Federal prosecutors sometimes try to prove that a defendant acted knowingly even when they cannot prove the defendant actually knew an important fact.
They may ask the judge to give the jury a willful blindness instruction, also known as a deliberate ignorance, deliberate indifference, or ostrich instruction.
The instruction can be powerful because it allows a jury, under limited circumstances, to treat a defendant’s deliberate avoidance of the truth as knowledge.
But there is an important limitation:
A defendant cannot be convicted simply because he was suspicious, careless, failed to investigate, or should have known what was happening.
There must be evidence of deliberate avoidance of the truth.
What Is a Willful Blindness Instruction?
Criminal statutes frequently require the government to prove that a defendant acted knowingly.
Ordinarily, that means the government must prove that the defendant actually knew the critical fact.
Willful blindness addresses a different situation. A defendant cannot deliberately shield himself from knowledge and then escape responsibility by claiming that he never actually learned the truth.
The Supreme Court explained in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), that willful blindness requires more than suspicion.
The defendant must believe there is a high probability that the fact exists and take deliberate action to avoid learning that fact.
That second requirement is critical.
Suspicion Is Not Knowledge
A person may suspect that something illegal is occurring without actually knowing it.
Likewise, failing to investigate suspicious circumstances does not automatically establish willful blindness.
There is an important difference between:
failing to discover the truth
and
deliberately acting to avoid discovering the truth.
A willful blindness instruction risks eliminating that distinction if it is given without sufficient evidence.
The government cannot use the instruction merely because it believes the defendant should have asked more questions.
United States v. Macias: Drug Conspiracy Conviction Reversed
The Seventh Circuit demonstrated the importance of this limitation in United States v. Macias, 786 F.3d 1060 (7th Cir. 2015).
Roberto Macias operated a bus company transporting passengers between Mexico and the United States. He was recruited to help move large amounts of money from the United States to Mexico.
The government alleged that the money represented proceeds from narcotics trafficking.
Macias maintained that he did not know the money came from drug trafficking. He testified that he believed the money was associated with illegal immigration activity.
The government argued that even if Macias did not actually know the source of the money, he deliberately avoided discovering the truth.
The trial judge gave the jury an ostrich instruction.
Macias was convicted of participating in a cocaine conspiracy and sentenced to 300 months in federal prison.
The Government Must Show Deliberate Avoidance
The Seventh Circuit reversed.
The problem was not simply whether Macias had reason to be suspicious.
The question was whether there was evidence that he deliberately acted to prevent himself from learning the truth.
There wasn’t.
The court explained that an ostrich instruction should not be given unless the evidence reasonably supports the conclusion that the defendant acted to shield himself from confirmation of his suspicions.
Macias may have failed to ask questions.
But he had no independent duty to investigate the source of the money he was transporting.
The failure to display curiosity was not enough.
Failing to Ask Questions Is Not Automatically Willful Blindness
This distinction is extremely important in federal criminal cases.
Suppose someone suspects something improper may be happening but does nothing to investigate.
That may be careless.
It may be negligent.
It may even appear suspicious.
But negligence and carelessness are not necessarily knowledge.
The government must not be permitted to convert “you should have known” into “you knowingly committed the crime.”
Willful blindness requires evidence supporting deliberate avoidance, not merely a failure to discover the truth.
When Can a Willful Blindness Instruction Be Proper?
A willful blindness instruction may be appropriate when the evidence shows that a defendant suspected a criminal fact and deliberately took steps to avoid confirming that suspicion.
For example, a defendant might:
- Tell another participant not to reveal where the illegal proceeds came from
- Deliberately avoid a transaction so he cannot observe the criminal activity
- Arrange a business relationship specifically so he will not receive incriminating information
- Refuse information because learning it would confirm what he already strongly suspects
- Take affirmative steps designed to maintain plausible deniability
The common feature is deliberate avoidance.
The defendant is not simply uninformed. He has intentionally structured his conduct to remain uninformed.
When Should the Defense Object?
Defense counsel should carefully examine the government’s request for a willful blindness instruction.
The instruction should be challenged when the evidence shows only:
- Mere suspicion
- Negligence
- Carelessness
- Failure to investigate
- Failure to ask questions
- Association with people engaged in criminal activity
- Evidence of actual knowledge without evidence of deliberate avoidance
The danger is that a jury may otherwise convict because it believes the defendant should have known what was happening.
That is not necessarily the knowledge required by federal criminal law.
An Improper Instruction Can Change the Verdict
Macias demonstrates why this issue matters.
The evidence against Macias was sufficient to permit the prosecution to proceed, but it was not overwhelming.
The jury could have concluded from the ostrich instruction that Macias was guilty simply because he was not sufficiently curious about the source of the money.
The Seventh Circuit refused to treat that problem as harmless.
The drug conspiracy conviction and 25-year sentence were reversed, and the case was remanded for a new trial.
The Seventh Circuit has continued to recognize Macias and the requirement that the evidence support a finding of deliberate avoidance before an ostrich instruction is given.
Willful Blindness in Federal Criminal Cases
Willful blindness issues can arise in many types of federal prosecutions, including:
- Drug conspiracies
- Money laundering
- Wire and mail fraud
- Healthcare fraud
- Bank fraud
- Tax offenses
- Firearms cases
- Conspiracy prosecutions
- Financial crimes
Whenever the government must prove knowledge, prosecutors may attempt to rely on deliberate ignorance when direct evidence of knowledge is weak.
The defense should determine whether the evidence truly shows intentional avoidance or merely an attempt by prosecutors to substitute suspicion for proof of knowledge.
Federal Criminal Defense Attorney Michael J. Petro
The government bears the burden of proving every element of a federal criminal offense beyond a reasonable doubt.
A willful blindness instruction should not become a shortcut around that burden.
A defendant who deliberately avoids learning the truth may not be able to escape responsibility by remaining intentionally ignorant.
But a defendant should not be convicted simply because prosecutors believe he was careless, suspicious, or failed to ask enough questions.
United States v. Macias demonstrates the importance of challenging an ostrich instruction when the evidence does not establish deliberate avoidance.
If federal prosecutors are attempting to turn suspicion into criminal knowledge, call federal criminal defense attorney Michael J. Petro to challenge the government’s evidence and improper jury instructions.