### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 12

‐ 3769 & 13

‐ 1378

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

B ENITO S ALINAS and R ODOLFO

V ARGAS

, Defendants

‐ Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 CR 795

— Charles R. Norgle

, Judge.

A RGUED A PRIL 18, 2014

— D ECIDED A UGUST 18, 2014

Before B AUER

, E ASTERBROOK

, and H AMILTON

, Circuit Judges.

B AUER

, Circuit Judge. Rodolfo Vargas (“Vargas”) and Benito

Salinas (“Salinas”) were convicted of conspiracy to possess

with intent to distribute marijuana in violation of 21 U.S.C.

§§ 841 and 846 (Count One), as well as two counts each of

using telephones in furtherance of the conspiracy in violation

of 21 U.S.C. § 843(b) (Counts Two, Three, Four, and Five).

Vargas pleaded guilty to Count One, and was sentenced to 1212 Nos. 12

‐ 3769 & 13

‐ 1378

months’ imprisonment. Salinas proceeded to trial and was

convicted on Counts One, Four, and Five. He was sentenced to

120 months’ imprisonment.

Vargas now appeals his sentence, claiming that the district

court erroneously imposed a three

‐ level enhancement for his

role as a manager or supervisor of the conspiracy, unduly

lengthening his sentence. Salinas appeals as well, on different

grounds. He contends that the evidence presented at trial was

insufficient to uphold his conviction and that an erroneous jury

instruction prejudiced his case. We uphold the decisions of the

district court with respect to both defendants.

I. BACKGROUND

In February 2011, the Drug Enforcement Administration

(“DEA”) began to investigate Jorge Villa (“Villa”), a known

Chicago drug dealer. Though Villa was the focus of their

investigation, the DEA also targeted Vargas, Villa’s supplier.

To further their investigation, the DEA received permission to

wiretap 19 phones from June 2011 to November 2011. Villa

owned two of the wiretapped phones.

In the summer of 2011, Vargas served as the middleman for

three drug transactions between Villa and a Mexico

‐ based

supplier. Vargas supplied the drugs up front to Villa without

requiring payment at the time of delivery with the understand

‐ ing that Villa would pay him for the drugs after he sold them.

On July 18, 2011, Vargas called Villa and told him that he

obtained 1,000 pounds of marijuana for him; Villa confirmedNos. 12

‐ 3769 & 13

‐ 1378 3

that he would send someone to pick it up. 1 Following the call,

Villa sent Armando Vega

‐ Medina 2 (“Armando”), his courier,

to pick up the marijuana. Armando and Villa then distributed

the marijuana to customers and collected payment.

On August 5, 2011, Vargas spoke with Villa in a series of

telephone calls. Vargas said that his courier, Salinas, would

come to pick up the money Villa owed him for the 1,000

pounds of marijuana that he fronted him in July. Vargas also

instructed Villa on how to package the money for transport. He

explained that the money needed to be carefully packaged a

certain way so that it would fit into hidden compartments in

Salinas’ tractor

‐ trailer. He said, “[I]f it doesn’t fit in the

refrigerator [unit of Salinas’ trailer]

... he is going to reject it.”

Vargas then gave Salinas’ phone number to Villa and told him

to make arrangements to meet with Salinas.

On the morning of August 6, 2011, Vargas and Villa made

arrangements in a telephone conversation. They discussed

where Salinas would meet with Villa’s courier, Armando.

Vargas told Villa to keep him informed of any updates. Shortly

1 Villa was additionally indicted and charged with conspiracy to possess

with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846.

On July 9, 2012, he pleaded guilty. In exchange for a lighter sentence, Villa

agreed to testify at Salinas’ trial.

2 The transcripts from Salinas’ trial conflict with appellants’ and appellee’s

briefs regarding Armando’s last name. At trial, Villa called his courier

“Armando Vargas;” DEA agents identified him as “Armando Vega.”

Salinas’ brief refers to the man only as “Armando,” whereas Vargas’ and

the government’s briefs refer to him as “Armando Vega

‐ Medina.” To

mitigate the confusion, we will refer to him as “Armando” here.4 Nos. 12

‐ 3769 & 13

‐ 1378

thereafter, Villa called Salinas to tell him that Armando would

call Salinas’ phone and pick him up “in about ten minutes.”

