The Confluence of Willful Blindness and the Sentencing Guidelines Obstruction Enhancement (4/11/18)

In United States v. Cohen, ___ F.3d ___, 2018 U.S. App. LEXIS 8769 (1st Cir. 2018), here, Cohen appealed his his convictions, and sentencing, for one count of conspiracy to convert government property, in violation of 18 U.S.C. § 371; fourteen counts of conversion of government property, in violation of 18 U.S.C. § 641; and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).  This is not a tax case, but readers of this blog will know of my continuing interest in the concept of willful blindness.  Cohen presents a different facet of that issue, although, as presented, it offers no particular insight.

The jury was instructed on willful blindness.  We don't have the specific instruction.  But, in sentencing, the judge applied the obstruction of justice enhancement in calculating the Guidelines range.  The judge found that Cohen had lied in his testimony at trial.  That risk, of course, is one of the risks of a defendant testifying at trial.

On appeal, Cohen made some type of argument that the giving of the willful blindness instruction precluded a finding that he had lied for purposes of the obstruction enhancement.  Here is what the Court held:

That leaves only Cohen's argument that the imposition of the obstruction-of-justice enhancement, which requires "willful" obstruction, was erroneous given that the District Court provided the jury with a willful blindness instruction. In challenging the application of the obstruction enhancement below, Cohen argued that, in light of the willful blindness instruction, "his testimony in the eyes of the jury may have made him a damned fool, but that's not the same thing as finding that he's a damned lying fool . . . ." The District Court concluded, however, that a willful blindness instruction is not preclusive of a finding that the defendant perjured himself in testifying at trial. 

On appeal, Cohen does not develop a challenge to this conclusion but instead merely asserts that the District Court "wrongly imposed the enhancement upon one seen by the jury as willfully blind but not necessarily consciously obstructive." We, thus, deem this underdeveloped argument waived. Zannino, 895 F.2d at 17. Moreover, we note that, in any event, there is Circuit precedent that affirms sentences including such an enhancement in cases in which a willful blindness instruction was given. See, e.g., Fermin, 771 F.3d at 79-82; United States v. Camuti, 78 F.3d 738, 744-45 (1st Cir. 1996).

I attach Cohen's opening brief, here, where he makes argument and the Government's answering brief, here, essentially ignoring the argument.  Cohen's willful blindness argument starts on p. 51 of the brief.