The Government frequently trots out the conscious avoidance instruction (also known as the ostrich instruction, the deliberate ignorance instruction, and so forth) as yet another way the jury can find the defendant(s) guilty where the Government has not proved that the defendant(s) intentionally violated a known legal duty. I have previously written on this subject here. I quote judge Posner in those previous blogs for how the instruction can be misleading. Here is what Judge Pauley had to say about it in the context of the Daugerdas case -- prosecution of tax shelter promoters with innocent taxpayers:
With respect to the conscious avoidance charge, this Court declines to give the jury such a charge. A conscious avoidance charge requires a factual predicate that "the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact." United States v. Ferranini, 219 F.3d 145 at 155 (2d Cir. 2000).The point is that the Government should just prove the tax evasion that it alleged happened. There was no conscious avoidance. Either the defendants intended to violate a known legal duty or they did not.
This factual predicate has not been established, particularly with respect to defendants Daugerdas and Guerin. The evidence at trial strongly suggests, and the theory of the indictment has always been, that the defendants knew that the tax shelters violated the tax laws and that the tax shelter clients lacked a genuine business purpose for entering into the tax shelters, not that they consciously avoided learning this information.
Moreover, even if an appropriate factual predicate existed as to the other defendants, this Court would decline to give a conscious avoidance charge because a charge as to only some of the defendants would significantly and unfairly prejudice the others. This is simply a price that the government pays for charging multiple defendants with varying degrees of knowledge and involvement in a single indictment.
Bravo Judge Pauley!