Monday, May 6, 2019

First Circuit Pattern Criminal Jury Instruction on Willful Blindness (5/6/19)

I have expressed concern about the willful blindness instruction (which also goes by other names, such as deliberate ignorance, conscious avoidance and ostrich instruction).  So, I decided to look through the pattern jury instructions on willful blindness for the Circuits that have them to see what they may offer.  Among the ones I could find, I think the best one is the First Circuit's from the document titled "2019 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit, pp. 47-49, from the District of Maine web site,here.  I bold face the part that I recommend readers pay attention to:

2.16 “Willful Blindness” As a Way of Satisfying “Knowingly”
[Updated: 12/15/17]
In deciding whether [defendant] acted knowingly, you may infer that [defendant] had knowledge of a fact if you find that [he/she] deliberately closed [his/her] eyes to a fact that otherwise would have been obvious to [him/her]. In order to infer knowledge, you must find that two things have been established. First, that [defendant] was aware of a high probability of [the fact in question]. Second, that [defendant] consciously and deliberately avoided learning of that fact. That is to say, [defendant] willfully made [himself/herself] blind to that fact. It is entirely up to you to determine whether [he/she] deliberately closed [his/her] eyes to the fact and, if so, what inference, if any, should be drawn. However, it is important to bear in mind that mere negligence, recklessness or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant of the fact.
Comment 
(1) This instruction is drawn from the instructions approved in United States v. Gabriele, 63 F.3d 61, 66 n.6 (1st Cir. 1995), and United States v. Brandon, 17 F.3d 409, 451-52 & n.72 (1st Cir. 1994). The First Circuit quoted and approved the last seven sentences (without mention of “recklessness”) in United States v. Jesús-Viera, 655 F.3d 52, 59 (1st Cir. 2011). The instruction was also approved in United States v. Denson, 689 F.3d 21 (1st Cir. 2012), where the court reiterated: “[t]he focus of [a] willful blindness instruction must be on the particular defendant and not on the hypothetical reasonable person.” Id. at 24 (quoting United States v. Griffin, 524 F.3d 71, 80 (1st Cir. 2008)). Indeed, it is erroneous to use “reasonable person” language. United States v. Bray, 853 F.3d 18, 24, 30 (1st Cir. 2017) (Although not finding plain error, the court stated that an instruction that a “reasonable person in [the defendant’s] shoes would certainly have known” mistakenly suggested that the jury could find the defendant guilty even if the defendant had not “consciously and deliberately avoided learning” about the violation.). 
(2) Although in United States v. Anthony, 545 F.3d 60, 66 (1st Cir. 2008), the First Circuit said that it was not error to omit reference to “recklessness,” we have nevertheless added the statement that “recklessness” in failing to learn a fact is not enough because of the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011). Although GlobalTech was a patent case, it described the doctrine of willful blindness as “well established in criminal law,” id. at 2068, and spoke approvingly of the circuits’ approach as “giv[ing] willful blindness an appropriately limited scope that surpasses recklessness and negligence.” Id. at 2070. In Denson, 689 F.3d at 24-25, the First Circuit recognized the authority of Global-Tech for a willful blindness instruction, but the issue there was not about recklessness. Following Global-Tech, the Fourth Circuit has agreed that recklessness is not sufficient. United States v. Jinwright, 683 F.3d 471, 480 (4th Cir. 2012); see also United States v. Goffer, 531 Fed. Appx. 8, 20-21 (2d Cir. 2013) (endorsing the standard that recklessness is insufficient, but finding that the jury instruction satisfied that standard without using the term “reckless”).  
(3) The rule in the First Circuit is that: A willful blindness instruction is warranted if (1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge was mandatory. Gabriele, 63 F.3d at 66 (citing Brandon, 17 F.3d at 452, and United States v. Richardson, 14 F.3d 666, 671 (1st Cir. 1994)); accord United States v. Valbrun, 877 F.3d 440, 445 (1st Cir. 2017); United States v. Figueroa-Lugo, 793 F.3d 179, 191 (1st Cir. 2015); United States v. Appolon, 695 F.3d 44, 63 (1st Cir. 2012); United States v. Mitrano, 658 F.3d 117, 123 (1st Cir. 2011); United States v. Coviello, 225 F.3d 54, 70 (1st Cir. 2000); United States v. Camuti, 78 F.3d 738, 744 (1st Cir. 1996). “The danger of an improper willful blindness instruction is ‘the possibility that the jury will be led to employ a negligence standard and convict a defendant on the impermissible ground that he should have known [an illegal act] was taking place.’” Brandon, 17 F.3d at 453 (quoting United States v. Littlefield, 840 F.2d 143, 148 n.3 (1st Cir. 1988)). “[T]he government is not required to prove willful blindness by direct evidence.” United States v. Valbrun, 877 F.3d 440, 446 (1st Cir. 2017). The government “may satisfy its burden of production by adducing evidence that red flags existed that the defendant consciously avoided investigating.” Id. 
(4) The First Circuit has said that proof of intent to join a conspiracy “is not established by willful blindness.” United States v. Lizardo, 445 F.3d 73, 86 (1st Cir. 2006).  
(5) The First Circuit says that “[t]he circuits are uniform in approving willful blindness instructions for specific intent criminal offenses.” Griffin, 524 F.3d at 79 n.6. 
(6) It is not necessary that willful blindness be motivated by a desire to preempt prosecution. Griffin, 524 F.3d at 79.  
(7) “We have never required that willful blindness instructions contain . . . a statement [that the defendant had actual knowledge].” Griffin, 524 F.3d at 80. The First Circuit does not require that a willful blindness instruction include an “actual belief caveat.” Anthony, 545 F.3d at 66 (“An actual belief caveat informs the jury that a showing of mistake, negligence, carelessness, or recklessness could not support a finding of willfulness and that, although knowledge may be inferred from willful blindness to the existence of a fact, the jury must find the defendant had actual knowledge.”). 
(8) “[E]vidence of direct knowledge . . . does not preclude a willful blindness instruction . . . . [W]hat the ‘separate and distinct’ requirement means is that when the evidence presented at trial provides the jury with only a binary choice between actual knowledge and innocence, a willful blindness instruction is inappropriate. . . . ‘Separate and distinct’ evidence of willful blindness exists where . . . the jury could take one view of the evidence and reasonably conclude that the defendant had actual knowledge or, alternatively, reject that view of the evidence but still reasonably conclude instead that the defendant was willfully blind.” United States v. Azubike, 564 F.3d 59, 67-68 (1st Cir. 2009). The First Circuit “has never read the phrase ‘separate and  distinct’ . . . to create a requirement that the set of evidence supporting an inference of willful blindness cannot be contained within a larger set of evidence that, in the alternative, could support a finding of actual knowledge, or even that the two sets cannot completely overlap.” Id. at 68; see also Appolon, 695 F.3d at 64.
JAT Comments:

