Petition for Certiorari on Deliberate / Willful Ignorance / Conscious Avoidance / Ostrich Instruction (10/11/12)

The second issue raise in both the Walton and the Brooks petitions for certiorari in United States v. Brooks, 681 F.3d 678 (5th Cir. 2012), here and here, is whether the trial court properly instructed the jury on deliberate ignorance as a substitute for specific intent (knowledge) in a crime where the text requires specific intent (knowledge). The deliberate ignorance concept is also called conscious avoidance, willful ignorance and the ostrich concept (mostly mentioned as the ostrich instruction).

The Walton petition alleges that the instructions given were not consistent with the Supreme Court's approval of the deliberate ignorance concept in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060 (2011), here.  I previously blogged on Global-Tech in Supreme Court Speaks on Willful Blindness (Federal Tax Crimes Blog 6/2/11), here. Suffice it to say now that, in that civil patent case, the Supreme Court discussed the concept of deliberate ignorance in criminal cases and appeared to bless the application of the doctrine.  Assuming that announcing its blessing in that context (which might make it dicta, albeit influential dicta), the question is what does this concept mean?  (I argue in my text Federal Tax Crimes book (copied at the end of this blog) that ignorance is not specific intent (knowledge), hardly a novel argument since Justice Kennedy in dissent in Global-Tech as well as many others have asserted the same argument.)

Accepting the lay of the land as the Supreme Court has served it up in Global-Tech, the petitions in Brooks ask whether the instructions in Brooks were consistent with what the Supreme Court said about deliberate ignorance and whether the varying court's application of the doctrine should be reconciled so that the standards of criminality are consistent among the Circuits.  I should say in this regard that no court has rejected the concept of deliberate ignorance -- the conflict is over how it is conceptualized and the elements required that the jury must be instructed in some meaningful manner.

The instruction given to the jury by the trial court in Brooks was:

You may find that a defendant had know ledge 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, know ledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

We need to parse this instruction, because it really states two different things -- one of which, I think, is correct and the other, I think, is not.  Keep in mind that the words of the criminal statute in issue when this instruction is used requires knowledge (in tax crimes, willfulness meaning intentional violation of a known legal duty), not a very difficult concept to understand.  But, the first sentence of the instruction given says that that knowledge is not just knowledge but the defendant's lack of knowledge if he closed his eyes to what would be obvious to him had he not closed his eyes.  I think we can all agree that that defendant has some moral culpability in behaving as an ostrich (at least behaving as the ostrich is imagined to behave, more on that later).  But the question is not moral culpability but whether Congress has defined the behavior as a crime when the only crime Congress defined requires knowledge?

Move now to the second sentence of the instruction. The key affirmative part of the statement is that "knowledge can be inferred if the defendant deliberately blinded himself to the existence of the fact."  Even this sentence is not as straightforward as it could but, but I think the concept is that the jury still must find knowledge -- actual knowledge -- which it can infer from actions of the defendant that might be read as deliberately avoiding knowledge.  If from uncertain evidence as to deliberate ignorance, the jury can infer the specific intent element, then I have no problem with the instruction -- it is still faithful to the textual requirement for knowledge or willfulness.  The question is whether deliberate ignorance supports the inference, along with the other evidence, to permit a finding beyond a reasonable doubt that the defendant had the specific intent.  In other words, deliberate ignorance is not a substitute for specific intent but evidence permitting in context an inference of specific intent.  This may sound like cutting too fine a line, but I think now.

Now, my analysis just is not mainstream and is not the one the Supreme Court adopted in Global-Tech and the courts generally adopt.  So I now turn to Global Tech and the Brooks petitioners' arguments for why the Supreme Court should accept certiorari.

A. Global-Tech Defines Deliberate Ignorance. 

A bedrock principle of our criminal justice system is that the government must prove all elements of a crime-including the requisite mental state-beyond a reasonable doubt. The crimes here-conspiracy, false reporting, and wire fraud-all required that the defendant act with knowledge. In Global-Tech, this Court, relying on criminal cases for guidance, considered when "willful blindness," or "deliberate ignorance," can constitute knowledge in a civil case. 131 S.Ct. 2060. This Court held that "willful blindness" could sometimes substitute for knowledge, but only in cases where "(1) the defendant ... subjectively believe[s] that there is a high probability that a fact exists and (2) the defendant ... take [s] deliberate actions to avoid learning of that fact." I d. at 2070. These requirements were necessary to assure a jury does not find knowledge based on mere recklessness or negligence. Id. at 2070-71.
[*23]  

B. The Fifth Circuit Opinion Approves an Instruction Without the Global-Tech Requirements. 

If these requirements are necessary in a civil case, how much more so in a criminal one. In response to Global Tech, the Third and Eighth Circuits changed their pattern jury charges in criminal cases to conform to this Court's definition of "willful blindness."But not the Fifth. The Fifth Circuit's pattern-which was given and affirmed over objection here-continues to allow conviction on a lesser standard:  

You may find that a defendant had know ledge 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, know ledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. 

FIFTH CIR. PATTERN CRIMINAL JURY lNSTR. 1.37 ("Knowingly.")  

Despite the Fifth Circuit's ruling to the contrary, this instruction does not satisfy Global-Tech. First, Global-Tech requires that the defendant "subjectively believe there was a high probability that a fact exists." The Fifth Circuit's instruction-that the defendant closed his eyes to what "would otherwise be obvious"-does not require a "subjective" belief at all but rather allows conviction even if the defendant is subjectively unaware of the fact in question. The Fifth Circuit standard is objective; there is no requirement of subjective intent. Regarding the second prong, Global-Tech requires "deliberate action to avoid, confirming a high probability of wrongdoing." The Fifth Circuit charge allows conviction upon "closing [one's] eyes" even without "actions to avoid confirming a high probability of wrongdoing." That is, [*24] the Fifth Circuit allows conviction through passive blindness, without "actions," which cannot be squared with Global-Tech's requirement that the defendant take "deliberate actions" or "active efforts" to avoid learning of incriminating facts. Global-Tech, 131 S. Ct. at 2070-71. Moreover, while the Fifth Circuit instruction cautions jurors against convicting a defendant based on "negligence," it does not caution against convicting a defendant based on recklessness, which incorrectly implies that recklessness may be sufficient. 

Furthermore, the Fifth Circuit's instruction does not define negligence. Instead, by allowing the jury to convict based on facts that "would have otherwise been obvious" to the defendant, the instruction in fact conveys a negligence standard, despite Global-Tech's admonitions to the contrary. Id.  

C. The Circuit Conflict. 

As mentioned above, the Third Circuit has already conformed its pattern instruction to follow this Court's holding. The Third Circuit's charge now requires the Government to prove that the defendant (1) "subjectively believed that there was a high probability" of a fact, and (2) "consciously took deliberate actions [or active efforts] to avoid learning" about that fact. THIRD CIRCUIT CRIMINAL PATTERN JURY INSTRUCTION 5.06 ("Willful Blindness"/"Deliberate Ignorance"). The commentary accompanying this instruction makes clear that these elements were changed in light of Global-Tech. The Eighth Circuit also recently changed its pattern jury instruction to incorporate the Global-Tech elements. MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR DISTRICT COURTS OF THE EIGHTH CIRCUIT 7.04 (Deliberate [*25] Ignorance/Willful Blindness).  fn6 In contrast, the Fifth Circuit determined that its pattern charge did not need to be changed after Global-Tech and therefore created a conflict between the two Circuits.
   fn6 Like the Fifth Circuit's standard, both the Third and the Eighth Circuit pattern instructions state that "[k]nowledge may be inferred if [the defendant] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him/her]." However,  both these Third and Eighth Circuit standards require, in addition, that the jury find "beyond a reasonable doubt that the defendant believed there was a high probability that (state fact as to which knowledge was in question .. .) and that [he] [she] took deliberate actions to avoid learning of that fact." MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR DISTRICT COURTS OF THE EIGHTH CIRCUIT 7. 04; see also THIRD CIRCUIT CRIMINAL PATTERN JURY INSTRUCTION 5.06 (containing nearly identical language). The Fifth Circuit's instruction, by contrast, has no such requirements. 

[I again an unable to put the chart in the blog, but the chart only summarizes the split discussed in the foregoing paragraph.] 

The other Circuits have their own formulations. Even before Global-Tech, the First Circuit pattern jury instructions were similar to the Global-Tech requirements. United States v. Brandon, 17 F.3d 409, 451-52 n.72 (1st Cir. 1994); PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT 2.15; see also United States v. Denson,_ F.3d _, 2012 WL 3125111, at *3 (1st Cir. Aug. 2, 2102) (affirming instruction requiring the jury to find that "'the defendant was aware of a high probability of the fact in question' and that 'the defendant consciously and deliberately avoided confirming that fact."') And, the [*26]  Fourth, Sixth, Ninth, and Tenth Circuit pattern jury instructions require that the defendant subjectively be aware of a high probability of wrongdoing in contrast to the Fifth Circuit's objective "would have been obvious" standard. See SIXTH CIRCUIT PATTERN CRIMINAL JURY INSTRUCTION 2.09 (requiring knowledge of a "high probability of wrongdoing"); United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995) (adopting instruction); SEVENTH CIRCUIT PATTERN CRIMINAL JURY INSTRUCTION 4.06 (government must prove "strong suspicion" of wrongdoing); NINTH CIRCUIT MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS 5. 7 (requiring awareness of "high probability" of wrongdoing); United States v. Heredia, 483 F.3d. 913, 917-22 (9th Cir. 2007) (en banc)(approving instruction); TENTH CIRCUIT CRIMINAL PATTERN JURY INSTRUCTIONS 1.37 (awareness of "high probability" of fact in question); United States v. Delreal-Ordones, 213 F.3d 1263, 1268 n.3 (10th Cir. 2000)(adopting instruction, but noting that giving instruction without requiring an awareness of high probability of wrongdoing was not plain error); see also United States v. Jinright, 683 F.3d 671, 480-81 (4th Cir. 2012) (deliberate ignorance instruction requiring the jury to find '"that the defendants were aware of a high probability' that they were violating the law 'and that the defendants acted with deliberate disregard to these facts"' satisfied the Global-Tech requirements); but see ELEVENTH CIRCUIT PATTERN CRIMINAL JURY INSTRUCTION 8 (allowing a finding of knowledge if "the defendant. . . had every reason to know but deliberately closed [his] [her] eyes").  

Justice Kennedy, dissenting in Global-Tech, noted that "willful blindness" is a judicially created doctrine that should not be allowed to broaden the legislative [*27]  requirement of actual knowledge. Global-Tech, 131 S. Ct. 2072-74 (Kennedy, J., dissenting). But if courts are to use deliberate ignorance to convict, then its definition should be uniform across the country.
The Fifth Circuit's opinion here means that the standard of proof for deliberate ignorance is lower in the Fifth Circuit than anywhere else in the nation.  

The Court should grant certiorari to clarify the deliberate ignorance standard and ensure that federal criminal defendants are  convicted only upon an appropriate showing of the required mental state.

I quoted above from Walton's petition.  Brooks' petition is here.  I don't quote it because, in my view, it would be cumulative to the points raised in the Walton petition.

Finally, for what it is worth, I offer my discussion of the concepts in my most recent draft of my Federal Tax Crimes book, here.