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In the context of a conspiracy charge, a conscious avoidance instruction may only be given if two factual predicates are met. First, the defendant must asset the lack of some specific aspect of knowledge required for conviction. Second, there must be evidence that allows a rational juror to reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the criminal objective and consciously avoided confirming the fact. Red flags about the legitimacy of a transaction can be used to show both actual knowledge and conscious avoidance.
Defendant-appellant Joyce Lewis appealed from the judgment of the district court convicting her of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344, 1349. Lewis argued that the district court erred in instructing the jury that it could find Lewis guilty if she "acted with a conscious purpose to avoid learning the truth" about its criminal objective. According to Lewis, a recent Supreme Court decision, Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011), altered the standard for proving conscious avoidance; Lewis argued that the district court should have used Global-Tech's language rather than that enunciated in earlier Second Circuit precedents. Lewis further argued that the district court confused two separate issues, the state of mind required for a defendant to join a conspiracy, and the knowledge necessary for a defendant to have understood that conspiracy's specific objectives. Moreover, Lewis contended that the government did not establish a sufficient factual predicate to merit a conscious avoidance instruction.
Were Lewis’ assignments of error sufficient to overturn the judgment of conviction against her?
The court affirmed the judgment of the district court, holding that the district court was not required to use the phrasing of Global-Tech Appliances, Inc. v. SEB S.A. in its instructions to the jury. The court further held that taken as a whole, the district court's clear instruction that conscious disregard could not prove intent to join a conspiracy, and its accurate charge that a conspiracy required an intentional agreement to do something unlawful, constituted a correct statement of the law. According to the court, the government established a sufficient factual predicate to merit a conscious avoidance instruction. There were sufficient "red flags" to raise the possibility that defendant consciously avoided confirming her coconspirators' fraudulent aim.