DEA agents were surveilling Armando at this time.

Armando left his residence and drove to the Rio Valley Market

where he met with Salinas. They left in Armando’s car and

drove back to his house. Agents observed the two entering

Armando’s residence; about an hour later, they were seen

exiting the house, and Salinas was carrying a large black duffel

bag. Armando drove Salinas back to the market. Salinas carried

the black duffel bag to the rear end of his tractor

‐ trailer and

spent about thirty minutes inside the trailer with the doors

closed. Salinas then returned to the driver’s seat and drove

away.

DEA Agent Berghofs followed Salinas’ tractor

‐ trailer. As

Salinas approached the Illinois

‐ Indiana border, Berghofs

contacted the Indiana DEA as well as Indiana State Police

(“ISP”) for assistance. ISP then began following Salinas. At

approximately 5:30 p.m., ISP activated its lights in Indiana and

stopped Salinas’ tractor

‐ trailer in New Buffalo, Michigan, just

one mile over the border.

Michigan State Trooper Russell Bawks (“Bawks”) arrived

and asked Salinas about his travel plans. Salinas stated that he

had carried a load of broccoli from St. Louis to Illinois, and that

he was now traveling to Michigan to pick up cucumbers which

he planned to transport back to Texas. Bawks then asked

Salinas for consent to search his tractor

‐ trailer; Salinas con

‐

sented. Bawks told Salinas they were looking for money, and

specifically asked Salinas if he had more than $10,000 in his

tractor

‐ trailer. Salinas said he did not have money in theNos. 12

‐ 3769 & 13

‐ 1378 5

tractor

‐ trailer. Inside the trailer, Bawks found a bag filled with

several tubes of caulk, a caulk gun, and a putty knife covered

in fresh caulk; he also noted that the trailer smelled of fresh

caulk. Bawks then discovered cuts in the fiberglass wall of the

trailer which were covered in fresh caulk and concealed behind

the trailer’s refrigeration unit. He asked Salinas to help him

access the compartments so that they could avoid damaging

the trailer. At this point, Salinas admitted he had $311,000

concealed in the trailer, and helped police access two hidden

compartments where he stored the money. The $311,000,

wrapped in plastic wrap and duct tape and packaged in heat

‐

sealed bags, had been concealed in two freshly

‐ caulked lead

‐

lined compartments.

Salinas claimed the money was his, so Michigan police took

him to the station for an interview. He was read his Miranda

rights, and agreed to speak to police. He claimed the $311,000

was his life savings and that he kept the money in his trailer

because he did not trust banks. Police then seized the $311,000,

along with Salinas’ cell phone and his tractor

‐ trailer. They

told Salinas that if he wanted to get the money back, he

could submit a Notice of Claim form. Salinas posted a $5,000

bond and attempted to reclaim the seized money by submit

‐ ting a Notice of Claim form. When the form asked about his

“interest in the property,” Salinas again claimed that the

money was his.

On August 8, 2011, Vargas phoned Villa and told him to

stop using his phone because Salinas had been stopped by

police and his phone had been confiscated; Vargas was

concerned that the police “might’ve gotten some numbers off

of it.”6 Nos. 12

‐ 3769 & 13

‐ 1378

On November 7, 2011, Salinas and Vargas were arrested.

On November 9, they were indicted and charged by a grand

jury; a superseding indictment was filed on November 30,

2011. On December 7, 2011, Salinas and Vargas pleaded not

guilty; Vargas later changed his plea to guilty, but Salinas

proceeded to trial.

A. Vargas’ Plea Deal and Sentencing

Vargas pleaded guilty to conspiracy to possess with intent

to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846

(Count One); the government dismissed the other counts

against him. Vargas admitted that he was responsible for 1,723

kilograms of marijuana, which placed him at a base offense

level of 32 under U.S.S.G. §§ 2D1.1(a)(5) and (c)(4). The district

court allowed a three

‐ level reduction for Vargas’ acceptance

of responsibility, dropping his total offense level to 29. The

probation officer, however, recommended a three

‐ level

enhancement under § 3B1.1(b) due to Vargas’ role as a mana

‐

ger or supervisor in the conspiracy, since Vargas “oversaw”

the delivery of the marijuana and the proceeds, was a contact

person for Villa, gave Salinas’ phone number to Villa, and

provided instructions on how to package the drug money.

