Saturday, February 24, 2018

Willful Blindness -- Does the Concept Expand the Statutory Element of the Crime of Knowledge? (2/24/18)

In United States v. Carbins, 2018 U.S. App. LEXIS 3585 (5th Cir. 2018), here, the defendant "was convicted of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, seven counts of aiding and abetting theft of Government money in violation of 18 U.S.C. §§ 2 and 641, and one count of aiding and abetting aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A."

Readers of this blog will know that I have been troubled for some time about the potential scope of the concept of willful blindness.  (See search on willful blindness here.)  The concept goes by several names other than willful blindness (e.g., willful ignorance, deliberate ignorance, conscious avoidance, etc.), but I use willful blindness because the Supreme Court did in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), a civil patent infringement case which discussed the criminal use of the concept.  My general concern has been that, in cases requiring some knowledge as an element of the crime, deliberate ignorance can be a substitute for the required degree of knowledge even though Congress stated in the statute that knowledge was required for the crime.

Most Title 26 tax crimes required a special, higher level of knowledge -- specific intent to violate a known legal duty.  I have been particularly concerned about the use of willful blindness to satisfy that knowledge element of the crime.

In Corbins, I read the following which was, I think, directed to a nontax crime that had a knowledge element:
As the Government contends, "[t]his court has expanded the definition of knowledge to include circumstances where a defendant exhibits deliberate ignorance." n19
  n19 United States v. Churchwell, 807 F.3d 107, 117 (5th Cir. 2015) (citation omitted).
I read Churchwell, here, and, indeed, the opinion does state (pp. 116-117):  "This court has expanded the definition of knowledge to include circumstances where a defendant exhibits deliberate ignorance."

The concept that a court can expand a statutory crime element seems to me to be fundamentally wrong.  I don't have any citation authority for my concern right now, but will be looking to see if there is any such authority.  I would appreciate any reader views on this subject.

If willful blindness is not a substitute for the knowledge element of the crime but is simply a factor, like circumstantial evidence, from which the trier of fact can infer the knowledge element, then it is not an expansion of the statute and my concern is not warranted.  My concern, of course, is that some triers of fact may be tempted to use it as a substitute for the statutory knowledge element of the crime.

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