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District Court Gives Jury the Bird: Ostrich Instruction is Proper

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By Robyn Hagan Cain on December 30, 2011 9:03 AM

Is the Seventh Circuit Court of Appeals the most ostrich-obsessed appellate court in America?

Last month, Judge Richard Posner not only compared an appellate attorney to an ostrich in a Seventh Circuit opinion, he included photographs of both an ostrich and a man with their heads stuck in the sand to illustrate his point.

Now, the Seventh Circuit is once again answering the call of the ostrich by affirming an Illinois district court's ostrich instruction in a criminal case.

In the case, Jadwiga Malewicka appealed from a conviction for structuring transactions to avoid federal reporting requirements. In February 2006, Malewicka was approached by a bank teller, Ada Ventura, who thought that Malewicka had withdrawn more than $10,000 in cash from her company's account. Venture claimed that she explained to Malewicka that the bank is required to document and report all cash withdrawals over $10,000 under federal law. Malewicka denied Ventura's account.

After the alleged conversation, Malewicka would frequently withdraw approximately $9,900 on one day, and $2,000 the following day, but she never withdrew $10,000 or more on the same day. Between January 2002 and April 2008, Malewicka's withdrawals of approximately $9,900 totaled over $2.4 million. During this period, Malewicka withdrew amounts over $9,000 and less than $10,000 on 244 occasions.

In 2008, a grand jury returned an indictment against Malewicka for 23 counts of structuring transactions for the purpose of avoiding bank reporting requirements. At trial, the district court gave the jury an ostrich instruction over Malewicka's objection, stating, "You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone had withheld some important fact yet shut her eyes for fear of what he/she would learn, you may conclude that he/she acted knowingly as I have used that term."

The jury found Malewicka guilty on all counts, and Malewicka appealed.

This week, the Seventh Circuit Court of Appeals found that if the district court erred in giving the ostrich instruction, the error was harmless.

An ostrich instruction is appropriate only "where the actions of the defendant and the surrounding circumstances indicate that the only way the defendant could not have known of the illegal activity is by affirmatively avoiding the knowledge." For an ostrich instruction to be permissible, the defendant must claim lack of guilty knowledge, and the government must present evidence that suggests that the defendant deliberately avoided the truth.

Here, the government presented evidence of both actual knowledge and deliberate avoidance, so the ostrich instruction was proper. Even if the trial court erred in giving the ostrich instruction, the error was harmless given the evidence that Malewicka knew the reporting requirements and acted to avoid them.

Do you agree with the Seventh Circuit Court of Appeals, or is the court letting its pro-ostrich stance cloud its judgment?

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