United States v. David Pierotti ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3096
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID PIEROTTI,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CR-42 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 22, 2014 — DECIDED FEBRUARY 3, 2015
____________________
Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
WOOD, Chief Judge. A few weeks before the start of the
2012 deer-hunting season in Wisconsin, David Pierotti de-
cided to buy a .243-caliber Remington rifle at his local
Walmart. There, a clerk asked him to sit down at a computer
to fill out an electronic version of ATF form 4473, a required
step in the firearm-purchase process. The form poses a series
of questions for any potential gun buyer, including one that
2 No. 13-3096
asks whether the purchaser has ever been convicted of a
misdemeanor crime of domestic violence. Pierotti’s initial
response to this question was “Yes,” which was correct; in
2011, he was convicted in Wisconsin of misdemeanor battery
against his then-fiancée. When Pierotti clicked on a button to
submit his completed form, however, a window popped up
advising him to review his answers. He then changed his re-
sponse to only one question—the one about domestic-
violence misdemeanors—and submitted the form again. He
did not seek further information before reviewing his an-
swer, even though he could have done so by clicking on a
link providing instructions for this question. Had he clicked,
he would have seen that his prior offense was in fact a mis-
demeanor of domestic violence. Pierotti’s incorrect answer
prompted the government to prosecute him for a violation of
18 U.S.C. § 922(a)(6), which makes it a federal crime know-
ingly to make false statements in connection with the pur-
chase of a firearm.
At Pierotti’s trial, the district court instructed the jury on
the definition of the word “knowingly” in section 922(a)(6).
In doing so, it included (over Pierotti’s objection) the ostrich
instruction, which informs the jury that one way to find that
the defendant acted “knowingly” is if he strongly suspected
his statement was false and deliberately avoided the truth in
making it. The jury found Pierotti guilty, and he was sen-
tenced to six months’ house arrest and one year of super-
vised release. He now appeals, arguing that the district court
erred by providing the ostrich instruction, that his actions
did not meet its definition of “knowingly,” and thus that he
is entitled to a new trial. We conclude that the instruction
was proper, however, and so we affirm the conviction.
No. 13-3096 3
I
In October 2011, Pierotti pleaded no contest in Wisconsin
Circuit Court to the crime of battery upon a woman who
was his fiancée at the time. This was a misdemeanor offense.
Just over a year later, Pierotti decided that he wanted to hunt
for deer during the upcoming fall season. He first obtained a
rifle hunting license at a local sporting goods store. At some
point soon afterward, he ran into a friend who was a local
sheriff. Pierotti informed the friend that his probation from
his battery misdemeanor had expired, and asked him
whether Pierotti could legally go gun hunting from that
point forward. The friend asked if Pierotti’s prior conviction
was for a felony; because it was not, the friend (mistakenly)
told Pierotti that he was “good to go,” but advised him to
ask his probation officer as well. Pierotti did so, and received
the same answer. In Pierotti’s retelling, the officer also based
her response on the fact that Pierotti had not previously been
charged with a felony.
Following these conversations, Pierotti visited the
Walmart in Berlin, Wisconsin, on November 8, 2012. He se-
lected a rifle and spoke to a clerk about buying it. After tak-
ing Pierotti’s driver’s license, the clerk instructed Pierotti to
fill out ATF form 4473 at a computer kiosk in the store. (This
is a form required by the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives.) After answering several other
questions, he arrived at question 11-i, which asked: “Have
you ever been convicted in any court of a misdemeanor
crime of domestic violence?” Pierotti clicked “Yes.” At trial,
he explained that he knew at the time that he had been con-
victed of a misdemeanor, and “that’s why I just instinctively
just clicked on ‘yes.’” After responding to the remaining
4 No. 13-3096
questions, Pierotti submitted the form; a pop-up window
then appeared. It said, “We recommend reviewing Section A
at this time to make any changes/corrections that may be
necessary.” After seeing this message, Pierotti went back
through his answers, and changed only one—his response to
question 11-i. At the time, he recalled later, that question was
“the only one that’s bugging me now,” and it suggested to
him that the computer “knows something that I don’t
know.” Pierotti also thought back to his probation officer’s
opinion that he could legally go hunting with a gun given
his lack of a felony conviction. So he changed his “Yes” an-
swer to “No,” and submitted the form again. He did not,
however, click on a blue link (labeled “Click to See Instruc-
tions for Question 11.i”) below question 11-i before doing so.
If he had, a long definition of “misdemeanor crime of do-
mestic violence” would have appeared in a sidebar on the
side of the screen. The text in the sidebar would have shown
clearly that Pierotti’s prior conviction was in fact a misde-
meanor crime of domestic violence. The same information
was available on the paper copy of the form, which Pierotti
signed.
Pierotti was indicted for violation of 18 U.S.C. § 922(a)(6)
in March 2013. At trial, no one disputed that one element of
the charge required the government to show that Pierotti
had acted knowingly, and so the court prepared an instruc-
tion telling the jury that:
A person acts knowingly if he realizes what
he is doing and is aware of the nature of his
conduct, and does not act through ignorance,
mistake, or accident. In deciding whether the
defendant acted knowingly, you may consider
No. 13-3096 5
all of the evidence, including what the defend-
ant did or said.
That is where Pierotti argues the instructions should
have stopped. The government, however, contended that the
court should also include an ostrich instruction, which am-
plifies the definition of “knowingly.” The district court
agreed to do so, and added the following paragraph to the
language set out above:
You may find that the defendant acted
knowingly if you find beyond a reasonable
doubt that he had a strong suspicion that the
statement he made was false and that he delib-
erately avoided the truth. You may not find
that the defendant acted knowingly if he was
merely mistaken or careless in not discovering
the truth, or if he failed to make an effort to
discover the truth.
This language was taken from Seventh Circuit Pattern In-
struction 4.10. Pierotti has not objected to the particular lan-
guage of the instruction the court gave, and thus we have no
need to decide whether the definition in Global-Tech Appli-
ances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070–71 (2011), re-
quires a fresh look at our pattern instruction. See United
States v. Salinas, 763 F.3d 869, 880–81 (7th Cir. 2014) (reserv-
ing that question because the result in the case would not
have been affected). He decided instead to take an all-or-
nothing approach.
The court provided several reasons for giving the instruc-
tion. It first discussed Pierotti’s conversations with his sheriff
friend and his probation officer. The court noted that al-
6 No. 13-3096
though Pierotti had asked each of them whether he could
hunt, he did not ask a lawyer or someone with knowledge of
federal gun laws, nor did he ask specifically whether his bat-
tery conviction constituted a misdemeanor crime of domes-
tic violence. “[T]he question here is not whether he could
hunt,” the district court said, “or even whether he could pos-
sess a gun.” The court also pointed to Pierotti’s failure to
read the instructions that accompanied the computer version
of question 11-i or the paper version of form 4473, which
likewise provided the relevant definition. “So all that is suf-
ficient to give the instruction,” the district court said.
Pierotti had introduced substantial evidence at the trial
that his incorrect answer to question 11-i was, at worst, mis-
taken, careless, or the result of insufficient diligence. Had the
jury accepted any of those explanations, it would have had
to acquit under the court’s instruction. But it did not. It in-
stead found Pierotti guilty, meaning that it must have found
either that he realized what he was doing and had not acted
through “ignorance, mistake, or accident,” or that he had “a
strong suspicion that the statement he made was false and
that he deliberately avoided the truth.”
II
As he did at trial, Pierotti now argues that the district
court erred as a matter of law by giving the ostrich instruc-
tion, because (he says) the facts cannot support a finding that
he deliberately avoided knowledge in the manner the in-
struction describes. We review a district court’s decision to
give an ostrich instruction for abuse of discretion, and in do-
ing so we view the evidence in the light most favorable to
the government. United States v. Green, 648 F.3d 569, 582 (7th
Cir. 2011). If Pierotti can show that the district court erred in
No. 13-3096 7
providing the instruction, we will reverse his conviction un-
less the government shows that the error was harmless be-
yond a reasonable doubt. United States v. Malewicka, 664 F.3d
1099, 1108 (7th Cir. 2011).
Pierotti was indicted under 18 U.S.C. § 922(a)(6), which
makes it illegal “knowingly to make any false or fictitious
oral or written statement” in connection with the purchase
of a firearm or ammunition from a licensed dealer, such as
Walmart in this case. The ostrich instruction describes one
way in which the prosecution may prove a “knowing” act.
Before including an ostrich instruction, a district court must
ensure that two preconditions are satisfied: first, the defend-
ant must be claiming a lack of guilty knowledge; and sec-
ond, there must be evidence in the record that would permit
a jury to conclude that the defendant deliberately avoided
learning the truth. Salinas, 763 F.3d at 879. The instruction
should not be given lightly, lest it lead the jury to believe that
it may convict the defendant solely on the basis of his negli-
gence. United States v. Tanner, 628 F.3d 890, 904–05 (7th Cir.
2010).
Deliberate avoidance as described in an ostrich instruc-
tion comes in two forms: physical and psychological. The
former is simple enough, as it involves a defendant’s going
out of her way to avoid seeing or learning something she
knows will confirm that her actions are illegal. See United
States v. Gonzalez, 737 F.3d 1163, 1168–69 (7th Cir. 2013). Psy-
chological avoidance, in contrast, is often defined “as the
cutting off of one’s normal curiosity by an effort of will,”
United States v. Pabey, 664 F.3d 1084, 1092 (7th Cir. 2011) (in-
ternal quotation marks omitted); it does not encompass or-
dinary ignorance or lack of curiosity. United States v. Ramirez,
8 No. 13-3096
574 F.3d 869, 877 (7th Cir. 2009). The district court is permit-
ted to investigate the context of a defendant’s actions. That
inquiry can inform its assessment of whether the evidence
would permit the jury to infer that a defendant deliberately
avoided the truth about her criminal activity, and hence act-
ed “knowingly.” United States v. Carani, 492 F.3d 867, 873 (7th
Cir. 2007).
