Argued May 19, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 546-7 -- Elaine E. Bucklo, Judge.
For United States of America, Plaintiff - Appellee: Katherine Neff Welsh, Attorney, Office of The United States, Chicago, IL.
For Roberto Macias, Defendant - Appellant: Beau B. Brindley, Attorney, Law Offices of Beau B. Brindley, Chicago, IL.
Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
POSNER, Circuit Judge.
The defendant was convicted of conspiring to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and of conducting an unlicensed money-transmitting business in violation of 18 U.S.C. § 1960. He was sentenced to 300 months (25 years) for the conspiracy offense and 60 months (5 years), to run concurrently with the conspiracy sentence, for the money-transmitting offense. His appeal is limited to the first conviction, and complains primarily (and is his only complaint with sufficient merit to warrant discussion) about the judge's giving a " deliberate indifference" instruction to the jury (colloquially, an " ostrich" instruction). The instruction the judge gave (which is almost word for word Instruction 4.10 in Pattern Criminal Jury Instructions of the Seventh Circuit, p. 50 (2012), which superseded an earlier version criticized in United States v. Ramsey, 785 F.2d 184, 188-91 (7th Cir. 1986);
cf. United States v. Josefik, 753 F.2d 585, 589 (7th Cir. 1985)) states: " You may find that the defendant acted knowingly if you find beyond a reasonable doubt that he had a strong suspicion that the money transported in this case was the proceeds of narcotics trafficking and that he deliberately avoided the truth. You may not find that the defendant acted knowingly if he was merely mistaken or careless in not discovering the truth, or if he failed to make an effort to discover the truth." The first clause that we've italicized is the one that the defendant particularly challenges, and the second is the one that he claims exonerates him of deliberate indifference.
Macias had once been a member of a conspiracy to smuggle illegal immigrants across the United States-Mexico border. Among his specific duties had been transporting the immigrants to this country. After being convicted for that offense he had left the smuggling business, moved back to Mexico, and created a bus company to transport legal Mexican immigrants to the United States. In 2007 he was approached by a member of the La Familia Michoacana drug cartel (it's unclear whether Macias knew the person was representing the cartel) and was asked to assist, for generous pay, in moving money from the United States to Mexico. He testified that he didn't know that the money he was to move consisted of proceeds from the sale of illegal drugs; he said he assumed and indeed was told by the person who recruited him into the conspiracy that the money came from smuggling Mexicans into the United States. He never asked what was being smuggled, and so (if his testimony is believed) never was disabused of his assumption that it was people, not drugs, that were being smuggled.
If as he claims he was an unwitting member of a drug conspiracy, he was not guilty of membership in the conspiracy. For suppose a stranger asks you to help him carry a box to a house across the street, and you oblige. Unbeknownst to you the house is a stash house and the box contains cocaine. You are not guilty of conspiring to distribute illegal drugs, even though you have assisted in that distribution. A total dupe is not a conspirator.
A federal agent who specializes in investigating the smuggling of immigrants into the United States testified as an expert witness that the sums of money that Macias handled for the drug conspiracy greatly exceeded the sums involved in human smuggling. The jury could have inferred from this that Macias knew he was working for drug smugglers, as no one other than Macias has suggested that any other type of smuggling from Mexico is equally lucrative. But obviously the government lacked confidence that it could " sell" such an inference to the jury. Despite his past involvement in human smuggling Macias may not have known what the federal agent knew about the financial limits of human smuggling. And he may have thought that since his experience in smuggling was limited to human smuggling, this was the only kind of smuggling he would be hired to assist in.
So the government pressed for the ostrich instruction. The two clauses in it that we italicized earlier are in tension with one another. The jury was told both that it could convict Macias of participation (which would, as we said, have to be knowing in order to be actionable) in the drug conspiracy if he deliberately avoided the truth, and that it could not convict him if he failed to make an effort to discover the truth. The second clause makes clear that he had no duty of inquiry. But what does the first clause mean? One ...