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REASONS FOR GRANTING THE PETITION

The modern proliferation of complex criminal regulatory and statutory schemes warrants reconsideration of whether a citizen may be held responsible for conduct without knowledge of the unlawfulness of that conduct, regardless of any willfulness requirement.

In Global-Tech Appliances, Inc. v. SEB, S.A., 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011), this Court held that willful blindness must “almost” equate with actual knowledge of wrongdoing4 and must not include recklessness, as the Fifth Circuit’s deliberate ignorance pattern jury instruction allows (as do the pattern jury instructions for the First and Seventh Circuit Courts of Appeals). This Court should grant certiorari to make uniform among the Courts of Appeals the requisites of a “willful blindness” and other mens rea instructions required in complex criminal cases, charging specific intent crimes.

4 “[A] willfully blind defendant is one . . . who can almost be said to have actually known the critical facts,” whereas “a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing.” Global-Tech, supra, 131 S.Ct. at 2070-2071.

The trial court charged the jury with the Fifth Circuit Pattern instruction and declined to give the instruction requested by Brooks and modeled after the recently decided Global-Tech case, supra.5 The Fifth Circuit instruction given stated:

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 can- not be established merely by demonstrating that  the  defendant  was  negligent,  careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

  1. 3437.

The defense specifically objected on the grounds that the proposed instruction failed to require either that defendant was aware of a high probability that his conduct  was  illegal  or  took  deliberate  actions to avoid learning the illegal nature of that conduct. On appeal, the Fifth Circuit noted that Global-Tech “seemed”6 to apply to criminal cases and that its pattern jury instruction met the standard set forth in Global-Tech, since unlike the Tenth Circuit, the Fifth Circuit instruction did not allow a finding of willful blindness when there is only a “known risk” and where the defendant did not make an active effort to avoid knowledge.

 

5 The defense requested that the jury be instructed that; “In deciding knowledge, you may consider whether  the  Defendant was subjectively aware of a high probability of the existence of illegal conduct and  the  Defendant  purposefully  contrived  to avoid learning of the illegal conduct.” R. 10016.

However, the above Fifth Circuit instruction requires neither that the defendant subjectively believed that there is a high probability that his conduct was illegal, nor that the defendant took deliberate steps7 to avoid learning that his conduct was illegal. In the Fifth Circuit instruction, a defen- dant need only close his eyes to a “fact” that would otherwise have been obvious to him, and blind him- self to the existence of facts, without regard to any knowledge of the illegal nature of this conduct. While the Fifth Circuit instruction expressly excludes consideration of “negligence,” Circuit court case law prior to Global-Tech, supra, acknowledges that its pattern instruction does not rule out a finding of knowledge under such a negligence standard. In A deliberate ignorance instruction allows the jury to convict without finding that the de- fendant was aware of the existence of illegal conduct. It therefore creates a risk that the jury might convict on a lesser negligence standard. The jury, for example, might find deliberate ignorance merely because it be- lieved the defendant should have been aware of the illegal conduct.

 

6 United States v. Brooks, 681 F.3d 678, 703 (5th Cir. 2012) [“Although Global-Tech was a civil case, the standard seems to apply equally to criminal deliberate ignorance.”].

7 Global-Tech Appliances, Inc. v. SEB, S.A., 131 S.Ct. 2060, 2072 (2011) also requires that the defendant take “deliberate steps to avoid knowing” a high probability of illegality. Together what is required is that it can “almost be said the defendant actually knew.” Global-Tech, 131 S.Ct. at 2071, quoting G. Williams, Criminal Law § 57, p. 159 (2d ed. 1961).

United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992) the Court held that:

 

This Court described a “negligent defendant” as “one who should have known of a similar [substantial and unjustified] risk but, in fact, did not.”  Global-Tech, 131 S.Ct. at 2071. Thus, the Fifth Circuit has recognized the danger that this Pattern jury instruction fails to provide the protection that this Court held was applicable even in a civil case.8

The first prong of the Global-Tech “willfully blind” test requires proof that the defendant subjec- tively “believed” there was a high probability of crim- inal conduct as opposed to simply being “aware” of same. “Believe” is defined in Black’s Law Dictionary as “to feel certain about the truth of; to accept as true.” “Aware” on the other hand, is defined in Funk and Wagnall’s Dictionary as “possessing knowledge of (some fact or action); conscious; cognizant.” This is the very definition that this Court implicitly rejected when it defined a merely “reckless defendant” as “one who merely knows of a substantial and unjustified risk of such wrongdoing.” Global-Tech, 131 S.Ct. at 2071. The use of a subjective belief is closer to actual knowledge. This Court specifically chose the word “believed” thus ensuring that the burden of proof is not lowered to the standard of recklessness or negli- gence when the statute mandates knowing and intentional conduct. For if the defendant were simply “aware” that a particular outcome is a possibility, and yet chooses to ignore it, then the defendant is guilty of being only reckless. See, e.g., United States v. Heredia, 483 F.3d 913, 917 (9th Cir. 2007) (“defendant was aware of a high probability that drugs were in the vehicle . . . You may not find such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant”).9

8 The Third Circuit has changed its pattern jury instruction to conform with Global-Tech. Third Circuit Pattern Jury In- struction 5.06.

 

Further, where as here,  specific  intent  offenses are charged, instructing  a jury that “ignorance of the law is no excuse” only serves to confuse the issue of the  requisite  scienter,  particularly   when   dealing with confusing and  complex  statutory  schemes  such as the CEA. In this case, the jury demonstrated its confusion with regard to this very issue, sending the court the following note during their deliberations:

9  In this regard, the post-Global-Tech pattern instructions for the First and Seventh Circuits require less in their willful blindness jury instructions than this Court requires. See: United States v. Denson, 11-1042, 2012 WL 3125111 (1st Cir., August 2, 2012); United States v. De Jesus-Viera, 655 F.3d 52, 59 (1st Cir. 2011); United States v. Pabey, 664 F.3d 1084, 1091 (7th Cir. 2011).

 

In the second part of count one it states, that the defendant knew the unlawful purpose. Doesn’t this contradict the idea that ignorance of the law is no excuse.10

The court replied in writing, over objection:

There is no contradiction. The Government is not required to prove that a defendant knew the purpose of the agreement was in fact un- lawful, that is, in violation of a statute, but the Government must prove the defendant knew the purpose of the agreement, and the Government must prove that the purpose was in fact unlawful.

(Emphasis supplied).11

Count one was the conspiracy count. The objects of the charged conspiracy were the specific intent of- fenses of wire fraud and false statements under the Commodity Exchange Act, 7 U.S.C. § 13(a)(2) [CEA]. Since the mens rea required for each object of the conspiracy is the specific intent to commit the object offenses, the “ignorance of the law” instruction is confusing and misleading. It tends to negate the specific intent requirements. In United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977) a conspiracy charged illegal bugging of the district clerk’s office and perjury. The jury was instructed that the crimes were specific intent crimes and that ignorance of the law was no excuse. Like this case, the jury sent a note that they were confused whether the specific intent portion of the charge and presuming to know the law portion of the charge appeared to be in conflict. The Fifth Circuit overturned the conviction since the “ignorance of the defendant of the applicable law went to the heart of his denial of the specific intent necessary for a violation of the law.”12

10     The prosecutor had argued to the jury panel during voir dire that “ignorance of the law is no defense.” R. 1192-5.

11 Similar to the trial judge’s response to a jury note ex- pressing the jury’s similar concerns in Cheek v. United States, 498 U.S. 192, 197-198, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).

