Today, I revisit one of my “rant” topics – willful blindness (aka deliberate ignorance, conscious avoidance, etc.).  My past rants have been about using the concept of willful blindness as a substitute for a specific knowledge requirement in criminal statutes, particularly the willfully element of most Title 26 tax crimes.  To remind, that willfully element, often referred to as the Cheek interpretation of the willfully element in tax crimes, is specific intent to violate a known legal duty.  Cheek v. United States, 498 U.S. 192, 201 (1991).  Such a specific intent requires that a defendant know the facts that create a legal duty and must know the law (sufficiently) to know that he is violating a legal duty.  I have urged that, if Congress legislated a knowledge element for a crime, courts and juries should not be treating something that is not knowledge as knowledge.  That is effectively creating a common law crime, supposedly a no, no in our legal system.

I periodically review willful blindness cases to see if there is more ranting I can do without duplicating my ranting too much.  I read a case today that offered something that I should have noticed and ranted on before.

The willful blindness concept requires that the defendant:  “(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.”  Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).  Global-Tech was a civil case, but the Supreme Court looked to criminal analogies where the concept was deployed, so courts often cite Global-Tech in criminal cases.  The Supreme Court in Global Tech also said that willful blindness applies when the defendant “can almost be said to have actually known the critical facts.”  (pp. 769-770, emphasis supplied by JAT.)  I suppose that if one took that sentence literally, a defendant in a criminal case can be convicted of a crime requiring specific knowledge even without that specific knowledge.  But, we all know from the trajectory of the willfully requirement for the civil and criminal FBAR penalties that willfully is not the same for criminal purposes as for civil FBAR purposes, with willfully for civil FBAR purposes permitting something like willful blindness / reckless behavior to meet the willfully element in a way that could not suffice for the crime.  The statement in Global-Tech thus may be technically dicta.

I have urged in my rants that, instead of a substitute for the statutory element of specific knowledge, the role of facts indicating willful blindness should instead be circumstantial evidence of actual knowledge that would permit the factfinder (jury in most criminal cases) to infer the required knowledge (the actual statutory element for the crime) beyond a reasonable doubt.  It is not and should not be a substitute for the statutory element requiring specific knowledge.

In reviewing a willful blindness case, some common verbiage in such cases caught my eye.  It relates to whether a court should give a willful blindness instruction.  A common formulation is that a willful blindness instruction is not appropriate when the “the relevant evidence points only to actual knowledge, rather than deliberate avoidance.” E.g., United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008).

Under my formulation of the proper role of willful blindness, with willful blindness serving as circumstantial evidence of the knowledge element, a willful blindness instruction permitting a jury to convict in the absence of finding the statutory knowledge element should not be given.  But that formulation is based on the notion that willful blindness is a substitute for the knowledge element of the crime permitting conviction in the absence of the knowledge specified in the statute as the element.

Under my formulation of the role of willful ignorance, the judge can and in an appropriate case should instruct the jury that willful ignorance can serve to permit the jury to infer and thus find the statutory element of knowledge beyond a reasonable doubt.  To be sure, such an instruction should be given only where there is some evidence pointing to willful blindness.  But the instruction should never be given to permit the jury to find the knowledge element where the jury cannot make the finding of knowledge.

Perhaps lawyers for defendants in cases where this becomes an issue should ask the jury to make specific findings (special interrogatories) as to whether it convicted on the basis of (i) finding the defendant had the knowledge or (ii) finding that the defendant did not have the actual knowledge but acted to avoid the knowledge.