ILNews

Majority overturns enticement of minor conviction based on error

Back to TopE-mailPrintBookmark and Share

Addressing for the issue for the first time, the 7th Circuit Court of Appeals ruled the “ostrich instruction” in context of 18 U.S.C. Section 2422(b) was not appropriately given to the jury in an enticement of a minor trial.

The Circuit judges unanimously concluded that under the facts of the case, the jury couldn’t have drawn the inference that defendant Mark Ciesiolka deliberately avoided the truth about the age of the person he was chatting with online. Ciesiolka had sexually explicit conversations with “Ashley”, a police officer, who as part of a sting operation told Ciesiolka that she was 13, but whose online profile and photo suggested otherwise. Ashley used a photo of a woman who was in her late 20s and her profile said she liked beer and Purdue University. Ciesiolka arranged to meet up with Ashley but never followed through.

He was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. Section 2422(b). At trial, the government introduced evidence under Fed. R. Evid. 404(b) of Ciesiolka’s other instant message conversations with unknown third parties, images of child pornography from his computer, and the testimony of a woman, S.C., who claimed she had sex with Ciesiolka when she was 15.

In United States of America v. Mark Ciesiolka, No. 09-2787, Judges Richard Cudahy, Kenneth Ripple, and David Hamilton agreed that the District Court erred in providing the jury with an ostrich instruction, saying in part: “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… .”

Ostrich instructions have been approved by the 7th Circuit in sting operations, but only in limited circumstances.

“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…” wrote Judge Cudahy.

The judges parted on whether the error constituted a reversible error. Judges Cudahy and Hamilton found it did, because there is a distinct likelihood that jury convicted him based on his merely being suspicious and indifferent about Ashley’s age rather than on a factual determination beyond a reasonable doubt that he believed Ashley was a minor. The majority ordered a new trial, partly based on the instruction and partly because of the District Court’s handling of the government’s Rule 404(b) evidence. They ruled that the District Court abused its discretion in failing to propound reasons for its conclusion that the probative value of S.C.’s testimony, the images of child porn, and the content of Ciesiolka’s IM conversations with third parties was not substantially outweighed by the risk of unfair prejudice.

“We have reviewed the transcript of the district court’s Rule 404(b) hearing, but could find no portion within it where the court explained its bare-bones conclusion that ‘the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice,’” wrote Judge Cudahy.

Judge Ripple disagreed, finding the District Court’s verbal explanation, when combined with its explanation in its post-trial order, provided far more than an ample basis for appellate review. The judge found strong evidence in the transcripts of the conversations between Ciesiolka and Ashley and he noted he was quite comfortable in giving full weight to the circumstantial, but nevertheless substantive evidence of guilt supplied through the operation of Rule 404(b).

Judge Ripple also pointed out that the District Court provided limiting instructions twice and that the Circuit Court should continue to treat Rule 404(b) limiting instructions as sufficient to eliminate any residual prejudice presented by such evidence.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

ADVERTISEMENT