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.