Criminal Intent and the So-Called 'Red Flag' Theory

Proof of “willful blindness” or “conscious avoidance” now appears to be a generally accepted (if not overused) substitute for proof of actual knowledge in criminal cases, i.e., criminal scienter, the sine qua non of a criminal proceeding. The doctrine has been criticized, and courts have cautioned that certain formulations of the elements of “willful blindness” could lead a jury to convict based on negligent or reckless conduct. This danger is squarely presented by the U.S. Court of Appeals for the Second Circuit's recent decision in United States v. Ferguson, — F.3d — (2d Cir. Aug. 1, 2011), which held that “[r]ed flags about the legitimacy of a transaction can be used to show both actual knowledge and conscious avoidance.” While not entirely unprecedented, the growing invocation of the red flag theory is new and dangerous, investing far too much discretion in the prosecution to charge without a solid basis of proof of intentionality. This extension of the willful blindness doctrine is problematic, and inconsistent with the Supreme Court's recent discussion of this doctrine in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011).