00-3569 U.S. v. Manjarrez

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“[T]he ostrich instruction itself made it clear that a defendant does not act ‘knowingly’ when he acts through ‘ignorance, mistake, or accident,’ or where ‘he was merely negligent in not discovering the truth.’ This alone might well obviate any need for a separate good faith instruction. See Given, 164 F.3d at 394-95. Finally, the theory-of-defense instruction and the ‘mere presence’ instruction given by the district court contain the substance of the good faith instruction that the defendant now claims should have been proposed by his trial counsel and issued by the court. Each instruction conveys the proposition that if Manjarrez did not know about the conspiracy to commit the charged offense, or did not know that he was assisting a drug deal, that he was not guilty. Therefore, ‘even without a separate instruction … [t]he jury was given a sufficient opportunity to consider whether [the defendant] acted in good faith,’ because the defendant’s ‘theory of defense was already part of the district court’s charge.’ Koster, 163 F.3d at 1012; see also Given, 164 F.3d at 394-95 (holding that the district court did not err by refusing to give a good faith instruction where the instructions as a whole ‘made it abundantly clear to the jury that if [the defendant] acted in good faith, he was not guilty of mail fraud.’); United States v. Paiz, 905 F.2d 1014, 1023 (7th Cir. 1990) (abrogated on other grounds by Gozlon-Peretz v. United States, 498 U.S. 395 (1991)) (holding that while the issuance of an ostrich instruction was improper as to one of the conspiracy defendants, it was nevertheless harmless error where its effect was ‘neutralized’ by the court’s issuance of ‘mere presence’ and ‘willing participation’ instructions, both of which ‘tend[ed] to negate any chance that the jury would convict [the defendant] on any finding other than that he knowingly joined and participated in the conspiracy’) (citation omitted); United States v. Grizaffi, 471 F.2d 69, 75 (7th Cir. 1972). Therefore, the district court’s failure to give a good faith instruction sua sponte was not plain error. Indeed, considering the other instructions given as a whole, even if Manjarrez’s counsel had tendered a good- faith jury instruction the court would have been justified in refusing it, and we would affirm such a decision.”

Affirmed.

Appeal from the United States District court for the Northern District of Illinois, Castillo, J., Bauer, J.