 of money from
2015 through the date of the indictment, which was originally filed on July 20, 2021. The
timeframe for the embezzlement amount therefore included May 2016, which is when
Holmes executed the 1032 Form underlying Count Two.
And reviewing the district court’s factual findings regarding the appropriate amount
of loss caused by Holmes’ crimes in conjunction with the evidence and argument presented
during her trial and at sentencing, we conclude that the district court did not commit clear
error in finding—by a preponderance of the evidence—that OWCP was entitled to
$18,649.39 in restitution for Holmes’ embezzlement. Cf. United States v. Seignious, 757
F.3d 155, 163 (4th Cir. 2014) (explaining that, to determine—on plain error review—
whether district court erroneously calculated loss amount, the court must first determine
whether the district court committed clear error in finding that loss amount was supported
by a preponderance of the evidence). Indeed, although Holmes had the burden to refute
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the Government’s evidence establishing the amount of restitution she owed, see United
States v. Underwood, 95 F.4th 877, 894 (4th Cir. 2024) (“[O]nce the Government has
satisfied its burden to offer evidence supporting its restitution calculation, the burden shifts
to the defendant to dispute that amount with [her] own evidence” (cleaned up)), Holmes
conceded at trial that the Government correctly calculated the amount she owed and that
she received an overpayment of approximately $18,000 for her failure to report her
employment during the relevant years.
As support for her argument that the district court committed plain error when it
ordered her to pay restitution for conduct underlying Count Two, Holmes primarily relies
on the Supreme Court’s decision in Hughey v. United States, 495 U.S. 411, 416 (1990)
(“[R]estitution as authorized by [18 U.S.C. § 3579(a)(1)] is intended to compensate victims
only for losses caused by the conduct underlying the offense of conviction.” (emphasis
added)), as well as this court’s decision in United States v. Llamas, 599 F.3d 381 (4th Cir.
2010), and the Court of Appeals for the Seventh Circuit’s decision in United States v. Kane,
944 F.2d 1406 (7th Cir. 1991). In both Llamas and Kane, however, the defendants
challenged restitution ordered for convictions for conspiracy offenses that were supported
by expressly alleged overt acts of which defendants were acquitted. See Kane, 944 F.2d at
1414; see also United States v. Llamas, No. 3:05-cr-00400-FDW-4 (W.D.N.C., PACER
No. 84 at 5-11).
Here, Holmes was ordered to pay the challenged restitution amount because she was
convicted of a substantive embezzlement charge that, rather than alleging overt acts as
support, generally alleged a timeframe during which the embezzlement occurred. Thus,
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the cases upon which Holmes relies are not determinative of the issue Holmes raises on
appeal. See United States v. Bailey, 975 F.2d 1028, 1033-34 (4th Cir. 1992) (finding
restitution order permissible under § 3663(a)(1) and Hughey where “[t]he central
difference between the ‘offense’ in Bailey’s case and that in Hughey is that Bailey’s offense
was defined broadly in the indictment” and observing that “[c]ases following Hughey have
reversed restitution orders mainly where the trial court orders restitution for acts of which
the defendant was not convicted”); see also Rosales-Mireles v. United States, 585 U.S.
129, 134 (2018) (reiterating that for an error to be “plain” it must be “clear or obvious”).
We therefore conclude that the district court committed no plain error in calculating the
restitution amount for which Holmes was responsible.
Based on the foregoing, we affirm the criminal judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED