Fourth Circuit Speaks Again on Conscious Avoidance / Willful Blindness (5/12/11)

In United States v. Poole, 640 F.3d 114 (4th Cir. 2011), the court addressed the concept of "willful blindness," also called by similar names, such as conscious avoidance, deliberate ignorance, etc. For prior blogs on the concept, see here. I start with basic concept of willfulness.

Conviction of most tax crimes, including the Section 7206(1) aiding and assisting involved in Poole, requires that the Government prove that the defendant acted willfully. Willfulness in this context is the “voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 13 (1976).  (This statement of willfulness is sometimes referred to as Cheek willfulness because the Supreme Court reiterated the standard in Cheek v. United States, 498 U.S. 192 (1991).  In Bryan v. United States, 524 U.S. 184 (1998), the Court said that this meaning of willfulness requires that the "Government prove that the defendant acted with knowledge that his conduct was unlawful” (quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)). (Bryan also held "In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating" (citing Cheek), but that formulation was probably overexuberance for the concept of willfulness; I'll just stick here with intentional violation of a known legal duty as the test.)

In all events, specific intent to violate a known legal duty is required. Ignorance is an excuse / defense.

Conceptually, if a defendant does not have a specific intent to commit a tax crime does it matter that he deliberately chose not to know whether or not his conduct was a crime? If the crime is defined to require that he know his conduct is criminal, how does the state of ignorance however acquired meet that standard?

I have previously ranted about this issue before in my blog Third Circuit Decision in Staudtmauer - Willful Blindness (Conscious Avoidance) (9/10/10) discussing United States v. Stadtmauer, 620 F.3d 238 (3rd Cir. 2010). So I avoid further ranting and move to the decision in Poole. The Court had the following to say (I have bold faced the text that I think is questionable) (some case citations omitted):

Generally, in criminal prosecutions, the government elects to establish a defendant's guilty knowledge by either of two different means. The government may show that a defendant actually was aware of a particular fact or circumstance, or that the defendant knew of a high probability that a fact or circumstance existed and deliberately sought to avoid confirming that suspicion.

Under this second method of proof, in a criminal tax prosecution, evidence establishing a defendant's "willful blindness" constitutes proof of his subjective state of mind, thereby satisfying the scienter requirement of knowledge. United States v. Stadmauer, 620 F.3d 238, 235 (3d Cir. 2010). Thus, in a criminal tax prosecution, when the evidence supports an inference that a defendant was subjectively aware of a high probability of the existence of a tax liability, and purposefully avoided learning the facts pointing to such liability, the trier of fact may find that the defendant exhibited "willful blindness" satisfying the scienter requirement of knowledge.

The rationale supporting the principle of "willful blindness" is that intentional ignorance and actual knowledge are equally culpable under the law. See Stadmauer, 620 F.2d at 255. Intentional ignorance reflects a state of mind that extends beyond any form of mere negligence, or even recklessness. United States v. Guay, 108 F.3d 545, 551 (4th Cir. 1997) ("This circuit approves willful blindness instructions when the jury is not permitted to infer guilty knowledge from a mere showing of careless disregard or mistake.").

I am still concerned that, where Congress has defined the crime to require intentional violation of a known legal duty, even intentional ignorance is a substitute for that specific intent to violate a known legal duty. It seems to me that the better explication of conscious avoidance is that the jury may infer intentional violation of a known legal duty -- actual intent -- from affirmative acts (high probability and objectively ambiguous acts) that might be just a smokescreen for that actual intent. Again, given the statute, I don't think that ignorance, however achieved and at whatever level, is the equivalent of intentional violation of a known legal duty. Of course, if courts such as the Poole court interpret willfulness to include "intentional ignorance" as opposed to specific intent, then intentional ignorance is criminalized. But, if that is so, I suggest that the Supreme Court revise the formulation of the definition of willfulness to mean the "intentional violation of a known legal duty or the intentional ignorance of the legal duty." That just doesn't sound as catchy or correct.

5/12/11