Saturday, April 21, 2007
Michele Berry at Crimprof - has a fascinating post on a recent en banc decision from the Ninth Circuit. The Heredia case is not a white collar case, but this decision will likely influence the white collar world. With Ken Starr as one of the authors of the National Association of Criminal Defense Lawyers (NACDL) amici briefs, this case was certainly not a lightweight in the legal field.
The government in a drug case sought to have the jury instructed on willful blindness. This court was thus left to decide the fate of the long established precedent of the Jewell case. Jewell, a case from 1976, is well recognized with many referring to the willful blindness instruction as the "Jewell Instruction." And although the en banc court does not overturn the Jewell decision, it does reverse a panel opinion. The court in Heredia states, "while the particular form of the instruction can vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance." A concurrence focuses on "motive," and a 4-person dissent demonstrates the tenuous nature of this decision. One walks away from this case realizing that the standard for giving a "willful blindness" instruction can be extremely low.
Willful blindness comes up in cases beyond drug offenses and it will be interesting to see if this becomes a prominent issue in white collar cases.
(esp) (w/ a hat tip to Stephanie Martz)