In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3216

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BEATRICZ RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:06-cr-00809-5—John W. Darrah, Judge.

ARGUED FEBRUARY 27, 2009—DECIDED AUGUST 3, 2009

Before MANION, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Beatricz Ramirez was charged

with one count of wire fraud in violation of 18 U.S.C.

§ 1343. Following a jury trial, she was convicted. She

was sentenced to a term of imprisonment of 18 months

and ordered to pay restitution. Ramirez appealed her

conviction, arguing that the district court erred by giving

the jury an ostrich instruction and by refusing to

include language stating that mere negligence did not
2 No. 08-3216

support a finding of knowledge. For the following

reasons, we affirm.

I. BACKGROUND

Luis Uribe was a successful mortgage broker for

Freedom Mortgage in the Elgin, Illinois area. But his

legitimate success was not good enough for him. So he

devised a fraudulent mortgage scheme, using the

identities of former clients with good credit to obtain

mortgage financing for persons who could not qualify

for mortgages and padding his wallet in the process.

The scheme basically worked like this: A person with

poor or no credit would find a house he or she wanted to

buy, and Uribe used the name and identifiers of another

person in negotiating the purchase contract and applying

for financing. Sometimes the names and identifiers

used were those of various individuals, including Jorge

Itoralde, Griselda Sanchez, and Uribe’s brother, Carlos,

who agreed to sell their credit histories to non-qualifying

buyers. On other occasions, Uribe used the names and

identifiers he had stolen from former clients. Then he

arranged for someone to use a fake identification card in

the name of the person whose identity had been stolen to

pose as the buyer at the closing. After the closing, the

person with poor or no credit would move into the

house and try to make the mortgage payments. The

record does not disclose that the title to the property

was ever passed to that person.

Uribe did business with Beatricz Ramirez, a licensed real

estate agent, over a three-year period beginning in 2003.
No. 08-3216 3

She conceded the existence of the fraudulent scheme and 1

stipulated that on or about August 31, 2005, a truth-in-lending

disclosure statement purportedly signed by Maria Moreno, an

interstate wire communication, was faxed from Illinois to

First NLC Financial Services LLC in Deerfield Beach, Florida.

This communication was the basis for the wire-fraud count

with which she was charged.

Ramirez began working as a realtor for Starck Realty in

Elgin, Illinois in about October 2003. (She had worked a

short time as a realtor for another office prior to that.)

She was trained about a real estate agent’s responsibilities, including how to fill out contracts. Between

April and mid-July of 2005, Ramirez acted as the buyer’s

agent in seven fraudulent transactions that were part

of Uribe’s scheme.

The only issue at trial was whether Ramirez

knowingly participated in the scheme. To establish 1

knowing participation, the government presented the

testimony of Uribe; the testimony of Rafael Cruz, another

participant in the scheme; statements by Ramirez to the

FBI during its investigation of the fraud; Ramirez’s grand

jury testimony; and evidence of numerous suspicious

circumstances surrounding the fraudulent transactions.

Ramirez testified at trial on her behalf and denied knowingly participating in the scheme.

Uribe, who was cooperating with the government,

testified that when he had a client for whom he was

going to apply for a fraudulent loan and who had not

yet found a home, he referred him or her to Ramirez.
4 No. 08-3216

According to Uribe, both he and the persons referred

informed Ramirez that these individuals could not

qualify for financing in their own names. Ramirez

worked directly with these buyers, showing them

houses, and thus knew their names. Once the buyer

found a house he or she wanted to live in, Ramirez

filled out a form real estate purchase contract. At first,

Ramirez filled in the buyer’s name, and Uribe would

return it to her crossed or whited out. Eventually he

asked her for blank purchase contract forms, indicating to

her, he claims, that the title companies were complaining

about the changes in the contracts. Ramirez complied and

gave him blank contract forms. Then Uribe filled in the

blanks with the name of the person whose identity he

had stolen and returned the completed contract to

Ramirez to provide to the seller or listing agent. The name

of the person to whom Ramirez showed the house and

whom she knew would live in the house did not

appear anywhere on the purchase contract.

Uribe testified that Ramirez asked him where he was

getting the identities he used to obtain the fraudulent

loans, and he told her that he was using the names and

identities of former clients as the purported buyers. He

also testified that he told Ramirez that a third person

with fake identification in the name of the former client

would attend the closing and sign as the purported buyer.

Uribe claimed that Ramirez asked him how he was able

to get so many mortgage applications using one

person’s identity, and he told her that as long as the

loans closed within a thirty- to sixty-day period of each

other, several closings could take place with the same
No. 08-3216 5

identity—credit reports were not updated in a shorter

time period. Uribe also testified that he had a few conversations with Ramirez in which she expressed concern

over the fraudulent loan transactions. According to

Uribe, she indicated that she knew what he was doing

was not right and questioned him whether he knew what

he was doing.

Uribe further testified that he instructed Ramirez to

negotiate a seller’s concession, which required the seller

to pay a specified amount purportedly toward closing

costs, in the purchase contracts. He said that he explained to her that the concession was necessary to pay

his commission and to pay the persons who attended

the closings posing as the purported buyers, including

Rafael Cruz. According to Uribe, Ramirez said that was

fine with her. The evidence was that Ramirez did, in

fact, negotiate seller’s concessions in the purchase

contracts involved in some of the seven fraudulent transactions for which she was the buyer’s agent, including a

house at 1365 Kaskaskia. (And, in fact, Ramirez even

admitted that she negotiated the seller’s concession on

the Kaskaskia property.)

Cooperating witness Rafael Cruz testified that he met

Uribe in 2004 when Cruz refinanced his home. Cruz

wanted to buy a new home, so he returned to Uribe. Uribe

told Cruz that he could not qualify for a loan but

indicated that he could help Cruz get a loan—at a cost.

