Jury instructions — ostrich instruction

Listen to this article

U.S. Court of Appeals for the 7th Circuit

Criminal

Jury instructions — ostrich instruction

Neither the current nor former standard ostrich instruction incorrectly states the law.

“Though the Committee on Federal Criminal Jury Instructions of the Seventh Circuit revised the prior pattern criminal jury instruction to include an express statement that deliberate avoidance needs to be more than mere negligence, this does not mean that the prior pattern criminal jury instruction was an incorrect statement of the law. Though it used different language than the current instruction, the instruction made clear that Salinas needed to ‘realiz[e] what he was doing and [be] aware of the nature of his conduct, and … not act through ignorance, mistake or accident.’ The instruction ‘fairly and accurately summarized the law,’ United States v. Jefferson, 334 F.3d 670, 672 (7th Cir. 2003), so we find no error.”

“Finally, Salinas cites the Supreme Court’s decision in Global- Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), a civil case that narrowed the definition of ‘willful blindness,’ explaining that ‘a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.’ Id. at 2070–71. He now urges us to apply that definition to Salinas’ case. While several of our sister circuits have mentioned incorporating Global-Tech’s definition into their criminal jury instructions for knowledge (see, e.g., United States v. Brooks, 681 F.3d 678, 702 n.19 (5th Cir. 2012) (‘although Global-Tech was a civil case, the standard seems to apply equally in criminal deliberate ignorance cases’); United States v. Ferguson, 676 F.3d 260, 278 n.16 (2d Cir. 2011) (‘[T]he Supreme Court appears to now prefer the appellation of “willful blindness” … which uses “conscious avoidance”’); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011) (citing Global-Tech in defining willful blindness), we have yet to do so. And even if we were to do so, the result in Salinas’ case would be the same. The government presented sufficient evidence supporting a finding that Salinas either knew that the money he transported was linked to illegal drugs or deliberately avoided such knowledge, so any error related to the ostrich instruction given at Salinas’ trial would have been harmless.”

Affirmed.

12-3769 & 13-1378 U.S. v. Salinas

Appeals from the United States District Court for the Northern District of Illinois, Norgle, J., Bauer, J.