Friday, August 25, 2006

Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion -- maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine -- under which a defendant can be held liable for his "knowledge" of fact X upon a finding that s/he was "aware of a high probability of" fact X's existence and "consciously avoided confirming that fact," United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) -- applies in a sting operation leading to a charge of money laundering, where it is the defendant's belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov's conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided "believing" that the cash he was dealing with were proceeds of drug trafficking.

Government agents set up a sting to snare Nektalov, a jeweler, by posing as Colombian drug dealers seeking to exchange hundreds of thousands of dollars in cash (in small denominations) for gold and jewelry. Because the whole thing was a ruse, Nektalov could not be accused of "knowing" that the cash he was accepting (in exchange for the gold and jewelry) were proceeds of drug activity -- knowledge being, after all, justified true belief.

Fortunately for the Government, the money-laundering statute accounts for this. Under 18 U.S.C. § 1956(a)(3)(B), a defendant can be liable if he "believed [the property involved in the transactions] to be the proceeds of [a] specified unlawful activity." The issue thus became whether Nektalov believed, in light of the circumstances, that he was dealing in drug proceeds. Nektalov pointed to his lack of fluency in English, as well as his unfamiliarity with the undercover's not-so-subtle references to "moving diamonds back down to Colombia" and explanation for why he was transacting in small denominations ("That's how they pay me in the streets."), in arguing to the jury that he did not believe that he was dealing in (what was allegedly represented by the undercover to be) drug money.

Over objection, the district judge gave a conscious avoidance charge to the jury, even though such charges are usually given only where the requisite mens rea is knowledge rather than belief. The jury convicted Nektalov on one count, and the Circuit affirms.

Principally, the Circuit held that the conscious avoidance doctrine "applies in the context of a sting operation with as much force to one's efforts to avoid certain belief as to one's efforts to avoid knowledge." Op.9. This is so because "belief is more properly understood as part of knowledge." Id. 9-10. After all, to know X is shorthand for "to have a justified and true belief that X: Knowledge encompasses belief. If conscious avoidance can stand in for actual knowledge, therefore, it can do the same for actual belief.

And applying the conscious avoidance doctrine to the sting context (involving belief) advances the same goal as applying it in the ordinary context (involving knowledge). The underlying idea, after all, is that a defendant who deliberately avoids learning about something, while aware of a high probability of that thing's existence, is as culpable as someone who is affirmatively aware of the thing's existence -- regardless of what the truth is. "The culpability of the wilfully blind defendant lies in his averting his eyes to what he thinks he sees," the Circuit explains, "not in the objective accuracy of his vision." Op.11. "[C]onscious avoidance encompasses a defendant's deliberately refusing to confirm the existence of one or more facts that he believes to be true, regardless of whether those facts actually are true." Op.12.

30 Comments:

Anonymous Anonymous said...

Truly a scholarly, lucid, and philosophical opinion. Just one thought: avoidance of belief would seem to be a far more slippery slope than avoidance of knowledge. That is to say, finding someone guilty under avoidance of knowledge at least requires that a criminal scheme be somewhat obvious such that confirmed "knowledge" is within the realm of possiblity. Avoidance of belief, however, might be proven by showing that the defendant had just a fleeting inkling of criminality that he ignored (thus avoiding "belief"). I wonder if this opinion effectively moves the threshold of guilt especially low for belief, which is already a lower threshold than knowledge.

August 26, 2006 at 12:28 AM  
Anonymous Anonymous said...

Buy Ultram Online

http://www1.fccj.edu/wlara/jaxsearch/_kbas/000001eb.htm

Buy Ultram Online

January 13, 2007 at 7:57 PM  
Blogger No Hassle Loans said...

Hey nice blog. Although it�s not what I was looking for. I am looking for info on Payday Loans or a Cash Advance so I can buy some Hoodia Diet Pills.. I found your blog very interesting

January 16, 2007 at 1:00 PM  
Blogger Jim said...