Cruz understood that he would pay someone to sign

the contracts for him. Uribe referred Cruz to Ramirez to

find a home. Ramirez showed properties to Cruz and his
6 No. 08-3216

wife, Juana Angelito, and they decided to buy one at

286 Chaparral. Uribe applied for a mortgage loan for the

property in the name of Jorge Itoralde, who had agreed

to sell his credit history. Itoralde attended the closing

for 286 Chaparral and signed the contracts in his own

name. Uribe testified that Ramirez knew that Uribe

applied for the mortgage using Itoralde’s name because

Uribe told her so and because she knew that Cruz paid

Itoralde $5,000 for the use of his name and identity—Cruz

had complained to her about how much he had to

pay Itoralde.

In early 2005 Uribe asked Cruz if he would be able to

obtain fake IDs, using names and identifiers Uribe would

provide. Uribe also asked Cruz to attend real estate

closings posing as the persons whose names would

appear on the fake IDs and contracts. Cruz agreed to do

so. Cruz attended at least three closings posing as Luis

Gonzalez, a former client of Uribe’s whose identity

Uribe had stolen. Cruz testified at trial that the first

Gonzalez closing involved a property at 212 Hill, which

he believed was purchased by two young people. Cruz

said that Uribe drove him to the closing and on the

way, they discussed that Ramirez would be there. Uribe

told Cruz that he would advise Ramirez that Cruz

was posing as Gonzalez because she already knew Cruz

from helping him find his home at 286 Chaparral. Uribe

testified that he did, in fact, tell Ramirez that Cruz would

be posing as Gonzalez, and she laughed and said something like “as long as the documents match and the IDs

match,” it was fine with her. Cruz testified that Ramirez

arrived late at the closing on 212 Hill, but was in time

to see him sign the closing documents.
No. 08-3216 7

Ramirez, however, testified at trial that she did not

attend the closing for 212 Hill. She also testified that the

buyers were Alejandro Cano and his wife, not the “two

young persons,” as claimed by Cruz. Ramirez stated that

she prepared the purchase contract for the Canos and

then sent it to the selling agent for approval. The

contract was approved. After receiving the signed

contract from the seller, Ramirez forwarded it to the

attorney as well as the lender, Uribe. She explained that

Uribe had referred the Canos to her. She subsequently

received a letter, dated May 12, 2005, from the Canos’

lawyer, Salvador Lopez, indicating that there had

been a change in the buyer and that the buyer was Luis

Gonzalez.

The second Gonzalez closing involved a property at

1238 Surrey. Ramirez showed the home to Alejandro

Espinoza and another young male. Uribe testified that

Ramirez attended the closing on 1238 Surrey. Ramirez

testified that she arrived late at the closing, but admitted that she saw Cruz in the room where the closing

took place. She also testified that after the closing, she

received a call from Cruz, who said, “I’m Rafael Cruz,

Luis Gonzalez, or whoever I’m supposed to be.”

The third Gonzalez closing, which took place in June

2005, involved a property at 386 Vincent Place. Ramirez

showed this property to Dennis Davis, an individual she

had met at a shopping mall while looking for sunglasses.

At trial Ramirez admitted that she referred Davis to

Uribe for a loan and discussed with him that if he

did not qualify for a loan, Uribe could find someone to
8 No. 08-3216

assist him, what she referred to as a “co-signer.” Ramirez

explained that she understood a “co-signer” to be someone

who signed for a property on behalf of the person who

would live there. She claimed not to know that there was

anything wrong in telling him that. Ramirez admitted

that she attended the closing for 386 Vincent Place, but

again claimed to have arrived late. But she also admitted

that she saw Cruz at the closing and that she knew, at the

closing, that Cruz was claiming to be Luis Gonzalez.

Jose Bahena testified at trial that he had discussed

purchasing a home with Uribe who told him that he

could not get a loan in his own name. Uribe also told

Bahena that Uribe could get him a loan anyway—Uribe

would get a co-signer. Bahena said that Ramirez

showed him a house at 1365 Kaskaskia, which he liked, so

she told him to get together with Uribe to get a loan. The

contract date on the purchase contract for 1365 Kaskaskia

was July 14, 2005. Bahena testified that he contacted

Uribe and eventually attended a closing for the property.

Bahena said that Uribe and Maria Moreno, his co-signer,

also attended the closing, but Ramirez did not. Bahena

testified to his understanding that both he and Moreno

would sign the closing papers and that he was supposed

to pay her $1,000 for helping him. However, Bahena

said that he did not sign any papers at the closing. Uribe

had told him that he did not qualify and only Moreno

qualified. After the closing Bahena met Ramirez to

obtain the keys to the house.

FBI Special Agent Brian E. Smith testified that during

the summer of 2006 he was involved in an investigation
No. 08-3216 9

of mortgage fraud in the Elgin, Illinois area. In the course

of his investigation he determined that Ramirez was the

realtor on seven of twenty-one properties he had

identified as having been obtained with fraudulent mortgages. Smith interviewed Ramirez in June 2006. Ramirez

told Smith that Luis Uribe was a mortgage broker

who referred clients to her—in fact, in 2005 the majority

of Ramirez’s referrals were from Uribe—and she

referred clients to him. She said that she had done approximately 33 properties with Uribe over a two-year

period and had attended between eight and ten closings

with him. Ramirez admitted that she found homes

for persons she knew could not qualify for mortgages—persons referred by Uribe. She also told Smith

that co-signers purchased the properties and the persons

living in the homes paid the mortgages. Ramirez advised

the agent that she earned two and one-half percent commission on the sales price of the homes on which she

worked with Uribe.

Ramirez indicated to Agent Smith that in the

beginning she filled out the purchase contracts with the

information she received from Uribe on the persons

who wanted to buy a property. However, because those

persons did not qualify, the title company was getting

frustrated with the changes in the contracts, and Uribe

therefore asked for blank contracts, which she gave him.

Ramirez also said that Uribe had told her that credit

reports were updated every 60 to 90 days or so and that

multiple properties purchased would not show up within

that time period. Before interviewing Ramirez, Agent

Smith had been unable to identify who had obtained the
10 No. 08-3216

stolen IDs used in the mortgage scheme. Ramirez

identified Cruz as the person who did that.