With the enhancement, Vargas’ resulting guidelines range was

121–151 months. 3

Vargas objected to the manager/supervisor enhancement

arguing that it should not be imposed since he acted only as a

3 Without the enhancement, Vargas would have qualified for the “safety

valve” provision, which would have dropped his applicable guidelines

range to 70–87 months.Nos. 12

‐ 3769 & 13

‐ 1378 7

messenger and a middleman. He claims that he did not act as

a manager or supervisor because he did not exercise decision

‐ making authority, recruit members, or have control over other

participants. He also pointed out that he did not set the price

of the drugs, handle the drugs or the proceeds, and received

only a small fee for his services ($25 per pound of marijuana).

The district court considered Vargas’ objection to the

enhancement but overruled it. In reaching its conclusion, the

court relied on the probation officer’s recommendation in the

Presentence Investigation Report, the evidence presented at

Salinas’ trial such as the intercepted phone conversations

implicating Vargas, as well as Vargas’ recitation of facts in his

plea declaration. The court sentenced Vargas to 121 months in

prison, a four

‐ year term of supervised release, and a special

assessment of $100. Vargas timely appealed his sentence.

B. Salinas’ Trial

The government presented several witnesses at trial,

including DEA Special Agent Charles Baumgartner (“Baum

‐ gartner”), who was qualified as an expert witness. He testified

about the methods used by drug traffickers to conceal money,

including using hidden compartments and packaging the

money in tape

‐ wrapped, heat

‐ sealed bundles. He also noted

that lead

‐ lined compartments, like the two Salinas had built in

his trailer, are often used by drug traffickers to conceal their

contents from law enforcement since X

‐ ray machines cannot

penetrate them. He testified that the bundles of money taken

from Salinas’ trailer were consistent with the way drug

proceeds are bundled.8 Nos. 12

‐ 3769 & 13

‐ 1378

After the government rested its case, Salinas moved for

judgment of acquittal. He claimed that the government failed

to prove beyond a reasonable doubt that he either knew that

the conspiracy involved illegal drugs or that he deliberately

avoided learning that the money he transported was connected

to illegal drugs. In response to Salinas’ motion, the government

highlighted the evidence that would allow the jury to reason

‐ ably conclude that Salinas either knew that the money was

connected to illegal drugs or that he deliberately avoided

learning the truth about the origin of the money. The govern

‐

ment pointed to the wiretapped conversation between Salinas

and Villa, Salinas’ collection and transportation of the money,

his surreptitious interactions with Armando, his efforts to con

‐

ceal the uniquely

‐ packaged money in his trailer, and his initial

denials that he had over $10,000 in his tractor

‐ trailer followed

by his admission he was in fact carrying $311,000. Moreover,

even after the police discovered the hidden money, Salinas lied

that the money was actually his life savings and filed a Notice

of Claim form in an attempt to recover the money as his own.

Based on this evidence, the court concluded that a jury could

find every element of the charges beyond a reasonable doubt

and so denied Salinas’ motion for judgment of acquittal.

Towards the end of trial, the parties agreed on a set of jury

instructions. One of the government’s proposed instructions

taken from the Pattern Criminal Federal Jury Instructions

for the Seventh Circuit (1999), commonly referred to as the

“ostrich instruction,” stated:

When the word “knowingly” or the phrase “the defen

‐

dant knew” is used in these instructions, it means that

the defendant realized what he was doing and wasNos. 12

‐ 3769 & 13

‐ 1378 9

aware of the nature of his conduct, and did not act

through ignorance, mistake or accident. Knowledge

may be proved by a 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 his eyes for fear of what he would learn, you may

conclude that he acted knowingly, as I have used that

word.

Salinas did not object to the use of this instruction. The jury

found Salinas guilty on all counts. Following trial, Salinas filed

a motion for a new trial, but the court denied his motion. He

now appeals his sentence, claiming both that the evidence

presented by the government at trial was insufficient to convict

him and that the ostrich instruction given at his trial was

prejudicial.

II. DISCUSSION

Since Salinas and Vargas appeal on different grounds, we

will discuss each defendant in turn. We begin with Vargas’

objection to the three

‐ level manager/supervisor enhancement

that was applied to his sentence.

