Jury Instructions — ostrich instruction

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United States Court of Appeals For the Seventh Circuit

Criminal

Jury Instructions — ostrich instruction

Where city workers performed work at property owned by the mayor, and the home was furnished with goods purchased with city money, the district court properly gave an ostrich instruction at the mayor’s corruption trial.

“In the case at hand, the government presented both types of evidence to show that if Pabey was unaware of the embezzlement scheme surrounding the Property, then he deliberately avoided such knowledge. To begin with, the government presented evidence that Pabey acted differently in this situation than he had during the renovation of other properties he owned, suggesting that he was avoiding the true nature of the renovations. For instance, the government put forth evidence that Pabey either did pay or offered to pay Novakovic and Bittner in the past for work they did for him around his properties. Pabey also either paid or offered to pay Bittner for work he did on the air conditioning unit of the Property at issue in this case. Yet Pabey did not even acknowledge the work Bittner and Novakovic did for him while they were on the clock. This is in spite of the government’s evidence that Pabey had known Novakovic for 20 years, and he witnessed both Bittner and Novakovic working on his house during work hours. Pabey also avoided looking at the receipts that Camacho was putting into a brown envelope kept at the Property, allegedly accounting for all of the expenditures that were made by Pabey for the renovation. There was evidence suggesting that in the past, Pabey and his wife kept detailed receipts for home projects, yet they did not so much as glance at receipts in the brown envelope until nine months after the renovation had started. From this, a jury could have reasonably found that Pabey parted from his normal behavior in order to avoid any knowledge of wrongdoing.”

Affirmed.

11-2046 U.S. v. Pabey

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Flaum, J.