Conscious Avoidance / Deliberate Ignorance -- Assuming the Jury Acted Properly (6/23/11)

In United States v. Hillman, 642 F. 3d. 929 (10th Cir. 2011), here, the defendant was "convicted of several crimes arising from a scheme to steal hundreds of thousands of dollars from an insurance company for which he worked." The counts of conviction were: "one count of conspiracy to engage in money laundering (18 U.S.C. § 1956(h)), five counts of money laundering (18 U.S.C. §§ 1957(a) & 2), and one count of false statements to a federal law enforcement agent (18 U.S.C. § 1001(a)(2))." The false statements were made to an IRS Agent.

The defendant raised several issues on appeal, but I focus on the deliberate ignorance issue. I have previously written about deliberate ignorance, which goes by several different names such as conscious avoidance etc. See prior blogs here.

The jury was properly instructed that it could convict based on defendant's own knowledge. The judge also instructed the jury that deliberate ignorance would suffice to establish the knowledge requirement. The jury returned a general verdict of guilty on each count. Defendant complained on appeal that the trial court should not have instructed the jury on deliberate ignorance. You will recall that all courts say that the deliberate ignorance instruction is to be rarely used, but sustain its use in appropriate cases. The defendant's point was that it was inappropriately used in this case and that, if so, the guilty verdict should be reversed because it could have been based on the inappropriate instruction.

The Court rejected the argument because the jury had been properly instructed on actual knowledge as a basis for guilt and, presumably, assumed that the jury had properly convicted based on actual knowledge.  The Court does find in a footnote, apparently as an aside to its main holding, that the evidence was sufficient on the deliberate ignorance instruction.  But the point the court was clearly making was that a defendant complaining about a deliberate ignorance instruction must attack the sufficiency of the evidence on actual knowledge; otherwise the court will assume proper conviction on the actual knowledge instruction.  Assuming I have properly characterized the Court's bottom line holding, this seems odd.  I invite the readers' views. 

For convenience, I cut and paste below the whole deliberate ignorance analysis:

Hillman's last contention is that the district court erred when it gave a deliberate ignorance instruction to the jury. He asserts the instruction was improper because the government did not present sufficient evidence supporting his conviction based on his deliberate ignorance of the scheme. That is, the government failed to present evidence Hillman deliberately acted to avoid knowledge Shaffer was stealing funds from Great-West Life.

This argument has a fatal flaw. Hillman does not challenge the sufficiency of the evidence supporting his conviction based on his actual knowledge of the scheme. Nor does he challenge the actual knowledge instruction, itself, as improper. As we clarify below, because he does not challenge the sufficiency of the evidence on a theory of actual knowledge, our case law precludes reversal of the conviction on the basis of insufficient evidence supporting an alternate theory of deliberate ignorance.

A deliberate ignorance instruction is "appropriate when a defendant denies knowledge of an operant fact but the evidence, direct or circumstantial, shows that defendant engaged in deliberate acts to avoid actual knowledge of that operant fact." United States v. Baz, 442 F.3d 1269, 1271-72 (10th Cir. 2006). Hillman correctly points out that a deliberate ignorance instruction should be used sparingly unless the government has produced sufficient evidence supporting the instruction. See United States v. Hilliard, 31 F.3d 1509, 1514 (10th Cir. 1994) ("The use of a deliberate ignorance instruction is appropriate only when evidence has been presented showing the defendant purposely contrived to avoid learning the truth.") (quotation omitted); 10th Cir. Criminal Pattern Jury Instructions No. 1.37, Cmt. (2006 ed.) ("Although the deliberate ignorance instruction in general was discouraged, it may be given 'when the Government presents evidence that the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of prosecution.'" (quoting United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000)).

We recently considered the interplay between challenges to a deliberate ignorance instruction and actual knowledge for purposes of appellate review. In United States v. Corralles, 608 F.3d 654 (10th Cir. 2010), the jury was instructed to consider both the defendant's actual knowledge as well as his deliberate ignorance. On appeal, the defendant argued, like Hillman here, insufficient evidence supported the deliberate ignorance instruction. We rejected this argument and stated:

[W]e need not determine in this case whether there was sufficient evidence of deliberate ignorance. [Defendant] does not challenge the sufficiency of the evidence to support a conviction based on a finding of actual knowledge. And when there is sufficient evidence to support a conviction on one theory of guilt on which the jury was properly instructed, we will not reverse the conviction on the ground that there was insufficient evidence to convict on an alternative ground on which the jury was instructed.

Id. at 657; see also United States v. Hanzlicek, 187 F.3d 1228, 1236 (10th Cir. 1999) ("[A] district court does not commit reversible error where it submits a properly-defined, although factually unsupported, legal theory to the jury along with a properly supported basis of liability.").

For this proposition, we relied on the Supreme Court's decision in Griffin v. United States, 502 U.S. 46 (1991). In Griffin, the Court considered a challenge to a conviction for conspiracy to defraud the government that was alleged to have two objects. At trial, the government presented evidence sufficient to support only one of the objects and insufficient to support the other. Despite this, the jury was instructed in a way that permitted it to return a guilty verdict if it found the defendant participated in either of the two objects of the conspiracy. The Court determined a guilty verdict should be sustained for an offense that can be committed by one or more means if the evidence was sufficient to support one of the means, even though it was insufficient to support the alternative. Addressing the issue of giving a jury instruction regarding an alternative means insufficiently supported by the evidence, the Court clarified:

What we have said today does not mean that a district court cannot, in its discretion . . . eliminat[e] from the jury's consideration an alternative basis of liability that does not have adequate evidentiary support. Indeed, if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.

Id. at 60 (emphasis added). This reasoning supports our decision in Corralles to decline review of the sufficiency of the evidence of deliberate ignorance when the sufficiency of the evidence of actual knowledge is not also challenged.

Hillman here challenges the sufficiency of the evidence supporting the deliberate ignorance instruction but does not challenge the sufficiency of the evidence supporting the actual knowledge instruction or the language of the actual knowledge instruction itself. His argument in this case is the same as the one we rejected in Corralles, and he has failed to provide any reasonable basis on which to distinguish his case.

We might add that even without Corralles, more than sufficient evidence supported the actual knowledge instruction, and a rational jury could have found Hillman knowingly participated in the Great-West Life scheme. For instance, Hillman discussed the scheme with Shaffer when she first concocted it, he suggested using a third party to receive the checks so other Great-West Life employees would not become suspicious, and the checks Hillman deposited had stubs attached containing reference to IRA and annuity account information. The government presented ample evidence Hillman actually knew Shaffer was stealing from Great-West Life and that the checks he deposited were from the inactive annuities. n5

n5 Likewise, even if we reached the merits of Hillman's deliberate ignorance argument, more than enough evidence supported the instruction. Ample testimony showed he had "subjective knowledge of his criminal behavior, but purposely and deliberately avoided actual knowledge of the operant facts." United States v. Soussi, 316 F.3d 1095, 1106 (10th Cir. 2002).

We thus find Corralles controls the outcome here and we reject Hillman's argument.