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.”



Ciesiolka was convicted, and on appeal argued that the ostrich instruction relieved the government of its burden to prove beyond a reasonable doubt that he believed Ashley was a minor. The instruction, Ciesiolka added, allowed the jury to find him guilty based merely on Ciesiolka suspicion of, and indifference to, Ashley being underage. He premised his argument on the novel theory that an ostrich instruction had no place in a § 2422(b) case because learning the “truth” would have meant discovering that Ashley was an adult police officer and, therefore, there could have been no violation of the statute.


At the outset the Seventh Circuit pointed out that “an ostrich instruction obviously fits somewhat awkwardly with a sting operation,” and although the court has approved it in some cases involving police undercover or “sting” operations, it was only in “limited circumstances” because such instructions can relieve the government of its burden to prove all the elements of an offense beyond a reasonable doubt. Noting that addressing an ostrich instruction in a § 2422(b) case was a matter of “first impression” for the Seventh Circuit, the split appeals court panel held:


“”These narrow uses of ostrich instructions do not extend to the circumstances of this case, in which knowledge of ‘Ashley’s’ real age would have exonerated the defendant rather than incriminated him. We have not approved the use of an ostrich instruction that would exonerate a defendant, such as ‘Ashley’s’ true age in this case or the fact that the suspicious substance was baking powder rather than cocaine in another case. If the district court gives an ostrich instruction in sting cases, it must take great care to ensure that the jury understands that the instruction should not be applied to issues as to which a defendant’s knowledge of the real truth would actually exonerate him. In this case, the principal issue in dispute, if not the only one, fits that description. Accordingly, we find that it was error to give the ostrich instruction in this case.”


The appeals court did not let the issue rest under that simple shade tree. It pointed out that even had the ostrich instruction been proper, it would have given rise to a “second problem” in the case. The court explained:

“ … We have previously made clear that such an instruction must be given cautiously, lest a jury improperly convict a defendant on the basis of negligence … Of course, ostrich instructions bearing the potential for misapplication does not mean they are categorically improper. We have explained that they are appropriately given to the jury when: (1) a defendant claims a lack of guilty knowledge and (2) the government presents evidence that suggests that the defendant deliberately avoided the truth … Ciesiolka claims a lack of guilty knowledge; thus, the issue is whether the government introduced sufficient evidence that he remained deliberately ignorant, thus justifying the instruction. It is with respect to this second requirement that the government runs aground.


“Reviewing the record, we do not see what steps the defendant avoided taking to make sure he did ‘not acquire full or exact knowledge’ of Ashley’s age … There is little evidence, which we can discern, that suggests that avenues open to Ciesiolka to confirm Ashley’s age remained unavailed of. Defendant did not try to hide from knowledge about Ashley’s age—he repeatedly raised the issue with her and received conflicting information. He asked her her age. Reminded that her birthday was coming up, he asked her whether she would be 15.


She corrected him, saying that she would be 14. He asked her whether her parents were home. He impressed upon her the importance of her not telling anyone about their conversations or potentially meeting up. She told him about her lack of sexual experience and that her mother was ‘forty something.’ All this inculpatory evidence goes to Ciesiolka belief as to Ashley’s age. But none of it suggests that Ciesiolka deliberately closed his eyes as to her age; it rather appears that he took active steps to discover it. Beyond the previous examples, including the obvious one of his actually asking her her age, he asked for pictures of her. When presented with a photo of a woman in her 20s, he took positive steps to inquire as to her age, observing that she looked 21, and perhaps 18 or 19. She assured him that she was only 13. These are not the acts of a person who deliberately avoids learning the truth.”


Ciesiolka complicated the matter even more by telling the court that he thought “Ashley” was an adult woman presenting to be a 13-year-old girl to satisfy his fantasies. The appeals court pointed out there was some evidence to support this assertion:


“Ashley’s profile photo was that of an adult woman in her late 20s. Her stated interests included beer and Purdue University. Perhaps the most perplexing feature of the present case is that, in response to Ciesiolka’s request for pictures of her, Ashley sent another photo of the same adult woman who adorned her Yahoo profile. One strains to understand why a police officer in a sting operation of this sort would send such a picture, which at best would serve to inject confusion, uncertainty and suspicion as to the ‘victims’ age. In fact, it could surely have led Ciesiolka to believe that ‘Ashley’ was an adult, pretending to be younger than she was. The unusual circumstances may have led the defendant to suspect that Ashley was in fact a police officer, which would be consistent with his failing to appear at the agreed time and his subsequent reluctance to interact with her.”


We wholeheartedly endorse the Seventh Circuit’s ruling: the Government should not be relieved of its burden to prove each and every element of the offense charged beyond a reasonable doubt. A criminal defendant, regardless of the charge, should not be convicted on the flimsy premise that he stuck his “head in the sand” to avoid the truth about his alleged conduct. In this case the Government did not offer any evidence that Ciesiolka put his “head in the sand” on Ashley’s age, and the court’s ostrich instruction clearly implied that he had.


NOTE: Background facts for this piece gleaned from United States v. Ciesiolka, 2010 U.S.App. 15242 (7th Cir. July 26, 2010)