Agent Smith testified that Ramirez told him that she

attended at least three closings where Cruz signed as

Gonzalez. Smith inquired about a property at 1238 Surrey

Road, and Ramirez told him that it was one of the properties for which Cruz signed as Gonzalez. Ramirez also

said that Gonzalez’s address on the contract for 1238

Surrey was listed as 212 Hill. And Ramirez volunteered

to Smith that she attended the closing for 212 Hill and

again saw Cruz sign as Gonzalez. Agent Smith asked

Ramirez about 1365 Kaskaskia, and she told him that she

found that property for someone named Bahena. Smith

told her that the named buyer on the property was Maria

Moreno, and Ramirez volunteered that if it was Maria

Moreno, it wasn’t the real Maria Moreno because Uribe

had other people signing and posing as Maria Moreno.

Ramirez offered that Cruz’s wife, sister or girlfriend, she

wasn’t sure which, had signed as Maria Moreno and

another purported buyer, Olga Trejo.

Ramirez also told Agent Smith that she had gone to the

mall to purchase sunglasses and met a person who had

poor or no credit, but wanted to buy a home. According

to Smith, Ramirez said that she told the man that she

had a friend, Luis Uribe, who could find a co-signer to

buy the property for him at the cost of $1,500. Ramirez

advised Smith that she found this person a home and

attended the closing. Agent Smith determined through

his investigation that the property was 386 Vincent

Place, with a purchase contract date of April 19, 2005,

and that the purported buyer was Luis Gonzalez.
No. 08-3216 11

As mentioned, Ramirez testified before the grand jury.

The government read the transcript of her grand jury

testimony at trial. Ramirez’s grand jury testimony

repeated much of what she had said during Agent

Smith’s interview. She testified that over the past two

years she did approximately 33 real-estate sales transactions with Luis Uribe for which she was the real estate

agent for the buyers of the properties. She admitted that

for all of the properties, her buyer was supposed to live

in the property and pay the mortgage, but another

person’s name was on the mortgage; that she would

send Uribe contracts and he would let her know that the

person did not qualify and he needed another person’s

name on the contract; that as the realtor it normally was

her responsibility to write up a contract for the property

in the name of her buyer; and that Uribe ultimately requested blank contract forms from her and would fill in

the information himself. Ramirez further testified that

she attended at least three closings where Cruz showed

identification indicating that he was Luis Gonzalez

and signed the mortgage contract and title of the

property as Gonzalez. She admitted that she knew Cruz

wasn’t Gonzalez. She also admitted that on one

occasion Cruz called her and introduced himself as

Rafael Cruz and then corrected himself, saying he was

Luis Gonzalez or whoever he was supposed to be.

Ramirez further testified that she attended the closing

for 386 Vincent Place in June 2005 and believed that was

when she learned that Cruz and Gonzalez were not

the same person.
12 No. 08-3216

Before the grand jury Ramirez also testified that she had

a conversation with Uribe in which she said that Luis

Gonzalez was buying so many properties so fast, that

she couldn’t draw up the contracts, and was embarrassed to show the contracts around her office. She said

that Uribe had told her not to worry, a person could buy

as many properties as he wants, and credit reports are

only updated every three months, so the properties

would not show up. At trial, Ramirez testified that this

conversation had taken place before any of the Gonzalez

closings.

Ramirez also testified at trial that she sold Cruz his house

at 286 Chaparral and that she knew the house was not

purchased in Cruz’s name, but was signed for in Jorge

Itoralde’s name because Cruz could not qualify for a

mortgage. She claimed that every time Uribe gave her

another person’s name, she took it as a “co-signer.” Though

Ramirez readily admitted that she knew who Cruz was

when she saw him at a Gonzalez closing, she was quick to

deny that she actually witnessed Cruz sign any closing

documents. She offered the explanation that she went to

the closing late. But she conceded that she knew the

property had been applied for and signed for in Luis

Gonzalez’s name.

Ramirez testified that she attended the closing on

201 North 9th Street. Olga Trejo was the purported

buyer for that property. Ramirez also testified that she

attended the closing on 2185 Heather Lane. Co-defendant

Griselda Sanchez was the purported buyer for that property. Ramirez denied knowing that Moreno was not going
No. 08-3216 13

to be living in these properties. Ramirez explained that

she only learned that as a result of the investigation

into the mortgage fraud.

At trial Ramirez admitted that some of Uribe’s referrals

involved purchasing homes in the name of other persons’ identities and that she sent him blank contracts so he

could fill in the name of the person who would actually

sign for the home. She agreed that she had found a home

for Jose Bahena at 1365 Kaskaskia, drew up a contract,

dated July 14, 2005, which she sent to Uribe, and that he

changed it to show Maria Moreno as the buyer. Ramirez

also admitted that she did these things knowing that

Bahena, not Moreno, would live in the house. Ramirez

claimed, however, to believe that Moreno was a co-signer.

She also claimed that her testimony before the grand jury

and her statement to Agent Smith during his interview

that, if 1365 Kaskaskia was purchased in the name of

Maria Moreno then it wasn’t the real Maria Moreno, was

based on a conclusion she had drawn from her awareness about the investigation. She made the same claim

with respect to her statement to Agent Smith that she

knew Cruz had a woman who lived with him and attending closings, signing as Maria Moreno and Olga Trejo.

Ramirez denied that Uribe instructed her to negotiate

a seller’s concession and denied that he told her he

needed a seller’s concession so he and Cruz could

get paid. She acknowledged that it was the realtor’s

responsibility to negotiate any type of seller’s concession,

however. Ramirez further denied knowing that Uribe

would take his commission from the seller’s concession,

even though she admitted she knew the loans were
14 No. 08-3216

100% financed and that the buyers had no cash on hand.

And she denied any knowledge of fake IDs. She also

denied knowingly participating in a scheme to defraud

and she denied ever intending to defraud anyone.

Mary Roberts, the manager of the Starck Realty Elgin,

Illinois, office, testified at trial. Roberts had 31 years’

experience in real estate and was a licensed agent and

broker. She testified that she hired Ramirez in late 2003

and that Starck Realty trains its agents on the importance

of accuracy in drawing up sales contracts. Roberts

testified about the usual real estate transaction: the real

estate buyer’s agent would complete the contract with

the buyer, have the buyer sign it, and then present it to

the listing agent who presents it to the seller, and once

the parties reach an agreement, the contract is signed,

initialed, dated and provided to the attorneys and lender.

Roberts testified that in September 2005, while covering

for Ramirez who was on vacation, she fielded some calls

from sellers’ agents about Ramirez’s transactions. Roberts

pulled the files in question and discovered that the same

lender and same attorney were involved in each transaction, which alarmed her somewhat. When Ramirez returned, Roberts spoke with her about her concerns about

this pattern, asked her if everything was okay, and asked

her to use a different attorney or lender. Ramirez responded that everything was okay—she had asked Uribe

and he said not to worry, he would take care of her.

Roberts also testified that in 2004—including the time

frame of the mortgage scam—Ramirez earned commissions

of around $16,000 on written contracts of $700,000 and
No. 08-3216 15

As the court recently explained, this instruction derives its 2

name from the incorrect belief “that ostriches when frightened

bury their head in the sand.” United States v. Black, 530 F.3d 596,

604 (7th Cir. 2008), cert. granted, 129 S. Ct. 2379 (2009). In truth,

when an ostrich senses danger and can’t run away, “it flops to

the ground and remains still, with its head and neck flat on the

ground in front of it” and merely looks as if it has buried its

head in the sand. Id. (citation omitted).

in 2005 her earned commissions had climbed to $58,550

on written contracts of approximately $5 million. This

made Ramirez the top agent in the Starck Realty

Elgin office that year.

II. ANALYSIS

Ramirez contends that the district court erred in

giving the ostrich (conscious or deliberate avoidance)

instruction because the government failed to produce

any evidence that she deliberately avoided learning the

truth. She asserts that the government misused the

ostrich instruction in an effort to convince the jury that

a reasonable person in her position would have

inquired further and discovered the truth. She also complains that the instruction did not include language

stating that mere negligence was insufficient to prove

knowledge.

A. Giving the Ostrich Instruction2

The district court instructed the jury that to sustain the

charge of wire fraud, the government must prove, inter
16 No. 08-3216

alia, that the defendant “knowingly devised or participated in the scheme to defraud, as described in the indictment.” The court further instructed:

When the phrase “knowingly” is used in these

instructions, it means that the defendant realized

what he or she was doing and was aware of the

nature of his or her conduct, and did not act

through ignorance, mistake or accident. Knowledge may be proved by the defendant’s conduct,

and by all the facts and circumstances surrounding the case.

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 what they seemed or that someone had withheld some important facts, yet shut

her eyes for fear of what she would learn, you may

conclude that she acted knowingly, as I have

used the word. 

This instruction is substantially the same as Instruction

4.06 of the Federal Criminal Jury Instructions of the

Seventh Circuit (1999), but more on the similarity later.

We review the district court’s decision to give the

ostrich instruction for an abuse of discretion, viewing the

evidence in the light most favorable to the government.

United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007),

cert. denied, 128 S. Ct. 932 (2008). Our review is limited,

seeking to determine whether the ostrich instruction

correctly stated the applicable law. See United States v.

Curry, 538 F.3d 718, 731 (7th Cir. 2008). It is considered
No. 08-3216 17

within the context of all of the instructions as a whole to

determine if they adequately and correctly informed

the jury of the applicable law. Id.

The “ostrich” instruction “explain[s] to the jury that the

legal definition of ‘knowledge’ includes the deliberate

avoidance of knowledge.” United States v. Carrillo, 269

F.3d 761, 769 (7th Cir. 2001); see also United States v.

Severson, No. 08-1508, 2009 WL 1751545, at *5 (7th Cir.

June 23, 2009) (stating that the ostrich instruction

“explains to the jury that guilty knowledge also includes

the deliberate avoidance of knowledge”); Black, 530 F.3d

at 604 (“An ostrich instruction tells the jury that to

suspect that you are committing a crime and then take

steps to avoid confirming the suspicion is the equivalent

of intending to commit the crime.”). This instruction is

appropriate when the defendant claims a lack of guilty

knowledge, and the government has presented evidence

sufficient for a jury to infer that the defendant deliberately avoided the truth. Severson, 2009 WL 1751545, at *5;

Carani, 492 F.3d at 873. The focus of the instruction is

on the defendant, not a reasonable person. United States

v. Carrillo, 435 F.3d 767, 782 (7th Cir. 2006).

Evidence of deliberate avoidance can be placed in

two general categories. The first is physical avoidance,

which is where the defendant physically acts to avoid

confirming her suspicions. Black, 530 F.3d at 604; Carrillo,

435 F.3d at 780. Sticking one’s head under the hood of a

vehicle during a drug deal is an example. See United States

v. Diaz, 864 F.2d 544, 551 (7th Cir. 1988). The second

category of deliberate avoidance is psychological avoidance, which is “a mental act—’a cutting off of one’s normal
18 No. 08-3216

curiosity by an effort of will.’ ” Carrillo, 435 F.3d at 780

(quoting United States v. Giovannetti, 919 F.3d 1223, 1229

(7th Cir. 1990)). An example comes from United States

v. Leahy, 464 F.3d 773 (7th Cir. 2006), cert. denied, 128 S. Ct.

46 (2007), where the defendant insurance broker was

exposed to numerous and obvious red flags throughout

a business relationship, was aware of problems with an

audit, yet asked no questions and, when confronted

with an allegation of insurance fraud, did not disagree.