Cool blog. However I am looking for info on Mesothelioma or Mesothelioma Lawyers. I would also like to find info on Asbestos and Asbestos Lawyers

January 30, 2007 at 3:13 AM  
Anonymous Cialis Soft said...

hello friend thanks for sharing this blog about Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting !!! your help is very appreciate

November 23, 2009 at 11:29 AM  
Blogger 123 123 said...

Interesting blog you got here. I'd like to read more concerning this theme. Thanx for posting this data.
Sexy Lady
London escorts

December 15, 2009 at 9:29 AM  
Anonymous Anonymous said...

It was very interesting for me to read this article. Thank author for it. I like such topics and everything that is connected to this matter. I definitely want to read more on that blog soon.

December 28, 2009 at 11:10 PM  
Anonymous Anonymous said...

When 2 horny teen girls find themselves together and all alone nature takes over. About Girls Love features barely legal babes who never pictured themselves between other girls creamy white thighs but they learn how to eat pussy. EXCLUSIVELY AT http://xxxvideo.byethost33.com .

December 30, 2009 at 10:35 AM  
Anonymous Dinero Online said...

Excellent information to many people like to read articles to learn about these issues of great interest.

February 17, 2010 at 3:28 PM  
Anonymous Dinero Online said...

Interesting information about "Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting" This theme serves to educate people in their daily life, thanks to people like you we have more knowledge about this important issue.

February 17, 2010 at 3:31 PM  
Anonymous A.R. said...

Would the Conscious Avoidance Doctrine apply to 1983 civil rights actions as a cause of action?

March 7, 2010 at 9:30 PM  
Anonymous Anonymous said...

Hello,

I keep coming to this website[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url]Plenty of useful information on circuit2.blogspot.com. I am sure due to busy scedules we really do not get time to care about our health. Let me show you one truth. Research points that nearly 80% of all United States grownups are either chubby or weighty[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url] So if you're one of these citizens, you're not alone. Its true that we all can't be like Brad Pitt, Angelina Jolie, Megan Fox, and have sexy and perfect six pack abs. Now next question is how you can achive quick weight loss? Quick weight loss can be achived with little effort. You need to improve some of you daily habbits to achive weight loss in short span of time.

About me: I am webmaster of [url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips]Quick weight loss tips[/url]. I am also health trainer who can help you lose weight quickly. If you do not want to go under hard training program than you may also try [url=http://www.weightrapidloss.com/acai-berry-for-quick-weight-loss]Acai Berry[/url] or [url=http://www.weightrapidloss.com/colon-cleanse-for-weight-loss]Colon Cleansing[/url] for effective weight loss.

March 17, 2010 at 9:03 PM  
Anonymous buy viagra said...

I like this blog I would like read more information about "Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting", because this title is very amazing, thanks for sharing!

May 20, 2010 at 11:11 AM  
Anonymous Lots in Costa Ricah said...

These articles are fantastic; the information you show us is interesting for everybody and is really good written. It’s just great!! Do you want to know something more? Read it...: Great investment opportunity in Costa Rica
Costa Rica Cheap Land for Sale

June 9, 2010 at 6:04 PM  
Anonymous Papaz Büyüsü said...

Truly a scholarly, lucid, and philosophical opinion. Just one thought: avoidance of belief would seem to be a far more slippery slope than avoidance of knowledge. That is to say, finding someone guilty under avoidance of knowledge at least requires that a criminal scheme be somewhat obvious such that confirmed "knowledge" is within the realm of possiblity. Avoidance of belief, however, might be proven by showing that the defendant had just a fleeting inkling of criminality that he ignored (thus avoiding "belief"). I wonder if this opinion effectively moves the threshold of guilt especially low for belief, which is already a lower threshold than knowledge.

June 26, 2010 at 6:51 AM  
Anonymous Send Flowers to Denmark said...

Hey great stuff, thank you for sharing this useful information and i will let know my friends as well.

July 15, 2010 at 5:29 AM  
Anonymous Flowers store UK said...

Thanks for sharing .Keep posting articles like this.A good example of content presentation.A piece of information from you every now and then is really great.Great article post.I appreciate your writing skills.

