UNITED STATES of America, Plaintiff-Appellee, v. Mark CIESIOLKA, Defendant-Appellant.
No. 09-2787.
United States Court of Appeals, Seventh Circuit.
Argued April 21, 2010. Decided July 26, 2010.
614 F.3d 347
The decision of the district court is AFFIRMED.
Kerry C. Connor, Attorney (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.
Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.
CUDAHY, Circuit Judge.
Mark Ciesiolka was convicted in 2008 of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under
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 bi-
I. BACKGROUND
Pursuant to Indiana‘s Safe Childhood Project, Detective Sergeant Carrie Costello, an officer with the Purdue University Police Department, initiated an Internet sting operation to lure and prosecute pedophiles who were operating online. The defendant in the present case, Mark Ciesiolka, walked right into the trap. On August 2, 2006, he encountered a person by the name of “Ashley” in a Yahoo adults-only chat room, entitled “Indiana Romance.” Ashley‘s Yahoo profile photo was of a woman in her late 20s (a fellow police officer) and her stated interests included “Purdue University” and “beer.” The profile did not state her age.
Starting on August 2 and proceeding over the following two-and-a-half weeks, Ciesiolka and Ashley exchanged numerous, sexually explicit IM messages. At trial, those messages were read aloud to the jury by officer Costello, playing herself, and by special agent Christian Ebel-Orr, playing the role of Ciesiolka. The defendant and Ashley informed each other that they lived in Columbus and Lafayette, respectively. He asked her why she was in a forum for married people. He inquired as to whether her mom and dad were home, and asked whether she had a boy-friend. Somewhat oddly, in response to Ciesiolka‘s request for pictures of herself, Ashley sent a different photo of the same woman in her late 20s whose picture adorned Ashley‘s online profile. Ciesiolka responded that she looked 21 or so. Ashley, however, maintained that she was only 13.
The defendant asked Ashley whether she was a virgin and whether she masturbated. She feigned the lack of knowledge one might expect of a 13-year-old, saying that she “think[s] so . . . means no sex, right?” As to masturbation, she wrote “[n]ot sure what that is.” During ensuing conversations, the defendant requested more photos; Ashley repeatedly asked to see him on his web cam. Ashley told him she‘d gotten in trouble for staying over at a friend‘s house where her friend had gotten some beer. When asked how much she drank, Ashley explained: “I didn‘t. Don‘t like the taste of beer, really, but everyone else did, so I got in trouble.” Later, Ashley wrote that she doesn‘t usually wear panties, but when she does they‘re thongs. The defendant subsequently provided her with instructions on how to masturbate. Ashley referred to her mother‘s being “40 something.” When asked whether she shaves, she replied that there‘s “[n]ot much to shave.” The defendant exposed himself and masturbated via his web cam during an IM exchange. He later asked whether it was sad that he was
Following these IM conversations, which were both more explicit and offensive than the preceding summary might suggest, the talk eventually turned to meeting up. Ciesiolka said: “I would come see you but might get in trouble.” He and Ashley ultimately agreed to meet at a Pizza King at 5 o‘clock on Friday, August 18. This seemed like an opportune time, since Ashley said that her mother was leaving that Friday for the weekend to attend a wedding. Ashley said that she would tell her mom that she was meeting friends to eat. Later, the defendant asked Ashley if she‘d mind if he brought his 12-year-old son with him to their meeting. He asked whether she‘d have sex with him and explained that he‘d teach both of them. On August 14, Ciesiolka asked whether “she was going to tell on [him],” explaining that he “would get into really big trouble.”
Despite the arrangement, Ciesiolka never showed up on August 18. In a subsequent message, the defendant explained to Ashley that he couldn‘t meet with his son there, since he believed his son would tell. Ashley then wrote: “I lie about my age.” When Ashley subsequently referenced her upcoming birthday, Ciesiolka asked: “You will be 15?,” to which Ashley responded “14.”
Following the last IM conversation, the authorities were able to track down the defendant, who was arrested on August 19. During the ensuing trial, the government introduced evidence of Ciesiolka‘s prior bad acts under
The content of his IM conversations with Ashley, in conjunction with the
II. DISCUSSION
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.
Ciesiolka contends that this instruction served to relieve the government of its obligation to prove beyond a reasonable doubt that he believed that Ashley was a minor. He argues that the instruction allowed the jury to convict him based merely on his suspicion of, and indifference to, Ashley‘s being underage. Ciesiolka also
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
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. For example, in United States v. Kaufmann, 985 F.2d 884, 896-97 (7th Cir.1993), the defendant was charged with four money laundering counts involving real criminals with money from real criminal dealings, but he was not convicted on those charges. He was convicted only on one charge of attempted money laundering, which involved an undercover agent‘s planned purchase of a sports car for cash using a straw purchaser. We held that an ostrich instruction was appropriate for the first four counts. The jury instructions distinguished between knowledge for the first four counts and the belief required to convict on the sting count. Those steps prevented the jury from being misled into finding “belief” on the fifth count by finding only strong suspicion plus indifference to the truth. Id. at 896-97.