Id. at 794-96. Psychological avoidance, which supports an

ostrich instruction, is to be distinguished from a defendant’s simple lack of mental effort, lack of curiosity, or

ordinary ignorance, which does not. Black, 530 F.3d at

604; Carrillo, 435 F.3d at 780. “The circumstances surrounding the defendant may be sufficient to infer that,

given what the defendant knew, [s]he must have forced

[her] suspicions aside and deliberately avoided confirming for [herself] that [s]he was engaged in criminal

activity.” Carani, 492 F.3d at 873 (citing Carrillo, 435 F.3d

at 781). The focus is on what the defendant knew and

whether that knowledge raises a reasonable inference

that she remained deliberately ignorant of facts constituting criminal knowledge. Carrillo, 435 F.3d at 781. This

case principally implicates the psychological branch of

knowledge avoidance.

The ostrich instruction must be given cautiously so as

not to allow a jury to convict a defendant for mere negligence, effectively eliminating the knowledge requirement. Id. This concern may be addressed by carefully

considering whether the evidence supports an inference

of deliberate avoidance. See id. at 782-84. 
No. 08-3216 19

The government points to the following evidence in

support of the ostrich instruction: 

! Ramirez knew that virtually all her business

came from Uribe, not from former customers

or referrals; 

! she knew that the persons referred by Uribe

could not qualify for mortgages, yet sought

100% financing on the purchase price of the

homes they wanted to buy;

! from April through mid-July 2005, Ramirez

assisted seven bad-credit clients referred by

Uribe in finding homes; 

! she filled out the purchase contracts and then

Uribe crossed out or whited out the buyers’

names; 

! Uribe told Ramirez that the changes in the

contracts upset the title company, so she

started sending him blank contract forms; 

! in the seven transactions Ramirez received

finalized contracts that listed the buyer as

someone other than the person(s) to whom she

had shown the house and who she knew

would live in the house; 

! Ramirez knew that Luis Gonzalez appeared as

the purported buyer in three purchase transactions during a six-week period from mid-April

through May 2005; 

! she was aware that the properties would not be

occupied by someone named Luis Gonzalez; 
20 No. 08-3216

! she had never met anyone named Luis Gonzalez and did not know whether he was a real

person; 

! Ramirez attended three closings where Luis

Gonzalez was named the buyer on the contracts; 

! at those closings she witnessed Rafael Cruz

sign the contracts in Gonzalez’s name;

! Ramirez previously had sold Cruz a property,

so she knew his name was not Gonzalez; 

! she knew Cruz would not live in those homes;

! Ramirez admitted that by the third transaction

she knew that Cruz was pretending to be

someone he was not; 

! nonetheless, she continued to associate with

and participate in real estate transactions

involving Uribe and Cruz; 

! Ramirez asked Uribe how he was able to get so

many mortgage applications using one person’s identity, and he explained that as long as

they closed the loans within thirty or sixty

days, the credit reporting companies would

not pick it up; 

! Ramirez knew that Maria Moreno appeared as

the purported buyer of two properties in

purchase transactions dated three weeks

apart in June and July 2005; 
No. 08-3216 21

! Ramirez knew that Maria Moreno would not

occupy these properties and she had never

met anyone named Maria Moreno; 

! Ramirez attended one closing for which Maria

Moreno was the purported buyer and was

present when Cruz’s wife Juana Angelito

signed the contract as Moreno; 

! Ramirez knew Angelito and knew that she

would not take possession of the property; and

! Ramirez’s commissions quickly skyrocketed

and she outpaced all of the other agents in

her office based almost exclusively on transactions involving clients with bad credit who

could not qualify for mortgages. 

All of these circumstances suggest that Ramirez consciously turned a blind eye to the true nature of these

transactions.

Yet there is even more evidence to support the

district court’s decision to give the ostrich instruction: 

! in late 2004, Ramirez showed properties to

Cruz and his wife, Angelito; when they found

a home at 286 Chaparral, she asked him

whose name the property would be in; and

he said that it would not be in his or his wife’s

name and she should contact Uribe who

would have that information; 

! Uribe told Ramirez that he applied for the

mortgage for 286 Chaparral using the identity
22 No. 08-3216

of Jorge Itoralde, and Cruz complained to her

about how much he had to pay Itoralde to

use his identity;

! Ramirez had received training on the importance of accuracy in drawing up sales contracts; 

! she was aware that her boss Mary Roberts,

who had greater experience and training,

questioned the transactions with Uribe

because they involved the same lender and

same attorney; 

! Ramirez claimed at trial that she believed the

persons who signed as the buyers were “cosigners,” yet none of the seven contracts identifies a “co-signer” and none contains the

name of her buyer;

! she testified before the grand jury that she told

Uribe that Gonzalez was buying properties so

fast, she was embarrassed to show the contracts around her office; 

! she also testified before the grand jury that the

woman who lived with Cruz showed up at

closings pretending to be someone else; and

! Ramirez’s practices in filling out purchase

contracts for transactions involving Uribe

diverged from the typical process described

by Roberts: Typically, the agent completes the

purchase contract with the buyer, provides

it to the seller or seller’s agent and, only after
No. 08-3216 23

the seller has approved the contract, forwards

it to the lender. Ramirez, by contrast, provided

partially completed or blank purchase contracts to Uribe who changed or filled in the

buyer information and then returned the

forms to Ramirez, apparently before she provided the forms to the seller’s agent.

In deciding whether the evidence supports the ostrich

instruction, we should consider all of these circumstances

together because each of them was known to Ramirez.

See United States v. Conner, 537 F.3d 480, 487 (5th Cir.

2008) (“Alone, each might not have justified a deliberate

ignorance instruction, but when taken together they

present facts that justify the instruction.”).

Ramirez argues that the government presented evidence

that she had direct knowledge of the scheme to

defraud, but not a single piece of evidence of deliberate

avoidance. However, evidence need not “be placed in

either an actual knowledge category or a deliberate avoidance category.” Carrillo, 435 F.3d at 784. The government may present evidence that supports both theories.

Id. Much of the evidence described above supports both

theories. Take, for example, Ramirez’s own testimony

that she saw Cruz in the room at the second Gonzalez

closing and afterwards he called her, saying words to

the effect of “I’m Cruz, or Luis Gonzalez, or whoever

I’m supposed to be.” This could support a finding that

at that point in time Ramirez knowingly participated in

the fraud. It also could support an inference of deliberate

avoidance: If Ramirez was unaware of the fraudulent
24 No. 08-3216

scheme at that time, Cruz’s presence at a closing that

he seemingly had no reason to attend should have

raised her suspicions. But she didn’t question his presence. Ramirez’s testimony about the third Gonzalez

transaction presents another illustration of the dual

nature of the information she possessed. She admitted

that as of that point, she knew Cruz was posing as and

signing for Gonzalez. This could support a finding that

Ramirez knew she was participating in the scheme to

defraud. It also could support a reasonable inference

that Ramirez deliberately avoided discovering whether

the person who signed for Maria Moreno at the two

subsequent Moreno closings was in fact Maria Moreno.

“A person’s knowledge of his or her cohorts’ involvement with illegal or suspicious activities is a fact we

have consistently found significant in giving an ostrich

instruction.” Carrillo, 435 F.3d at 783.

Similar circumstances were presented in United States

v. Nguyen, 493 F.3d 613 (5th Cir. 2007), where the court

held that the ostrich instruction was warranted. The

defendants, the Nguyen brothers, were involved in a

mortgage scheme that used inflated appraisals, false

documentation, and “straw borrowers” to obtain home

financing loans. The Nguyens worked at a title company

and acted as the notary, escrow, and closing agents

for several real estate transactions which were part of the

scheme. They completed and submitted forms to loan

companies regarding bogus sales; they notarized straw

borrowers’ false affidavits stating their intent to occupy

the homes; and they put cashier’s check numbers on
No. 08-3216 25

forms showing a down payment was received, though

they never saw the actual check or inquired about the

check. Id. at 617. The Nguyens repeated these practices

many times within a short time frame, and they often

used the same straw borrowers. Id. at 618. The court

concluded that the government had presented evidence

sufficient to raise an inference of subjective knowledge.

Id. at 620. The court said that participation in a single

suspicious transaction might be insufficient to support

the ostrich instruction, id. at 620, but explained that

“[t]he sheer intensity and repetition in the pattern of

suspicious activity coupled with the [defendants’] consistent failure to conduct further inquiry” did, id. at 622.

And so it was with Ramirez, who faced a similarly

intense and repetitious pattern of highly suspicious

activity. She knew that the clients Uribe referred to her

could not qualify for mortgages yet sought 100%

financing on the purchase price of the homes they

wanted to buy. She provided Uribe with incomplete or

blank purchase contracts. Every finalized contract she

received from Uribe listed as the buyer someone other

than the person with whom she had worked. Her buyers’ names were nowhere to be found on the

purchase contracts. Furthermore, Luis Gonzalez was the

purported buyer for three purchases in a six-week period,

and Maria Moreno was the purported buyer in two

purchases in less than three weeks. Cruz even told her

that he was taking on the Gonzalez persona, as needed.

Ramirez knew that the persons who would occupy the

homes were not on the contracts.
26 No. 08-3216

And there is even more: viewing the evidence in the

light most favorable to the government, as we must,

Ramirez attended three closings where she witnessed

Rafael Cruz, whom she knew was not Gonzalez, sign

the contracts as Luis Gonzalez, the purported buyer.

Even accepting Ramirez’s version of the facts, she

attended two closings where she saw Cruz even though

he had no legitimate reason to be there. She knew that

Cruz was not the person to whom she had shown the

houses and that he would not live in the houses. Ramirez

even admitted that she attended the third Gonzalez

closing at which time she understood Cruz was claiming

to be Gonzalez! Yet she was quick to say that she never

saw Cruz sign anything, which by itself could reasonably be understood as an effort to hide her head in

the sand. The evidence thus reveals “a paradigm case”

for giving an ostrich instruction: Ramirez acknowledges

her association with Uribe and his cohorts, “but, despite

circumstantial evidence to the contrary, denies knowledge of the group’s illegal activity.” United States v. Paiz,

905 F.2d 1014, 1022 (7th Cir. 1990), abrogated on other

grounds by Gozlon-Peretz v. United States, 498 U.S. 395

(1991); Diaz, 864 F.2d at 550.

Yet Ramirez failed to ask questions—other than the one

to Uribe about how he was able to use a name so many

times—or take any other action. Uribe’s response to

her that credit reporting companies wouldn’t pick it up

if they acted quickly enough itself should have

prompted further questions. But even if that by itself

didn’t heighten Ramirez’s suspicions, when considered

together with the other events as they unfolded—Ramirez

questioned Uribe about this before any of the Gonzalez
No. 08-3216 27

closings—such a response would have made her

strongly suspicious that things were not as they seemed

to be. And the fact that Ramirez accepted Uribe’s explanation that everything was fine, without question,

further supports an inference that she deliberately hid

her head in the sand to avoid learning the truth. See

United States v. Newell, 315 F.3d 510, 528-29 (5th Cir.

2002) (holding ostrich instruction appropriate where

principal in advertising agency accepted client’s representations that charges were for legitimate marketing

expenses without any proof that marketing-related expenses were incurred, hesitated in seeking legal advice,

and persisted in questionable practices even after a coworker had questioned her about them).

We acknowledge that distinguishing between deliberate avoidance and simple lack of mental effort, lack of

curiosity, ordinary ignorance, or mere negligence often

involves “close calls.” See United States v. McClellan, 165

F.3d 535, 549 (7th Cir. 1999). But in cases such as this,

we should defer to the district court’s exercise of discretion to give the ostrich instruction. Id. And this is so even

in cases in which there is evidence of direct, or actual,

knowledge. See Carrillo, 435 F.3d at 783-84 (finding no

abuse of discretion in giving ostrich instruction where

some evidence established direct knowledge and some

evidence raised an inference of deliberate ignorance).

