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Federal Criminal Conspiracy Law &
Blindness Jury Charge
A Tough Combination in White Collar Cases©
By Ruben Gonzalez, J.D.
The United States regularly employs conspiracy counts in criminal prosecutions. In many of the conspiracy cases, defendants claim they did not know the existence of the conspiracy a criminal act had been undertaken, and/or they did not knowingly participate in the conspiracy. In white collar cases, the federal conspiracy law and the willful blindness charge are used frequently together in federal conspiracy prosecutions. This paper is written for the non-lawyer to understand how federal conspiracy laws can make even the most minimally involved people criminally liable in conspiracy cases, and what steps a potential federal target may do if confronted by a federal agent with questions.
The Federal Criminal Conspiracy Law is found at Title 18 United States Code (U.S.C.) Section 371, and it states, “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner of for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both. If however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” The very broad conspiracy law includes “any manner of for any purpose” definition. As a defense attorney the goal is to show the client did not engage in any act to further the object of the conspiracy. It is important to understand specifically what the government states the defendant did to further the conspiracy’s objective; usually the government states the defendant’s conspiratorial acts in a section of the indictment identified as Overt Acts.
In the Overt Acts section of a conspiracy indictment, the government sets forth the specific acts the government intends to prove what the defendant did that makes him criminally responsible. The government believes the stated facts Overt Acts will prove their case; the defense, however, will attempt to show the government’s Overt Acts were misinterpreted, incompletely described, taken out of context or did not assist in the conspiracy, As a matter of strategy a defense attorney will employ private investigators, usually former federal agents, to assist in the investigation to determine what the true facts are and distinguish them from the government’s rendition of the facts. If the defense investigation uncovers additional information that supports an acquittal or thwarts the government’s prosecution theory, the defense could engage in negotiations with the government’s assistant U.S. Attorney to reach a negotiated settlement (a dismissal) or simply go to trial and prove the client’s innocence if the information or evidence is so strong to support the defense’s theory.
The government can bolster the prosecution theory by using the jury charge titled willful blindness or deliberate ignorance. The willful blindness jury instruction allows the jury, who acts as the finder of facts, to either acquit or find a defendant guilty, by inferring or assuming the defendant acted intentionally or knowingly to commit the crime. Generally, a defendant cannot be held criminally responsible for a crime unless the act was carried out by the defendant intentionally or knowingly. However, in previous prosecutions the government could not easily prove a defendant’s intent in certain crimes, this was especially so during the 1970s when people, typically poor and did not appreciate the harsh criminal penalties, were enticed into smuggling narcotics into the United States by driving vehicle a short distance from Mexico across into the United States through border check points. Such individuals were described as mules. The origin of the willful blindness and deliberate ignorance jury charge owes its creation to the low level somewhat unwitting narcotics smuggler from Mexico.
It was true, most mules did not know they were actually (direct knowledge) smuggling narcotics into the United States. However, due to the large number of people who were recklessly engaging in narcotics smuggling into the United States from Mexico, the government prosecutors convinced the courts that the jury willful blindness instruction was appropriate. The instruction allowed juries to infer or presume knowledge or intent was appropriate because the individuals for little effort would be paid relatively large sums of money by driving vehicle a short distance into the United States. Under those circumstances, the government contended, a reasonable person would have known or had reason to know some illegal activity was on-going or they were about to engage in some illegal activity despite not having direct knowledge. As a result, the individual deliberately blinded themselves to the illegal activity by not questioning or looking into the facts surrounding the activity. (The mule driving a vehicle owned by an unknown person, from Mexico into the United States, through a border checkpoint, a relatively short distance and be paid a relatively large amount of money.) Thus, the juries were instructed by the court to infer the defendant’s criminal intent and knowledge if the jury believes beyond a reasonable doubt that the defendant deliberately blinded themselves of the knowledge. The courts will determine when sufficient evidence in the case exists for the instruction to be appropriately given to the jury. The legal logic for the willful blindness instruction is to prevent a person from claiming innocence when they themselves did not act in a responsible manner to avoid a criminal conduct, and thereby the law will not reward a defendant who is not a totally innocent person (or deliberately blinded themselves) and deprive them of a defense, lack of knowledge or intent.
In most Federal Circuits in the United States, model jury instructions exist and are to be used by the district courts in the criminal prosecutions. In the United States Court of Appeals for the Fifth Circuit, in New Orleans, Louisiana; the Court has directed the use of the willful blindness or deliberate ignorance charge when a defendant “deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”
The two laws, the conspiracy law and the willful blindness jury charge, used together make for a powerful government – prosecution tool. Due to the success of the laws, the government has expanded their employment beyond narcotics offenses, and now it is used widely in other types of federal prosecution. It is foreseeable due to the complementing laws how a defendant will attempt to thwart a government accusation, “I did not know” or “I could not have known” are typically the defenses. The government and its agents anticipate this and counter the defendant claims in advance by interviewing co-workers and supervisors who will know what information a defendant possessed that would be an indicator, in their opinion, for the defendant to question what was occurring around them and morphed into a criminal act. As a result of the aforementioned discussion, it then becomes a more important to know and question before acting, especially in the business world in normal routines involving finance, securities and banking.