 

Here jurors were to have considered whether Brooks had the specific intent to join a scheme to defraud the government and whether Brooks had the specific intent to knowingly make a report that he knew was false and inaccurate and that he knew was delivered in interstate commerce. The jury asked whether Brooks need know that the purpose of the conspiracy was unlawful and was told by the trial court that he did not. The jury was also told that ignorance of the law was no excuse. Understandably confused, the jury sent a note during their deliberations inquiring whether the requirement that defendant “knew the unlawful purpose,” conflicted with the concept that “ignorance of the law is no excuse.” This written response by the court that the defendant did not need to recognize that his conduct was unlawful ignored the fact that the objects of the conspiracy required Brooks’ specific intent to engage in a scheme to defraud the Government, meaning that he had to know that it was a scheme to defraud, that he en- gaged in material falsehood and used interstate wires in furtherance of that fraud. United States v. Brooks, 681 F.3d 678, 700 (5th Cir. 2012) [regarding the elements of wire fraud]. The Fifth Circuit stated that Brooks came closer to being correct about the confu- sion injected by the court’s supplemental instruction, rejecting his claim in light of the jury charge as a whole.13 However, the jury was not told to consider the instructions as a whole. They were only told not to disregard or give special attention to any one instruction. R. 3427.

12   Moreover, in closing the prosecutor here argued “they do not have to subjectively  be  aware  that  something  was  against the law.” R. 5014-5015.

Further, the instruction negated the mens rea requiring Brooks’ knowledge that the reports of natural gas trades were false and inaccurate. United States v. Valencia, 394 F.3d 352, 355 (5th Cir. 2004) [setting out the scienter required under 13(a)(2)]. The sugges- tion that ignorance of the law is no excuse and the specific instructions that Brooks need not realize that his conduct was unlawful, injected confusion as to what the government needed to show with regard to the purpose or objects of the conspiracy. Both of those

13 “Although the district court’s response possibly could have spelled out the relationship between conspiracy and the underlying substantive offense more clearly, it is not an incorrect statement of the law, particularly in light of the rest of the jury charge.” Brooks, 681 F.3d at 700.

objects required the Government to establish a specific intent to violate the law, which the instruction negated. One must know that a matter is false or misleading; not merely have knowledge of the matter under the CEA. And one must form a specific intent to defraud by making material false statements, not just make statements without knowing whether or not they were true or accurate, under the wire fraud statute.

Moreover, when confronted with a complex statutory and regulatory scheme such as the Commodities Exchange Act, this Court has recognized that:

Based upon the notion that the law  is  definite and knowable, the common law presumed that every person knew  the  law  . . . The proliferation of statutes and regulations has sometimes made it difficult for the aver- age citizen to know and comprehend the ex- tent of the duties and obligations imposed by the tax laws.

Cheek v. United States, 498 U.S. 192, 199-200 (1991). This  is  not  just  true  of  income  tax  violations.

Knowledge  that  one’s  conduct  is  unlawful  should  be required any time a citizen is charged in a complex and confusing regulatory scheme. See: Ratzlaf v. United  States,  510  U.S.  135,  114  S.Ct.  655,  126

L.Ed.2d 615 (1994) [with respect to the willfulness requirement of the anti-structuring statute, the gov- ernment must prove that the defendant acted with knowledge that his conduct was unlawful regardless whether the complex statutory scheme requires will- fulness];  Bryan  v.  United  States,  542  U.S.  184,  118 S.Ct.  1939,  1946-1947,  141  L.Ed.2d  197  (1998)  [requiring the government prove that the defendant knew his conduct was unlawful in a federal firearms prosecution (violation of 18 U.S.C. §§ 922 and 924)];

United States v. Davis, 583 F.2d 190, 193-194 (5th Cir. 1976) [holding that a munitions violation “re- quires the Government to prove that the defendant voluntarily and intentionally violated a known legal duty,” noting that the court “may not instruct that ignorance of the law is no excuse.”]; United States v. Gray, 751 F.2d 733, 736 (5th Cir. 1985) [holding that in a mail fraud prosecution, “to establish specific intent the government must prove the defendant knowingly did an act which the law forbids, purpose- fully intending to violate the law.”].14

14 This Court has also recognized that when faced with such complex statutory and regulatory schemes, the defendant is also entitled to the “good faith” instruction, which was requested and rejected in this case. Cheek v. United States, 498 U.S. 192, 200 (1991); United States v. Davis, 583 F.2d 190 (5th Cir. 1976).

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