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. ยง 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.


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