The 'New' Willful Blindness Doctrine After Global-Tech

In Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), the Court expressly approved of this prosecution tool for the first time. But in doing so, it framed the doctrine in a way that provided some much-needed limitations. Prior to Global-Tech, courts generally agreed on the two prongs of willful blindness ' namely, that the defendant had to be aware of the possibility of wrongdoing, and he had to have deliberately avoided knowledge of it ' but they were inclined to focus only on the doctrine's first requirement, while often relying solely on the defendant's own indifference to facts suggesting criminality to satisfy the doctrine's second prerequisite. See, e.g., United States v. Chavez-Alvarez, 594 F.3d 1062, 1067 (8th Cir. 2010) (“A defendant's willful blindness may serve as the basis for knowledge if, in light of certain obvious facts, reasonable inferences support a finding that a defendant's failure to investigate is equivalent to burying one's head in the sand.” (internal quotation marks omitted)). The danger inherent in this approach was that it could result in convictions not based on “willfulness,” as required by most business crime statutes, but simply recklessness or negligence. See, e.g., Alston-Graves, 435 F.3d at 340 (“One problem with the various formulations of this instruction is that the jury might convict a defendant for acting recklessly ' or even for acting negligently.” (footnotes omitted)). Indeed, at least one circuit ' the Sixth Circuit ' appears to have endorsed recklessness as a basis for conviction. See, e.g., United States v. Prince, 214 F.3d 740, 761'62 (6th Cir. 2000) (deliberate-ignorance instruction appropriate where a defendant exhibits a “reckless disregard for the truth”).

The Supreme Court obviated much of this concern in Global-Tech. There, the Court rejected the notion that willful blindness could be found where a party was simply “deliberately indifferent” to a “known risk” of wrongdoing. Relying exclusively on criminal cases, the Court explained that willful blindness also required a showing of “deliberate actions” to avoid learning facts when the defendant “subjectively believed” there was a “high probability” that wrongdoing was going on. Global-Tech, 131 S. Ct. at 2068, 2070. Importantly, the Court made clear that more than “mere indifference” is needed to show “deliberate action”; instead, willful blindness requires “active efforts” by the defendant to remain ignorant of a particular fact. Id. at 2071. This, the Court emphasized, created a standard beyond either negligence or recklessness.

Precedent

The Court's analysis of willful blindness was based entirely on precedent from criminal cases. Justice Kennedy, writing in dissent, noted that, although rendered in the civil context, the decision “appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge,” Id. at 2073 (Kennedy, J., dissenting) ' a point the majority did not contest. Indeed, Global-Tech has already begun to be referenced in criminal decisions at both the trial and appellate levels. See, e.g., United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011); United States v. Marsh, — F. Supp. 2d —, 2011 WL 5084606, at *7 (E.D.N.Y. Sept. 14, 2011).

A Changing Landscape

The full impact this decision remains unknown. At a minimum, the decision means that virtually all pattern jury instructions on willful blindness will need to be revisited. Moreover, the opinion may call into question the broad application of the collective corporate knowledge doctrine, a cornerstone of many corporate prosecutions. These issues, and others, will be discussed next month, in Part Two of this article.

Joseph F. Savage, Jr. ([email protected]), a member of this newsletter's Board of Editors, is a partner in the Boston office of Goodwin Procter LLP, and a former federal prosecutor. David McCrary is a litigation associate in the same office.

Prosecutors striving to avoid proving “knowledge” in criminal cases are increasingly resorting to theories like the “responsible corporate officer” doctrine, where jail time is available despite a lack of knowledge of wrongdoing, and the “collective knowledge” doctrine, where employee knowledge is aggregated to prove corporate wrongdoing. But no approach has proven more popular than arguing that “willful blindness” is the same as actual knowledge. Under this theory, a defendant's deliberate attempt to avoid learning a fact is treated as legally equivalent to “actual knowledge” of it. The widespread use of willful blindness ' also known as “deliberate ignorance” or “conscious avoidance” ' is part of a trend toward weakening the mens rea requirement in criminal prosecutions.

