Deliberately Avoiding the Truth to Deny Criminal Knowledge
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
What is an “ostrich instruction?”
Also known as a “willful blindness” or “deliberate indifference” instruction in many federal circuits, an ostrich instruction is a jury instruction given when a criminal defendant claims a lack of guilty knowledge about the crime but there is some evidence the defendant deliberately elected to remain ignorant to avoid confirmation. Put succinctly, an ostrich instruction is generally given in cases where defendants deliberately close their eyes to the truth. It is not routinely used in federal online solicitation cases filed under 18 U.S.C. § 2422(b), which prohibits the knowing persuasion, inducement, enticement or coercion of a minor under 18 years of age to engage in prostitution or other illegal sexual activity.
The Seventh Circuit Court of Appeals on July 26, 2010 in the case of United States v. Mark Ciesiolka addressed the issue of whether an ostrich instruction was appropriate in a federal online solicitation case. In that case a police detective named Carrie Costello, who worked with the Purdue University Police Department, was playing the role of a 13-year-old teenager in an online “sting operation” set up to ensnare and prosecute suspected pedophiles. In a Yahoo “adults-only chat room” under the name “Indiana Romance,” Costello created a photo of a woman named “Ashley” in her late 20s with interests in “beer” and “Purdue University.” In August 2006 Ciesiolka walked into Ashley’s trap, and over the next two and one-half weeks, he shared a series of sexually explicit IM messages with her. Ciesiolka commented during these exchanges that although she claimed to be 13 years old, Ashley appeared to be 21 by her online photo. Ashley, however, insisted she was just thirteen and agreed to meet Ciesiolka at a pizza parlor. But before the meet could take place Ciesiolka got “cold feet,” and despite repeated efforts by Ashley, he refused to meet the purported teenager.
The police were able to track Ciesiolka through the IM messages and he was arrested in late August 2006. He was put to trial at the close of which the judge gave the following ostrich instruction:
“You may infer knowledge from a combination of suspicion and indifference to the truth, if you find that a person has a strong suspicion that things were not as they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn, you may conclude that he acted knowingly, as I have used that word. You may not conclude that the defendant had knowledge if he were merely negligent in not discovering the truth.”
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