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47.4 Deliberate Ignorance/Willful Blindness

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ALERT: Ninth Circuit En Banc Court To Consider Propriety Of Deliberate Ignorance Instruction. The defendant drove across the border in a car with drugs hidden in the trunk. Her defense at trial was lack of knowledge of the drugs in the car which she had borrowed. A Ninth Circuit panel held that the district court judge erroneously gave a deliberate ignorance instruction allowing the jury to find that knowledge could be found if the defendant was aware of a high probability that drugs were in the car and avoided learning the truth. On August 11, 2006 the Ninth Circuit granted rehearing en banc. ([NF] U.S. v. Heredia (9th Cir. 8/11/06; No. 03-10585) 429 F3d. 820.)

RATIONALE: Because deliberate ignorance or willful blindness is a special theory of liability, full and correct instruction on the required elements is necessary.

POINTS AND AUTHORITIES: In the federal system, it is recognized that there is a subtle distinction between knowledge and lesser mental states, such as recklessness and negligence, and, therefore, the courts have "reviewed knowledge instructions carefully." (U.S. v. Aguilar (9th Cir. 1996) 80 F3d 329, 331.) In U.S. v. Jewell (9th Cir. 1976) 532 F2d 697, 700, the 9th Circuit approved an exception to the requirement of "actual knowledge" where there is evidence that the defendant deliberately omitted making an inquiry in order to avoid having actual knowledge. A deliberate ignorance instruction was given as an alternative to finding of "actual knowledge." The court stated that "[t]he substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable." (U.S. v. Jewell, 532 F2d at 700.) Hence, Jewell, which utilized Model Penal Code 2.02(7), requires a finding of "willful blindness." (See U.S. v. Aguilar, 80 F3d at 331-33.)

    "A Jewell instruction is properly given only when defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance. It is not enough that defendant was mistaken, recklessly disregarded the truth, or negligently failed to inquire. Instead, the government must present evidence indicating that defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of subsequent prosecution. Absent such evidence, the jury might impermissibly infer guilty knowledge on the basis of mere negligence without proof of deliberate avoidance." (U.S. v. Pacific Hide & Fur Depot, Inc. (9th Cir. 1985) 768 F2d 1096, 1098.)

    See FORECITE National™ 47.2.2 [Subjective Knowledge As Mental State That May Be Negated By Mental Impairment, Intoxication, Etc.].

    See also FORECITE National™ 47.4.9 [Deliberate Ignorance/Willful Blindness: Elements]. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

RESEARCH NOTES:

See Caplow & Griffin, "Multidefendant Criminal Cases: Federal Law and Procedure" (1998) (West) § 2:10.

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

SAMPLE INSTRUCTION # 2:

SAMPLE INSTRUCTION # 3:

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RATIONALE: Special instruction may be required so the jury understands that mere negligence is not deliberate ignorance.

ALERT: Ninth Circuit En Banc Court To Consider Propriety Of Deliberate Ignorance Instruction. The defendant drove across the border in a car with drugs hidden in the trunk. Her defense at trial was lack of knowledge of the drugs in the car which she had borrowed. A Ninth Circuit panel held that the district court judge erroneously gave a deliberate ignorance instruction allowing the jury to find that knowledge could be found if the defendant was aware of a high probability that drugs were in the car and avoided learning the truth. On August 11, 2006 the Ninth Circuit granted rehearing en banc. ([NF] U.S. v. Heredia (9th Cir. 8/11/06; No. 03-10585) 429 F3d. 820.)

POINTS AND AUTHORITIES: "An instruction or a combination of instructions which gives the jury the impression that negligence will support a verdict of guilty is improper. [Citation.]" (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 4.06 ["Knowingly"-Definition] Committee commentary (1999).)

    "In order for the defendant’s ignorance to be deliberate or willful, the defendant must have been presented with facts that put him on notice that criminal activity is probably afoot, and then the defendant must have failed to investigate those facts, thereby deliberately declining to verify or discover the criminal activity." (U.S. v. Barnhart (8th Cir. 1992) 979 F2d 647, 652; see also U.S. v. Adeniji (2nd Cir. 1994) 31 F3d 58, 62; U.S. v. Ojebode (5th Cir. 1992) 957 F2d 1218, 1228-29; U.S. v. Giovannetti (7th Cir. 1990) 919 F2d 1223, 1228 ["ostrich" instruction has a tendency to allow juries to improperly convict upon a finding of negligence for crimes that require intent; "ostrich" instruction should not be given where jury has a "binary choice" between "actual knowledge" and "complete innocence"]; U.S. v. White (8th Cir. 1986) 794 F2d 367, 371; U.S. v. Baron (9th Cir. 1996) 94 F3d 1312, 1316; U.S. v. Mapelli (9th Cir. 1992) 971 F2d 284, 286; U.S. v. Sanchez-Robles (9th Cir. 1991) 927 F2d 1070, 1073; U.S. v Alvarado (9th Cir. 1987) 817 F2d 580, 584; 838 F2d 311, 314; U.S. v. Hilliard (10th Cir. 1994) 31 F3d 1509, 1516; U.S. v. Barbee (10th Cir. 1992) 968 F2d 1026, 1033 [deliberate ignorance instruction is rarely appropriate]; U.S. v. de Francicso-Lopez (10th Cir. 1991) 939 F2d 1405, 1411 [there must be some evidence of deliberate ignorance other than proof of actual knowledge – that is, there must be proof of a deliberate attempt to remain ignorant]; U.S. v. Rivera (11th Cir. 1991) 944 F2d 1563, 1570 [deliberate ignorance instruction only appropriate in comparatively rare cases and should not be given in every case where the defendant claims a lack of knowledge].)

    See also FORECITE National™ 47.4.9 [ Deliberate Ignorance/Willful Blindness: Elements]. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § D(5).

HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.73 [Money Laundering /"willful blindness"] (TRCC 1999).

Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure § 15:9 (West, 1998).

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn, you may conclude that he acted knowingly, as I have used that word. [You may not conclude that the defendant had knowledge if he was merely negligent in not discovering the truth.]

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 4.06 ["Knowingly" - Definition] ¶ 2 (1999).]

    I must emphasize, however, that the requisite proof of knowledge on the part of the defendant cannot be established by merely demonstrating that defendant was negligent, careless or foolish.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instructions 8 [Deliberate Ignorance (As Proof of Knowledge)] ¶ 4 (1997).]

    It is important to bear in mind that mere negligence or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant of the fact.

[U.S. v. Gabriele (1st Cir. 1995) 63 F3d 61, 66, fn 6; U.S. v. Brandon (1st Cir. 1994) 17 F3d 409, 452, fn 72.]

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RATIONALE: If the defendant’s actual belief as to the facts was inconsistent with the requisite knowledge element of the offense (e.g., defendant actually believed he did not possess the drugs) then the knowledge element cannot be imputed under the deliberate ignorance doctrine.

POINTS AND AUTHORITIES: The deliberate ignorance rule (see U.S. v. Jewell (9th Cir. 1976) 532 F2d 697, 702) applies only to the situation where the defendant deliberately avoided learning the truth. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] (2000); see also U.S. v. Adeniji (2nd Cir. 1994) 31 F3d 58, 62 [deliberate ignorance or conscious avoidance instruction improper where defendant’s theory was that property did not belong to him not that he was consciously avoiding knowledge of the contraband contained in the property]; see also U.S. v. Hilliard (10th Cir. 1994) 31 F3d 1509, 1516 [defendant did not deny knowledge of regulatory position but believed it to be incorrect].) Accordingly, when the defendant actually believed facts inconsistent with the required knowledge, the deliberate ignorance rule cannot be applied to impute knowledge since there necessarily would have been no attempt to deliberately avoid learning the truth. (See U.S. v. Sicignano (2nd Cir. 1996) 78 F3d 69, 71-72 [deliberate ignorance instruction must explain that if defendant actually believed he was not committing a crime knowledge cannot be found based on deliberate ignorance]; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.04 [Deliberate Ignorance] (2000); see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] (2000); see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instructions 8 [Deliberate Ignorance (As Proof Of Knowledge)] (1997).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

BURDEN OF PROOF NOTE: Because the jury’s decision as to deliberate ignorance involves deciding whether the prosecution has met its burden of proving the knowledge element beyond a reasonable doubt, any instruction on this point should require the prosecution to prove beyond a reasonable doubt that the defendant did not actually believe the inconsistent facts. (Compare 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] (2000) ["You may not find such knowledge, however, if you find* that the defendant actually believed that...."]; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.09 [Deliberate Ignorance] commentary (1991).)

*  But see FORECITE National™ 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

    You may not find that the defendant [(name)] acted knowingly, however, [if you find that the defendant [(name)] actually believed that , ] [if you find that the defendant [(name)] was simply careless.] A showing of negligence, mistake, or carelessness is not sufficient to support a finding of knowledge.

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.04 [Deliberate Ignorance] ¶ 2 (2000).]

    You may not find such knowledge, however, if you find that the defendant actually believed that [e.g., no drugs were in his automobile], or if you find that the defendant was simply careless.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] ¶ 2 (2000); see BURDEN OF PROOF NOTE, above.]

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ALERT: Ninth Circuit En Banc Court To Consider Propriety Of Deliberate Ignorance Instruction. The defendant drove across the border in a car with drugs hidden in the trunk. Her defense at trial was lack of knowledge of the drugs in the car which she had borrowed. A Ninth Circuit panel held that the district court judge erroneously gave a deliberate ignorance instruction allowing the jury to find that knowledge could be found if the defendant was aware of a high probability that drugs were in the car and avoided learning the truth. On August 11, 2006 the Ninth Circuit granted rehearing en banc. ([NF] U.S. v. Heredia (9th Cir. 8/11/06; No. 03-10585) 429 F3d. 820.)

RATIONALE: The jurors should be instructed that it cannot find knowledge based on deliberate avoidance of the truth if the defendant’s ignorance was based on simple carelessness.

POINTS AND AUTHORITIES: "It is not enough that the defendant was mistaken, recklessly disregarded the truth, or negligently failed to inquire. Instead, the government must present evidence indicating that defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of subsequent prosecution." [Citations omitted.]  (U.S. v. Pacific Hide and Fur Depot, Inc. (9th Cir. 1985) 768 F2d 1096, 1098; see also U.S. v. Alvarado (9th Cir. 1987) 838 F2d 311, 314 [ "[T]he instruction should...be given rarely because of the risk that the jury will convict on a standard of negligence...."]; see also U.S. v. Aguilar (9th Cir. 1996) 80 F3d 329, 332 ["high probability of awareness" is not sufficient without "willful blindness"].)

    Accordingly, the jury should be instructed that it may not impute knowledge based on deliberate avoidance if the defendant was "simply careless." (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] ¶ 2 (2000).)

    See also FORECITE National™ 47.4.2 [Deliberate Ignorance/Willful Blindness: Mere Negligence Insufficient].

    See also FORECITE National™ 47.4.9 [ Deliberate Ignorance/Willful Blindness: Elements]. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

NOTE: The 9th Circuit instruction uses the phrase "if you find that the defendant was simply careless." However, because the deliberate ignorance rule relates to the prosecution’s obligation to prove the element of knowledge beyond a reasonable doubt, the jury should not be instructed that it must "find" that the defendant’s ignorance was simply careless. (See FORECITE National™ 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].) Rather, the prosecution should be required to prove beyond a reasonable doubt that the defendant was not "simply careless" -- i.e., the defendant "deliberately avoided learning the truth." (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.7 [Deliberate Ignorance] ¶ 1 (2000).)

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

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ALERT: Ninth Circuit En Banc Court To Consider Propriety Of Deliberate Ignorance Instruction. The defendant drove across the border in a car with drugs hidden in the trunk. Her defense at trial was lack of knowledge of the drugs in the car which she had borrowed. A Ninth Circuit panel held that the district court judge erroneously gave a deliberate ignorance instruction allowing the jury to find that knowledge could be found if the defendant was aware of a high probability that drugs were in the car and avoided learning the truth. On August 11, 2006 the Ninth Circuit granted rehearing en banc. ([NF] U.S. v. Heredia (9th Cir. 8/11/06; No. 03-10585) 429 F3d. 820.)

PRACTICE NOTE: The deliberate ignorance instruction should only be given in cases where the defendant, knowing or strongly suspecting criminal activity, takes affirmative acts or steps to avoid acquiring knowledge of the criminal matter. (See U.S. v. Giovannetti (7th Cir. 1990) 919 F2d 1223, 1228.) "Deliberate ignorance and actual knowledge are mutually exclusive. In order to justify an instruction on the law of deliberate ignorance, therefore, there must be some evidence of deliberate ignorance other than the proof of actual knowledge -- that is, there must be proof of a deliberate attempt to remain ignorant." (Samuel, Federal Criminal Case Digest (James Publishing, 1999) § 5.2611 [digesting U.S. v. de Francisco-Lopez (10th Cir. 1991) 939 F2d 1405, 1409-10].)

