More on Willful Blindness (1/28/21)

I have written on several occasions on the issue of willful blindness (which goes by several other terms, such as conscious avoidance in the Second Circuit (see case discussed below)).  For tax crimes as readers of this blog will know, the highest level of scienter is required – that the person act willfully meaning “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.” Cheek v. United States, 498 U.S. 192, 201 (1991).  Ignorance that the conduct is a crime is an excuse (or a fact that negates willfulness).

A question I have obsessed over is whether willful blindness is a substitute for that willful element or, rather, is like circumstantial evidence the trier (usually a jury in a criminal case) may consider in the context of all the evidence to infer willfulness under the appropriate standard (in tax cases, the Cheek standard).  The issue is usually presented in jury instructions on the concept and challenges to the jury instructions.  Courts are sometimes not as clear as perhaps they should be about that.

In United States v. Gatto, 986 F. 3d 104 (2d Cir. Jan. 15, 2021), CA2 here and GS here, in a wire fraud case involving just a slightly less rigid requirement for willfulness, the Court addressed the issue as follows (p. 122, bold-face supplied by JAT and cleaned up):

A. Conscious Avoidance

The doctrine of conscious avoidance (i.e., "willful blindness") prevents defendants from avoiding criminal liability by "deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances" and that, if known, would render them guilty of a crime. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). This doctrine has two requirements: "(1) The defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact." Id. at 769.

A conscious avoidance jury charge permits a jury to find that a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fact. Such a charge may be given when (1) the defendant claims to lack some specific aspect of knowledge required for conviction and (2) there is enough evidence for a rational juror to reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact. The instruction "permits a finding of knowledge even where there is no evidence that the defendant possessed actual knowledge." When a defendant challenges the factual basis for a jury's finding of conscious avoidance, he is essentially challenging the sufficiency of the evidence and therefore bears a heavy burden.

In pertinent part, the district court here explained that the jury "may find that a defendant acted with the necessary knowledge as to particular facts on the basis that the defendant consciously avoided learning those facts by deliberately closing his eyes to what otherwise would have been clear." App'x at 450. The court was clear that because Defendants denied that they knew the Recruits had to sign eligibility certifications, the jury could find that it was Defendants' "conscious intention" -- as compared to their "carelessness or negligence" -- to remain ignorant of facts to "escape the consequences of criminal law." App'x at 451. Importantly, the court noted that a conscious avoidance argument "is not a substitute for proof. It is simply another fact you may consider in deciding what the defendant knew." App'x at 451.

Exactly.