A. Vargas’ Objection to the Manager/Supervisor En

‐

hancement

The district court’s decision to apply an enhancement is

reviewed for clear error. United States v. Johnson, 489 F.3d 794,

796 (7th Cir. 2007). We will reverse a district court’s application10 Nos. 12

‐ 3769 & 13

‐ 1378

of an enhancement only if a review of the evidence leaves us

with “the definite and firm conviction that a mistake has been

made.” Id

.

Section 3B1.1(b) of the Federal Sentencing Guidelines

permits the court to apply a three

‐ level enhancement to a

defendant’s sentence if the district court finds that the defen

‐

dant “was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more partici

‐

pants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). While

§ 3B1.1 never expressly defines the terms “manager” or

“supervisor,” the terms “should be straightforwardly under

‐

stood as someone who helps manage or supervise a crime

scheme.” United States v. Grigsby

, 692 F.3d 778, 790 (7th Cir.

2012). The Federal Sentencing Guidelines list seven factors that

the court may consider when deciding whether the § 3B1.1

enhancement should be applied: (1) the defendant’s exercise of

decision

‐ making authority, (2) the nature of his participation

in the commission of the offense, (3) the defendant’s recruit

‐

ment of accomplices, (4) the defendant’s right to a larger share

of the fruits of the crime, (5) the degree of the defendant’s

participation in planning or organizing the offense, (6) the

nature and scope of the illegal activity, and (7) the degree of

control and authority the defendant exercised over others.

U.S.S.G. § 3B1.1, commentary n.4; United States v. Vaughn

, 722

F.3d 918, 935 (7th Cir. 2013)

. These factors, however, need not

be given equal weight, and the key inquiry is “whether the

defendant exercised some control over at least one other

participant.” United States v. Mustread, 42 F.3d 1097, 1104, n.3

(“[S]lavish adherence to [the factors] is unnecessary: the

ultimate question is what relative role the defendant played.”).Nos. 12

‐ 3769 & 13

‐ 1378 11

While serving as a mere middleman in a drug distribution

chain is not enough to qualify the defendant as a manager or

supervisor, a defendant may be considered a manager or

supervisor if he “tells people what to do and determines

whether they’ve done it,” United States v. Figueroa, 682 F.3d 694,

697 (7th Cir. 2012), or exerts “at least indirect control over

[others]

... as they did what he wanted, when he wanted it and

where he wanted it done.” United States v. Richards, 198 F.3d

1029, 1034 (7th Cir. 2000).

In Figueroa, we affirmed the district court’s imposition of a

three

‐ level manager/supervisor enhancement to the defen

‐

dant’s sentence even though he claimed that he was “merely

transmitting orders” and “had no discretion.” 682 F.3d at 697.

We noted that the defendant continuously supervised another

man, told him where to get drugs, where to deliver drugs, and

how to get paid. Id. at 697–98. In affirming the enhancement,

we explained that “[a] supervisor, a manager, tells people what

to do and determines whether they’ve done it” and “[t]hat was

the defendant’s job.” Id. at 697.

Similarly, in United States v. Ortiz

, 463 Fed. Appx. 580, 581

(7th Cir. 2011), we affirmed the district court’s imposition of a

§ 3B1.1(b) enhancement based on the defendant’s role in a drug

conspiracy. The defendant recruited another man to participate

in the conspiracy, exercised control over him by giving him

directions and a vehicle containing hidden compartments to

transport drugs, and compensated him for his participation. Id.

In light of the defendant’s “relative responsibility and control

over other participants,” we found that the district court was

“amply justified” in imposing a manager/supervisor enhance

‐

ment. Id .; see also United States v. Hicks, 418 Fed. Appx. 534, 53612 Nos. 12

‐ 3769 & 13

‐ 1378

(7th Cir. 2011) (upholding the district court’s application of a

§ 3B1.1(b) enhancement to the defendant’s sentence when he

“had both relative responsibility and control over other

coconspirators”).

Here, Vargas had both relative responsibility in telling

others what to do and exerted at least indirect control over

them. Vargas arranged the marijuana delivery to Villa, put

Villa in contact with Salinas so that the drug proceeds could

make their way back to Mexico, and instructed Villa how to

package the drug money so that it would fit in the hidden

compartments in Salinas’ trailer. After Salinas was stopped and

arrested, Vargas called Villa to explain what had happened

and cautioned Villa to stop using his phone so that he would

not be apprehended as well. Though Vargas downplays his

role in the conspiracy, his activities more than suffice to qualify

him as a manager or supervisor. Therefore, the district court

was well within its discretion to impose the manager/ supervi

‐

sor enhancement.

