The legal doctrine of “conscious avoidance,” which provides that a defendant who deliberately shields himself from clear evidence of critical facts is considered equally liable as one who has actual knowledge, continues to provoke debate. The doctrine, also referred to as “willful blindness,” can be critical in complex white-collar criminal cases, where the defendant’s awareness of others’ wrongful conduct is commonly a central issue. We recently addressed the doctrine in an article, “Conscious Avoidance: An Over-Used Doctrine,” following the March 2014 conviction of five former employees of Bernard Madoff after a trial that turned almost entirely on the question whether the defendants had knowledge of Madoff’s illegal Ponzi scheme. More recently, Second Circuit Judge Pierre Leval issued a concurring opinion in United States v. Fofanah that provides a detailed and thought-provoking analysis of Second Circuit law regarding when it is appropriate to give a conscious avoidance charge to a jury. The opinion provides no comfort to those concerned that the doctrine is overused and threatens to permit juries to convict on a less culpable mental state than required by statute.

Second Circuit case law has long provided that a conscious avoidance jury instruction is appropriate when the defendant claims the lack of some specific aspect of knowledge required for conviction, and when the appropriate factual predicate for the instruction exists. A factual predicate exists if the evidence demonstrates that the defendant was aware of a high probability of a disputed fact (i.e., that her boss was engaged in an illegal Ponzi scheme) and consciously and deliberately avoided confirming the fact.

One area of controversy has been whether there needs to be evidence that the defendant took manifest actions to avoid confirming the fact at issue — for example, telling someone not to talk about the fact, or taking a circuitous route to avoid passing a crime scene – or, by contrast, whether it is sufficient for the hypothesized “conscious and deliberate avoidance” of the fact to occur solely in the defendant’s mind. Debate on this issue intensified in the wake of the Supreme Court’s 2011 decision in Global-Tech Appliances, Inc. v. SEB S.A, the Court’s first true endorsement of the conscious avoidance doctrine. In Global-Tech, a civil patent infringement dispute, the Court rejected a formulation applied by the lower court inquiring whether the defendant “deliberately disregarded a known risk” that the plaintiff had a patent. The Supreme Court rejected that formulation as insufficient because, in contrast to the proper standard for knowledge on a conscious avoidance or willful blindness theory, the lower court’s formulation permitted a finding of liability when there was merely a “known risk” and failed to require “active efforts” by the defendant to avoid knowledge.  The Court explained that the requirements that a defendant “subjectively believe that there is a high probability that a fact exists” and that the defendant “take deliberate action to avoid learning of that fact” . . . “give willful blindness an appropriately limited scope that surpasses negligence and recklessness.”

In Fofanah, decided by the Second Circuit on September 2, 2014, the defendant was charged principally with conspiracy to transport stolen vehicles, and he challenged the trial court’s conscious avoidance instruction. Fofanah argued that the trial court erred in giving the instruction because there was no evidence that Fofanah took affirmative steps to avoid learning the incriminating facts, and also argued that evidence of actual knowledge does not support a conscious avoidance instruction. The Second Circuit’s majority opinion declined to determine whether giving the conscious avoidance instruction was error, but instead held that any such error would be harmless because there was overwhelming evidence of actual knowledge that the cars at issue were stolen.

Judge Leval wrote a lengthy concurrence. The first portion of the concurrence is dedicated to refuting Fofanah’s argument that an affirmative act of avoidance is required under Second Circuit precedent. This portion is not surprising; as we have pointed out in “Conscious Avoidance: An Over-Used Doctrine,” there is recent Second Circuit precedent rejecting such requirement. What is notable about this portion of the opinion is its treatment of the Supreme Court’s contrary language in Global-Tech, discussed above. In a lengthy footnote, Judge Leval writes that in including the requirement that the defendant take “deliberate actions to avoid learning” of the incriminating fact, the Supreme Court was merely purporting to summarize “what it understood to be the uniform standards approved by the various circuits” but that the “the Court was mistaken in that observation.” Judge Leval also explained why, from his perspective, including such a requirement would be bad policy, because it would make the doctrine “ill-suited to its purpose and inconsistent with the habits of well-advised, self-protective criminal conduct.”

