Petition for Certiorari on Deliberate / Willful Ignorance / Conscious Avoidance / Ostrich Instruction

Petition for Certiorari on Deliberate / Willful Ignorance / Conscious Avoidance / Ostrich Instruction

The second issue raised in both the Walton and the Brooks petitions for certiorari in United States v. Brooks, 681 F.3d 678 (5th Cir. 2012), Wesley C. Walton v. United States of America and James Brooks v. United States of America, is whether the trial court properly instructed the jury on deliberate ignorance as a substitute for specific intent (knowledge) in a crime where the text requires specific intent (knowledge). The deliberate ignorance concept is also called conscious avoidance, willful ignorance and the ostrich concept (mostly mentioned as the ostrich instruction).

Imitating an Ostrich Head in the Sand

The Walton petition alleges that the instructions given were not consistent with the Supreme Court's approval of the deliberate ignorance concept in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060 (2011). (Sign in with your ID to access the Lexis enhanced version of the Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060 (2011) decision with summary, headnotes, and Shepard's).  I previously blogged on Global-Tech in Supreme Court Speaks on Willful Blindness (Federal Tax Crimes Blog 6/2/11). Suffice it to say now that, in that civil patent case, the Supreme Court discussed the concept of deliberate ignorance in criminal cases and appeared to bless the application of the doctrine.  Assuming that announcing its blessing in that context (which might make it dicta, albeit influential dicta), the question is what does this concept mean?  (I argue in my text Federal Tax Crimes book (copied at the end of this blog) that ignorance is not specific intent (knowledge), hardly a novel argument since Justice Kennedy in dissent in Global-Tech as well as many others have asserted the same argument.)

Accepting the lay of the land as the Supreme Court has served it up in Global-Tech, the petitions in Brooks ask whether the instructions in Brooks were consistent with what the Supreme Court said about deliberate ignorance and whether the varying court's application of the doctrine should be reconciled so that the standards of criminality are consistent among the Circuits.  I should say in this regard that no court has rejected the concept of deliberate ignorance -- the conflict is over how it is conceptualized and the elements required that the jury must be instructed in some meaningful manner.

The instruction given to the jury by the trial court in Brooks was:

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on ·the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, know ledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

We need to parse this instruction, because it really states two different things -- one of which, I think, is correct and the other, I think, is not.


Now, my analysis just is not mainstream and is not the one the Supreme Court adopted in Global-Tech and the courts generally adopt.  So I now turn to Global Tech and the Brooks petitioners' arguments for why the Supreme Court should accept certiorari.


I quoted in this blog post from Walton's petition.  I don't quote from Brook's petition because, in my view, it would be cumulative to the points raised in the Walton petition.

Finally, for what it is worth, I offer my discussion of the concepts in my most recent draft of my Federal Tax Crimes book, Conscious Avoidance and Its Variations.


View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

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