    See also FORECITE National™ 47.4.6 [Deliberate Ignorance/Willful Blindness: Inapplicable To Jury’s "Binary Choice" Between Actual Knowledge And Complete Innocence].

    See also FORECITE National™ 47.4.9 [ Deliberate Ignorance/Willful Blindness: Elements]. 

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Where the jury is only required to make a "binary choice" between "actual knowledge" and "complete innocence," the deliberate ignorance instruction is not appropriate. (U.S. v. Giovannetti (7th Cir. 1990) 919 F2d 1223, 1228; see also U.S. v. Barnhart (8th Cir. 1992) 979 F2d 647, 652; U.S. v. Mapelli (9th Cir. 1992) 971 F2d 284, 286 [defendant either had knowledge or did not]; U.S. v. Sanchez-Robles (9th Cir. 1991) 927 F2d 1070, 1074 [defendant either had actual knowledge or had no knowledge]; U.S. v. Rivera (11th Cir. 1991) 944 F2d 1563, 1570 [defendant either knew she was carrying contraband or she did not know].)

    See also FORECITE National™ 47.4.5 [Deliberate Ignorance Willful Blindness: Requirement Of Affirmative Acts Or Steps].

See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

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See 1st Circuit Pattern Jury Instructions - Criminal 2.14.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.09.

See also 8th Circuit Pattern Jury Instructions - Criminal 7.04.

See also 9th Circuit Pattern Jury Instructions - Criminal 5.7.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 8.

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PRACTICE NOTE: United States v. Reyes (2nd Cir. 2002) 302 F3d 48 suggested that the doctrine of conscious avoidance cannot be used in the context of a two-person conspiracy: "We do not permit the doctrine to be used to prove intent to participate in a conspiracy." (Reyes, 302 F3d at 54; but see United States v. Svboda (2nd Cir. 2003) 347 F3d 471, 479 ["[W]e can see no reason why the factfinder may not rely on conscious avoidance to satisfy at least the knowledge component of intent to participate in a conspiracy"].)

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ALERT: Ninth Circuit En Banc Court To Consider Propriety Of Deliberate Ignorance Instruction. The defendant drove across the border in a car with drugs hidden in the trunk. Her defense at trial was lack of knowledge of the drugs in the car which she had borrowed. A Ninth Circuit panel held that the district court judge erroneously gave a deliberate ignorance instruction allowing the jury to find that knowledge could be found if the defendant was aware of a high probability that drugs were in the car and avoided learning the truth. On August 11, 2006 the Ninth Circuit granted rehearing en banc. ([NF] U.S. v. Heredia (9th Cir. 8/11/06; No. 03-10585) 429 F3d. 820.)

RATIONALE:  Because deliberate ignorance or willful blindness is a special theory of liability, full and correct instructions on the required elements is necessary.

POINTS AND AUTHORITIES:  A deliberate ignorance instruction should be given only when the government presents "specific evidence" that the defendant "(1) actually suspected that he or she might be involved in criminal activity, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself or herself with a defense in the event of prosecution."  (U.S. v. Baron (9th Cir. 1996) 94 F3d 1312, 1318 n3.)  It is not enough that the defendant "was mistake, recklessly disregarded the truth or negligently failed to inquire."  (United States v. Kelm (9th Cir. 1987) 827 F2d 1319, 1324 [citing United States v. Pacific Hide & Fur Depot, Inc, (9th Cir. 1985) 768 F2d 1096, 10908.)

    See also FORECITE National™ 47.4.1 [Deliberate Ignorance/Willful Blindness: General Rule And Instructions].

    See also FORECITE National™ 47.4.2 [Deliberate Ignorance/Willful Blindness: Mere Negligence Insufficient].

    See also FORECITE National™ 47.4.4 [Deliberate Ignorance/Willful Blindness: Inapplicable To Simple Carelessness].

    See also FORECITE National™ 47.4.5 [Deliberate Ignorance Willful Blindness: Requirement Of Affirmative Acts Or Steps].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

    See FORECITE National™ 47.4.7 [Deliberate Ignorance/Willful Blindness: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

   You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

   1.    Actually suspected that (he/she) might be involved in criminal activity;

AND

   2.    Deliberately attempted to avoid taking steps to confirm or deny those suspicions;

AND

   3.    Did so in order to provide (himself/herself) with a defense in the event of prosecution.

 [U.S. v. Baron (9th Cir. 1996) 94 F3d 1312, 1318 n3.]