Wednesday, March 21, 2018

Second Circuit Discusses Conscious Avoidance (Willful Bllindness) (3/21/18)

In United States v. Dambelly, 2018 U.S. App. LEXIS 6382 (2d Cir. 2018), unpublished, here, the Court had some interesting language regarding the willful blindness concept (which the Court, as often in the Second Circuit, refers to as conscious avoidance, see United States v. Ferguson, 676 F.3d 260, 278 n16 (2d Cir. 2011)).

Dambelly was convicted of "one count each of conspiracy to export, transport, and possess stolen motor vehicles in violation of 18 U.S.C. § 371; exportation of or attempt to export stolen vehicles in violation of 18 U.S.C. §§ 2, 553(a)(1); transportation of stolen vehicles in violation of 18 U.S.C. §§ 2, 2312; and possession of stolen vehicles in violation of 18 U.S.C. §§ 2, 2313(a)."

The opinion is short and discusses the conscious avoidance issue.  I excerpt here only a portion of the discussion (emphasis supplied by JAT):
As Dambelly points out, one of the prerequisites for a conscious-avoidance instruction is that "the defendant [have] assert[ed] the lack of some specific aspect of knowledge required for conviction." Svoboda, 347 F.3d at 480. A conscious-avoidance instruction permits the jury to draw an inference of knowledge, not an inference of specific intent. See United States v. Samaria, 239 F.3d 228, 239-40 (2001), abrogated on other grounds, United States v. Huezo, 546 F.3d 174 (2d Cir. 2008). To convict a defendant of aiding and abetting, a jury must find that the defendant had the specific intent to commit the underlying substantive offense; mere knowledge is not enough. United States v. Frampton, 382 F.3d 213, 223 (2d Cir. 2004). Conviction on a charge of attempt requires proof of intent unless it is clear from the language of the statute that only knowledge, not intent, is required. See United States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994) (citing Braxton v. United States, 500 U.S. 344, 351 n. (1991, 111 S. Ct. 1854, 114 L. Ed. 2d 385)).
While this is not a tax case, the discussion does echo the intent requirement in tax crimes requiring willfulness -- per Cheek, specific intent to violate a known legal duty. Cheek v. United States, 498 U.S. 192, 200-201 (1991).  As I understand it, at least some courts use the willful ignorance -- aka conscious avoidance -- instruction in such tax crimes cases.  So, I decided to look at the cases cited above.

