The “deliberate avoidance” instruction is a neat little corner of the law.
A “deliberate avoidance” instruction has been referred to as a “deliberate ignorance,” a “conscious avoidance,” a “Jewell,” and an “ostrich” instruction. The Second Circuit recently described how this legal fiction works: A conscious avoidance charge, such as the one employed by the district court, instructs the jury that it can infer knowledge by the defendant of a particular fact if the defendant intentionally decides to avoid knowledge of that fact.
The rationale for the conscious avoidance doctrine is that a defendant’s affirmative efforts to ‘see no evil’ and ‘hear no evil’ do not somehow magically invest him with the ability to ‘do no evil.’ Accordingly, the giving of this charge is proper where a defendant has claimed lack of some specific aspect of knowledge necessary to conviction but where the evidence may be construed as deliberate ignorance.
Moreover, the evidence must allow a rational juror to conclude beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.
United States v. Brown, 50 M.J. 262, 265-66 (C.A.A.F. 1999) (marks and citations omitted) (paragraphing added).
When it comes to service members accused of wrongful use of drugs – often after a positive result on a routine urinalysis – the “deliberate avoidance” instruction can be a strong Government counterpunch to an accused’s assertion of ignorance or “innocent ingestion.” Nowadays, as more jurisdictions relax their drug laws and seek alternatives to the failures of a half-century of prohibition, it’s not unrealistic to say that service members have a duty to know what they’re putting in their bodies. Particularly when sitting in a circle with high school friends, listening to Bob Marley, and passing around an organic hand-rolled “cigarette.”
But the NMCCA’s consideration of the use of the deliberate avoidance instruction in a court-martial convened earlier this year by a California-based unit isn’t so clear.
The appellant participated in three separate urinalysis tests with results showing the presence of the Delta 9 Tetrahydrocannabinol (THC) metabolite, commonly found in marijuana. These urinalysis tests were conducted on June 7th, June 29th, and July 6th, 2012. At his trial, the appellant put forth an innocent ingestion defense by arguing the presence of THC in his system was the result of his unwittingly chewing THC laced bubblegum purchased by his wife, an admitted marijuana user. Prior to the members’ instructions, the appellant objected to the military judge instructing the members on “deliberate avoidance.”
United States v. Collier, No. 201300237, slip op. at 2 (N-M.Ct.Crim.App. Oct 31, 2013) (link to unpub. op.).
The appellant, a Lance Corporal (E-3), was convicted contrary to his pleas of not guilty, by a special court-martial composed of members with enlisted representation, of three specifications of wrongful use of marijuana in violation of Article 112a, UCMJ. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.
The NMCCA reviews the military judge’s decision to give the deliberate avoidance instruction for an abuse of discretion (the standard articulated under Brown and in federal circuits). It affirms the judge’s decision with this paragraph of discussion:
We find that the evidence presented, and the reasonable inferences drawn from that evidence, provided a sufficient basis for the military judge to exercise his discretion to give a deliberate avoidance instruction. As noted by the military judge, one can reasonably infer that the THC laced chewing gum, would contain enough THC in each piece to give the average user a “high.” Accordingly, one could reasonably infer that after chewing the first piece of gum the appellant felt that high. With that inference in mind, we next consider the fact that the appellant used the chewing gum not just on that one occasion, but on multiple occasions over a more than 30 day period, as demonstrated by his multiple positive urinalysis tests. Lastly, the evidence showed that, despite his awareness of his wife’s drug habit, he never questioned her about the bubblegum that somehow appeared in his truck, gum that gave him (at least per a reasonable inference that we must afford the Government) a feeling of being high. Based on these facts and inferences, we find that the military judge did not abuse his discretion by giving the deliberate avoidance instruction to the members.
Collier, slip op. at 3. Unfortunately, this discussion creates more questions than it answers.
First, the court’s discussion that, “As noted by the military judge, one can reasonably infer that the THC laced chewing gum, would contain enough THC in each piece to give the average user a ‘high,'” is a big red flag. Why must this be inferred? What evidence (if any) was there of the THC content of the “THC laced chewing gum?” The moniker seems as likely a marketing term designed to deceive stoners as it is a disclosure of actual ingredients. Moreover, a product like “THC laced chewing gum” is not likely to be manufactured to the sort of consistent standards that would allow analysis of one piece to create a reasonable inference about any other piece.
Also, the effect on the average user isn’t the issue; the effect on the accused is what matters. Was there evidence introduced to support the conclusion that the chewing gum had enough THC to cause the appellant to feel the effects? The positive urinalysis certainly isn’t evidence that the appellant felt “a high” (as any expert will concede). Realistically, the only way to prove that the appellant felt the intoxicating effects of THC is through his own admissions to that very thing (which we can assume he didn’t make, since the court relies on a “reasonabl[e] infer[ence] that after chewing the first piece of gum the appellant felt that high”).
Next, the court “consider[s] the fact that the appellant used the chewing gum not just on that one occasion, but on multiple occasions over a more than 30 day period, as demonstrated by his multiple positive urinalysis tests.” Not so fast. While it’s true that urinalysis is most likely to identify exposure within just a few days (and “exposure” is all that urinalysis proves), it’s not impossible that the three positive results could be from just one or two exposures. In fact, while considering factual and legal sufficiency on the very next page of the opinion, the court notes that:
The Government expert interpreted the urinalysis results and testified that it was “most likely that there were three individual ingestions [of marijuana].” Record at 334.
Slip op. at 4. How the CCA gets from the record evidence of “most likely that” to its dispositive conclusion of “the fact that” is unclear.
Finally, with its clairvoyant determination that the appellant felt the effects and its inference that he felt them on multiple occasions, the CCA wonders why “despite his awareness of his wife’s drug habit, he never questioned her about the bubblegum that somehow appeared in his truck.” Undoubtedly the members wondered the same thing. And armed with the military judge’s instruction that they could use the appellant’s ignorance against him, and could infer wrongfulness from the urinalysis results, it’s unsurprising that they showed “zero tolerance” and convicted.
One might say that the CCA “deliberately avoided” discussing these tough questions in this case.