Interesting NonTax Case on Willful Blindness (10/3/17)

In United States v. Parker, 2017 U.S. App. LEXIS 18103 (1st Cir. 2017), here, Parker was convicted of firearm transportation and firearm transportation after a felony conviction. 18 USC §§ 922(g)(1) and (a)(3).  Parker raised several interesting issues, but I focus on the willful blindness issue because it has played a prominent role in criminal tax cases.

As I read the Court of Appeals' discussion, the parties apparently did not ask for the instruction; rather, the judge raised the issue:

At a charge conference held before the close of evidence, the judge asked the parties if he should give a willful-blindness instruction and if so, why.

Of course, the defense will not ask for the instruction, so the judge was apparently just helping the Government out by raising the issue.  So, as recounted by the Court of Appeals, this happened:

The prosecutor responded that yes, the judge should give the charge. For support, the prosecutor pointed to Parker's post-arrest statement to law enforcement that Scott had paid him $200 "like three times" to drive him to New Hampshire but that "each time, when we stayed in the hotel, when we came back to Boston, the only thing we came back with was marijuana." Parker added that he "didn't want to know" what else Scott was up to — and though Scott once went to the car to get "stuff," a word Parker took to mean guns, Parker claimed that he left the room because he "didn't want to know about nothing." According to the prosecutor, Parker's comments show "that he's willfully blind by attempting to close his eyes to the conduct." "I think it's fairly presented in the evidence or it certainly will be when the government introduces [the] statement tomorrow," the prosecutor stressed. 

Parker's lawyer saw things differently, to put it mildly. The government does not "have to" put Parker's statement in evidence, counsel said. "We're not putting any evidence in" on the lack-of-knowledge issue, he added. And, he noted, the prosecutor "can't put [the statement] in and then say I want to get a particular instruction that otherwise would be inappropriate." Focusing on the proposed instruction's language, counsel complained that the judge could not use it because it would have "the effect of shifting the burden of proof" on the questions of Parker's knowledge and intent. 

The judge reserved ruling on the matter, saying he wanted to see what Parker said, "assuming [the statement] comes in." "I'm going to go back and look at the case law on willful blindness, when it's appropriate and when it isn't and give some more thought to it," the judge added. The next day, the judge told the parties that he intended to give a willful-blindness instruction. Regardless of whether Parker claims a lack of knowledge, the judge ruled, his statement — if it is as represented by the government — "suggest[s] a conscious course of deliberate ignorance," and the charge "as drafted does not suggest in any way that an inference of knowledge is mandated." Later that morning, the government — without objection — introduced the statement. 

The government rested its case that same day. The defense, in turn, rested too — without calling any witnesses. The attorneys then made their closing arguments. And the judge gave the final charge to the jury.  

Pertinently for our purposes, the judge instructed the jury that it "may infer" Parker "had knowledge of a fact if" it found Parker "deliberately closed his eyes to a fact that otherwise would have been obvious to him." "[T]o make such an inference," the judge explained, the jury had to "find two things: [f]irst, that [Parker] was aware of a high probability of the fact in question; and, [s]econd, that [he] consciously and deliberately avoided learning that fact — that is to say, he willfully made himself blind to that fact." And, the judge emphasized, whether Parker "deliberately closed his eyes to [a] fact, and, if so, what inference, if any, should be drawn," was "entirely up to you." Also, the judge cautioned the jury that Parker "must have consciously and deliberately avoided learning the fact" — neither "[m]ere negligence, recklessness or mistake in failing to learn the fact," nor "[t]he fact that a reasonable person in [Parker's] position would have known the fact," sufficed. Plus, the judge warned that a finding that Parker "made himself willfully blind to one or more facts" was not alone "sufficient to find him guilty of a crime." Rather, the prosecution had to "prove[] all of the elements of the crimes as charged in the indictment" — something the judge stressed after referring to Parker's presumption of innocence and the prosecution's burden to prove beyond a reasonable doubt the elements of each offense.

The Court of Appeals affirmed the use of the instruction as follows:

Lots of "criminal statutes require proof that a defendant acted knowingly," our judicial superiors tell us. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011). But willful blindness is tantamount to knowledge. See United States v. Rivera-Rodriguez, 318 F.3d 268, 272 (1st Cir. 2003). And when applied, the so-called willful-blindness doctrine lets prosecutors prove a defendant's knowledge by showing that he "deliberately shield[ed] [himself] from clear evidence of critical facts that are strongly suggested by the circumstances." Global-Tech Appliances, Inc., 563 U.S. at 766. An oft-repeated rationale for the doctrine is that one who acts like that is "just as culpable" as one who has "actual knowledge" — in other words, "persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts." Id. 

A willful-blindness instruction is appropriate only when (a) the defendant alleges he lacked knowledge, (b) the evidence — examined in the light most flattering to the prosecution — shows he deliberately closed his eyes to the true facts, and (c) the instruction, viewed in context, does not suggest that an inference of knowledge is required rather than permitted. See, e.g., United States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009); United States v. Singh, 222 F.3d 6, 11 (1st Cir. 2000). We address each part of this test in turn. 

As for part (a), Parker's big argument is that he offered "no affirmative evidence" of  his "lack of knowledge." True, Parker never testified at trial and so did not put his lack of guilty knowledge directly in issue. But "that circumstance is not dispositive." Singh, 222 F.3d at 11. Our cases have made crystal clear that part (a) "of the test for a willful blindness instruction does not depend on a showing of an explicit denial of guilty knowledge out of the defendant's own mouth" — what matters is whether "a practical evaluation of the record reveals that the defense was pitched in that direction." Id. And that is the case here. 

To begin, Parker's post-arrest statement — admitted into evidence without objection — suggests an attempt on his part to convince the authorities that he had no idea what the people around him were doing. And Parker offers no developed argument as to why the judge could not rely on this evidence in his willful-blindness ruling. More, the trial transcript shows that Parker staked his defense on convincing the jury that he did not personally buy or transport the firearms, and was not there when others bought or talked about them — a defensive theme reflected by his counsel's questions on cross-examination and by his counsel's comments during closing arguments.n10 And as the government's brief notes, Parker's team implemented this strategy in the hopes of persuading jurors that he had zero knowledge of what Scott, Riddell, and LaMott were up to — a point Parker does not contest in his reply brief.
    n10 To take only one of the examples, defense counsel said during closing that Parker "didn't buy any firearm, he didn't transport it, it was never at his home." And even though a fingerprint matching Parker's was found on an ammunition package, counsel claimed that "[t]here's no credible evidence" that Parker ever "touched" the ammo — or for that matter, the gun. Riddell made "stuff up" — saying Parker did "this" or "that" — to curry favor with the authorities, counsel stressed.

Parker fares no better under the part (b) of the test. The government offered direct evidence that he consciously averted his eyes to the group's illegal escapades. We are again talking about Parker's post-arrest statement in which he claimed that he "didn't want to know about nothing" and that he left the room when Scott went to the car to bring the guns into the Boston apartment (Scott had said that he was going to get "stuff," but Parker knew "stuff" meant "guns"). That is enough to satisfy this part of the test. See United States v. Brandon, 17 F.3d 409, 452 (1st Cir. 1994) (finding no error in giving a willful-blindness instruction where the defendant said he "didn't want to know anything about" a "scheme to fraudulently represent the existence of down payments"). 

Finally, regarding the test's part (c), Parker makes no effort to explain why he thinks the judge's willful-blindness instruction mandated an inference of knowledge. Maybe that is because the judge took care to avoid giving the impression that such an inference was mandatory rather than permissive. Recall, for example, how the judge told the jurors that it was "entirely up to you to determine whether [Parker] deliberately closed his eyes to [a] fact, and, if so, what inference, if any, should be drawn." Add to this the other parts of the judge's final charge (highlighted above) and we think Parker's claim that the instruction improperly implied that a guilty-knowledge inference was obligatory is a no-go. See Singh, 222 F.3d at 11 & n.4 (approving a nearly identical willful-blindness instruction); United States v. Gabriele, 63 F.3d 61, 66-67 & n.6 (1st Cir. 1995) (same); Brandon, 17 F.3d at 451-52 & n.72 (same). 

The bottom line is that we see no reversible error with this aspect of the case.

JAT Comments:

1.  I have noted previously the issue that I think gets fuzzed around a lot -- whether the role of the willful blindness concept is (i) to require the fact finder to find the actual statutory element of knowledge simply by finding willful blindness or (ii) to permit the fact-finder merely to infer, if the fact finder so decides, that the defendant has the knowledge required by the statute.  The district judge's instructions to the jury as fact finder appear to fit the latter model -- permitting inference of the knowledge element of the crime.  The Court of Appeals did not directly address that issue, but spoke in the first sense.  The Court of Appeals thus said:

But willful blindness is tantamount to knowledge. See United States v. Rivera-Rodriguez, 318 F.3d 268, 272 (1st Cir. 2003). And when applied, the so-called willful-blindness doctrine lets prosecutors prove a defendant's knowledge by showing that he "deliberately shield[ed] [himself] from clear evidence of critical facts that are strongly suggested by the circumstances." Global-Tech Appliances, Inc., 563 U.S. at 766. 

As I have said before, that this use of the willful blindness concept to expand the grounds for conviction from the knowledge required by the statute to willful blindness to something that is not knowledge (willful blindness) seems most suspect (at least to me).

2.  Courts frequently state that the willful blindness instruction should be used on in rare cases and then only if certain features are present.  E.g., United States v. Jeri, 2017 U.S. App. LEXIS 17121 (11th Cir. 2017) (That is, "a district court should not instruct the jury on 'deliberate ignorance' when the relevant evidence points only to actual knowledge, rather than deliberate avoidance." Id. (emphasis omitted). The instruction should be given "only in those comparatively rare cases where there are facts that point in the direction of deliberate ignorance." Id. at 1570 (quotations and alteration omitted); United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987) (deliberate ignorance instruction should "be given rarely because of the risk that the jury will convict on a standard of negligence"), cert. denied, 487 U.S. 1222 (1988); and United States v. Juarez, 2017 U.S. App. LEXIS 14500 (5th Cir. 2017) ("A deliberate ignorance instruction is rarely appropriate; it should only be given 'where the evidence shows (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct.".  United States v. Richardson, 2017 U.S. App. LEXIS 17765 (5th Cir. 2017) ("We have repeatedly cautioned that the instruction 'should rarely be given,' United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), but this is the paradigmatic case.  [JAT Caveat:  Some of the 2017 cases undoubtedly have F.3d citations, and I will provide them when I get access to them.]

Despite these common statements, the frequency with which the reported cases deal with the concept suggest that its use is not as rare a imagined.  Indeed, in virtually every case where a defendant goes to trial in a knowledge case, the defense's argument, at least sub silentio, is that he did not have the knowledge required by the statute and, in any event, the Government did not prove that he did.  This would appear to permit the Government to trot out this concept in many of those cases.

3.  When I started discussing the willful blindness concept, I noted that it went under several rubrics -- willful blindness, deliberate ignorance, conscious avoidance and perhaps some others. I started created the label conscious avoidance so that readers to find all blog discussions on the issue.  Since adopting that convention for the label, Courts seem to have gravitated to the term willful blindness to discuss the concept.  E.g., Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S. Ct. 2060 (2011).  Accordingly, today I have created the label Willful Blindness and substituted it for the prior label Conscious Avoidance.