In United States v. Samaria, 239 F.3d 228, 239-40 (2001), the Court reasoned:
E. The Limited Inferences Possible From Evidentiary Presumptions 
Having failed to provide sufficient proof of Elaiho's specific knowledge and intent regarding the crimes charged through circumstantial evidence, the government seeks to rely on evidentiary presumptions to supply what is lacking. The government argues that either Elaiho's constructive possession of recently stolen goods or his conscious avoidance of the fact that the goods were stolen provides an inference that Elaiho knew that the contents of the boxes were indeed stolen. We reject the argument that Elaiho was in constructive possession of the boxes and find that although conscious avoidance may be a substitute for knowledge, it cannot substitute for the intent necessary to prove the crimes charged.  
* * * * 
2. Conscious Avoidance 
The conscious avoidance doctrine provides that a defendant's knowledge of a fact required to prove the defendant's guilt may be found when the jury "is persuaded that the defendant consciously avoided learning that fact while aware of a high probability of its existence." United States v. Finkelstein, 229 F.3d 90, 95 (2d Cir. 2000). 1In such circumstances, a conscious avoidance instruction to the jury "permits a finding of knowledge even where there is no evidence that the defendant possessed actual knowledge." United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000). 
Even assuming that the conscious avoidance instruction given to the jury in this case was proper, any such inference could do no more than establish Elaiho's knowledge of the criminal endeavor, not his specific intent to participate in the crimes charged. As this Court has explained: 
[A]pplication of the "conscious avoidance" theory is appropriate where the essential mental element of the crime is "guilty knowledge." It is equally clear that the requisite mental state for conspiracy is intent, not mere knowledge. Thus, the error in the government's logic becomes obvious. If someone can consciously avoid learning of the activities and objects of a conspiracy, how can that person ever intend those events to take place? 
United States v. Mankani, 738 F.2d 538, 547 n. 1 (2d Cir. 1984) (internal citations omitted); see also United States v. Ferrarini, 219 F.3d 145, 156 (2d Cir. 2000) ("[E]ven if the instructions could be construed to permit the jury to find knowing participation in the conspiracy based on conscious avoidance . . . the instructions still do not permit the jury to find intent to participate in the conspiracy based on conscious avoidance."). Because the substantive offenses underlying the conspiracy charges require the specific intent to receive or possess stolen goods or commit credit card fraud, and not simply knowledge that these crimes were afoot, conscious avoidance would not provide the requisite proof needed for conviction. For the same reason, a finding of conscious avoidance will not satisfy the intent requirement for the other counts charged under 18 U.S.C. § 2 (aiding or abetting) or 18 U.S.C. § 1029(a)(2) (credit card fraud). Because we find that the government has not presented evidence sufficient to prove the requisite specific intent, we need not reach the further issue of whether conscious avoidance could have been inferred from this evidence, and, if so, whether the jury was properly instructed.
As best I understand it, for the proposition cited in Dambelly, Samaria remains the law in the Second Circuit.  See United States v. Tropeano, 252 F.3d 653, ___ (2d Cir. 2001), as well as the cite in Dambelly.. However, I do note something of an academic brawl about what Judge Winter had to say in a case decided between Samria and Tropeano.  In United States v. Juncal, 245 F.3d 166, 171 n1 (2d Cir. 2001), Judge Winter said:
   n1 We note that, after argument in the present matter, we decided United States v. Samaria, 239 F.3d 228 (2d Cir. 2001). In a yet more recent case, an appellant has argued that Samaria stands for the proposition that a conscious avoidance instruction is per se error in a conspiracy case where the substantive offense underlying the conspiracy charge requires proof of specific intent. See United States v. Tropeano ( Barroso), No. 00-1708 (2d Cir. Argued Feb. 26, 2001). Such a reading of Samaria would attribute to it the overruling of a long-standing line of cases in this circuit holding that, while evidence of conscious avoidance cannot support a finding that a defendant knowingly participated in or joined the conspiracy, it may support a finding that a defendant knew of the unlawful objectives of the conspiracy. See, e.g., United States v. Ferrarini, 219 F.3d 145, 155-56 (2d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3410 (U.S. Dec. 6, 2000) (No. 00-945); United States v. Eltayib, 88 F.3d 157, 170 (2d Cir. 1996); United States v. Scotti, 47 F.3d 1237, 1242-43 (2d Cir. 1995); United States v. Beach-Nut Nutrition Corp., 871 F.2d 1181, 1196 (2d Cir. 1989); United States v. Lanza, 790 F.2d 1015, 1022-23 (2d Cir. 1986). However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory. See 239 F.3d at 239-42. The evidence in the present case, however, was that appellant had strong reason to suspect that the transaction was fraudulent but deliberately failed to pursue the issue. Because conscious avoidance goes only to prove Lancaster's knowledge, and not to show his intent to participate in the scheme, Samaria is therefore of no relevance.
This statement of Judge Winter has been cited as an indirect attack on the opinion in Samaria, written by Judge (now Justice) Sotomayor.  I merely cite here two web discussions on the brawl and do not address it further because the point I find interesting about Samaria continues to be cited by the Second Circuit.  So, some writings on the brawl:

  • Michael Dork, Rosen Versus Sotomayor: The Footnote Question (Dorf on Law Blog 5/7/09), here.
  • A resulting comment trail from the Volokh Conspiracy, here.

I think that's enough on that brawl.

No comments:

Post a Comment

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.