The Seventh Circuit has repeatedly warned that the deliberate indifference instruction (also known as the “ostrich instruction”) should be given in relatively limited circumstances. United States v. Macias, 13-2166, was not one of those limited circumstances, and thus the Court reversed the conviction.
Macias was a reformed illegal immigrant smuggler. Having been convicted of a conspiracy to smuggle individuals into the country without proper immigration status, Macias returned to Mexico, reformed himself, and began a legitimate bus company, traveling between Mexico and the U.S. In 2007, he was approached and agreed to bring large sums of currency from the U.S. to Mexico. He testified that he presumed, and was told, that the money was from “smuggling Mexicans into the United States.” The government’s theory was that the currency was the proceeds from drug smuggling, and Macias knew it, and therefore he was part of a drug smuggling conspiracy.
The district court gave the Seventh Circuit pattern instruction on deliberate indifference. 4.10, Pattern Criminal Jury Instructions of the Seventh Circuit, p. 50 (2012). On appeal, the Seventh Circuit dissected the propriety of the instruction. The Court questioned what “deliberately avoided the truth” actually means in the context of the instruction. The Court acknowledged that actual behavior to avoid discovering the truth would be ‘deliberately avoiding the truth.’ For example, if the defendant had said, “Don’t tell me what you are smuggling, I don’t want to know,” that would be evidence that he deliberately avoided the truth. Of course, there was no such evidence at trial of such conduct. Conversely, the government pressed a theory of “psychological avoidance,” wherein a defendant “cuts off . . . one’s normal curiosity by an effort of will.” The Court described the government’s proposed standard as a “judge playing psychologist.”
In language that will no doubt be useful for defendants in future cases, the Court stated that when a defendant fails “to display curiosity, but . . . did nothing to prevent the truth from being communicated to him, [the defendant] did not act to avoid learning the truth.” The Court’s analysis strongly suggests that some physical conduct or tangible action must occur for a defendant to “act to avoid learning the truth,” not simply evidence and inference that the defendant failed to display normal curiosity (whatever that term may mean). Given the government’s aggressive use of the deliberate indifference instruction, we predict that Macias will likely be the beginning of a line of cases that narrow and clarify when the instruction is appropriately given.