United States v. Guy Giovannetti and Nicholas Janis
1990 U.S. App. LEXIS 20943, 919 F.2d 1223, 31 Fed. R. Serv. 1043 (1990)
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Rule of Law:
A 'conscious avoidance' or 'ostrich' jury instruction is only appropriate when there is evidence that the defendant took active, deliberate steps to avoid acquiring knowledge of illegal activity, not when the evidence merely shows a failure to investigate or passive negligence.
Facts:
- Nicholas Janis co-owned a property with two houses on it as an investment.
- In the fall of 1982, Richard Merino, a bookmaker for the Orlando gambling enterprise, rented the rear house from Janis under the pretense that it was for his recently divorced friend, Pluta.
- From November 1982 to July 1983, the house was used as a 'wireroom' for accepting illegal sports bets.
- During this time, the rent was often paid by Michael Gioringo, a known aide to the gambling enterprise's leader, Thomas Orlando.
- A fellow gambler, Edward Arnold, testified that Janis told him about renting the house to an acquaintance of the gambling enterprise leaders, and Arnold suspected it was being used as a wireroom based on this conversation and a change in the betting phone number.
- There was no evidence that Janis took any physical action to avoid discovering the house's use; he commuted daily on a thoroughfare near the house but did not alter his route or take other steps to avoid seeing it.
- In early 1984, after the wireroom had been shut down, a recorded phone call captured Janis offering a key to the house to Orlando.
Procedural Posture:
- The government indicted Nicholas Janis in federal district court for his role in an illegal gambling enterprise.
- At trial, the district court judge gave the jury a 'conscious avoidance' or 'ostrich' instruction over the defendant's objection.
- The jury convicted Janis of conducting an illegal gambling business or aiding and abetting its conducting.
- Janis (appellant) appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit, arguing that the ostrich instruction was improperly given.
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Issue:
Does a defendant's mere failure to investigate suspicions, without evidence of active or deliberate steps taken to avoid knowledge of illegal activity, warrant a 'conscious avoidance' or 'ostrich' jury instruction?
Opinions:
Majority - Posner, Circuit Judge.
No. A 'conscious avoidance' or 'ostrich' instruction is improperly given where there is no evidence of active avoidance. The instruction is designed for cases where a defendant, strongly suspecting involvement in a crime, takes deliberate actions to prevent acquiring full knowledge of the illegal activity. It is not meant to establish a negligence standard for criminal liability, where a defendant could be convicted for what a reasonable person should have known. Here, Janis's conduct amounted to a failure to display curiosity, not an active effort to avoid the truth. For example, there was no evidence he altered his daily commute to avoid driving past the house. The case presented the jury with a 'binary choice' between actual knowledge and complete innocence, and the ostrich instruction improperly confused this inquiry by suggesting a third option—deliberate avoidance—for which there was no evidence.
Analysis:
This decision significantly clarifies and narrows the application of the 'conscious avoidance' or 'ostrich' instruction within the Seventh Circuit. It establishes a high bar for its use, requiring prosecutors to present evidence of deliberate, active avoidance rather than mere passive negligence or a failure to investigate. The ruling reinforces the principle that criminal liability requires a specific mental state (mens rea) and protects defendants from being convicted on a negligence theory that they 'should have known' about illegal activity. Consequently, in future cases, the propriety of giving an ostrich instruction will depend on concrete evidence of avoidance, making it harder for the government to secure convictions where a defendant's knowledge is ambiguous.
