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Ostriches Finally Vindicated as Posner Rejects Jury Instructions

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By Casey C. Sullivan, Esq. on May 28, 2015 12:55 PM

Judge Posner hates ostriches. The large, flightless birds, erroneously thought to bury their heads in the sand at the sight of danger, are one of the Judge's favorite insults. Did you ignore adverse precedent? Ostrich! Somehow fail to check citing references? Ostrich conduct!

That doesn't mean he thinks ostrich behavior is criminal, however. Sometimes, closing your eyes to a problem is acceptable, the judge ruled yesterday. Overturning a conviction for conspiring to distribute cocaine, Posner rejected the use of "ostrich" instructions which urged a jury to convict if the defendant had deliberately avoided discovering his role in a trafficking scheme.

Ostrich Instructions

The case involved Roberto Macias, who was convicted of conspiring to distribute at least five kilos of cocaine. Macias had previously been involved in smuggling immigrants into the country. Several years later, he was asked by a drug cartel to help move money from the United States to Mexico, though he claimed he had no idea that the money was related to illegal drugs and never inquired as to what he was transferring across the border.

At trial, the judge provided the jury with "deliberate indifference" instructions, also known as an ostrich instruction. The instructions told the jury to find that Macias had acted knowingly if he suspected narcotics trafficking and "deliberately avoided the truth." That's the ostrich half. Curiously, the instructions also stated that Macias couldn't have acted knowingly "if he failed to make an effort to discover the truth."

The instructions are noticeably contradictory. On one hand, avoid the truth and you're part of the conspiracy. On the other, fail to discover the truth and you can't be convicted! What's a bird to do?

No Evidence of Avoidance

The government, for its part, did more than just bury its head in the sand when faced with this contradiction. They constructed an elaborate explanation to differentiate the contradictory instructions. Deliberately avoiding the truth, in the government's view, meant psychological avoidance -- blocking oneself off from information that would confirm any suspicions. Call it classic denial or avoidance.

That argument, Posner notes, is about as appropriate as a bird that can't fly. Ostrich instructions should only be used when there is evidence that the defendant, knowing or suspecting his involvement in illegal activity, takes action to keep himself from discovery the nature or extent of the dealings. There was no evidence presented here to show that Macias even suspected involvement in drug smuggling, let alone tried to avoid confirming those suspicions.

Finally, Posner notes, as a smuggler it wasn't Macias' job to know the origins of the cash he was smuggling. Any "sophisticated gang member" knows the risks of asking unnecessary questions. Sometimes, ostrich behavior is just fine.

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