Fifth Circuit Sustains Jury Verdict Despite Admittedly Erroneous Conscious Avoidance Instruction (1/23/12)

I write today again about conscious avoidance (which readers will recall goes by several names, such as willful ignorance, deliberate ignorance, etc.).  This blog entry is occasioned by United States v. Roussel, 705 F.3d 184 1385 (5th Cir. 2013), here.  The defendant was convicted of two wire fraud counts and conspiracy involving a scheme to defraud a New Orleans-based utilities provider.  The trial court gave the jury a conscious avoidance instructions, apparently based on the Fifth Circuit pattern jury instructions 1.37, quoted in the opinion 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.

Like other courts, the Fifth Circuit believes that the conscious avoidance instruction carries great risks to a fair trial.  Quoting an earlier precedent, the Court said:

We have often cautioned against the use of the deliberate ignorance instruction. Because the instruction permits a jury to convict a defendant without a finding that the defendant was actually aware of the existence of illegal conduct, the deliberate ignorance instruction poses the risk that a jury might convict the defendant on a lesser negligence standard—the defendant should have been aware of the illegal conduct.

Further, quoting a subsequent precedent, Court said:

Last year, we further elaborated that "[d]eliberate indifference instructions are inappropriate in the usual case, where the evidence presents a simple choice between a version of the facts in which the defendant had actual knowledge, and one in which the defendant was no more than negligent or stupid."

Apparently, in the case at hand, the judge should not have given the instruction.  But, as is often the case, the Court will believe that the defendant is guilty and find some way to sustain the verdict so as to avoid a retrial in which (the court of appeals apparently thinks, the defendant will be found guilty anyway).  So, here is the introduction to the analysis for sustaining the verdict.

Nevertheless, we have "consistently held that an error in giving the deliberate ignorance instruction is . . . harmless where there is substantial evidence of actual knowledge."

In effect, the Court is saying that the evidence is so strong of actual knowledge (the element of the crime) that a jury would be required to so hold even though it had been instructed that it could, in effect, find that element of the crime based on conscious avoidance.

I am not persuaded by that reasoning.  The Fifth Circuit effectively pre-empted the right of the jury to make that determination and, correspondingly, the right of the defendant to have the jury make that determination.  In this regard, the Fifth Circuit relied heavily on the trial court's impressions of clear guilty stated at sentencing.  But it is not the province of the trial judge to determine guilt or innocence at the the trial stage.

Another bad decision by the Fifth Circuit.