Friday, March 1, 2013

Court Rejects Ineffective Assistance of Counsel Related to Willful Blindness (3/1/13)

In Poole v. United States, 2013 U.S. Dist. LEXIS 20847 (D. Md. 2013), [link to be added later], the Court denied the petitioner's motion "to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255."  Petitioner had been charged with others of one court of Klein conspiracy count (18 USC Section 371), four counts of aiding and assisting (Section 7206(2)), and one count of tax perjury (Section 7206(1)).  Petitioner waived jury trial, and the Government consented.  The judge found him guilty of the aiding and assisting counts but innocent of the conspiracy count.  (It is unclear what happened on the tax perjury count).  Poole was sentenced to 24 months on each count of conviction, to be served concurrently.

Poole did not like his conviction and sentence.  He appealed.  The conviction and sentence were affirmed on appeal.  Hence, Poole filed the § 2255 raising the typical arguments of ineffective assistance of counsel, among other arguments.

I focus here on his claims related to willful blindness.  The willful blindness concept goes by several names -- conscious avoidance, deliberate ignorance, etc.  I usually use conscious avoidance, but will use willful blindness here because that is what the Court used.

First, he argued that the trail court erred in applying the willful blindness concept.  I quote the decision's discussion of this issue in full:
B. Petitioner's Claim that This Court Erred in its Application of the Willful Blindness Standard 
Petitioner's second ground for vacating his sentence concerns the application of the willful blindness standard. Petitioner asserts that this Court improperly shifted the burden of proof on to the Petitioner when it determined that he was willfully blind, thereby establishing the guilty knowledge element of the crime of aiding and assisting in the filing of false tax returns in violation of 26 U.S.C. § 7206(2). Mot. to Vacate ¶ 14.
On this ground, too, the Fourth Circuit Court of Appeals has already made a determination. As the Fourth Circuit explained in its opinion affirming this Court's judgment, "in a criminal tax prosecution . . . 'willful blindness' constitutes proof of [the defendant's] subjective state of mind, thereby satisfying the scienter requirement of knowledge." Poole, 640 F.3d at 121; see also United States v. Dantzler, 45 F. App'x 259, 261 (4th Cir. 2002). The Court of Appeals went on to state that "[t]he rationale supporting the principle of 'willful blindness' is that intentional ignorance and actual knowledge are equally culpable under the law." Poole, 640 F.3d at 122. Moreover, the Court reasoned that an inference supporting the defendant's subjective awareness is enough for a trier of fact to find that the defendant exhibited willful blindness. Id. As the Government points out in its Omnibus Response, the Fourth Circuit found that there was sufficient evidence in this case to support the Petitioner's conviction and that a reasonable trier of fact could have found Petitioner to be willfully blind, "purposefully 'clos[ing] his eyes to' large accounting discrepancies." Id. at 123. Petitioner offers no reason to call these conclusions into question. Consequently, there is no merit to Petitioner's argument that this Court incorrectly applied the willful blindness standard, and Petitioner may not relitigate the issue at this stage of review. 
Relatedly, Petitioner argues that an application of the willful blindness standard to his case relieved the Government of its burden to prove that he had guilty knowledge regarding the fraudulent tax returns. This argument likewise lacks merit. In its review of Petitioner's case, the Court of Appeals for the Fourth Circuit explained that the Government had been required to prove that "Poole willfully aided, assisted, or otherwise caused the preparation of a tax return that was fraudulent or false with regard to a material matter." Id. at 116. The appellate court found that the Government had met that burden. See id. at 122-123. Considering the weighty evidence in support of Petitioner's conviction, he fails here, as he did on appeal, to show why the application of the willful blindness standard was improper in this case.
I think the court and the Fourth Circuit fuses the two distinct conceptual theories of willful blindness.  First, acts of willful blindness can permit that the trier of fact to infer that the defendant had the required scienter (in this case intentional violation of a known legal duty.  Second, a finding of willful blindness is a substitute for the required scienter.  I have written on this distinction.  I think the second is flawed.  A reader interested in pursuing my analysis can click the "conscious avoidance" link below.

Petitioner also claimed that counsel was ineffective because "by failing to provide him "a clear understanding of the reasonableness of the government's [plea] offer" and failing to effectively warn him of the potential application of the willful blindness standard."  I too quote the entire discussion of that issue:
2. Counsel's Handling of the Government's Plea Offer
Second, Petitioner argues that his counsel performed ineffectively by failing to provide him "a clear understanding of the reasonableness of the government's offer" and failing to effectively warn him of the potential application of the willful blindness standard. Mot. to Amend 1. Petitioner elaborates on this claim, stating that his trial counsel assured him he "had an excellent chance of winning" and did not explain that under a willful blindness theory "could have known" equates to "should have known." Id. On this point, too, Petitioner fails to make out the requisite prongs of Strickland v. Washington
First, Petitioner does not demonstrate how counsel's performance was deficient. He only states that counsel assured him that he could win and that this Court would be able to understand the complicated elements of the case. In Lafler v. Cooper, 132 S. Ct. 1376 (2012), one of the Supreme Court's most recent cases applying Strickland v. Washington to the context of plea negotiations, there was no question that counsel's advice was patently erroneous with regard to the guilty plea. The case in Lafler concerned a defendant who had fired at an individual's head and missed, and then continued firing as the individual fled, shooting her in the buttock, hip, and abdomen. Id. at 1383. The defendant was charged with, among other crimes, assault with the intent to murder. Id. He rejected a plea deal on his attorney's advice that the prosecution would be unable to establish intent to murder, and later challenged that advice under Strickland v. Washington, 466 U.S. 668.  [*37] n5
   n5 In Lafler, the parties agreed that the defense attorney's advice was deficient. 132 S. Ct. at 1384.
In this case, Petitioner makes no such showing of constitutionally deficient advice. Counsel's alleged assurances about the chance that Petitioner might be acquitted are not unfounded, considering that this Court acquitted Petitioner of the conspiracy charges against him. And had counsel informed the Petitioner that a level of knowledge described as "could have known" would be enough to find him guilty of the charges against him, counsel's advice would have been flawed. To impute knowledge to the Petitioner under a willful blindness theory, the fact finder had to determine that Petitioner "purposely closed his eyes to avoid knowing what was taking place around him." United States v. Ruhe, 191 F.3d 376, 384-85 (4th Cir. 1999). For these reasons, Petitioner fails to show ineffective assistance of counsel with regard to the handling of his plea offer. 
Even assuming Petitioner could make out such a claim, he cannot show that, but for his counsel's ineffective assistance, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In the context of a rejected plea offer, Petitioner must show that "there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler, 132 S. Ct. at 1385. Given Petitioner's continued assertions that he did not commit the crime of willful aiding and assisting in the preparation of materially false tax returns, see Pet'r's Reply 2, ECF No. 202 ("I did not know that my client was cheating and I had no reason to suspect that he was."); Mot. to Amend 2 ("I was NOT willfully blind."), there is no reason to believe that Petitioner would have accepted the plea agreement even if counsel had advised him differently. See Berry v. United States, Civ. Action No. 4:11cv145, 2012 WL 3329622 (E.D. Va. July 29, 2012) (finding, in the context of a petitioner who had maintained his innocence at trial, that "[a]s multiple courts have recognized, 'after the fact testimony concerning [a defendant's] desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer'"); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) ("[A]fter the fact testimony concerning [a defendant's] desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer." (citing Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir. 1986))). 
Moreover, Petitioner is unable to show that he would have received a less severe sentence had he agreed to plead guilty. The Government in its plea letter recommended a sentence within a range of 30-37 months. Gov't's Omnibus Resp. 24. After a bench trial, this Court sentenced Petitioner to twenty-four months of imprisonment. Given that Petitioner received a shorter sentence than the term proposed by the Government in its plea negotiations, Petitioner is unable to make any showing of prejudice, and his Strickland claim fails.
Finally, the petitioner also made another argument of potential interest to readers of this blog.  Petitioner argued that counsel was ineffective for advising him to waive his jury trial and in failing to advise him of Canon 3(C)(1)(a) which, petitioner erroneously believed, required the trial judge's recusal.  The court rejected the argument.

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