Jury Instructions - Deliberate Ignorance

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

Global-Tech Appliances Inc. v. SEB S.A., 131 S. Ct. 2060 (2011)

In this patent case, the United States Supreme Court explained the concept of “willful blindness” in terms that should equally apply in criminal cases: Willful blindness is more than deliberate indifference to a known risk. Instead, willful blindness requires that the defendant (1) subjectively believed there was a high probability that a fact existed and (2) took deliberate actions or active efforts to avoid learning the fact. This is a higher standard than negligence and even recklessness.

United States v. Macias, 786 F.3d 1060 (7th Cir. 2015)

Even if a defendant is aware of facts that “pique” his interest and he then restricted his “natural curiosity,” this is not enough to justify an instruction on deliberate ignorance after Global-Tech. In this case, Judge Posner wrote, “An ostrich instruction should not be given unless there is evidence that the defendant engaged in behavior that could reasonably be interpreted as having been intended to shield him from confirmation of his suspicious that he was involved in criminal activity.”

United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014)

The trial court erred in providing a deliberate ignorance instruction to the jury in this case, though the error was harmless. There was no evidence of a purposeful contrivance to avoid learning the facts.

United States v. Mathauda, 740 F.3d 565 (11th Cir. 2014)

The Eleventh Circuit considered whether the theory of “deliberate ignorance” applied in applying an enhancement under the Sentencing Guidelines for violation of an administrative order. The Court accepted the holdings in other Circuits that the deliberate ignorance principle applied when either: (1) the defendant purposely contrived to avoid learning all the facts; or (2) the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact. Neither option applied in this case. There was no evidence to support a finding that the defendant purposely contrived to avoid learning the fact and he had no reason to be aware of a high probability that an administrative order had been entered previously.

United States v Roussel, 705 F.3d 184 (5th Cir. 2013)

The evidence did not support a deliberate ignorance instruction. There was no evidence that the defendant took steps to remain ignorant of the essential facts that would establish his knowledge of fraud. Though he disguised various transactions, these were designed to hide his involvement in the fraud, not to avoid knowledge of it altogether. Harmless error.

United States v. Kaiser, 609 F.3d 556 (2d Cir. 2010)

A conscious avoidance instruction must include the concept that a jury may infer knowledge of the existence of a particular fact if the defendant is aware of a “high probability of its existence, unless the defendant actually believes that it does not exist.” See United States v. Feroz, 848 F.2d 359 (2d Cir. 1988). The error in omitting these two components of the conscious avoidance instruction was plain error necessitating the reversal of the defendant’s securities fraud conviction.

United States v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010)

A deliberate ignorance instruction in a child-enticement prosecution was reversible error. The defendant was chatting with an undercover police officer. The officer said that she was 13 years old. But when asked what her interests were, the officer responded, Perdue University and beer. Then, when asked to send a photo, the officer twice sent a photo of a twenty year old woman. The Seventh Circuit opinion questions why, in a sting operation, the police would send a photo of a twenty year old, and then claim that the defendant remained deliberately ignorant of the girl’s age. The instruction suggested that the defendant’s negligent misunderstanding of the girl’s age was sufficient to support an enticement of a minor conviction. The instruction is only appropriate when the defendant claims a lack of knowledge and there is evidence suggesting that he deliberately avoided the truth. Here, the defendant did not take deliberate steps to avoid learning the truth.

United States v. Alston-Graves, 435 F.3d 331 (D.C. Cir. 2006)

In a lengthy opinion that traces the development of the deliberate ignorance jury instructions in various Circuits, the D.C. Circuit apparently held that a deliberate ignorance instruction should not be given where the proof at trial demonstrates actual knowledge. Though the opinion ultimately holds that it was harmless error to instruct the jury on the principle of deliberate ignorance, the D.C. Circuit also held that the instruction should generally be reserved for cases in which there is proof of an affirmative effort to remain ignorant in order to have a defense at trial.

United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006)

While approving the use of a deliberate ignorance instruction in this case (drugs in car that the defendant was driving), the court cautioned that the prosecutor should not have argued to the jury that deliberate ignorance is somehow equivalent to “what a reasonable person would have known.” That formulation of the rule comes too close to a negligence standard. The proper focus is not on what a reasonable person would have known, but on what this defendant did know, and what this defendant deliberately avoided learning.

