Theodore E. Okechuku v. United States

Prosecutors routinely request, and district courts routinely give, instructions allowing the jury to find a crime’s required scienter through “deliberate ignorance”—that the defendant purposely contrived to avoid learning that his conduct was criminal. Appellate courts recognize that these instructions risk misleading the jury into thinking they should convict for behavior that is merely reckless or even negligent. These same courts frequently hold that deliberate-ignorance instructions should not have been given. But there is a deep, threeway split regarding the circumstances under which such improper submissions merit reversal. Two circuits hold that an improper submission is harmless per se. Six circuits hold that it is harmless if there is “sufficient” or “substantial” evidence that the defendant had actual knowledge of criminal activity. And four circuits hold that it is harmless only if there is “overwhelming” evidence of actual knowledge. The circuits likewise differ on whether the charge’s phrasing matters in determining the likelihood that an erroneous deliberate-ignorance instruction caused harm. The question presented is: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.