Question 11-i on the ATF form was not a tricky one. In-
deed, Pierotti initially answered it correctly. As he admitted
at his trial, he recalled his misdemeanor conviction when
first considering how to answer the question. He confirmed
this on cross-examination:
Q And you answered it “yes” because you knew
that you had been convicted of a misdemeanor
crime of domestic violence, isn’t that true?
A I had the battery charge that was a misde-
meanor, yes.
Only after the computer prompted Pierotti to review his an-
swers did he decide to make a change, but the only change
he made was his response to question 11-i. He did so in di-
rect contravention of his knowledge of his prior crime, a bat-
tery upon his fiancée. A rational jury could decide that his
considered act of changing the correct answer to the wrong
answer demonstrated either direct knowledge (as reflected
in the first part of the instruction) or deliberate avoidance of
the truth (as reflected in the second part). (We note that after
Pierotti’s conviction, the Supreme Court held that a misde-
meanor battery conviction for a crime of domestic violence,
very much like Pierotti’s, disqualifies a person from posses-
sion of a firearm under 18 U.S.C. § 922(g)(9). United States v.
No. 13-3096 9
Castleman, 134 S. Ct. 1405 (2014). In so ruling, the Court re-
jected the position of the Sixth Circuit panel, which had un-
derstood the statute to apply only to violent encounters.)
At trial, Pierotti testified that the computer prompt
caused him to wonder whether his response to question 11-i
was correct, and that he mentally referred back to his con-
versations with his sheriff friend and his probation officer,
who “said it was okay” and that Pierotti was “good to go.”
But his descriptions of those conversations make clear that
their advice was based on the fact that Pierotti’s prior crime
was not a felony. Pierotti may not have known why question
11-i was on the form, but he certainly knew that it was about
prior misdemeanors. Nothing his friend and his probation of-
ficer said implied that Pierotti was entitled to misrepresent
something on the form. The advice he received, in short, was
irrelevant to a question about misdemeanors.
Had Pierotti felt any doubt about whether his battery
was covered by question 11-i, it would have been easy for
him to resolve it. The clickable link to the instructions was
located directly under the question itself; had Pierotti clicked
the link, the instructions would have appeared on the same
page as the question. The jury was not required to believe
his protestations at trial that he lacked sufficient computer
skills to know how to click on a link, even though he could
manage the computer well enough to complete the form
and, when prompted, to go back and revise an answer.
Clicking on the “more information” link would have provid-
ed information showing that his initial response to the ques-
tion on the very same page of the electronic form was cor-
rect. Instead, he skipped the instructions and changed his
answer. On cross-examination at trial, Pierotti admitted he
10 No. 13-3096
did not read the instructions. His counsel contended at oral
argument that this behavior was lazy, not criminal. Had the
jury believed this account, it would have had to acquit under
the court’s instruction. But it obviously did not. Putting the
facts together, Pierotti’s admitted knowledge of his prior
crime, his initial “Yes” answer, his decision not to read the
readily available instructions, and his decision to change the
answer to “No” provided an adequate predicate for the dis-
trict court to give the instruction.
Our conclusion should not be taken as a wholesale en-
dorsement of the district court’s reasoning. We have placed
no weight, for example, on the court’s comment that Pierotti
should have consulted “his lawyer or someone with authori-
ty on Federal gun laws” about whether he could legally pur-
chase a firearm before attempting to do so. That is the sort of
above-and-beyond behavior the absence of which cannot
support an ostrich instruction, which, after all, focuses on
deliberate avoidance, not an independent duty to do some-
thing. There is no evidence that Pierotti went out of his way
not to speak to a lawyer or a person with similar legal
knowledge. We have similarly steered clear of the district
court’s criticism of Pierotti for not reading the print version
of form 4473. It is true that, had he done so, he would have
seen the definition of “misdemeanor crime of domestic vio-
lence.” In fact, however, the computer-screen link was far
more accessible. The section of the hard-copy form to which
the district court referred is a blur of fine print: at a glance,
the font size appears to be about 6 (this opinion is written in
12). It is difficult to find deliberate avoidance in Pierotti’s
failure to wade through the small-type information on the
printed form after he filled out the computerized version.
No. 13-3096 11
By contrast, the computerized version of the form invited
Pierotti to learn more about question 11-i once the computer
sent the form back to him for his review. The instructions
link was clearly presented, in regular-size type, and located
immediately below the question Pierotti claims gave him so
much trouble. Given the context of his choice to change his
answer—recall his statement that he initially clicked “Yes”
because he remembered his prior misdemeanor—and view-
ing this evidence in the government’s favor, it was not error
for the district judge to provide the ostrich instruction over
Pierotti’s objection.
III
In sum, we find that the district court did not abuse its
discretion in providing the jury at Pierotti’s trial with an os-
trich instruction, and we AFFIRM his conviction.