United States v. Heredia, 429 F.3d 820 (9th Cir. 2005)

The trial court erred in instructing the jury on deliberate ignorance. The Ninth Circuit concluded that the government offered insufficient evidence that the defendant deliberately avoided investigating her suspicions in order to provide herself with a defense in the event of prosecution. The Ninth Circuit also held that an essential feature of deliberate ignorance cases is that the defendant had a reasonable opportunity to reverse or abandon their course of conduct once the suspicion had formed. In this case, once it became apparent to the defendant that her passengers were carrying drugs in the car, it was too late for her to do anything about it. DECISION REVERSED. 483 F.3d 913. THE EN BANC COURT CONCLUDED THAT A DELIBERATE IGNORANCE INSTRUCTION MAY BE GIVEN, EVEN IN THE ABSENCE OF PROOF THAT THE DEFENDANT REMAINED IGNORANT FOR THE EXPRESS PURPOSE OF PRESERVING HIS ABILITY TO CLAIM LACK OF KNOWLEDGE AT TRIAL.

United States v. Mendoza-Medina, 346 F.3d 121 (5th Cir. 2003)

Though it was harmless error, the trial court should not have given a deliberate ignorance instruction in this case. Where the jury is asked to decide simply between two versions of the facts: one in which defendant had actual knowledge; the other in which the defendant was no more than negligent or stupid, the deliberate ignorance instruction is inappropriate. To justify the instruction, the evidence must establish (1) that defendant was actually aware of a high probability of the existence of the illegal conduct; and (2) that he purposely contrived to avoid learning of the illegal conduct. In short, there must be proof that the defendant consciously attempted to escape confirmation of the conditions or event that he strongly suspected to exist.

United States v. Ferrarini, 219 F.3d 145 (2d Cir. 2000)

The trial court erred in giving a conscious avoidance jury instruction in this case, but the error was harmless. The predicates for such an instruction are (1) the defendant asserts the lack of some specific aspect of knowledge required for conviction; and (2) the appropriate factual predicate for the charge exists, i.e., the evidence is such that a rational juror may 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. It is not enough only to show that the factual context should have apprised the defendant of the unlawful nature of his conduct. In this case, there was no suggestion that the defendant consciously avoided learning of the fraudulent loans that were at the center of his prosecution.

United States v. Sicignano, 78 F.3d 69 (2d Cir. 1996)

The defendant was the go-between delivering money to a narcotics supplier, and returning with drugs to an undercover agent. He claimed that he did not know what was in the bag he delivered in either direction. The trial court’s deliberate ignorance instruction was flawed, because it failed to explain that if the defendant actually believed the bag did not contain drugs, then he could not be charged with knowledge of its contents. That is, if the defendant affirmatively believes that he is not committing a crime, he cannot be found to have knowingly committed the crime. It is only when the defendant consciously remains ignorant of some fact (i.e., “Don’t tell me what is in the bag”) that he can be found to have deliberately remained ignorant.

United States v. Adeniji, 31 F.3d 58 (2d Cir. 1994)

The trial court erroneously instructed the jury that the element of knowledge may be found to be present if the evidence established that the defendant deliberately closed his eyes to what would otherwise have been obvious. The defendant testified, however, that the suits in which the heroin was discovered at the airport had never been in his bag before, but were placed there by mistake at the customs counter. This did not raise the issue of conscious avoidance. Harmless error.

United States v. Soto-Silva, 129 F.3d 340 (5th Cir. 1997)

It was reversible error in this case to give a deliberate ignorance instruction in connection with the offense of maintaining premises for the purpose of distributing marijuana. The court held that as a matter of law, this instruction should never be given in a prosecution under 21 U.S.C. §856(a)(1).

United States v. Ojebode, 957 F.2d 1218 (5th Cir. 1992)

Defendant was detained at the Houston Airport after a plane in which he was traveling from Germany to Mexico made a brief stop there. He was found to be in possession of heroin. He defended a charge of importation on the basis that he never intended to import the heroin into the United States. Though the evidence was sufficient to support the conviction, the failure to charge the jury that the defendant had to specifically intend to bring the contraband into the United States was reversible error. Moreover, it was error to instruct the jury that knowledge of the plane’s flight schedule could be found if the defendant remained deliberately ignorant. There was no basis in the record for this deliberate ignorance instruction.

United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990)

The defendant owned a lot with two houses on it. An undercover informant asked him if he could rent one of the houses. The house was then used as a “wire house” – a gambling house. The trial court improperly gave an “ostrich” instruction. The problem with the instruction is that it has a tendency to allow juries to convict upon a finding of negligence for crimes that require intent. The instruction is designed for cases in which there is evidence that the defendant, knowing or strongly suspecting that he is involved in shady dealing, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings. A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires. When the facts require the jury to make a “binary choice” between “actual knowledge” and “complete innocence,” the ostrich instruction should not be given. The error was grounds to reverse the conviction.

United States v. Barnhart, 979 F.2d 647 (8th Cir. 1992)

If the evidence demonstrates only that the defendant either possessed or lacked actual knowledge of the facts in question – and did not also demonstrate some deliberate efforts on his part to avoid obtaining actual knowledge – a willful blindness instruction should not be given. The instruction should not be given unless there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution. In this bank fraud prosecution, the error in giving the instruction was reversible error.

