7th Circuit Criminal Law Alert

Boilerplate Requirements for Ostrich Instruction

USA v. Fabio Carani, 06-2007.  Fabio Carani was charged with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and two counts of knowingly receiving child pornography in the form of certain computer files in violation of 18 U.S.C. § 2252A(a)(2)(A). A jury found Carani guilty of possession, but returned a verdict of not guilty as to one of the receipt counts, and was unable to reach a unanimous decision as to the other receipt count. The district court sentenced Carani to seventy-two months' imprisonment. Carani appeals both his conviction and sentence. Finding no error, we affirm.

In February 2005, agents in the Cyber Crimes Unit of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), obtained a warrant to search Carani's residence. During the search, Senior Special Agent Jason Varda found Carani's computer. It was powered on, connected to the Internet, and running Kazaa at the time. Through Kazaa, Carani's computer was actively downloading files from other Kazaa users, and allowing other Kazaa users to download files on Carani's computer. Agent Varda photographed the screen, which showed that another user was attempting to download a file by the name "incest porn, a little girl has sex with an adult guy." The lower right of the computer screen indicated: "Connected as default user at Kazaa, sharing 214 files."

Meanwhile, Carani agreed to accompany agents to the Highland Park police department. Carani then prepared the following written statement:  I have viewed child pornography in the past and then deleted it. I have only one saved right now in the saved section, which is "My Kazaa Lite." As far as computers are concerned I am a beginner at best. I did not distribute any of these videos on purpose, and I have no explanation as to how these videos were shared, but I never shared anything. I don[']t even know how to do so. The only explanation is that, as I viewed them and deleted them, they were automatically shared without my knowing of it. Some of these videos I stumbled upon by accident downloading other videos, and through [curiosity] I looked up some child pornography and again deleted it when I saw it. but the more I saw the more I felt that it was wrong to do so. My intentions were never to hurt anybody and forgive my ignorance but I did not know that this was against the law via the way it was done (through Kazaa Lite). I feel extremely bad about what happened, but I can say that I learned a lot through this experience.

When it came time to instruct the jury, the court used the Seventh Circuit's pattern instructions to define knowingly: "When the word 'knowingly' is used in these instructions, it means that the defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake, or accident." 7th Cir. Pattern Jury Inst. 4.06. The court also included an instruction on deliberate avoidance, also known as an "ostrich instruction": "You may infer knowledge from a combination of suspicion and indifference to the truth." Id. This instruction included an example relevant to this case: "If you find that the defendant had a strong suspicion that a file was child pornography, but ignored that suspicion and downloaded the file, you may conclude that he acted knowingly, as I have used that word."

This appeal presents the issue of whether the district court abused its discretion by giving the deliberate avoidance "ostrich" instruction to the jury. 

We review the district court's decision to give an ostrich instruction for an abuse of discretion, viewing all evidence in the light most favorable to the government. United States v. Leahy, 464 F.3d 773, 796 (7th Cir. 2006).

An ostrich instruction is appropriate where (1) the defendant claims a lack of guilty knowledge, and (2) the government has presented evidence sufficient for a jury to conclude that the defendant deliberately avoided learning the truth. United States v. Carrillo, 269 F.3d 761 (7th Cir. 2001). Deliberate avoidance is more than mere negligence, the defendant must have "deliberately avoided acquiring knowledge of the crime being committed by cutting off his curiosity through an effort of the will." Leahy, 464 F.3d at 796. Deliberate avoidance is not a standard less than knowledge; it is simply another way that knowledge may be proven. Carrillo, 435 F.3d at 780 . "The purpose of the ostrich instruction 'is to inform the jury that a person may not escape criminal liability by pleading ignorance if he knows or strongly suspects he is involved in criminal dealings but deliberately avoids learning more exact information about the nature or extent of those dealings.' " Carrillo, 435 F.3d at 780.

Physical acts and outward expressions by the defendant evidencing his deliberate avoidance, while useful, are not necessary for a jury to infer that the defendant was curious but deliberately ignored his suspicions. Carrillo 435 F.3d at 780-81 (explaining the difference between avoidance through "overt physical acts" and "purely psychological" avoidance). The circumstances surrounding the defendant may be sufficient to infer that, given what the defendant knew, he must have forced his suspicions aside and deliberately avoided confirming for himself that he was engaged in criminal activity. Id. at 781.

