United States v. Diaz

864 F.2d 544 (7th Cir. 1988)



A conscious avoidance instruction is properly given only when the defendant claims a lack of guilty knowledge, and there are facts and evidence that support an inference of deliberate ignorance. If the evidence indicates that the defendant had either actual knowledge or lacked any knowledge, then giving the conscious avoidance instruction was inappropriate.


Defendant was charged with conspiring to possess and distribute cocaine. Defendant’s defense was that, although he knew some of the coconspirators, he had played no part in their illegal activities. After a federal jury trial, defendant was convicted of conspiracy to distribute cocaine, possession and distribution of cocaine, and use of a firearm in relation to the commission of a drug trafficking crime. Defendant appealed and alleged that the district court erred when it gave a conscious avoidance of knowledge instruction, commonly referred to as the "ostrich" instruction. The appellate court affirmed the district court’s judgment.


Did the district court err in giving a conscious avoidance of knowledge instruction to the jury?




Defendant did not argue that, although he was participating in the group's activity, he had no knowledge that the group illegally was selling drugs. Instead, he insisted that he had nothing to do with the group's activity and was merely in the neighborhood. While the need for the instruction might be questionable, it could hardly be said to be a reversible error to give it. The danger in giving the instruction where there was evidence of direct knowledge but no evidence of avoidance of knowledge was that the jury could still convict a defendant who merely should have known about the criminal venture. That situation did not exist in the instant case.

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