Monday, January 15, 2018

Fourth Circuit NonPublished Opinion Offers Little on Willful Blindness Instruction (1/15/18; 1/17/18)

In United States v. Parker, 2018 U.S. App. LEXIS 712 (4th Cir. 2018) (unpublished), here, the Fourth Circuit affirmed Parker's conviction for "conspiring to file false tax returns, in violation of 18 U.S.C. § 371, and presenting false claims to the Internal Revenue Service (the "IRS"), in violation of 18 U.S.C. § 287."  As a nonpublished opinion, it may have diminished precedential value.  Still, there are some items in the opinion that I find worthy of mention.

First, the trial court gave the following willful blindness instruction:
If you find that the defendant was aware of a high probability that the tax returns at issue were false and that the defendant acted with deliberate disregard of the facts, you may find that the defendant acted knowingly. However, if you find that the defendant actually believed that the tax returns at issue were true, he may not be convicted.
I have previously discussed that the jury's finding of willful blindness should, like other circumstantial evidence, only permit the jury to infer the requisite knowledge rather than compel that finding.  E.g. The Willful Blindness Concept -- What Does It Do? (Federal Tax Crimes Blog 1/23/17), here.  The instruction, as given by the trial judge, adopts the permissive construct ("you may find" rather than "must find."  This aspect of the instruction was not in issue on the appeal.  (I return to this issue below.)

Second, at trial, "Parker objected to this [willful blindness] instruction arguing that he could not be willfully blind to a conspiracy."  From that cryptic comment, not further addressed in the opinion, I presume that the defendant was asserting that willful blindness is not proper in conspiracy because conspiracy requires specific intent to reach an agreement for an illegal object.  As with using the instruction for the standard tax crimes mens rea -- specific intent to violate a known legal duty -- it could be viewed as an oxymoron to say that willful blindness can substitute for the specific intent required for conspiracy.  It seems to me that, if the crime requires the specific intent as the element, courts cannot authorize something less than that specific intent under the rubric of willful blindness.  In other words, the willful blindness properly interpreted should merely be evidence that a jury may find persuasive that the defendant had the required intent.  Nevertheless, Courts do seem to authorize the willful blindness instruction in conspiracy cases.  See Ninth Circuit Pattern Instruction 5.7 Deliberate Ignorance, here, ("United States v. Ramos-Atondo, 732 F.3d 1113, 1120, 1124 (9th Cir.2013) (deliberate ignorance instruction may be given in conspiracy case).

Third, I also recommend readers read the entire Ninth Circuit pattern instruction and comment which demonstrates some of the confusion with the willful blindness instruction.  The actual pattern instruction uses the "may find" construct which seems to be that willful blindness merely supports an inference of the knowledge element of the crime.  In other words, it is like circumstantial evidence of the required knowledge.  Then, however, the comment says that, in the approved Jewell decision, "the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge." (Bold-face supplied by JAT.)  Query, if the willful blindness instruction merely permits the jury to infer knowledge, how can it be appropriate where the jury has rejected finding knowledge?
Fourth, the Court of Appeals rejects the argument that "the district court infringed his due process right to testify by warning him that if he committed perjury he could receive an enhancement for obstruction of justice under the Guidelines."  The Court said:
While a defendant has a right to testify at his trial, the "right to testify does not include a right to commit perjury." United States v. Dunnigan, 507 U.S. 87, 96, 113 S. Ct. 1111, 122 L. Ed. 2d 445 (1993). The district court simply provided Parker with information on the potential consequences of testifying--information necessary for him to make an informed decision about whether to testify. The district court's comments may have contributed to Parker's decision not to testify but do not create a constitutional infirmity. 
Although we have not addressed the issue in a published opinion, two of our sister circuits have concluded that a district court does not err in warning the defendant about the potential obstruction of justice sentencing enhancement in advising a defendant about his right to testify. See United States v. Johnson, 627 F.3d 578, 582 (6th Cir. 2010); United States v. Padron, 938 F.2d 29, 30 (2d Cir. 1991) (per curiam). We agree and conclude that Parker fails to demonstrate that the district court plainly erred. See United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) ("In the absence of [Supreme Court or Fourth Circuit] authority, decisions by other circuit courts of appeals are pertinent to the question of whether an error is plain." (internal quotation marks omitted)).
Addition 1/17/18 8:30pm:

I just picked up this case on willful blindness, United States v. Galimah, 758 F.3d 928 (8th Cir. 2014), here, that I think addresses the principal issue raised above -- whether willful blindness is a substitute for or merely possible circumstantial evidence of a mens rea requirement.  Galimah is not a tax case.  Rather, it involved another criminal statute, 18 USC § 554, smuggling firearms out of the United States, which had a knowledge requirement that the Court of Appeals viewed as having a mens rea requirement similar to tax evasion where the defendant "must have knowledge of the tax law that he is violating."  At trial, the defendant objected to the willful blindness instruction and, after conviction, appealed.

I think it will be helpful to quote the key excerpts -- really virtually the entire analysis -- exactly, but bold-face the portions of the opinion that I think particularly on point:
The district court's jury instructions included the following deliberate ignorance instruction: 
The element  of knowledge may be inferred if the defendant deliberately closed his eyes to learning whether the exportation of firearms from the United States was contrary to any law or regulation of the United States. You may not find the defendant acted knowingly if you find he was merely negligent, careless, or mistaken as to whether the exportation of firearms from the United States to Liberia was contrary to any law or regulation of the United States.  
Galimah argues the deliberate ignorance instruction does not comport with the requirement of establishing actual knowledge of the law. First, Galimah contends that the instruction left the jury "with the impression that Mr. Galimah had an obligation to learn the applicable law." More specifically, Galimah claims the instruction improperly read into the statute an additional burden on the defendant. Second, Galimah argues that the deliberate ignorance instruction allowed the jury to convict based on what "he should have known" as opposed to what he actually knew. To this extent, Galimah claims the instruction improperly "lessened the burden on the government by altering the mens rea requirement." Galimah suggests that where actual knowledge of  the law is required, a jury should not be allowed to infer knowledge through a showing of deliberate ignorance. In Galimah's view, ignorance of the  law is a lack of actual knowledge, and therefore, even the deliberately ignorant lack the actual knowledge necessary to be convicted. Galimah also asserts this court should distinguish between cases in which knowledge of a fact is required and cases in which knowledge of the law is required. 
"Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances." Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068-69, 179 L. Ed. 2d 1167 (2011). "A willful blindness or deliberate indifference instruction is appropriate when there is evidence to 'support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts . . . .'" United States v. Willis, 277 F.3d 1026, 1032 (8th Cir. 2002) (quoting United States v. Barnhart, 979 F.2d 647, 652 (8th Cir. 1992)).  In order to convict a defendant based on deliberate ignorance, the jury must find, beyond a reasonable doubt, "a conscious purpose to avoid enlightenment." Barnhart, 979 F.2d at 651 (quotation omitted). A deliberate ignorance or a willful blindness instruction is "a mechanism for inference," not "a substitute for knowledge." Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991). In a very real sense, "persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts." Global-Tech Appliances, 131 S. Ct. at 2069 (citing United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc)). 
While the Eighth Circuit has not yet addressed the issue of whether a deliberate ignorance instruction is available in a case under 18 U.S.C. § 554, we have previously allowed such an instruction in prosecutions for tax evasion, which has a similar mens rea requirement. In order to be convicted of tax evasion, a defendant must have knowledge of the tax law that he is violating. See United States v. Brooks, 174 F.3d 950, 955 (8th Cir. 1999) (noting that tax evasion must be willful and defining "[w]illfulness . . . [to] require[] the Government  to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty" (emphasis added)). 
In Willis, we upheld a deliberate ignorance instruction that told the jury "the necessary element of knowledge [of the law] could be inferred" "if the defendant deliberately closed his eyes to what otherwise would have been obvious to him." 277 F.3d at 1031-32. Based on the circumstantial evidence of knowledge in that particular case, which included receiving advice from lawyers and accountants as well as reading documents that expressly warned of tax liability, we concluded that "[a] jury could reasonably conclude . . . that Willis was aware of a high likelihood that he was required to pay taxes and attempted to avoid learning the truth." Id. at 1032. "The willful blindness instruction was therefore appropriate." Id. 
Furthermore, we note that at least two other circuits have allowed deliberate ignorance instructions for violations of similar export laws where knowledge of the law was directly at issue. In United States v. Elashyi, the Fifth Circuit held that a deliberate ignorance instruction was appropriate even though the government had to prove the "[d]efendants knew that they were prohibited from exporting goods to Libya." 554 F.3d 480, 492 (5th Cir. 2008). The court upheld the deliberate indifference instruction because the "evidence supported inferences that [d]efendants were subjectively aware of a high probability of the existence of illegal conduct and that they purposely contrived to avoid learning of the illegal conduct." Id. at 504. 
In addition, the Tenth Circuit in United States v. Soussi upheld a deliberate ignorance instruction under the theory that "evasive actions are evidence [that a defendant] knew his actions were illegal." 316 F.3d 1095, 1107 (10th Cir. 2002). In that case, the court noted there was strong evidence Soussi understood that exporting to Libya was illegal. Soussi, however, claimed that he did not "extensively study" the federal government document that clarified the ban, and therefore, he did not have actual knowledge of the export ban. Id. The court found that the failure to extensively study the document was, in fact, evidence that Soussi did know of the ban and "deliberately refused to read the document on the . . . export ban, presumably because he wanted  [**11] to avoid unequivocal knowledge it was illegal for him to engage in the transaction . . . ." Id. 
We see no meaningful distinction between this case and these similar cases that have preceded it. As in Willis, the defendant's knowledge of the law is a fact in issue. Allowing a deliberate ignorance instruction does not alleviate the government's burden of proving knowledge of the law. Instead, it sensibly recognizes the reality that one who has enough knowledge of the law to consciously avoid learning the definite truth is at least aware of the high probability that his conduct is illegal and is simply attempting to maintain deniability. Given the evidence presented in this case, including the warnings encountered in purchasing the weapons, and Galimah's actions in deliberately concealing the firearms at the bottom of the shipping containers beneath other goods, there was sufficient evidence to support the inference that Galimah was in fact aware of the law he was violating. Therefore, we find that the district court did not abuse its discretion in submitting a jury instruction on deliberate ignorance.

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