I have written on the question of whether the willful blindness concept permits conviction of a knowledge element crime upon the finding of willful blindness or, instead, permits only an inference of the knowledge element upon showing willful blindness. See blog entries here. In other words, if the criminal statute requires a knowledge element, will a showing of willful blindness require conviction or only permit conviction.
The key in jury cases is the instruction. In United States v. Henson, 9 F.4th 1258, 1278 (10th Cir. Aug. 19, 2021), CA10 here and GS here, the Court affirmed a challenge to the following instruction for an offense requiring knowingly as an element (a less rigid intent element than willfully for tax crimes):
The term "knowingly" means that defendant [*38] realized what he was doing and was aware of the nature of his conduct and did not act through ignorance, mistake, or accident.
When the word "knowingly" is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although 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 or herself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of the fact in question, unless the defendant did not actually believe the fact in question.
I have bold-faced the key language. To which I say, exactly!
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