USA v. Mark Ciesiolka, 09-2787.

Mark Ciesiolka was convicted in 2008 of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named "Ashley," engaged in series of sexually explicit, instant-messaging ("IM") conversations on an online Yahoo forum with the defendant. 

The sting, however, was marred by numerous oddities.

The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user's interests included "beer" and "Purdue University." When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet.

The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that "Ashley" was under 18. We find that the district court improperly relieved the government of that burden by providing the jury with an ostrich instruction.

Moreover, given the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case.

It did so by introducing voluminous evidence under Fed. R. Evid. 404(b) of the defendant's other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, "SC," who claimed that Ciesiolka had had sex with her several times when she was 15.

This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction.

Because the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied, and since the evidence introduced in unconstrained fashion strikes us as perhaps being excessively prejudicial in light of its probative value, we reverse and remand for a new trial.

A. The District Court Erred in Providing the Jury with an Ostrich Instruction

A focal point of Ciesiolka's appeal concerns his strenuous objection to the district court's jury instruction number 18 (the "ostrich instruction"), which provided:

  You may infer knowledge from a combination of suspicion and indifference to the truth, if you find that a person had 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 was merely negligent in not discovering the truth.

We are thus faced with the question whether the ostrich instruction was appropriately given to the jury. This specific question, arising in the context of 18 U.S.C. § 2422(b), is a matter of first impression for this court.

 An ostrich instruction obviously fits somewhat awkwardly with a sting operation of the kind presented by this case. Such an instruction is typically employed to capture individuals who deliberately close their eyes to the truth. See United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007). We have approved the use of ostrich instructions in a few cases involving police undercover or "sting" operations, but only in limited circumstances and while recognizing the danger that such instructions could relieve the government of its burden of proving the elements of an offense beyond a reasonable doubt.

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 applied to a defendant's mistaken belief about circumstances where knowledge of the truth would exonerate a defendant, such as "Ashley's" true age in this case.

If a 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.

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 a 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. See United States v. Garcia, 580 F.3d 528, 537 (7th Cir. 2009).

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. See id. 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. See United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990); cf. United States v. Inglese, 282 F.3d 528, 537 (7th Cir. 2002). There is little evidence, which we can discern, that suggests that avenues open to Ciesiolka to confirm Ashley's age remained unavailed of.

Such an error does not necessarily require us to vacate the conviction and sentence imposed by the district court, however. Instead, we must determine whether the error was harmless. We will reach that conclusion "if the evidence is so strong that a jury would have reached the same verdict absent the erroneous instruction." United States v. Ramsey, 406 F.3d 426, 432 (7th Cir. 2005). It is possible that an erroneously provided ostrich instruction can be harmless. United States v. Nobles, 69 F.3d 172, 187 (7th Cir. 1995).

 As the Supreme Court has instructed, the relevant question must be: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" Neder v. United States, 527 U.S. 1, 18 (1999). Given the significance of the error in introducing a jury instruction that relieved the government of its burden of proof, in addition to the exculpatory evidence just noted, we cannot answer this question in the affirmative.

In light of the relevant evidence, there is a distinct likelihood that the jury convicted Ciesiolka based on his being merely suspicious and indifferent about Ashley's age, rather than on a factual determination, beyond a reasonable doubt, that the defendant believed Ashley was a minor. We therefore reverse the judgment and sentence of the district court and remand for a new trial.

REVERSE AND REMAND FOR NEW TRIAL

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