Similarly, in United States v. Wilson, 134 F.3d 855 (7th Cir.1998), the defendant was caught in a sting operation in which he delivered real cocaine, but he denied knowing that the bags contained cocaine. We affirmed the use of an ostrich instruction under those circumstances, where the truth the defendant denied was actually incriminating rather than exonerating. Id. at 868-69. And in United States v. Inglese, 282 F.3d 528 (7th Cir.2002), the defendants were convicted of selling firearms to undercover agents posing as customers with felony convictions that barred them from lawful purchases. We affirmed the use of an ostrich instruction where there was ample evidence that the agents had made it clear that the sales would be illegal. Id. at 537-38. The use of a straw purchaser for firearms was illegal even if the “customers” were undercover agents.
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 or the fact that the suspicious substance was baking powder rather than cocaine in another sort of 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. Ac-
Even if the ostrich instruction might otherwise have been proper, there is a second problem with its use in this case. We have previously made clear that such an instruction must be given cautiously, lest a jury improperly convict a defendant on the basis of negligence. See United States v. Carrillo, 435 F.3d 767, 781 (7th Cir.2006). 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. Defendant did not try to hide from knowledge about Ashley‘s age—he repeatedly raised the issue with her and received conflicting information. He asked her her age. Reminded that her birthday was coming up, he asked her whether she would be 15. She corrected him, saying that she would be 14. He asked her whether her parents were home. He impressed upon her the importance of her not telling anyone about their conversations or potentially meeting up. She told him about her lack of sexual experience and that her mother was “forty something.” All this inculpatory evidence goes to Ciesiolka‘s belief as to Ashley‘s age. But none of it suggests that Ciesiolka deliberately closed his eyes as to her age; it rather appears that he took active steps to discover it. Beyond the previous examples, including the obvious one of his actually asking her her age, he asked for pictures of her. When presented with a photo of a woman in her 20s, he took positive steps to inquire as to her age, observing that she looked 21, and perhaps 18 or 19. She assured him that she was only 13. These are not the acts of a person who deliberately avoids learning the truth.
Complicating matters further, defendant argues that he thought “Ashley” was an adult woman pretending to be a 13-year-old girl to play along with his fantasies. Some evidence lends support to this argument. Ashley‘s profile photo was that of an adult woman in her late 20s. Her stated interests included beer and Purdue University. Perhaps the most perplexing feature of the present case is that, in response to Ciesiolka‘s request for pictures of her, Ashley sent another photo of the same adult woman who adorned her Yahoo profile. One strains to understand why a police officer in a sting operation of this sort would send such a picture, which at best would serve to inject confusion, uncertainty and suspicion as to the “victim‘s” age. In fact, it could surely have led Ciesiolka to believe that “Ashley” was an adult, pretending to be younger than she was.1 The unusual circumstances may
On this record, with its conflicting information about Ashley‘s age, and at least apart from the quantity of evidence admitted under Rule 404(b), defendant‘s argument that he believed Ashley was an adult pretending to be 13 years old has some evidence to support it. As a result, the ostrich instruction could have invited the jury to convict the defendant based on mere suspicion and indifference as to her true age, where knowledge of her true age would have exonerated him rather than incriminated him.
The lack of evidence in the record suggesting Ciesiolka‘s taking steps not to acquire knowledge of Ashley‘s age also renders the district court‘s ostrich instruction erroneous. The effect of the instruction was indeed to enable the jury to convict Ciesiolka not because it determined that he believed that Ashley was under 18, but because it concluded that he was suspicious and indifferent to whether she was underage. We therefore agree with the appellant that this served improperly to relieve the government of its burden of proof.
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).
We cannot confidently conclude that the erroneous instruction was harmless in the present case. We are mindful of the risk that our relying on the weight of the evidence alone to determine harmless error may involve our usurping the function of the jury. See United States v. Peak, 856 F.2d 825, 835 n. 7 (7th Cir.1988); see also Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.2005); Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1218 (D.C.Cir.1997) (Edwards, C.J., concurring).