The crux of Carani's argument at trial was that any child pornography videos he may have downloaded to his computer were downloaded solely through inadvertence. In addition to direct evidence that Carani in fact intended to download child pornography, such as statements he made to agents at the Highland Park Police Station, the government also presented evidence from which a jury could infer that Carani deliberately avoided confirming that certain files were in fact child pornography. Government witnesses testified that many files that were, or had once been, on Carani's computer had words associated with child pornography in the file names. Those file names, in addition to file descriptions and keyword listings, would have been displayed in the Kazaa search listings when Carani downloaded them. These words indicating that the files contained child pornography were, quite literally, right in front of his face. Thousands upon thousands of references to child pornography were found on Carani's computer; and evidence, such as the hack used to boost his participation level, suggests that Carani was not so bungling a computer user as he suggested.

The government presented evidence sufficient for the jury to infer that Carani suspected that files he was downloading and sharing with others contained child pornography, but deliberately pushed those suspicions aside in order to avoid confirming his criminal activities. The district court did not abuse its discretion by giving the ostrich instruction to the jury.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Harmless Error Analysis Applies to Sentencing Factors

USA v. Kevin Williams, 05-4405.  Kevin Williams was convicted of conspiracy to violate 21 U.S.C. § 846 by knowingly and intentionally possessing and distributing "cocaine and cocaine base, commonly known as 'crack,' . . . heroin and marijuana." In finding him guilty, the jury made no factual findings about either drug type or quantity, because the trial took place before the Supreme Court's pivotal decision in Apprendi v. New Jersey, 530 U.S. 465 (2000).

On remand, the district court imposed a harsher sentence of 360 months' imprisonment. Williams complained that this sentence was invalid because there was neither a jury finding nor an admission on his part about either the drug type or quantity-both necessary to establish the statutory maximum. Without specific findings, Williams argues he is entitled to be sentenced to no more than 10 years in prison, the lowest maximum sentence specified in 21 U.S.C. § 841(b) for someone with his criminal history.

Williams was convicted on one count of conspiracy to distribute narcotics under 21 U.S.C. § 846, for which the penalties are equivalent to those for the distribution of the underlying drug. Notwithstanding the lack of input from the jury, Judge Marovich had little trouble finding that Williams, like the other regents who supervised the drug operation in the hundreds and who were sentenced with him, was responsible for "at least 1.5 kilos of crack, or in the alternative, 150 kilos of powder."

Williams has been arguing that failure to prove drug type and quantity to a jury is the kind of structural error that justifies automatic reversal. See United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984). Recuenco definitively rejects that position. Washington v. Recuenco, 126 S.Ct. 2546 (2006).   

Harmless error review is grounded in FED. R. CRIM. P. 52(a), which stipulates that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Although the error alleged in this case is of a constitutional dimension, "most constitutional errors can be harmless." Neder v. United States, 527 U.S. 1, 8(1999). 

For constitutional errors that do not affect the "framework within which the trial proceeds," Neder, 527 U.S. at 8, courts must apply "Rule 52(a)'s harmless error analysis and must 'disregar[d]' errors that are 'harmless beyond a reasonable doubt,' " Id. at 7.  "The test . . . is whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Neder, 527 U.S. at 15

In Recuenco, the Court concluded that "sentencing factors, like elements, are facts that have to be tried to the jury and proved beyond a reasonable doubt." Recuenco at 2552 (2006).  The implication of equating sentencing factors and elements of a crime for purposes of the requirements of the jury and the burden of proof is to equate them also for harmless error purposes.

Thus, the Court held in Recuenco, "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 2551 (emphasis in original). Accordingly, "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not a structural error," and harmless error review must be applied. Id.at 2553. Applied to this case, that means that we must decide whether the failure to have the jury decide beyond a reasonable doubt the drug type and quantity issues that would raise the statutory maximum from 10 years to life was harmless error.

The central question is whether "it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Neder, 527 U.S. at 15

We are convinced, beyond a reasonable doubt, that this is the case. The government presented evidence of crack cocaine that Williams sold; it obtained that evidence from ledgers that recorded the drug transactions of the Gangster Disciples, taken from the home of one of his co-defendants.

At the first sentencing hearing, Judge Marovich calculated that approximately 312 kilos of crack and 2,080 kilos of power were sold on an annual basis in Williams's area, with each of the regents supervising "anywhere from 10 to 12 percent" of those sales. Those numbers more than satisfied the court that the regents could be held responsible for "at least 1.5 kilos of crack, or in the alternative, 150 kilos of powder."

Given the evidence of the size of the Gangster Disciples' crack and cocaine operation in the hundreds and Williams's leadership role, we are satisfied that the error in failing to submit the questions of drug type and quantity to a jury was harmless.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .