Friday, February 06, 2015

The Rifle, the Computer and the Ostrich Instruction

After a jury convicted him of violating “18 U.S. Code § 922(a)(6), which makes it a federal crime knowingly to make false statements in connection with the purchase of a firearm”, David Pierotti appealed.  U.S. v. Pierotti, 2015 WL 430385 (U.S. Court of Appeals for the 7th Circuit 2015).
The Court of Appeals begins its opinion by explaining that in October of 2011, Pierotti pled
no contest in Wisconsin Circuit Court to the crime of battery upon a woman who was his fiancée at the time. This was a misdemeanor offense.

Just over a year later, Pierotti decided he wanted to hunt for deer during the upcoming fall season. He first obtained a rifle hunting license at a local sporting goods store. At some point soon afterward, he ran into a friend who was a local sheriff. Pierotti informed the friend that his probation from his battery misdemeanor had expired, and asked him whether Pierotti could legally go gun hunting from that point forward. The friend asked if Pierotti's prior conviction was for a felony; because it was not, the friend (mistakenly) told Pierotti that he was `good to go,’ but advised him to ask his probation officer as well. Pierotti did so, and received the same answer. In Pierotti's retelling, the officer also based her response on the fact that Pierotti had not previously been charged with a felony.
U.S. v. Pierotti, supra.
After Pierotti had these conversations, he went to the Walmart
in Berlin, Wisconsin, on November 8, 2012. He selected a rifle and spoke to a clerk about buying it. After taking Pierotti's driver's license, the clerk instructed Pierotti to fill out ATF form 4473 at a computer kiosk in the store. (This is a form required by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.)

After answering several other questions, he arrived at question 11–i, which asked: `Have you ever been convicted in any court of a misdemeanor crime of domestic violence?’ Pierotti clicked `Yes.’ At trial, he explained that he knew at the time that he had been convicted of a misdemeanor, and `that's why I just instinctively just clicked on “yes.”’ After responding to the remaining questions, Pierotti submitted the form; a pop-up window then appeared. It said, `We recommend reviewing Section A at this time to make any changes/corrections that may be necessary.’ After seeing this message, Pierotti went back through his answers, and changed only one -- his response to question 11–i.

At the time, he recalled later, that question was `the only one that's bugging me now,’ and it suggested to him that the computer `knows something that I don't know.’ Pierotti also thought back to his probation officer's opinion that he could legally go hunting with a gun given his lack of a felony conviction. So he changed his `Yes’ answer to `No,’ and submitted the form again. He did not, however, click on a blue link (labeled `Click to See Instructions for Question 11.i’) below question 11–i before doing so.

If he had, a long definition of `misdemeanor crime of domestic violence’ would have appeared in a sidebar on the side of the screen. The text in the sidebar would have shown clearly that Pierotti's prior conviction was in fact a misdemeanor crime of domestic violence. The same information was available on the paper copy of the form, which Pierotti signed.
U.S. v. Pierotti, supra.
At Pierotti’s trial,
no one disputed that one element of the charge required the government to show that Pierotti had acted knowingly, and so the court prepared an instruction telling the jury that:

`A person acts knowingly if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident. In deciding whether the defendant acted knowingly, you may consider all of the evidence, including what the defendant did or said.’
U.S. v. Pierotti, supra.
The prosecution argued that the trial judge
should also include an ostrich instruction, which amplifies the definition of `knowingly.’ The district court agreed to do so, and added the following paragraph to the language set out above:

`You may find that the defendant acted knowingly if you find beyond a reasonable doubt that he had a strong suspicion that the statement he made was false and that he deliberately avoided the truth. You may not find that the defendant acted knowingly if he was merely mistaken or careless in not discovering the truth, or if he failed to make an effort to discover the truth.’
U.S. v. Pierotti, supra.
The instruction was based on U.S. Court of Appeals for the 7th Circuit PatternInstruction 4.10.  The comment for this instruction explains that the
second paragraph, commonly referred to as an `ostrich’ instruction, is not appropriate in every case. Such an instruction is appropriate `where (1) the defendant claims a lack of guilty knowledge, and (2) the government has presented evidence sufficient for a jury to conclude that the defendant deliberately avoided learning the truth.’ U.S. v. Carani, 492 F.3d 867 (7th Circuit 2007). . . .  Deliberate avoidance is more than mere negligence. U.S. v. Carani, supra.

The defendant `must have “deliberately avoided acquiring knowledge of the crime being committed by cutting off his curiosity through an effort of the will.”’ U.S. v. Carani, supra (quoting U.S. v. Leahy, 464 F.3d 773 (7th Cir. 2006). `The purpose of the ostrich instruction is to inform the jury that a person may not escape criminal liability by pleading ignorance if he knows or strongly suspects he is involved in criminal dealings but deliberately avoids learning more exact information about the nature or extent of those dealings.’ U.S. v. Carrillo, 435 F.3d 767 (7th Cir. 2006). . . . `[E]vidence merely supporting a finding of negligence -- that a reasonable person would have been strongly suspicious, or that a defendant should have been aware of criminal knowledge-does not support an inference that a . . . defendant was deliberately ignorant.’ U.S. v. Carani, supra.
U.S. v. Pierotti, supra.
The Court of Appeals explained that the trial judge gave
several reasons for giving the instruction. It first discussed Pierotti's conversations with his sheriff friend and his probation officer. The court noted that although Pierotti had asked each of them whether he could hunt, he did not ask a lawyer or someone with knowledge of federal gun laws, nor did he ask specifically whether his battery conviction constituted a misdemeanor crime of domestic violence. `[T]he question here is not whether he could hunt,’ the district court said, `or even whether he could possess a gun.’ The court also pointed to Pierotti's failure to read the instructions that accompanied the computer version of question 11–i or the paper version of form 4473, which likewise provided the relevant definition. `So all that is sufficient to give the instruction,’ the court said.
U.S. v. Pierotti, supra.
The judge went on to point out that Pierott had introduced
substantial evidence at the trial that his incorrect answer to question 11–i was, at worst, mistaken, careless, or the result of insufficient diligence. Had the jury accepted any of those explanations, it would have had to acquit under the court's instruction. But it did not. It instead found Pierotti guilty, meaning that it must have found either that he realized what he was doing and had not acted through `ignorance, mistake, or accident,’ or that he had `a strong suspicion that the statement he made was false and that he deliberately avoided the truth.’
U.S. v. Pierotti, supra (emphasis in the original).
At trial, and again on appeal, Pierotti argued that the U.S. District Court Judge
erred as a matter of law by giving the ostrich instruction, because (he says) the facts cannot support a finding that he deliberately avoided knowledge in the manner the instruction describes. We review a district court's decision to give an ostrich instruction for abuse of discretion, and in doing so we view the evidence in the light most favorable to the government. U.S. v. Green, 648 F.3d 569 (U.S. Court of Appeals for the 7th Circuit 2011). If Pierotti can show the district court erred in providing the instruction, we will reverse his conviction unless the government shows that the error was harmless beyond a reasonable doubt. . . .
U.S. v. Pierotti, supra.
The Court of Appeals then explained that 18 U.S. Code § 922(a)(6) makes it illegal
`knowingly to make any false or fictitious oral or written statement’ in connection with the purchase of a firearm or ammunition from a licensed dealer, such as Walmart in this case. The ostrich instruction describes one way in which the prosecution may prove a `knowing’ act. Before including an ostrich instruction, a district court must ensure that two preconditions are satisfied: first, the defendant must be claiming a lack of guilty knowledge; and second, there must be evidence in the record that would permit a jury to conclude that the defendant deliberately avoided learning the truth. . . . . The instruction should not be given lightly, lest it lead the jury to believe that it may convict the defendant solely on the basis of his negligence. . . .
U.S. v. Pierotti, supra.
It also pointed out that deliberate avoidance as
described in an ostrich instruction comes in two forms: physical and psychological. The former is simple enough, as it involves a defendant's going out of her way to avoid seeing or learning something she knows will confirm that her actions are illegal. See U.S. v. Gonzalez, 737 F.3d 1163 (U.S. Court of Appeals for the 7th Circuit 2013). Psychological avoidance, in contrast, is often defined `as the cutting off of one's normal curiosity by an effort of will,’ U.S. v. Pabey, 664 F.3d 1084 (U.S. Court of Appeals for the 7th Circuit 2011) . . .; it does not encompass ordinary ignorance or lack of curiosity. U.S. v. Ramirez, 574 F.3d 869 (U.S. Court of Appeals for the 7th Circuit 2009). The district court is permitted to investigate the context of a defendant's actions. That inquiry can inform its assessment of whether the evidence would permit the jury to infer that a defendant deliberately avoided the truth about her criminal activity, and hence acted `knowingly.’ U.S. v. Carani, 492 F.3d 867 (U.S. Court of Appeals for the 7th Circuit 2007).
U.S. v. Pierotti, supra.
The court then applied these principles to the facts in the Pierotti case:
Question 11–i on the ATF form was not a tricky one. Indeed, Pierotti initially answered it correctly. As he admitted at his trial, he recalled his misdemeanor conviction when first considering how to answer the question. He confirmed this on cross-examination:

`Q And you answered it “yes” because you knew that you had been convicted of a misdemeanor crime of domestic violence, isn't that true?’
`A I had the battery charge that was a misdemeanor, yes.’

Only after the computer prompted Pierotti to review his answers did he decide to make a change, but the only change he made was his response to question 11–i. He did so in direct contravention of his knowledge of his prior crime, a battery upon his fiancée. A rational jury could decide that his considered act of changing the correct answer to the wrong answer demonstrated either direct knowledge (as reflected in the first part of the instruction) or deliberate avoidance of the truth (as reflected in the second part). (We note that after Pierotti's conviction, the Supreme Court held that a misdemeanor battery conviction for a crime of domestic violence, very much like Pierotti's, disqualifies a person from possession of a firearm under 18 U.S.C. § 922(g)(9).  U.S. v. Castleman, 134 S.Ct. 1405 (2014). . . .
U.S. v. Pierotti, supra.
The Court of Appeals then pointed out that, at his trial, Pierotti testified that the
computer prompt caused him to wonder whether his response to question 11–i was correct, and that he mentally referred back to his conversations with his sheriff friend and his probation officer, who `said it was okay’ and Pierotti was `good to go.’ But his descriptions of those conversations make clear that their advice was based on the fact that Pierotti's prior crime was not a felony. Pierotti may not have known why question 11–i was on the form, but he certainly knew it was about prior misdemeanors. Nothing his friend and his probation officer said implied that Pierotti was entitled to misrepresent something on the form. The advice he received, in short, was irrelevant to a question about misdemeanors.

Had Pierotti felt any doubt about whether his battery was covered by question 11–i, it would have been easy for him to resolve it. The clickable link to the instructions was located directly under the question itself; had Pierotti clicked the link, the instructions would have appeared on the same page as the question. The jury was not required to believe his protestations at trial that he lacked sufficient computer skills to know how to click on a link, even though he could manage the computer well enough to complete the form and, when prompted, to go back and revise an answer.

Clicking on the `more information’ link would have provided information showing that his initial response to the question on the very same page of the electronic form was correct. Instead, he skipped the instructions and changed his answer. On cross-examination at trial, Pierotti admitted he did not read the instructions. His counsel contended at oral argument that this behavior was lazy, not criminal. Had the jury believed this account, it would have had to acquit under the court's instruction. But it obviously did not.

Putting the facts together, Pierotti's admitted knowledge of his prior crime, his initial `Yes’ answer, his decision not to read the readily available instructions, and his decision to change the answer to `No’ provided an adequate predicate for the district court to give the instruction.
U.S. v. Pierotti, supra.

It therefore affirmed Pierotti’s conviction. U.S. v. Pierotti, supra.

No comments: