Defense Counsel Lesson: Always Object to a Willful Blindness Instruction Before Moving to Damage Control (12/24/16)

In United States v. Toth, 2016 U.S. App. LEXIS 22193 (4th Cir. 2016), here, Toth was convicted of conspiracy to commit money laundering and six counts of money laundering concealment.  At the trial, the Court gave the following willful blindness instruction:

In determining whether the defendant acted knowingly, you may consider whether the defendant deliberately closed his eyes to what would otherwise have been obvious to him. If you find beyond a reasonable doubt that the defendant acted with, or that the defendant's ignorance was solely and entirely the result of a conscious purpose to avoid learning the truth, then this element may be satisfied. A person who preserves a lack of actual knowledge of a subjectively obvious fact is just as culpable as a person who has actual knowledge of that fact. This is referred to as willful blindness. 

A showing of negligence is not sufficient to support a finding of willfulness or knowledge. I caution you that the willful blindness instruction does not authorize you to find that the defendant acted knowingly because he should have known what was occurring or that in the exercise of hindsight he should have known what was occurring or because he was negligent in failing to recognize what was occurring, or even because he was reckless or foolish in failing to recognize what was occurring. 

Instead, the government must prove beyond a reasonable doubt that the defendant purposefully and deliberately contrived to avoid learning all the facts. 

If you find that the defendant was aware of a high probability that a conspiracy, agreement, or understanding to launder money existed and that the defendant acted with deliberate disregard to those facts, you may find that the defendant acted knowingly. However, if you find that the defendant actually believed that there was not a conspiracy, agreement, or understanding to launder money, he may not be convicted. 

It is entirely up to you whether you find that the defendant deliberately closed his eyes and any inferences to be drawn from the evidence on this issue.

On appeal, Toth asserted that the trial court should not have instructed the jury on willful blindness.  The Court rejected the argument. The Court's reasoning was that the invited error doctrine applied to preclude complain on appeal because the defendant "invited the error of which he now complains by requesting a willful blindness instruction in the proceedings below."  I found it odd that a defendant would have requested a willful blindness instruction.  I don't recall that I have seen that happen before.  So, I dug deeper.

The parties' appellate briefs here (Toth's brief) and here (United States brief).  No reply brief was filed.

The dynamics reported in the briefs of the charge conference resulting in the willful blindness instructions   Toth's brief (p. 6) says that the Government originally requested the instruction.  The Government's brief (p. 8) is silent on who originally requested the instruction, saying only:

When the court stated its plan to offer a standard willful blindness instruction, Toth’s counsel asked the court to “consider and give” the instruction “specifically approved by the Fourth Circuit in [United States v.] Jinwright,” 683 F.3d 471 (4th Cir. 2012). J.A. 365. Counsel stated that the Jinwright instruction was “more substantive” than the court’s language. Ibid. The court took the matter under advisement.

It appears to me that Toth's attorney requested an alternatively worded instruction after, at the Government's request, the Court had indicated that it would give the willful blindness instruction.  The Government's brief (p. 13) says that, at the charge conference,

Toth’s counsel did not object to the district court’s plan. To the contrary, counsel “ask[ed] the Court to consider and give” the willful blindness instruction used in Jinwright. Ibid. 

It is not clear that Toth's counsel had an opportunity to object prior to the court announcing its intent to give a willful blindness instruction, but obviously, he should have objected rather than moving directly to damage control by offering alternative wording for the instruction.  Important lesson.

Toth is not a tax case and the mens rea element of willfulness may not have been the full blown Cheek willfulness -- intent to violate a known legal duty.  But the Government is quite enamored about the prospects of using willful blindness to meet the Cheek willfulness standard, so tax crimes practitioners should be diligent about pursuing objections early and often (at least once and thereafter as often as the circumstances permit).  And then, there is the more subtle question in Cheek willfulness cases as to whether a jury's finding of willful blindness (however articulated in the instructions) simply permits it to infer intent to violate a known legal duty (which is the definition of the willful element of the crime) or is a substitute for finding intent to violate a known legal duty.  I suggest the former, but the cases are often fuzzy on the issue.

Note that the concept here referred to as willful blindness goes by several other names -- deliberate ignorance, conscious avoidance, etc.