* United States v. Ghailani (S.D.N.Y. Jan. 21, 2011)
Judge Kaplan has denied Ghailani’s motion for judgment of acquittal or, in the alternative, for a new trial. The opinion is posted here. Among the other interesting aspects of the opinion, here is the section dealing with the critical “conscious avoidance” charge:
The theory of Ghailani’s defense was that he was an innocent dupe. This contention permeated his defense. Nonetheless, Ghailani argues that the evidence did not justify the giving of a conscious avoidance charge and that he therefore is entitled to a new trial.
In our Circuit,
“A conscious avoidance instruction is properly given (i) when a defendant asserts the lack of some specific aspect of knowledge required for conviction, and (ii) the appropriate factual predicate for the charge exists, i.e., the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.”225
The first condition clearly was satisfied here because (1) knowledge of one or more of the objects of the conspiracy alleged in Count 5 was required in order to convict Ghailani on that count, and (2) Ghailani argued to the jury that he “didn’t know the objective of the conspiracy.”226 The second condition was satisfied also. For the same reasons that a jury was entitled to infer Ghailani’s actual knowledge of at least one object of the conspiracy,227 a reasonable jury could have found also that Ghailani, assuming he lacked actual knowledge, was aware of a high probability that the object of the conspiracy was to bomb the embassies and that he consciously avoided confirming that fact.
Ghailani and his associates bought a truck that he could not drive and gas cylinders for which neither he nor they had any known use save as bomb components. He possessed a large quantity of detonators or blasting caps of the sort used in making the truck bombs. That a plot was afoot to bomb something was obvious, and the jury was entitled to find that Ghailani knew at least that much. In addition, there was ample evidence that Al Qaeda effectively had declared war on the United States and Americans generally, civilian as well as military. It regarded U.S. embassies as attractive targets. Ghailani was well acquainted and associated closely with Al Qaeda members and operatives whom the jury reasonably could have found to have known of these objectives and shared them with Ghailani. In these circumstances, the evidence was more than sufficient to warrant a rational jury in concluding that Ghailani, even if ignorant of the specific bombing targets, was aware of a high probability that they included U.S. embassies and consciously avoided learning that fact.
The conscious avoidance charge was proper.