Although recognized in most courts, this doctrine has not been universally embraced. The U.S. Court of Appeals for the D.C. Circuit, for instance, hesitated to endorse the concept ( see United States v. Alston-Graves , 435 F.3d 331, 339'41 (D.C. Cir. 2006)), while other courts have cautioned that it should be used sparingly ( see, e.g., United States v. Alvarado , 838 F.2d 311, 314 (9th Cir. 1988) (instruction should be “rarely given”)). Recently, however, willful blindness received the Supreme Court's imprimatur, albeit in the most unlikely of places: a civil patent dispute.

Global-Tech

In Global-Tech Appliances, Inc. v. SEB S.A. , 131 S. Ct. 2060 (2011), the Court expressly approved of this prosecution tool for the first time. But in doing so, it framed the doctrine in a way that provided some much-needed limitations. Prior to Global-Tech, courts generally agreed on the two prongs of willful blindness ' namely, that the defendant had to be aware of the possibility of wrongdoing, and he had to have deliberately avoided knowledge of it ' but they were inclined to focus only on the doctrine's first requirement, while often relying solely on the defendant's own indifference to facts suggesting criminality to satisfy the doctrine's second prerequisite. See, e.g., United States v. Chavez-Alvarez , 594 F.3d 1062, 1067 (8th Cir. 2010) (“A defendant's willful blindness may serve as the basis for knowledge if, in light of certain obvious facts, reasonable inferences support a finding that a defendant's failure to investigate is equivalent to burying one's head in the sand.” (internal quotation marks omitted)). The danger inherent in this approach was that it could result in convictions not based on “willfulness,” as required by most business crime statutes, but simply recklessness or negligence. See, e.g., Alston-Graves, 435 F.3d at 340 (“One problem with the various formulations of this instruction is that the jury might convict a defendant for acting recklessly ' or even for acting negligently.” (footnotes omitted)). Indeed, at least one circuit ' the Sixth Circuit ' appears to have endorsed recklessness as a basis for conviction. See, e.g., United States v. Prince , 214 F.3d 740, 761'62 (6th Cir. 2000) (deliberate-ignorance instruction appropriate where a defendant exhibits a “reckless disregard for the truth”).

The Supreme Court obviated much of this concern in Global-Tech. There, the Court rejected the notion that willful blindness could be found where a party was simply “deliberately indifferent” to a “known risk” of wrongdoing. Relying exclusively on criminal cases, the Court explained that willful blindness also required a showing of “deliberate actions” to avoid learning facts when the defendant “subjectively believed” there was a “high probability” that wrongdoing was going on. Global-Tech, 131 S. Ct. at 2068, 2070. Importantly, the Court made clear that more than “mere indifference” is needed to show “deliberate action”; instead, willful blindness requires “active efforts” by the defendant to remain ignorant of a particular fact. Id. at 2071. This, the Court emphasized, created a standard beyond either negligence or recklessness.

Precedent

The Court's analysis of willful blindness was based entirely on precedent from criminal cases. Justice Kennedy, writing in dissent, noted that, although rendered in the civil context, the decision “appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge,” Id. at 2073 (Kennedy, J., dissenting) ' a point the majority did not contest. Indeed, Global-Tech has already begun to be referenced in criminal decisions at both the trial and appellate levels. See, e.g., United States v. Butler , 646 F.3d 1038, 1041 (8th Cir. 2011); United States v. Marsh, — F. Supp. 2d —, 2011 WL 5084606, at *7 (E.D.N.Y. Sept. 14, 2011).

A Changing Landscape

The full impact this decision remains unknown. At a minimum, the decision means that virtually all pattern jury instructions on willful blindness will need to be revisited. Moreover, the opinion may call into question the broad application of the collective corporate knowledge doctrine, a cornerstone of many corporate prosecutions. These issues, and others, will be discussed next month, in Part Two of this article.

Joseph F. Savage, Jr. ([email protected]), a member of this newsletter's Board of Editors, is a partner in the Boston office of Goodwin Procter LLP, and a former federal prosecutor. David McCrary is a litigation associate in the same office.