Wednesday, June 17, 2015

Fifth Circuit Speaks on Deliberate Ignorance (6/17/15)

In United States v. Kuhrt, ___ F.3d ___, 2015 U.S. App. LEXIS 9438 (5th Cir. Tex. 2015), here, the Fifth Circuit spoke most recently on deliberate ignorance.  (Note that the concept goes by various names, such as willful ignorance, conscious avoidance, etc.; early on, I used the key word conscious avoidance and have continued to use that term as the link term at the bottom of the blog entry.)  The defendant was convicted for nontax crimes requiring knowledge -- "for wire fraud and conspiracy to commit wire fraud, in violation of 18 U.S.C.S. §§ 1343 and 1349" which are here and here.  The trial court gave the jury the standard Fifth Circuit deliberate ignorance instruction which is (from the Fifth Circuit Pattern Jury Instructions (2001 ed.), par. 1.37, "Knowingly" - To Act, pp. 50-51, here) as follows:
[You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.]
The Note elaborates
 With regard to the deliberate ignorance instruction and the appropriate occasions for its submission, see United States v. Peterson, 244 F.3d 385 (5th Cir.), petition for cert. filed (U.S. June 5, 2001) (No. 00-10428); United States v. Sharpe, 193 F.3d 852 (5th Cir. 1999), cert. denied, 120 S.Ct. 1202 (2000); United States v. Moreno, 185 F.3d 465 (5th Cir. 1999), cert. denied, 120 S.Ct. 835 (2000); United States v. Threadgill, 172 F.3d 357 (5th Cir.), cert. denied, 120 S.Ct. 172 (1999); United States v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990). The bracketed material should be used sparingly–only when the facts and statute under which the defendant is being prosecuted justify it. See United States v. Chen, 913 F.2d 183 (5th Cir. 1990). If a deliberate ignorance instruction is
given, a “balancing” instruction should be considered upon request of defendant. See United States v. Farfan-Carreon, 935 F.2d 678 (5th Cir. 1991).  
The deliberate ignorance instruction “does not lessen the government’s burden to show, beyond a reasonable doubt, that the knowledge elements of the crimes have been satisfied.” United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999).  
A judge is cautioned that, in instructing on a statute which punishes “otherwise innocent conduct,” the knowledge requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996), reh’g and suggestion for reh’g en banc denied, 108 F.3d 335 (5th Cir. 1997). 
When a deliberate ignorance instruction is appropriate only with respect to one of a group of co-defendants, the Fifth Circuit has approved the giving of the instruction accompanied by a statement that the instruction may not apply to all of the defendants. United States v. Reissig, 186 F.3d 617 (5th Cir. 1999), cert. denied, 120 S.Ct 832 (2000).
 Here is the full discussion of the topic from the Kuhrt decision:
Appellants argue that the district court erred when it included a deliberate ignorance instruction and that the included instruction was incorrect as a matter of law. n4 We review "preserved error in jury instructions under an abuse of discretion standard." United States v. Brooks, 681 F.3d 678, 697 (5th Cir. 2012) (internal quotation marks omitted). "In assessing whether evidence sufficiently supports the instruction, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the [g]overnment." Id. at 701 (alteration in original) (internal quotation marks omitted).
   n4 Appellants also argue that the deliberate ignorance instruction used by the district court does not comply with the standard set by the Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011), because the instruction permits the jury to convict upon finding a mens rea closer to recklessness than knowledge. The district court used the Fifth Circuit Pattern Jury Instruction on deliberate ignorance. This issue is foreclosed because we have held that the Fifth Circuit Pattern Instruction meets the Global-Tech standard. United States v. Brooks, 681 F.3d 678, 702 (5th Cir. 2012) cert. denied, 133 S. Ct. 839, 184 L. Ed. 2d 652 (2013) ("The Fifth Circuit Pattern Instruction [on deliberate ignorance] meets the standard set forth by the Supreme Court in Global-Tech."). 
"We have often cautioned against the use of the deliberate ignorance instruction." United Stated v. Mendoza—Medina, 346 F.3d 121, 132 (5th Cir. 2003) (holding deliberate ignorance instruction not warranted in an actual knowledge case). We have also stated that "a deliberate ignorance instruction 'should rarely be given.'" United States v. Faulkner, 17 F.3d 745, 766 (5th Cir. 1994) (quoting United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992)); see also United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993) ("Because the deliberate ignorance instruction may confuse the jury, the instruction should rarely be given." (internal quotation marks omitted)). The proper role of the deliberate ignorance instruction is not as a backup or supplement in a case that hinges on a defendant's actual knowledge. The instruction is appropriate only in the circumstances where a defendant "claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference." Brooks, 681 F.3d at 701 (internal quotation marks omitted). "The evidence at trial must raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct." Id. (internal quotation marks omitted). "'[T]he district court should not instruct the jury on deliberate ignorance when the evidence raises only the inferences that the defendant[s] had actual knowledge or no knowledge at all of the facts in question.'" Mendoza—Medina, 346 F.3d at 133-34 (quoting United States v. Lara—Velasquez, 919 F.2d 946, 951 (5th Cir. 1990)). Undoubtedly, the deliberate ignorance instruction is "inappropriate for an offense which requires a specific purpose by the defendant." United States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990). 
The government constructed its case on the premise that Appellants were criminally liable based upon their actual knowledge of the fraud and their efforts to further the fraud. Thus, it arguably was error for the district court to give the deliberate ignorance instruction. 
Even assuming arguendo that this was error, we have held, nevertheless, that the giving of the instruction is harmless where there is substantial evidence of actual knowledge. See, e.g., United States v. St. Junius, 739 F.3d 193, 204-05 (5th Cir. 2013) ("Even if the district court errs in its decision to give the deliberate ignorance instruction, any such error is harmless where substantial evidence of actual knowledge is presented at trial." (internal quotation marks omitted)). That is the situation here. In Mendoza—Medina, we addressed a similar scenario where we held that there was insufficient evidence of deliberate ignorance, and therefore the district court's giving the deliberate ignorance instruction was in error. 346 F.3d at 134. However, because there was ample evidence of actual knowledge of the illegal conduct, we held that giving the instruction was harmless error. Id. at 135. Similarly, here, there was testimony that Appellants were actual participants in the illegal activity. Therefore, the error was harmless.
 Readers might want to review the Supreme Court decision in Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S. Ct. 2060 (2011), Court slip opinion here and casetext opinion here.  Global-Tech is discussed in many blogs since the decision, but here is my blog entry on the decision: Global-Tech in Supreme Court Speaks on Willful Blindness (Federal Tax Crimes Blog 6/2/11), here.  For all blogs on the subject, click on the link below for Conscious Avoidance (which is the term I use on this blog for the concept going by the various names noted above.  On the Brooks case cited by the Kuhrt court, see A White Collar Crime Case with Issues Relevant to Tax Crimes (Federal Tax Crimes Blog 10/10/12), here and Petition for Certiorari on Deliberate / Willful Ignorance / Conscious Avoidance / Ostrich Instruction (Federal Tax Crimes Blog 10/11/12), here.  Certiorari was denied in Brooks at 133 S. Ct. 836 (2013).

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