If and when the conscious avoidance doctrine again comes before the Supreme Court, it will be interesting to see if the Court agrees with Judge Leval in reading the “deliberate action” requirement out of the test. The Court included the requirement in the course of drawing a clear line between knowledge on a conscious avoidance theory and the lower standard of recklessness, where a defendant may be liable if he merely “knows of a substantial and unjustified risk.” Permitting convictions on a mere recklessness finding when a criminal statute requires knowledge or intent is one of the principal concerns of those critical of the conscious avoidance doctrine. While theFofanah concurrence discusses that general concern, it does so in the language of the even lower standard of negligence (referring to the “protection of careless innocents”), and the opinion’s language at various other points suggests a lesser degree of concern than that expressed by the Supreme Court.

Another interesting aspect of the Fofanah concurrence is contained in the portion responding to the argument that evidence that supports a finding of knowledge cannot also provide a basis for a conscious avoidance charge. Judge Leval first points to prior Second Circuit decisions that make clear that the same evidence that serves as a factual predicate for a conscious avoidance charge – evidence of circumstances that were so suspicious as to demonstrate that the defendant was aware of a high probability of a disputed fact – can also be evidence tending to show that the defendant had actual knowledge. Judge Leval then takes the discussion a step further, explaining that depending on the circumstances, evidence showing actual knowledge also might not support a finding that the defendant, while aware of the high probability of an incriminating fact, deliberately closed his eyes to it. As the opinion explains, for example, if knowledge is the contested issue in a case charging possession of stolen computers, and the “only evidence bearing on knowledge” that the computers were stolen is evidence that “the defendant himself held up a computer store at gunpoint and stole [them],” then such evidence, while supporting a finding of actual knowledge, would not support a finding that the defendant consciously chose not to learn an incriminating fact. “Such a record might well sustain the argument that a conscious avoidance charge was not permissible.”

While this portion of the opinion is commendable for its analytical clarity, its implications are troubling to those concerned about overuse of the conscious avoidance doctrine. One observation is that the proffered circumstance when a conscious avoidance instruction “might well be” improper — where the “only evidence bearing on knowledge” supports only actual knowledge and is not consistent with conscious avoidance — will be exceedingly rare indeed. This conclusion is underscored by the opinion’s further explanation that the jury’s right to accept some evidence and reject other evidence must be kept in mind. Thus, even if some of the evidence — for example, statements tantamount to admissions by Fofanah — is the sort that can support only actual knowledge and cannot support conscious avoidance, the jury could reject that evidence and accept other evidence that is compatible with finding conscious avoidance.

It will be the rare case where an even moderately competent prosecutor cannot point to some other evidence “bearing on knowledge” that is compatible with a defendant deliberately closing his eyes to the implications of a highly suspicious fact. In the real world, even when a defendant comes to possess stolen computers by having held up a computer store, there is likely to be at least some other evidence bearing on his knowledge that the computers are purloined that is outside the heist itself. Examples would include that the defendant was later seen bringing the computers to a deserted warehouse; or that the defendant stored the computers in a van with the windows covered. In the more complex factual settings typical of white-collar cases, a situation in which there is simply no evidence “bearing on knowledge” that is logically compatible with a finding of conscious avoidance is likely to be virtually nonexistent. Thus, as a practical matter, a conscious avoidance charge will be given in every such case where knowledge is contested.

In short, for those interested in the debate regarding the criminal law doctrine of conscious avoidance, Judge Leval’s Fofanah concurrence is highly recommended reading, even for those of us who disagree as a matter of policy with its expansive view on when a conscious avoidance instruction is appropriate.