Accordingly, we conclude the district court did not

abuse its discretion by giving the ostrich instruction to

the jury.
28 No. 08-3216

B. Refusing to Include Negligence Language

Ramirez argues that the district court compounded its

error in giving the ostrich instruction by failing to

instruct the jury that mere negligence in discovering the

truth was not sufficient to infer knowledge. Along those

lines, she contends that the government suggested that

the jury could find deliberate avoidance because a reasonable person in her position would have inquired

further and discovered the truth.

We have cautioned that “a jury must not be invited to

infer that a particular defendant deliberately avoided

knowledge on the basis of evidence that only supports

the inference that a reasonable person in the situation

would have deliberately avoided knowledge.” Carrillo,

435 F.3d at 782. In arguing that the government invited the

jury to do that here, Ramirez first points to a single sentence in the government’s closing argument: “Remember,

there are so many red flags in each of these transactions

that there’s a high risk that an honest real estate broker,

one who isn’t intent on defrauding, will catch onto the

scam, will turn Uribe in.” We are not persuaded that

this sentence has the effect that Ramirez attributes to it.

There is little risk that this single line from the government’s closing argument led the jury to find that Ramirez

deliberately avoided knowledge because a reasonable

broker would have inquired further and discovered the

fraud. The context of this sentence seems to dispel any

notion of juror confusion. The government was explaining why Uribe needed to enlist a real estate agent

who was in on the fraudulent scheme—someone he

could trust would not turn him in to authorities.
No. 08-3216 29

Furthermore, the government repeatedly stated in its

closing argument that it had to prove that Ramirez acted

knowingly or with knowledge. The Assistant U.S.

Attorney accurately quoted the jury instruction on the

elements of wire fraud that the jury was to receive immediately following the arguments, including “that the

defendant knowingly devised or participated in the

scheme to defraud, as described in the indictment” and

“did so knowingly and with the intent to defraud.” She

added that “this case boils down to a single issue: Did

Beatriz Ramirez knowingly participate in a scheme to

fraudulently obtain mortgages?” The prosecutor

reiterated that “the government must prove that the

defendant knowingly participated . . . in a scheme to

defraud.” Moreover, government counsel accurately

explained that “knowingly” as used in the instructions

the court was to give to the jury meant “that the

defendant realized what he or she was doing, was aware

of the nature of his or her conduct, [and] did not act

through ignorance, mistake or accident.” The government’s

closing argument did not suggest that the jury could

convict Ramirez because of her failure to do what a

reasonable person in her situation would have done. Nor

did the government’s closing suggest that a guilty

finding could be based on mere negligence.

Ramirez also argues that the government used Roberts’

testimony to suggest that a reasonable broker would

have seen the red flags in the transactions involving Uribe

and inquired further. The government responds that it

pointed to Roberts’ testimony as evidence that Ramirez,

who knew much more about the suspicious circum-
30 No. 08-3216

In her brief Ramirez asserts that Roberts opined that she 3

was trusting and naive. Actually, Ramirez’s attorney said

during a sidebar that Roberts would testify that Ramirez

was naive and trusting. Roberts testified, however, that

Ramirez was trusting and caring. We also note that Ramirez

did not argue a negligence theory to the jury; her theory of

defense was simply that she lacked guilty knowledge.

stances than Roberts did, actually knew of the fraud, not

that Ramirez should have known about it. We have

found that an ostrich instruction was appropriately

given under similar circumstances. See United States v.

Leahy, 464 F.3d 773, 796-97 (7th Cir. 2006) (contrasting

defendant’s claimed ignorance despite years of involvement with suspicious workers compensation insurance

accounts with the reaction of a coworker, who immediately realized that the accounts were based on inaccurate employee job classifications), cert. denied, 128 S. Ct.

46 (2007). Roberts was somewhat alarmed after fielding

a few phone calls for Ramirez while she was on vacation

and briefly reviewing her files. Though Ramirez did

not have the same level of experience as Roberts,

Ramirez was deeply involved with the suspicious files

and related transactions. They were her ticket to success.

As for the district court’s refusal to instruct the jury

that mere negligence in not discovering the truth could

not be equated with knowledge, Ramirez contends that

such language was supported by the evidence that she

was a relatively new and inexperienced real estate agent

and that she was trusting. A variation provided by the 3

Seventh Circuit pattern ostrich instruction indicates that

“mere negligence” language should be included when
No. 08-3216 31

appropriate in a given case. Federal Criminal Jury Instructions of the Seventh Circuit 4.06 (1999) (“You may not

conclude that the defendant had knowledge if he/she

was merely negligent in not discovering the truth.”).

The district court’s ostrich instruction did not include

such language.

It seems unlikely that the jury could have found

Ramirez guilty based on mere negligence, given the

instructions as a whole made it clear that the government had to prove that she knowingly participated in

the fraudulent scheme. See Carrillo, 269 F.3d at 770 (concluding it unlikely that the jury convicted the defendants

based only on negligence given the instructions that “[a]

defendant’s presence at the scene of a crime and knowledge that a crime is being committed is not alone

sufficient to establish the defendant’s guilt” and “[a]

defendant’s association with conspirators . . . is not sufficient to prove his participation or membership in a conspiracy”); Paiz, 905 F.2d at 1022-23 (concluding ostrich

instruction’s effect was neutralized by other instructions

including a “mere presence” instruction which “negate[d]

any chance that the jury would convict . . . on any finding

other than” knowing participation in the conspiracy).

And, we add that we disagree that there was any

evidence that Ramirez was merely negligent. She either

knew or she actively and deliberately avoided learning

the truth. Moreover, the government did not argue that

Ramirez was guilty because she was negligent, or otherwise failed to do what a reasonable real estate agent

would have done.
32 No. 08-3216

And other instructions cannot be disregarded. As

noted, we consider not only the ostrich instruction but

all of the instructions as a whole to determine if they

adequately and correctly informed the jury of the applicable law. See, e.g., United States v. DiSantis, 565 F.3d

354, 359 (7th Cir. 2009); United States v. Curry, 538 F.3d

718, 731 (7th Cir. 2008). The district court gave several

other instructions regarding knowledge and intent:

A scheme is a plan or course of action formed

with the intent to accomplish some purpose. . . .