United States v. White, 794 F.2d 367 (8th Cir. 1986)

Though considered to be harmless error in this case, the Eighth Circuit holds that it was error to give a “conscious avoidance” instruction in light of the absence of any evidence that the defendant made a conscious effort to avoid learning of the contents of a bag which contained stolen mail. Because the evidence was overwhelming that the defendant was a direct participant in the mail theft scheme, the error was harmless.

United States v. Baron, 94 F.3d 1312 (9th Cir. 1996)

The trial court committed plain error in giving a deliberate ignorance instruction to the jury. There was no evidence that the defendant took steps to remain deliberately ignorant of the presence of drugs in his car. This decision may not have survived the later Ninth Circuit holding in United States v. Heredia, 483 F.3d 913 (9th Cir. 2007), noted above.

United States v. Aguilar, 80 F.3d 329 (9th Cir. 1996)

On remand from the Supreme Court, the issue is whether the trial court erred in instructing the jury on the element of knowledge in this prosecution of a federal judge for disclosing the existence of a wiretap in violation of 18 U.S.C. §2232(c). The trial court instructed the jury that “knowledge” could be found if the defendant had actual knowledge of the existence of the wiretap, or if he was aware of a high probability of the existence of a wiretap. This was erroneous. The latter alternative, “awareness of a high probability,” does not equate with actual knowledge unless there is evidence of willful blindness, that is, deliberate ignorance. Even irrational, or negligent ignorance is not sufficient.

United States v. Mapelli, 971 F.2d 284 (9th Cir. 1992)

Where the evidence points to actual knowledge, there is no reason to give a deliberate ignorance instruction. It was reversible error to instruct the jury on this principle in this case. Here, either the defendant had knowledge or she did not. If she did not, then she was not guilty. There was no evidence of conduct designed to avoid acquiring confirmation of a fact which was “all but known.”

United States v. Sanchez-Robles, 927 F.2d 1070 (9th Cir. 1991)

The defendant was riding in a van which reeked of the odor of marijuana. The trial court should not have given a deliberate ignorance instruction. The evidence of the odor pointed either directly or circumstantially only to actual knowledge of illegality, not deliberate ignorance. If the defendant recognized the smell, then she knew of the illegal contraband. If she did not recognize the smell, then she would have no reason to be suspicious. In other words, either she had actual knowledge, or she had no knowledge. There was no evidence of conscious avoidance.

United States v. Alvarado, 817 F.2d 580 (9th Cir. 1987)

The Ninth Circuit sets forth the rules for the giving of a deliberate ignorance instruction. The court cautions that it is a rare case where a deliberate ignorance instruction is appropriate. Here, the evidence established that the defendant had actual knowledge of the presence of cocaine in the suitcase. It was error to instruct the jury on the deliberate ignorance theory. Such an instruction is appropriate only where proof indicates that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all the facts in order to have a defense in the event of prosecution. This is a far cry from a standard of negligence. See also 838 F.2d 311. Note that the later decision in Heredia – the Ninth Circuit en banc decision – questioned the holding in this case and limited the Ninth Circuit’s jurisprudence of deliberate ignorance.

United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994)

A deliberate ignorance instruction is appropriate only when evidence has been presented showing the defendant purposely contrived to avoid learning the truth. Here, the defendant was shown to be aware of an agency’s civil regulatory position with regard to certain transactions, but disputed that interpretation. He was prosecuted for tax violations based on these same transactions. There was no evidence, however, that he intentionally remained ignorant of the tax laws, however. In order to justify a deliberate ignorance instruction, the government must prove that the defendant intentionally remained ignorant of a fact, not a law.

United States v. Barbee, 968 F.2d 1026 (10th Cir. 1992)

A deliberate ignorance instruction does not authorize a conviction of one who in fact does not have guilty knowledge. The deliberate ignorance instruction, however, is rarely appropriate because it is a rare occasion when the prosecution can present evidence that the defendant deliberately avoided knowledge. The deliberate ignorance instruction should be given only when evidence has been presented showing the defendant purposely contrived to avoid learning the truth. The defendant must deny knowledge and must engage in conduct which includes deliberate acts to avoid actual knowledge of the operant fact.

United States v. de Francisco-Lopez, 939 F.2d 1405 (10th Cir. 1991)

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.

United States v. Rivera, 944 F.2d 1563 (11th Cir. 1991)

A deliberate ignorance instruction should not be given in every case in which a defendant claims a lack of knowledge, but only in those comparatively rare cases where there are facts that point in the direction of deliberate ignorance. The instruction is only warranted when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution. The trial court erred in giving the instruction in this case. Either the defendant knew that she was carrying contraband across the border, or she did not. There was no evidence that she consciously avoided acquiring the knowledge. There was no evidence, for example, that the defendant came into possession of the suitcase under suspicious circumstances. Harmless error.