July 21, 2010 at 2:58 AM  
Blogger doron said...

here you can find Viagra the best solution for ED treatment ,
Viagra every 6 hours every day. Buy Viagra

yes or no Viagra

There are many online pharmacies were you can find

Viagra
online and prices will be much cheaper
, Generic Viagra more over you can always Viagra On the street, Viagrafor money to
Buy Viagra Online is the best.viagra no prescription

In adition you can use Cheap Viagra you can buy Cheap Viagra online yes now you can buy Cheap Viagraor you can look forCialis for the same and some times Buy Cialis a longer lasting result!

Cialis in fact is similar to viagra in it’s affect.
Cialis is one of the most effective meal
Buy Cialis Online enhancement medications online ! Buy Cialis Online with most online pharmacies. Buy Phentermine Online it is a worldwide known drug Buy Phentermine Online
can be found on the web on numerous locations.
Buy Phentermine Online

More over yes now Buy Phentermine Online is known for it’s results
Xanax Online
is an anti anxiety medication Xanax is a short-acting drug
Buy Xanax is used to treat anxiety Buy Xanax online. best online pharmacy for you.

Vicodin Online narcotic analgesic product

Buy Vicodin relieve moderate to severe pain
Viagra Alternative You can find Buy Vicodin and
Buy Valium to treat anxiety disorders. Ultram on sale Ultram best price Ultram cheap pharmacy Ambien best price Cialis online today Cialis is known for it’s results Valium online sale Valium online sale Buy Valium
today Buy Xanax Online cheap prices Buy Xanax online today.

August 1, 2010 at 4:41 AM  
Blogger doron said...

Many pepole use Ambien Online Today.
viagra no prescription the popular insomnia relief,
viagra without prescription also no you can buy Cialis without prescription
yes it is true Cialis without prescription

is now available Viagra Online
Find the most competitive online Ambien
Online Pharmacies Ambien lowest prices Viagra is a semi-synthetic opioid Buy Phentermine Online naturally occurring opiates Buy Hydrocodone can be found online Hydrocodone is very effective !

Hydrocodone is an FDA approved medication.

Oxycodone narcotic pain-reliever.

Oxycodone Online for sensation of pain.

Oxycodone should be stored between 15 to 30 C
Buy Oxycodone relief of moderate to severe pain.
Oxycontin tablets is 5 to 30 mg every 4 hours. Buy Oxycontin
narcotic pain-relievers Oxycontin may lead to increased Levitra is formulated as orange Phentermine cross debossed on one side
Ambien only for you Ativan here also Oxycontin best price Adderall online sale Loeazepam for you Hydrocodone for pain Hydrocodone on sale today Buy Hydrocodone Online here. Buy Cialis online today Buy Phentermine Online big sale Buy Phentermine in UK pharmacy Buy Cialis cheapest prices Buy Valium today Hydrocodone Online pharmacy Adipex best offers Ambien online pharmacy Meridia best offer Buy Meridia trusted source Meridia online options Meridia best pharmacy Lorazepam best offer Alprazolam best choice accutane online here.

August 1, 2010 at 4:55 AM  
Blogger doron said...

In some cases Viagrais the best solution
Viagra Alternativemany people use
Buy xanax
and other try Xanax
you can Buy xanaxand also try to use
Phentermine
yes many pepole try
Buy Phentermine Online
and many others use
Propecia
another drug you is
Cialis also called a hypnotic.
Cialis affects chemicals in your brain Buy Phentermine Online unbalanced and cause sleep problems
cialis that causes
cialis dose-related depression
Alprazolam
is useful in treating anxiety
cialis and muscle spasms
cialis Brand name is
Phentermine A generic version
Percocet is a combination of
viagra is a Schedule
Buy Percocet to discuss what
Phentermine These would include
Percocet recreationally rather than
Buy Phentermine Online either an Addict
Valium yes this is the best website for
Valium here you can purchase
Valium online without prescription,
Valium from USA pharmacy
Valium for Anxity, or
Buy Phentermine Online on how best to deal
Phentermine No prescription specifically developed to allow Phentermine No prescription for office-based treatment Buy Ativan is in a group of drugs
Ativan is used to treat anxiety disorders.
Klonopin is in a group of drugs called benzodiazepines
Xanax online offers
Xanax online sale
Ambien best price
Ambien best choice Ativan also here Ativan No Prescription Klonopin best price Xenical best prices Ultram online pharmacy Ambien Online best price.