B. Salinas’ Sufficiency of the Evidence Challenge

Salinas argues that the district court erred when it failed to

grant his motion for judgment of acquittal as well as his

motion for a new trial. He contends that the evidence pre

‐

sented by the government at trial was insufficient to demon

‐

strate that either he knew that the money was connected to

illegal drugs or that he was willfully blind to that fact.

In a sufficiency of the evidence challenge, we view the

evidence in the light most favorable to the prosecution and ask

whether any rational trier of fact could have found the essen

‐

tial elements of the crime beyond a reasonable doubt. JacksonNos. 12

‐ 3769 & 13

‐ 1378 13

v. Virginia

, 443 U.S. 307, 319 (1979). We will uphold a jury’s

verdict unless “the record is devoid of the evidence from

which a reasonable jury could find guilt beyond a reasonable

doubt.” United States v. Mire

, 725 F.3d 665, 678 (7th Cir. 2013)

(quoting United States v. Stevenson, 680 F.3d 854, 856 (7th Cir.

2012)).

To convict a defendant of conspiracy under §§ 841 and 846,

the government must prove the existence of a conspiracy to

possess with intent to distribute a controlled substance, and

that the defendant knowingly or intentionally became part of

the agreement. Mire

, 725 F.3d at 679. The government must

put forth “substantial evidence that the defendant knew of the

illegal objective of the conspiracy and agreed to participate.”

United States v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999). The

defendant must also know that the substance in question is a

controlled substance. United States v. Turcotte, 405 F.3d 515, 525

(7th Cir. 2005). “A jury may consider evidence of the activities

surrounding a defendant in determining the defendant’s

knowledge of the conspiracy.” Thornton

, 197 F.3d at 254.

The defendant’s knowledge can be proven directly or by

demonstrating that the defendant deliberately avoided

learning about the drugs. United States v. Fluker, 698 F.3d 988,

1000 (7th Cir. 2012). “[A] defendant may not escape criminal

liability simply by pleading ignorance ‘if he knows or strongly

suspects he is involved in criminal dealings but deliberately

avoids learning more exact information about the nature and

extent of those dealings.’” Id. (quoting United States v. Garcia,

580 F.3d 528, 536 (7th Cir. 2009)). The main question is “what

the defendant knew and whether that knowledge raises a

reasonable inference that [he] remained deliberately ignorant14 Nos. 12

‐ 3769 & 13

‐ 1378

of facts constituting criminal knowledge.” United States v.

Ramirez, 574 F.3d 869, 877 (7th Cir. 2009). “The circumstances

surrounding the defendant may be sufficient to infer that,

given what the defendant knew, he must have forced his

suspicions aside and deliberately avoided confirming for

himself that he was engaged in criminal activity.” United States

v. Carani

, 492 F.3d 867, 873 (7th Cir. 2007).

Salinas admits that he knew he was transporting $311,000

in hidden compartments in his trailer from Chicago to Texas,

and does not contest the fact that the money found in his trailer

came from drug sales. His only argument is that the govern

‐

ment failed to meet its burden of proving that he knew that the

money came from the sale of controlled substances or that he

deliberately avoided finding out it was so connected.

Despite his assertions, the jury could have easily deter

‐

mined, based on Salinas’ actions and the surrounding circum

‐

stances, that he either knew the money was linked to illegal

drugs or deliberately looked the other way. Salinas spoke to

Villa, a known drug trafficker, and arranged to pick up

$311,000 from Villa’s courier, Armando. Despite the large

amount of money, Salinas never asked where the money came

from. In addition, Salinas had specially

‐ designed two lead

‐

lined compartments built into his trailer in order to transport

the money, which was concealed from view and difficult to

access. At trial, the jury heard testimony from the govern

‐

ment’s drug trafficking expert, Baumgartner, that lead

‐ lined

compartments, like the ones Salinas had built in his trailer, are

often used by drug traffickers to conceal their contents from

law enforcement. Salinas also knew the money would only fit

in the hidden compartments if it was packaged a certain way,Nos. 12

‐ 3769 & 13

‐ 1378 15

so he went to Armando’s home to inspect the way the money

had been packaged to ensure that it would fit.