In the event a person is contacted by a federal agency or agent conducting an investigation it becomes critical they seek advice of counsel before speaking with any agent. As discussed in this paper, the information supplied to the agents about a professional or business person’s knowledge in the performance of their job or information related to financial transactions becomes crucial to later possible defenses and the government if given any details will attempt to eliminate any criminal defenses by countering a defendant/suspect’s claims through confirming objective details. It is paramount that a target should not attempt to persuade an agent during initial meeting, seek counsel immediately. The attorney, working on the client’s behalf may engage the prosecutor to determine the prosecution’s theory and if appropriate discuss what defenses exist to secure the best possible outcome for the client.
The United States prosecutors have developed through many conspiracy cases an approach that entices defendants to claim they were not knowing or intentional parties to a crime. The unwitting defendant can be lulled into explaining circumstances that they believe exculpates them, but later discover the government agents investigating the case are developing the circumstances and evidence to support the usage of the willful blindness charge. Executives and other leaders within business organizations must be thoughtful in their explanations and seek counsel to advise them during all phases of the government’s investigation to ensure they will have a viable defense.
Mr. Ruben Gonzalez has an extensive federal criminal law practice in Fort Worth, Texas, and has defended numerous federal cases involving white collar offense, violent crime and narcotics cases. Mr. Gonzalez actively defends clients in jury trials in the United States District Court for the Northern District of Texas and the United States Court of Appeals for the Fifth Circuit. Mr. Gonzalez is a former Assistant Criminal District Attorney who prosecuted numerous narcotics cases as a prosecutor with a narcotics task force. Prior to his legal career, Mr. Gonzalez served as an active duty U.S. Air Force Intelligence Officer at Offutt AFB, Nebraska, in positions as Soviet Union defensive missile intelligence analyst, an intelligence staff officer in the Joint Chiefs of Staff’s nuclear war planning staff, and public spokesman on behalf the Command’s Intelligence Directorate. After September 11, 2001, Mr. Gonzalez, returned to the U.S. Air Force Reserves serving as an Intelligence Officer with the 917th Wing, Barksdale AFB, Shreveport, Louisiana.
Ruben Gonzalez received his Juris Doctorate in 1995 from Creighton University School of Law, Omaha, Nebraska, Mr. Gonzalez may be contacted at firstname.lastname@example.org.
This paper is the product of Ruben Gonzalez, J.D. and copyright protected except for other works incorporated by reference, before re-publishing in any part, expressed approval of the author is necessary, unless appropriate citation is given and may be re-published without permission. Inquires may be directed to:
Ruben Gonzalez, P.C.P.O. Box 33849
Fort Worth, TX 76162
 This paper focuses on the relevant law in the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit includes Texas, Louisiana and Mississippi.
 18 U.S.C. § 371
 United States Court of Appeals for the Fifth Circuit Criminal 2001 Jury Instructions, http://www.lb5.uscourts.gov/juryins tructions//crim2001.htm , Section 1.37
 United States v. Jewell, 532 F.2d 697 (9th Cir. 1976)
 0; 160; 1.37 "KNOWINGLY"--TO ACT
The word "knowingly," as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.
[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 cannot 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.]
United States v. Brown, 186 F.3d 661, 665 (5th Cir. 1999), held that a jury given this instruction was "properly instructed." See also United States v. Jobe, 101 F.3d 1046, 1059 (5th Cir. 1996), cert. denied, 118 S.Ct. 81 (1997); United States v. Aggrawal, 17 F.3d 737, 744 (5th Cir. 1994) (this instruction is "correct" definition of "knowingly").
Refusal to give this "knowingly" instruction may not be error if the substantive offense instruction adequately covers the element of knowledge. See United States v. Cano-Guel, 167 F.3d 900 (5th Cir. 1999); United States v. Sanchez-Sotelo, 8 F.3d 202 (5th Cir. 1993), cert. denied, 114 S.Ct. 1410 (1994).
With regard to the deliberate ignorance instruction and the appropriate occasions for its submission, see United States v. Peterson, 244 F.3d 385 (5th Cir.), petition for cert. filed (U.S. June 5, 2001) (No. 00-10428); United States v. Sharpe, 193 F.3d 852 (5th Cir. 1999), cert. denied, 120 S.Ct. 1202 (2000); United States v. Moreno, 185 F.3d 465 (5th Cir. 1999), cert. denied, 120 S.Ct. 835 (2000); United States v. Threadgill, 172 F.3d 357 (5th Cir.), cert. denied, 120 S.Ct. 172 (1999);United States v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990). The bracketed material should be used sparingly-only when the facts and statute under which the defendant is being prosecuted justify it. See United States v. Chen, 913 F.2d 183 (5th Cir. 1990). If a deliberate ignorance instruction is given, a "balancing" instruction should be considered upon request of defendant. See United States v. Farfan-Carreon, 935 F.2d 678 (5th Cir. 1991).
The deliberate ignorance instruction "does not lessen the government's burden to show, beyond a reasonable doubt, that the knowledge elements of the crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999).
A judge is cautioned that, in instructing on a statute which punishes "otherwise innocent conduct," the knowledge requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390 (5th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5th Cir. 1997).
When a deliberate ignorance instruction is appropriate only with respect to one of a group of co-defendants, the Fifth Circuit has approved the giving of the instruction accompanied by a statement that the instruction may not apply to all of the defendants. United States v. Reissig, 186 F.3d 617 (5th Cir. 1999), cert. denied, 120 S.Ct. 832 (2000).
United States Court of Appeals for the Fifth Circuit, 2001 Criminal Jury Instructions, Section 1.37.