It is a
defense to a finding of willfulness that the defendant was ignorant
of the law or of facts which made the conduct illegal, since willfulness
requires a voluntary and intentional violation of a known legal duty.
However, if the defendant deliberately avoided acquiring knowledge of
a fact or the law, then the jury may infer that he actually knew it
and that he was merely trying to avoid giving the appearance (and incurring
the consequences) of knowledge. See United States
v. Ramsey, 785 F.2d 184, 189 (7th Cir.), cert. denied
sub nom. McCreary v. United States,
476 U.S. 1186 (1986). (6)
a case, the use of an "ostrich instruction" -- also known as a
deliberate ignorance, conscious avoidance, willful blindness, or
a Jewell instruction (see
United States v. Jewell, 532 F.2d 697 (9th Cir.),
cert. denied, 426 U.S. 951 (1976) -- may be appropriate.
of courts have approved the use of such instructions under proper circumstances.
See, e.g., United States v. Picciandra,
788 F.2d 39, 46 (1st Cir.), cert. denied, 479 U.S. 847 (1986);
United States v. MacKenzie; 777 F.2d 811,
818-19 (2d Cir.), cert. denied, 476 U.S. 1169 (1986);
United States v. Callahan, 588 F.2d 1078 (5th
Cir. 1979); United States v. Dube, 820 F.2d
886, 892 (7th Cir. 1987); United States v. Bussey,
942 F.2d 1241, 1246 (8th Cir.), cert. denied, 112 S. Ct. 1936
(1991) (post-Cheek decision);
United States v. Fingado, 934 F.2d 1163, 1166-1167 (10th
Cir.), cert. denied, 112 S. Ct. 320 (1991). However, it has
also been said that the use of such instructions is "rarely appropriate."
United States v. deFrancisco-Lopez, 939 F.2d
1405, 1409 (10th Cir. 1991) (relying on several 9th Circuit cases).
(7) Thus, it is advisable not to request
such an instruction unless it is clearly warranted by the evidence in
a particular case. Furthermore, the language of any deliberate ignorance
instruction in a criminal tax case must comport with the Government's
obligation to prove the voluntary, intentional violation of a known
legal duty. The deliberate ignorance instruction set forth in
United States v. Fingado, 934 F.2d at 1166,
appears to be suitable for a criminal tax case.
(8) Further, to avoid potential confusion with the meaning
of "willfulness" as it relates to the defendant's intent, it may be
wise to avoid use of the phrase "willful blindness," using instead such
phrases as "deliberate ignorance" or "conscious avoidance."
if the defendant successfully avoided actual knowledge of the fact,
"[t]he required knowledge is established if the accused is aware of
a high probability of the existence of the fact in question unless he
actually believes it does not exist." United States v. Fingado,
934 F.2d 1163, 1166 (10th Cir.), cert. denied, 112 S. Ct. 320
(1991). But see United States v. MacKenzie,
777 F.2d 811, 818 n.2 (2d Cir.), cert. denied, 476 U.S. 1169
But see United States v. Rodriguez,
983 F.2d 455, 457 (2d Cir. 1993) (Second Circuit more willing than Ninth
Circuit to authorize use of this type of instruction).
of an abundance of caution, however, a prosecutor may wish to utilize
the instruction set out in United States v. MacKenzie,
777 F.2d 811, 818 n.2 (2d Cir. 1985), cert. denied, 476 U.S.
is suggested that any time a deliberate ignorance or conscious avoidance
instruction is given, the prosecutor should also insure that the jury
is expressly directed not to convict for negligence or mistake.
of Justice, Criminal Tax Manual, Section 8.06: Willful Blindness]