Fifth Circuit Sustains Willful Blindness / Deliberate Ignorance Jury Instruction As Harmless Error (4/26/19)

In United States v. Martinez, ___ F.3d ___, 2019 U.S. App. LEXIS 11121 (5th Cir. 2019), here, "the defendants were convicted of conspiracy to commit health care fraud and several substantive counts of health care fraud. Individual defendants were convicted of different additional offenses."  They raised several arguments on appeal.  I address here only the deliberate ignorance instruction.  I usually in this blog use the term willful blindness rather than deliberate ignorance, but both terms refer to the same concept; accordingly, I will use the term willful blindness except when quoting.

Readers of this blog will recall that I have expressed concern about the willful blindness instruction.  In summary, my concern is whether the willful blindness instruction should require that the jury find the requisite specific knowledge element of a crime where the jury only determines facts of acts of willful blindness. I believe that, more properly, the willful blindness instruction should permit the jury to infer the requisite knowledge but not require the jury to find the requisite knowledge.  In other words, the acts of willful blindness are circumstantial evidence that the defendant had the requisite knowledge, but are not a substitute for a jury to find the requisite knowledge from finding only the acts of willful blindness.

The Martinez court addresses some of my concerns but I am not certain  that it got it right.

The Court starts with the Fifth Circuit pattern jury instruction which, I think, gets it right (bold face supplied by JAT):

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

Notice that willful blindness permits the finding of knowledge but does not compel that finding.

The district court did not give that Fifth Circuit pattern instruction but fashioned its own as follows:

The defendants must be found to have acted knowingly and willfully. "Knowingly" means that an act was done intentionally and not because of mistake, accident, or another innocent reason. "Willfully" means an act was done with a conscious purpose to violate the law.
. . . .
Circumstantial facts tend to be the only kind available [*41]  for subjective facts, something about which the jury lacks direct access to the defendant's mind. For instance, the jury may infer knowledge and intent from conduct or context.
Attempts to eliminate or minimize evidence of knowledge may justify an inference of it. Knowledge does not require certainty. The law permits inferred, expected judgments to count as knowledge. These inferences must be beyond a reasonable doubt.

The defendants claimed that this instruction, as given, permitted conviction for negligence.  Two defendants urged that the instruction essentially directed verdicts against the defendants.  One defendant argued that there was no evidence of "purposeful avoidance."

The Court of Appeals concluded that there was sufficient evidence to support the standard deliberate ignorance instruction (evidence by the pattern jury instruction that the trial court did not give) and that, as given, although error it was harmless error.  The following is a discussion of that issue:

The district court explained well its reason for deviating. The inspiration was a dissent by Justice Anthony Kennedy that rejected the application of the willful blindness doctrine in a patent case. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 774, 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011) (Kennedy, J., dissenting). This passage generated the instruction: 

Facts that support willful blindness are often probative of actual knowledge. Circumstantial facts like these tend to be the only available evidence in any event, for the jury lacks direct access to the defendant's mind. The jury must often infer knowledge from conduct, and attempts to eliminate evidence of knowledge may justify such inference, as where an accused inducer avoids further confirming what he already believes with good reason to be true. The majority's decision to expand the statute's scope appears to depend on the unstated premise that knowledge requires certainty, but the law often permits probabilistic judgments to count as knowledge. 

Id. The word "expected" was substituted in the instruction given at this trial for Justice Kennedy's word "probabilistic," which means "based on probabilities." Oxford English Dictionary (OED) (3d ed. 2007). 

Walking through the instruction, we see that it starts with the requirement that the defendants have acted knowingly. It then observes that circumstances generally will be the only evidence of a defendant's state of mind. Jurors are allowed to "infer knowledge and intent from conduct or context," i.e., jurors can use circumstantial evidence. 

The final part of the instruction focuses jurors on the task at hand. A defendant's efforts "to eliminate or minimize evidence of knowledge may justify an inference of it." Here, as in the earlier use of "infer," it is the jurors who are the ones who may be justified in making an inference of knowledge. The next sentence explains that when jurors are deciding whether to infer that a defendant knew of the fraud, they are not required to find the person was certain of the fraud. Reading minds is difficult enough, but jurors did not have to find that a defendant was without any doubt about the criminal nature of the enterprise, only that he or she had a level of knowledge that replaced mistake, accident or other innocent reasons. 