Although there is sufficient inculpatory evidence for a jury to find that Ciesiolka believed “Ashley” was a minor, the evidence certainly does not compel that conclusion. In so holding, we would seem to part company with the dissent, which contends that the “transcripts of the conversations between Mr. Ciesiolka and ‘Ashley’ gave the jury a very firm basis for concluding that Mr. Ciesiolka believed Ashley was a minor.” Dissent at 24. It seems to us that “a very firm basis” is far from synonymous with “conclusive.” Cf. United States v. Hatfield, 591 F.3d 945, 951 (7th Cir.2010) (remanding for retrial because the “evidence [,] though strong enough to justify a verdict of guilt beyond a reasonable doubt, was not conclusive“). In any event, we do not believe that the transcripts of the IM conversations between
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.
It is only when one embraces the extravagantly profuse indications of the defendant‘s prior bad acts introduced under
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. As we now explain, this conclusion is bolstered by the district court‘s handling of the government‘s
B. The District Court Erred in Failing to Explain its Reasoning in Admitting Highly Prejudicial Evidence Under Fed.R.Evid. 404(b)
Ciesiolka contends that the profuse evidence of his prior bad acts was improperly admitted under
In the present case, the issue for the jury was whether Ciesiolka believed that “Ashley” was under 18. It bears emphasizing that
As noted above, the evidence concerning the defendant‘s online interaction with “Ashley” is somewhat equivocal. The photos of Ashley were of a woman in her 20s. She admitted to lying about her age. Ciesiolka commented that she looked 21. Her interests, as described on her Yahoo profile, included beer and Purdue University. Such facts lend strong support to the defense argument that Ciesiolka believed he was interacting with an adult.2 It may have been the case, for instance, that the defendant believed Ashley was an adult purporting to act as a minor. If this were the case, Ciesiolka could have gone along with the fantasy without violating
Were the jury limited to considering direct evidence of Ashley and Ciesiolka‘s online exchanges alone, these exculpatory facts might have been enough to create reasonable doubt in the minds of the jury. No doubt aware of this possibility, the government appealed to evidence of prior bad acts to establish that the defendant in fact believed he was interacting with a minor. To speak in the terms of
In reviewing the permissibility of the character evidence so introduced, we must distinguish between two sorts of infirmities. First, to the extent any evidence was admitted that goes to propensity, but not to the defendant‘s knowledge or intent, then such admission was in error. Second, even if evidence were introduced to show knowledge or intent, such admission was also improper if the prior act is not sufficiently similar, if the act‘s prejudicial effect substantially outweighs its probative value or if there is insufficient evidence to support a jury‘s finding that the defendant committed the similar act. We note from the outset that our review is for abuse of discretion. In the context of
We find that the district court abused its discretion in failing to propound reasons for its conclusion that the probative value of SC‘s testimony, the many images of child pornography and the content of Ciesiolka‘s numerous, offensive 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
The dissent finds fault with this conclusion. In doing so, it draws attention to one statement of the district court in advance of trial and to another made in response to the defendant‘s
As noted, a trial court‘s “perfunctory” consideration of this critical question is inadequate and may in itself be grounds for reversal. We have also observed that “[a] flaw in the process is easier to detect than is a flaw in the result” when reviewing district-court rulings under
Our concern regarding the absence of any considered explanation is magnified by our belief that the cumulative impact of the
The jury‘s day-long exposure to voluminous evidence of Ciesiolka‘s prior bad acts, many of which were appalling, created a significant risk of prejudice. There is a real danger that such evidence, dumped without constraint into the record, can lead a jury to convict a defendant not on the basis of proof of the crime with which he has been charged, but for his simply being a bad person or for having committed unseemly acts in the past. See Macey, 8 F.3d at 467. The deluge of
The prejudice could conceivably have been cured by appropriate limiting instructions. See United States v. Jones, 455 F.3d 800, 809 (7th Cir.2006) (noting that such instructions “are effective in reducing or eliminating any possible unfair prejudice from the introduction of
Given the extensive evidence of prior bad acts, introduced over an entire day and from multiple sources, and given the damning nature of that evidence, we are not confident that the court‘s pro forma limiting instruction sufficiently cured the error. Cf. Johnson, 584 F.3d at 737. See generally United States v. Smith, 308 F.3d 726, 739 (7th Cir.2002) (“[J]urors are presumed to follow limiting and curative instructions unless the matter improperly before them is so powerfully incriminating that they cannot reasonably be expected to put it out of their minds.“). We do not hold that it was necessarily an abuse of discretion for the district court to refuse to repeat its limiting instruction, though it surely would have ameliorated the situation had it done so. Compare, e.g., United States v. Butler, 102 F.3d 1191, 1196-97 (11th Cir.1997) with United States v. Mounts, 35 F.3d 1208, 1215 (7th Cir.1994) (weighing the value of the “district court‘s careful and repeated instructions to the jury“). But we do find that, given the context-specific facts of this highly unusual case, the district court‘s failure to explain its decision to grant the government virtual carte blanche to introduce all the
For the purposes of remand, we do not suggest that none of the
III. CONCLUSION
For the foregoing reasons, we reverse the judgment and sentence of the district court and remand for a new trial. Our Circuit Rule 36 shall apply on remand.
