Willful Blindness / Conscious Avoidance Again (5/23/14)

I have addressed on this blog the concept of willful blindness, a concept that goes by several names, including conscious avoidance.  The concept is that a jury may consider a defendant's willful or conscious effort to avoid knowing key facts or law that, if known, would give the defendant the level of mens rea required as an element of the crime.  That level for most tax crimes is willfulness -- the intent to violate a known legal duty.  For other crimes, the element may be knowingly (or some variation), which is often interpreted as a less strict standard than tax crimes willfulness, but still requires knowing mens rea on the defendant's part.  What if the defendant makes a deliberate or willful or intentional or conscious attempt not to achieve the required level of knowledge?

The crisp question is whether, if a jury finds such a willful attempt,

(i) can it convict on that basis alone without specifically finding the intent level required by the statute;
(ii) or it must consider that willful attempt in the context of the other factors to find that, in fact, the defendant had the required level of intent.  

Case (i) would be a substitute for the jury finding the level of intent required by the statute, permitting the jury to find guilt upon finding willful blindness without finding the existence of the statutorily required mental knowledge beyond a reasonable doubt; case (ii) would still require the jury to find the level of mental knowledge required by the statute beyond a reasonable doubt, permitting the jury only to infer that knowledge beyond a reasonable doubt from willful blindness and all the other facts.  These are important distinctions.

I have argued in past blogs that I believe case (ii) is the right answer.  I don't think the cases are clear and, in fact, tend to muddle the issue.

In a recent nontax case out of the Third Circuit, the Court's analysis muddles the issue. United States v. Tai, ___ F.3d ___, 2014 U.S. App. LEXIS 8129 (3d Cir. April 30, 2014), here.

In Tai, the defendant was convicted for mail fraud and wire fraud in connections with false claims relateld to a Fen-Phen settlement.  Tai was a board certified cardiologist who read echocardiagrams and submitted reports for some persons making claims.  The Government prosecuted him.

Mail fraud requires that, through the mail, the defendant "devise[] or intend[ed] to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises." 18 USC 1341, here.  Wire fraud is similarly worded for conduct through the wires.  18 USC 1341, here.  There is thus the requirement that the defendant act knowingly.

The Court addressed the defendant's appellate claim that the willful blindness instruction was improper because it shifted some burden onto the defendant to prove his innocence.  The discussion can be read as just addressing that burden shifting issue and perhaps was not meant to address the issue I raise above.  But on the issue I raise, whether dicta or not, it seems to flip flop.

Here are the relevant excerpts from the opinion (footnotes omitted, but bold face added by JAT):

There is no doubt that a jury instruction violates due process if it fails to place squarely on the Government the full burden of proving beyond a reasonable doubt the required mental state for the offense. See Patterson v. New York, 432 U.S. 197, 204-07, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). The language of the fifth paragraph, however, did not impose any burden, implicit or explicit, on Tai to prove or disprove his knowledge. Rather, the willful blindness jury instruction as a whole came after the jury was told the Government bears the burden to prove that Tai acted knowingly and with an intent to defraud. The willful blindness instruction then explicitly explained that "the Government may prove" this element through evidence that established beyond a reasonable doubt that Tai "deliberately closed his eyes to what would otherwise have been obvious to him." Supp. App. 829. The instruction then explained to the jury what this meant and how it could not find him guilty if the jury found that Tai actually believed the forms were accurate, that he disregarded a risk of inaccuracy, or that he or a reasonable person should have known the reports were inaccurate. The instruction then reiterated that, to convict, the jury must find Tai subjectively believed there was a high probability the reports were inaccurate and he consciously took steps to avoid learning about their inaccuracy. These instructions told the jury when willful blindness does or does not exist, but did not imply in any way that Tai must present evidence concerning his own beliefs or knowledge. Thus, there was no implicit or explicit shifting of the burden of proof to Tai.

Moreover, the District Court told the jury that it could not find knowledge based on a willful blindness theory unless the Government proved Tai's knowledge beyond a reasonable doubt, and in fact the jury was expressly told at the beginning of the instructions that Tai never had to prove anything, and that the burden always remained on the government. This was "more than sufficient to dispel any possible misconception that [Tai] bore a burden to prove that he was not willfully blind." United States v. Flores, 454 F.3d 149, 159 (3d Cir. 2006) (holding that even when the district court had misspoken and erroneously shifted the burden of proof in its willful blindness instruction, repeated references to the government's burden and the district court's general instruction that the burden does not shift ensured that there was no plain error). When the instructions are read as a whole, it is clear that no jury could conclude that Tai bore the burden of proof as to any aspect of his knowledge and the District Court committed no error in connection with its willful blindness instruction.