The next sentence is the most difficult in the instruction: "The law permits inferred, expected judgments to count as knowledge." Justice Kennedy has used the word "probabilistic," but the charge conference led to the use of the word "expected." One definition of the substituted word is "[a]nticipated, regarded as probable or likely; predicted." OED (3d ed. 2015). We believe the most natural interpretation of this sentence is that if the circumstances of the actions of a defendant caused jurors to expect or infer that he or she would have known of the fraudulent nature of the clinic's work, that satisfies the requirement to find that a defendant acted knowingly. The instruction closed with the provision that such "inferences must be beyond a reasonable doubt." 

We must start with the observation that this is a difficult instruction to understand. It would have been better left as a conceptual and unsubmitted disagreement with the pattern deliberate ignorance instruction. The concern is whether the instruction lowered the standard of proof as to knowledge. Error will exist if the instruction can reasonably be read to mean that if people would be expected to infer something, the defendant is guilty even if he or she negligently failed to make the inference. 

We do not see such a reading by jurors as a likely one. We say that because, in summary, the instruction informed jurors they would be justified in finding a defendant knew of the fraud if he or she took steps "to eliminate or minimize evidence of knowledge." The "knowledge" that needed to exist did "not require certainty," which reasonably would mean that a defendant who attempted to avoid creating evidence of knowledge did not need to be absolutely certain of the fraud to be criminally knowledgeable. Jurors were also told in this context that they could not rely on "mistake, accident, or another innocent reason" to support guilt. The challenged language about expectations and inferences was followed immediately by requiring the inferences to "be beyond a reasonable doubt." 

Less than sparkling clarity or a problematic phrase does not invalidate an instruction and certainly does not necessarily create reversible error. An instruction is examined in the context of the universe of guidance. Dupuy v. Cain, 201 F.3d 582, 587 (5th Cir. 2000). Though we see no clear lowering of the standard of proof as to knowledge, we do see the possibility of confusion. Potentially creating more uncertainty for jurors, the district court recited the reasonable doubt standard in its preliminary instructions and general instructions, but in the special instructions it recited the reasonable doubt standard for every count except the health care fraud conspiracy. 

For these reasons, uncertainty persists about whether jurors would have understood from this instruction in isolation that they must find beyond a reasonable doubt that each defendant actually knew about the fraud based on evidence of a defendant's attempts to avoid learning of it. They were not instructed on deliberate ignorance of the fraud. We conclude that it was error to give this instruction, not because it gave a lower standard of proof to jurors but because it gave such a muddled standard. 

Whether we can review potential confusion arising from an instruction for harmless error depends on whether the defect constitutes a "structural error," which is "limited to a narrow class of cases that 'infect the entire trial process,' necessarily rendering 'a trial fundamentally unfair.'" United States v. Stanford, 823 F.3d 814, 830 (5th Cir. 2016) (quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). We divide instruction errors on the standard of proof into those stating no standard, which can be reviewed for harmlessness, and those that state an incorrect standard — which cannot. Id. at 831. The error here was the creation of a potential for confusion. That form of error is essentially an omission of an intelligible standard of proof in a discrete part of the instructions while the correct standard was stated elsewhere. We conclude that our review is properly for harmlessness. 

Error in an instruction will be considered harmless if the court, "after a thorough examination of the record, is able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." United States v. Cessa, 785 F.3d 165, 186 (5th Cir. 2015) (quotation marks omitted) (quoting United States v. Skilling, 638 F.3d 480, 482 (5th Cir. 2011)). Here, a finding of knowledge beyond a reasonable doubt was inherent in the jury's verdict given the special instruction that required it to find a defendant "willfully became a member" of the conspiracy. See Stanford, 823 F.3d at 830-34. The district court's general instructions recited the reasonable doubt standard and defined willfully as a requirement that means "an act was done with a conscious purpose to violate the law." Regardless of some opaqueness in the challenged instruction, we do see as clear that jurors still knew they must decide beyond a reasonable doubt if a defendant would have reached the judgment that the enterprise was criminal. 

We conclude that a more clearly instructed jury would have reached the same verdict as did this one. The error was harmless.

JAT Comment:

1. I think the trial judge did a creditable job in fashioning the jury instruction.  I am not convinced that the Court of Appeals got it right in finding error in the instruction.