REVERSED and REMANDED.
RIPPLE, Circuit Judge, dissenting.
I agree with my colleagues that, under the particular facts and circumstances of this case, the so-called ostrich instruction should not have been given. We always have recognized that this instruction must be employed with great caution to avoid the possibility that a jury might convict a defendant on the basis of negligence rather than actual knowledge. See United States v. Carrillo, 435 F.3d 767, 781 (7th Cir.2006). Accordingly, we have limited the use of the instruction to situations in which the defendant claims a lack of guilty knowledge and the Government produces a factual basis from which the jury might conclude that the defendant deliberately avoided the truth. The court‘s measured holding is correct. Under the facts of this case, the jury could not draw the inference that the defendant deliberately avoided the truth. The ostrich instruction was therefore improper. I join the opinion of the court in that limited respect. I note that we do not hold today that the instruction is always inappropriate in a sting operation; indeed, our case law recognizes that, in some circumstances, the instruction may be given in such a situation. See United States v. Wilson, 134 F.3d 855 (7th Cir.1998); United States v. Kaufmann, 985 F.2d 884 (7th Cir.1993).
With great respect for the contrary view of my colleagues, I do not believe that this misstep by the district court constitutes reversible error. The evidence of the defendant‘s guilt is strong—very strong. The transcripts of the conversations between Mr. Ciesiolka and “Ashley” gave the jury a very firm basis for concluding that Mr. Ciesiolka believed Ashley was a minor and nevertheless took substantial steps to induce her to engage in sexual activity. Moreover, unlike my colleagues, in assessing the strength of the Government‘s case, I am quite comfortable in giving full weight to the circumstantial, but nevertheless substantive, evidence of guilt supplied through the operation of
The court‘s decision today is in fundamental tension with our treatment of this issue in several recent
[T]he Court hereby finds admissible the three types of evidence set forth in [the] Government‘s 404(b), notice docket entry No. 50. The Government seeks to introduce evidence of defendant engaging in sexual conduct with a minor, SC, child pornography recovered from defendant‘s computer, and additional chats recovered from defendant‘s computer. The Court finds that all of this evidence is, one, directed toward establishing a matter and issue other than defendant‘s propensity to commit the crime charged; two, similar enough and close enough in time to be relevant to the matter at issue; three, there is sufficient evidence to support a finding by the jury that the defendant committed the similar acts, meaning the act occurred, and that the defendant was the actor; and, four, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. In this case, the similar acts evidence is probative of motive, intent, absence of mistake and knowledge, and is therefore admissible.
Tr. at 5-6, vol. I, Feb. 26, 2008.
After trial, Mr. Ciesiolka filed a Federal Rule of Criminal Procedure 33 motion for a new trial, whereby he challenged, inter alia, the district court‘s jury instructions concerning the
[T]his Court believes that the child pornography found on Ciesiolka‘s computer was relevant to proving Ciesiolka‘s knowledge that “ashley12_km” [sic] was a minor and absence of mistake, because it shows that Ciesiolka had knowledge and that he did not mistakenly believe he was chatting with an adult—rather, he intentionally targeted an individual he believed was a minor. As to the repeated rape of Jane Doe, this is also probative of Ciesiolka‘s knowledge and absence of mistake. In United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006), the Seventh Circuit found that “[p]rior instances of sexual misconduct with a child victim may establish a defendant‘s sexual interest in children and thereby serve as evidence of the defendant‘s motive to commit a charged offense involving the sexual exploitation of children.” Finally, evidence of additional Internet chats with other purported minors is probative of absence of mistake. It shows that Ciesiolka did not make a mistake in soliciting “ashley13_km,” but rather that he had a pattern of targeting minors over the Internet, and that he knowingly solicited and enticed “ashley13_km.”
Id.
Finally, it is worth noting, indeed emphasizing, that the district court provided a limiting instruction twice: during the day-long presentation of the evidence and again during the jury charge. These limiting instructions were materially identical to the instructions we approved in Zahursky and Hensley. We presume that the jury followed its instructions, and we should continue to treat
For these reasons, I would affirm the judgment of the district court.
Robert M. ANDERSON, Plaintiff-Appellant, v. AON CORPORATION, et al., Defendants-Appellees.
No. 09-1144.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 18, 2009. Decided July 26, 2010.
Notes
The court‘s implicit suggestion that the district court must explain its reason for admitting