When Salinas was stopped by police, he consistently lied to

them about the money he was transporting. Initially, he told

Bawks that he did not have over $10,000 in his tractor

‐ trailer.

Only after police searched his trailer and discovered the

hidden compartments did Salinas change his story and admit

that he had $311,000 stashed in his trailer. At this point, Salinas

lied again, telling Bawks that the money was his life savings

even though he had received the money from Armando just

hours before. Salinas then attempted to continue the charade

by protesting the seizure of the $311,000, filing a false Notice of

Claim form, and asserting once again that the money belonged

to him. These facts provided more than ample grounds for the

jury to conclude that Salinas either knew that the $311,000 was

linked to illegal drugs or that he just simply chose not to know.

C. Salinas’ Objections to the Ostrich Instruction

i. The District Court’s Decision to Give the Ostrich

Instruction

Salinas also contends that the district court committed plain

error when it gave the ostrich instruction at his trial. The

ostrich instruction should be given only where the defendant

claims to lack guilty knowledge and the government presents

evidence from which a jury could conclude that the defendant

deliberately avoided learning the truth. Fluker, 698 F.3d at

1000–01. Here, Salinas claims he did not know that the money

in his tractor

‐ trailer was linked to illegal drugs, so we need

only determine whether the government presented sufficient

evidence from which the jury could have concluded that16 Nos. 12

‐ 3769 & 13

‐ 1378

Salinas deliberately avoided learning the truth about the

money.

Salinas never objected to the ostrich instruction at trial, so

we review the court’s decision to give the instruction for plain

error. United States v. Colvin, 353 F.3d 569, 577 (7th Cir. 2003).

To prevail under this standard, Salinas must prove that the

district court’s decision to give the ostrich instruction

improperly influenced the jury’s verdict. United States v. Olano,

507 U.S. 725, 735 (1993).

Though Salinas admits that he spoke with Villa, met with

Armando, and agreed to transport the $311,000, he contends

that he simply followed instructions on how to transport the

cash and had no knowledge that the money stemmed from

drug activity. His actions, however, indicate otherwise—that

either he knew the money came from drug sales or deliberately

avoided learning the truth. The government presented evi

‐

dence at trial demonstrating that Salinas had reason to ques

‐

tion the origin of the money he was transporting. Salinas was

contacted by Villa, a known drug trafficker, to arrange for the

transportation and delivery of a large sum of money. Without

asking Villa any questions about where the money came from,

Salinas agreed to meet with Armando, a complete stranger,

and to go to his house. There, Salinas carefully inspected the

money, which had been heat

‐ sealed and specially packaged.

Salinas still asked no questions. Furthermore, Salinas had two

special lead

‐ lined compartments built inside his trailer. He

planned to transport the money in these compartments, and

would not accept the money from Armando unless it would fit

inside. When Salinas was stopped by law enforcement, he lied

about transporting the money; when the hidden compartmentsNos. 12

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‐ 1378 17

in his trailer were discovered, he admitted he was carrying

$311,000, but then lied to the police again, claiming that the

money was his life savings. Based on these facts, a jury could

have reasonably concluded that Salinas either knew the money

was linked to illegal drugs or strongly suspected that the

money came from illegal drug activity, but failed to ask

questions simply because he did not want to know. We find

that it was not plain error for the district court to give the

ostrich instruction.

ii. Salinas’ Objection to the Language of the Ostrich

Instruction

Salinas also argues that the language of the ostrich instruc

‐

tion was improper, and allowed the jury to convict him of mere

negligence.

The ostrich instruction given at Salinas’ trial was the

Pattern Criminal Jury Instruction for the Seventh Circuit at the

time. It states:

When the word “knowingly” or the phrase “the defen

‐

dant knew” is used in these instructions, it means that

the defendant realized what he was doing and was

aware of the nature of his conduct, and did not act

through ignorance, mistake or accident. Knowledge

may be proved by a 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 his eyes for fear of what he would learn, you may18 Nos. 12

‐ 3769 & 13

‐ 1378

conclude that he acted knowingly, as I have used that

word.

We will reverse a district court’s decision to give a jury

instruction “only if it appears both that the jury was misled

and that the instructions prejudiced the defendant.” United

States v. Dickerson, 705 F.3d 683, 688 (7th Cir. 2013) (quoting

United States v. Curry

, 538 F.3d 718, 731 (7th Cir. 2008)).

Even though the ostrich instruction given at Salinas’ trial

did not specifically state that the defendant could not be

convicted for “mere negligence,” it made it clear to the jury

that the defendant needed to “realiz[e] what he was doing and

[be] aware of the nature of his conduct, and

... not act through

ignorance, mistake or accident.” The instruction required

the jury to find that Salinas acted “knowingly,” consciously

“shut[ting] his eyes for fear of what he would learn,” so we

find no error.

Salinas further argues that we should find the instruction

erroneous because the Committee on Federal Criminal Jury

Instructions of the Seventh Circuit substantially revised the

ostrich instruction several months after his trial. The Commit

‐

tee Comment after Section 4.10 reads:

[The] “ostrich” instruction[] will not be appropriate in

every case in which knowledge is an issue. Such an

instruction is appropriate “where (1) the defendant

claims a lack of guilty knowledge, and (2) the govern

‐

ment has presented evidence sufficient for a jury to

conclude that the defendant deliberately avoided

learning the truth.” Carani, 492 F.3d at 873 (citing United

States v. Carrillo

, 435 F.3d 767, 780 (7th Cir. 2006)).Nos. 12

‐ 3769 & 13

‐ 1378 19

Deliberate avoidance is more than mere negligence; “the

defendant must have ‘deliberately avoided acquiring knowl

‐ edge of the crime being committed by cutting off his curiosity

through an effort of the will.’” Id. at 873 (quoting United States

v. Leahy

, 464 F.3d 773, 796 (7th Cir. 2006)). “[E]vidence merely

supporting a finding of negligence—that a reasonable person

would have been strongly suspicious, or that a defendant

should have been aware of criminal knowledge—does not

support an inference that a particular defendant was deliber

‐ ately ignorant.” Carrillo, 435 F.3d at 781 (citing United States v.

Stone, 987 F.2d 469, 472 (7th Cir. 1993) (explaining that it is

improper to use an ostrich instruction “to convict [a defendant]

on the basis of what [he] should have known”)).

Though the Committee on Federal Criminal Jury Instruc

‐

tions of the Seventh Circuit revised the prior pattern criminal

jury instruction to include an express statement that deliberate

avoidance needs to be more than mere negligence, this does

not mean that the prior pattern criminal jury instruction was

an incorrect statement of the law. Though it used different

language than the current instruction, the instruction made

clear that Salinas needed to “realiz[e] what he was doing and

[be] aware of the nature of his conduct, and

... not act through

ignorance, mistake or accident.” The instruction “fairly and

accurately summarized the law,” United States v. Jefferson, 334

F.3d 670, 672 (7th Cir. 2003), so we find no error.

Finally, Salinas cites the Supreme Court’s decision in Global

‐

Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), a civil

case that narrowed the definition of “willful blindness,”

explaining that “a willfully blind defendant is one who takes

deliberate actions to avoid confirming a high probability of20 Nos. 12

‐ 3769 & 13

‐ 1378

wrongdoing and who can almost be said to have actually

known the critical facts.” Id. at 2070–71. He now urges us to

apply that definition to Salinas’ case. While several of our sister

circuits have mentioned incorporating Global

‐ Tech’ s definition

into their criminal jury instructions for knowledge ( see, e

. g

., United States v. Brooks, 681 F.3d 678, 702 n.19 (5th Cir. 2012)

(“although Global

‐ Tech was a civil case, the standard seems to

apply equally in criminal deliberate ignorance cases”); United

States v. Ferguson

, 676 F.3d 260, 278 n.16 (2d Cir. 2011) (“[T]he

Supreme Court appears to now prefer the appellation of

‘willful blindness’

... which uses ‘conscious avoidance’”);

United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011) (citing

Global

‐ Tech in defining willful blindness), we have yet to do so.

And even if we were to do so, the result in Salinas’ case would

be the same. The government presented sufficient evidence

supporting a finding that Salinas either knew that the money

he transported was linked to illegal drugs or deliberately

avoided such knowledge, so any error related to the ostrich

instruction given at Salinas’ trial would have been harmless.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court.