1.  Note that pattern instruction and comments reflect the holding in Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S. Ct. 2060 (2011), a civil patent case that seemed to affirm the willful blindness instruction in criminal cases.  The precise meaning of Global-Tech for criminal purposes is not settled.

2.  The key part of the jury instruction for present purposes is: "It is entirely up to you to determine whether [he/she] deliberately closed [his/her] eyes to the fact and, if so, what inference, if any, should be drawn."  In other words, it is the jury's province to determine what to make of willful blindness if the jury finds that willful blindness exists.  I have urged before that, if the statute mandates the element of the crime as specific knowledge, that is the element the jury must find.  A finding of willful blindness in the absence of a finding of the statutorily mandated specific knowledge should not suffice.

3.  The discussion in Comment (3) above makes this clear -- the must be instructed, in context, that the inference of the knowledge element is not mandatory, but just an inference as to the knowledge element.  In this sense, it is simply a type of circumstantial evidence from which the knowledge element may be inferred.

4.  Focus on the three requirements (drawn from Gabriele):  "The rule in the First Circuit is that: A willful blindness instruction is warranted if (1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge was mandatory. "  Most willful blindness instructions in other Circuit's pattern jury instructions only have the first two items, although many use willful blindness as permitting [but not mandating] the jury to find the knowledge element.  For example, Fifth Circuit pattern jury instruction, here, titled 1.37A Deliberate Ignorance advises the jury that it "may find" the knowledge if it finds deliberate ignorance and that "knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact."

5.  If I were trying a case in other circuits, I would press for the third element from Gabriele that the instructions make clear that the inference of knowledge is not mandatory.  Since most pattern jury instructions in other Circuits do not contain as clear a statement of that concept as the First Circuit's, I would urge that the First Circuit's be adopted.  I suspect that most judges in other Circuits would just go with their pattern jury instruction where the concept may not be as clearly stated as the First Circuit's, but trial courts can always add the clearer statement if they feel it appropriate.

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