A scheme to defraud is a scheme that is intended

to deceive or cheat another and to obtain money

or property or cause the loss of money or property

to another.

The phrase “intent to defraud” means that the

acts charged were done knowingly, with the

intent to deceive or cheat the victim in order to

cause gain of money or property to the defendant

or loss of money or property to another. 

The court further instructed that:

Any person who knowingly aids, counsels,

commands, or induces or procures the commission of an offense may be found guilty of that

offense. A person must knowingly associate with

the criminal activity, participate in the activity

and try to make it succeed.

If the defendant knowingly causes the acts of

another, the defendant is responsible for those

acts as though she personally committed them.
No. 08-3216 33

Ramirez contends, without any analysis or citation to perti- 4

nent authority, that the district court’s giving of the ostrich

instruction denied her due process. Such an argument is

considered waived. United States v. Tockes, 530 F.3d 628, 633

(7th Cir. 2008). 

. . .

If a defendant performs acts that advance a

criminal activity, but had no knowledge that a

crime was being committed or was about to be

committed, those acts alone are not sufficient to

establish the defendant’s guilt.

This last instruction is analogous to the “mere presence”

instruction discussed in Carrillo, 269 F.3d at 770, and Paiz,

905 F.2d at 1022-23. These instructions advised the jury

that it had to find that Ramirez acted knowingly in order

to be guilty. When we look to the instructions as a

whole, we conclude that the jury was appropriately

instructed that it could not convict absent a finding that

Ramirez acted “knowingly.” The absence of the “mere

negligence” variation of the ostrich instruction does

not seem to us to have been an error in this case.

C. Harmless Error

As a backup position, the government also argues that

even if the ostrich instruction was improperly given or

worded, the error was harmless given the extensive

evidence of Ramirez’s direct knowledge, including her

own repeated incriminating statements. We agree.4
34 No. 08-3216

Even if the district court erred in giving the ostrich

instruction or in declining to include language advising

the jury that mere negligence was insufficient for a

guilty finding, Ramirez’s conviction should be upheld if

the error was harmless. See Pope v. Illinois, 481 U.S. 497,

501-03 (1987); Black, 530 F.3d at 602. An error is harmless

“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). The easiest case for harmless error in giving

an ostrich instruction is where the defendant’s own

testimony establishes his or her knowledge of the criminal activity. See United States v. Nobles, 69 F.3d 172, 187

(7th Cir. 1995) (reasoning that the ostrich instruction

was unlikely to affect the jury’s consideration of the

defendant’s own words indicating knowledge of drug

possession); United States v. Josefik, 753 F.2d 585, 589 (7th

Cir. 1985) (concluding the ostrich instruction was “completely harmless as to [one defendant], for there was

direct evidence that he himself described the scotch

as stolen”).

Here, we have Ramirez’s own testimony at trial which

supports a finding that she knew, at the very least, by the

third Gonzalez closing that Cruz was showing up at

closings for which he was not the buyer, or, for that

matter, the seller, was using a false name and false

identity, and was posing as someone he was not. This is

obviously false, deceptive, and illegal. Despite knowing

that Cruz and Uribe were involved in these fraudulent

activities, Ramirez’s association with and participation
No. 08-3216 35

in the scheme continued. Ramirez’s knowledge that

Uribe, Cruz, and others were involved in fraudulent loan transactions, along with her knowledge of the

numerous suspicious circumstances that surrounded

those and other transactions gave her sufficient knowledge to permit a jury to infer that she remained deliberately ignorant of facts constituting criminal knowledge.

In arguing that the errors in the giving of the ostrich

instruction were not harmless, Ramirez relies on the

fact that Uribe did not mention her in his sworn statement prepared by the government, reviewed by Uribe

and his attorney, and presented under oath to the grand

jury regarding the scheme. Uribe testified, however, that

he had told the government about Ramirez before he

testified to the grand jury. He also testified that his statement to the grand jury did not contain every detail that

he knew about the fraud. Ramirez responds that she was

“hardly a mere detail.” While this seems to be an accurate

characterization of her role, Uribe’s omission of any

mention of Ramirez in his statement to the grand jury

cannot be considered in isolation. We consider all of the

evidence, and we find plenty of evidence of Ramirez’s

actual knowledge, including her own testimony on the

stand that, even if she was in the dark in the beginning, by

the third Gonzalez closing, at the latest, she knew of the

criminal activity. We might add that the third Gonzalez

closing, which Ramirez testified occurred in June 2005,

occurred prior to the August 31, 2005 wire transfer,

which served as the basis for Count 3—the count on

which Ramirez was convicted.
36 No. 08-3216

Ramirez also focuses on Uribe’s testimony that “it

was my understanding, or my thought, that Ms. Ramirez

may have—or did know about the scheme.” She argues

that, given the government’s view that Uribe was the

“head of the scheme” and she was only a helper, Uribe’s

testimony shows a “shocking lack of certitude.” But

Ramirez overlooks Uribe’s testimony in response to

the next two questions following this testimony:

Q: Did you tell the government whether the

defendant knew of any other co-schemers or

participants in this fraud?

A. At that time I believe I did, yes, ma’am. 

Q. And what did you say?

A. I did at that time mention the fact that Ms.

Ramirez had known and had met Mr. Rafael

Cruz, who eventually posed as Luis Gonzalez

for some of these properties.

It seems that rather than being unsure about whether

Ramirez knew about the scheme, Uribe’s word choices

reflect discomfort in testifying. And, in the end, it

doesn’t really matter given the plentiful evidence that

Ramirez knew about and knowingly participated in the

fraudulent scheme. This was not a close case.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Ramirez’s conviction and the district court’s judgment.

8-3-09