More on Willful Blindness (4/23/21)

I have written before on the willful blindness instruction and more broadly the willful blindness concept in the context of federal crimes requiring as an element of the crime that the actor have some knowledge of the criminal conduct.  For most IRC (Title 26) tax crimes, the statutory knowledge element is “willfully,” which, as interpreted in cases culminating in , is specific intent to violate a known legal duty, often referred to as the Cheek standard (Cheek v. United States, 498 U.S. 192, 201 (1991)).  Other crimes, as interpreted, may have a statutory “willfully” element or some other knowing element that does not require the Cheek specific intent level.  The question I have asked specifically with respect to the Cheek statutory willfully element is whether the willful blindness concept functions (or should function) as (i) an alternative element permitting the trier to convict when the Cheek specific intent cannot be found but acts of willful blindness can be found or (ii) as permitting the trier to consider acts of willful blindness as circumstantial evidence permitting it in the context of all evidence in the case to make the Cheek specific intent finding.  I have argued the latter because only Congress can enact the elements of a crime and the statute requires willful conduct which, as definitively interpreted in Cheek, means specific intent to violate a known legal duty.  Congress has not enacted text that, on its face, would permit conviction when the trier cannot find that the defendant acted willfully in the Cheek sense of specific intent to violate a known legal duty.  If  that argument is correct, a judge should be careful  to instruct the jury so that it knows that conviction is not appropriate if the jury cannot find specific intent to violate a known legal duty.

In United States v. Jeanty, 2021 U.S. App. LEXIS 11879 (11th Cir. 4/22/21) (unpublished), CA11 here, TN here, Jeanty was convicted of “one count of conspiring to steal money from the United States, in violation of 18 U.S.C. §§ 371 and 641 [apparently an offense conspiracy], and one count of stealing property from the United States, in violation of 18 U.S.C. §§ 641 and 642.”  The crimes related to an identity theft tax refund conspiracy.  Since the offense conspiracy has the same mens rea element as the crime that is object of the conspiracy, the mens rea element will be found in § 641.  Section 641 has a mens rea element that is not the strict Cheek requirement but a lesser knowing requirement.  The opinion assumes that a knowing element is required.  So, I ask the same question for a crime where Congress says in the statutory text that a knowing element is required (albeit not the Cheek specific intent level).  Does the willful blindness concept serve as an alternative to the knowing element or simply as circumstantial evidence of the knowingly element?

The district court in Jeanty gave the following willful blindness instruction (apparently using another unrelated knowing element crime to illustrate the concept for the jury):

If a Defendant's knowledge of a fact is an essential part of a crime, it is enough that the Defendant was aware of a high probability that the fact existed — unless the Defendant actually believed the fact did not exist.

“Deliberate avoidance of positive knowledge” — which is the equivalent of knowledge — occurs, for example, if a defendant possesses a package and believes it contains a controlled substance but deliberately avoids learning that it contains the controlled substance so he or she can deny knowledge of the package's contents.

So, you may find that a defendant knew about the possession of a controlled substance if you determine beyond a reasonable doubt that the defendant (1) actually knew about the controlled substance, or (2) had every reason to know but deliberately closed his eyes.

But I must emphasize that negligence, carelessness, or foolishness isn't enough to prove that the Defendant knew about the possession of the controlled substance.

I bold-face the parts of the instruction that raise the issue here.  As presented, the instruction permits conviction on finding willful blindness without a finding of knowing.  That is troubling for the same reason I noted for the Cheek specific intent standard.  Only Congress can state the elements of the crime and it has stated the element for the crimes charged in Jeanty as knowing.  As stated, knowing is not the same as not knowing but acting with willful blindness.  Of course, the district court fuzzed that issue by saying “’Deliberate avoidance of positive knowledge’ * * * is the equivalent of knowledge.”  My point is that willful blindness is not the equivalent of knowledge; it may indicate knowledge in context of all the facts, but it is not the equivalent of knowledge.

Of course, courts by interpretation may engraft weird concepts onto statutory elements that the actual text does not suggest.  My favorite example of courts, the Supreme Court specifically, doing that is Hammerschmidt v. United States, 265 U.S. 182 (1924) where the Court approved a definition of defraud for the defraud conspiracy in 18 USC 371 that departed from and expanded the definition of fraud used in other criminal statutes and in the common law – so that thereafter fraud for the defraud conspiracy means both fraud in its normal sense (“to cheat the Government out of property”) but also to “to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest” even if there were no object to cheat the Government out of money.  (The defraud conspiracy is often referred to as a Klein conspiracy.)  By Supreme Court long-standing fiat, that expansion beyond the normal meaning of fraud is now “the law,” even though it has no logical nexus to fraud as Congress used the word for statutory criminal elements and the common law used the term.  In United States v. Coplan, 703 F.3d 46, (2d Cir. 2012), cert. denied 571 U.S. 819 (2013), the Second Circuit expressed “skepticism” about the correctness as an original matter of the Supreme Court’s statutory interpretation of the defraud clause in Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).  The Coplan court reasoned (p. 61):

There is nothing in the Government's brief recognizable as statutory interpretation—no discussion of plain meaning, legislative history, or interpretive canons. Indeed, in all 325 pages of its brief, the Government does not even quote the text of § 371. The Government thus appears implicitly to concede that the Klein conspiracy is a common law crime, created by the courts rather than by Congress. That fact alone warrants considerable judicial skepticism. See United States v. Lanier, 520 U.S. 259, 267 n.6, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) ("Federal crimes are defined by Congress, not the courts . . . ."); see also Rogers v. Tennessee, 532 U.S. 451, 476, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001) (Scalia, J., dissenting) ("[T]he notion of a common-law crime is utterly anathema today . . . .").

While the Second Circuit’s concern did not carry the day in Coplan because of the Supreme Court precedent it questioned, the concern still exists.  That same concern should apply to the expansion of the willful blindness concept to permit conviction as an alternative to the knowledge requirement in a criminal statute (whether the knowledge is the Cheek specific intent or a more generally knowledge element).

Note:  The willful blindness concept goes by different names, such as conscious avoidance (in Second Circuit), willful ignorance, and deliberate ignorance.