August 1, 2010 at 4:58 AM  
Blogger doron said...

Clonazepam
affects chemicals Clonazepam is used to Klonopin if you Zolpidem prevents the Propecia use by men only Diazepam not be used cialis is pain reliever.
Cialis no prescription is the best.
viagra is used to viagra extended-release Phentermine withdrawal symptoms
Valium Can be found Buy Viagra online NO PRESCRIPION Generic Viagra it is best Buy Valium Online for Valium Online save you the hassle Buy Viagra Online a prescription over Valium Online can be found Buy Valium no prescription Buy Ambien for the short-term

Buy Levitra for the
Buy codeine narcotic pain-reliever .
codeine is morphine
codeine in the brain Acomplia new class Acomplia Cannabinoid-1 Phentermine Without Prescription online buy Xanax best prices Xanax worldwide delivery Xanax for the best Xanax at discount Xanax for anxity. Vicodin cheap prices Hydrocodone best solution Hydrocodone against pain Levitra online sale Tramadol online here Tramadol best prices Adipex online pharmacy Ambien right now
Ambien best prices Ambien best prices Buy Ambien Online discount pharmacy Buy Ambien save money Buy Adipex Online today Tramadol cheap online Vicodin online today Valium Online without prescription Cheap Cialis onlline today Cheap Cialis usa

August 1, 2010 at 5:02 AM  
Anonymous Clenbuterol said...

Defendant's believes are not important in such cases

August 5, 2010 at 9:10 AM  
Blogger vpill9999 said...

Buy Viagra at low price is discount online pharmacy offering Viagra online forless. Our viagra online pharmacy is internet's leading online pharmacy at affordable at affordable discount prices.

January 31, 2011 at 6:17 AM  
Anonymous adobe acrobat x pro download said...

Very helpful post, cheers!

November 9, 2011 at 4:11 PM  
Anonymous muebles said...

Wow, there's really much effective information above!

December 31, 2011 at 3:28 AM  
Anonymous Anonymous said...

Vulijxrjb [url=http://www.oakleymaxjp.com/]オークリー サングラス[/url] Mqjuodooz Zbdemfuvr [url=http://www.oakleymaxjp.com/]オークリー アウトレット[/url] Gqsilpntr Qfzfrbhaf [url=http://www.oakleymaxjp.com/]オークリー ゴルフ[/url] Uqrgzjzcd Edsqdaszs [url=http://www.oakleymaxjp.com/]オークリー メガネ[/url] Ffrcycjjl Rbfiyqxwk http://www.oakleymaxjp.com/ Fgtthrodo

December 23, 2012 at 10:59 AM  
Anonymous Anonymous said...

Major thanks for the blog post.Thanks Again. Keep writing.

February 4, 2013 at 3:25 AM  
Anonymous Anonymous said...

oZzy moved away some time ago, I miss his cock, and i am always hungry for sexual intercourse.

FUCK MY PUSSY!

Review my blog post hcg injections

March 16, 2013 at 12:16 PM  
Anonymous Anonymous said...

Youг curгеnt aгtiсle
оffers сonfirmed necessary tο myself.
It’s extгеmely hеlpful аnd you аre obviously гeаllу eхperіenceԁ in
thiѕ fіeld. You have got exρosеd our sight in oгԁer to dіfferent oрinіon of this matter
togetheг with intriquing, notablе and ѕound artiсlеs.
my webpage: viagra online

April 4, 2013 at 6:13 AM  
Anonymous buy generic viagra online said...

Nice Post Love Reading Its

kamagra 100mg

caverta

March 3, 2014 at 1:46 AM  

Post a Comment

<< Home