United States v. Pedroza, Sebastian ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2006
Decided April 20, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2917 Appeal from the United States
District Court for the
UNITED STATES OF AMERICA, Southern District of Indiana,
Plaintiff-Appellee, New Albany Division.
v. No. 04 CR 14
SEBASTIAN PEDROZA, Sarah Evans Barker,
Defendant-Appellant. Judge
ORDER
While traveling with his cousin on what he contends was a trip to repossess
cars, Sebastian Pedroza was arrested after police watched him and his cousin try to
sell a confidential informant two kilograms of cocaine. After a two-day trial, a jury
found Pedroza guilty of possession with intent to distribute. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(ii). Pedroza appeals his conviction, arguing that the district
court erred in giving the jury an “ostrich” instruction. We affirm.
Pedroza worked for his cousin Christopher Osinger, who repossessed cars.
According to Pedroza’s account at trial, Osinger paid him to clean up the
repossessed cars, inventory the personal property inside the cars, and drive the
No. 05-2917 Page 2
repos. Pedroza testified that on January 16, 2002, Osinger asked him to travel with
him to Kentucky to look for cars. The next day the two men drove a pickup truck
from Chicago to Jeffersonville, Indiana, where they stopped and got a hotel room.
Pedroza testified he thought they stopped so they could get some sleep before
repossessing cars that night. While at the hotel, Pedroza heard Osinger talking on
the telephone, though he insisted that he did not hear the content of that
conversation because he was not listening. Then, “out of nowhere,” Osinger told
Pedroza, “Come on, let’s go.” Pedroza testified that he did not know where they
were going and did not ask, and even though Osinger talked on the phone en route,
he intentionally ignored Osinger’s conversation because, he said, it was “none of
[his] business.” He stated, however, that “[w]hen we left the hotel I had a feeling
that something—I was left out of something.” Pedroza nonetheless rode with
Osinger to a nearby McDonald’s where he saw Dennis Skirvin, a family friend,
standing in the parking lot. Osinger parked, and while Osinger remained in the
pickup, Pedroza got out because, he said, “it was already agreed that I would just go
get something to eat for us.” Pedroza then saw Skirvin approach the car and speak
with Osinger through the driver’s side window. Pedroza also approached the
driver’s side window because, he said, he had left his money inside the pickup and
wanted to get money from Osinger. Skirvin, however, ordered him to get back in
the vehicle. Only then, Pedroza insisted, did he see for the first time two packages
near the pickup’s center console that he recognized as drugs. He maintained that
he was “just with” Osinger and denied participating in the transaction or knowing
that drugs were in the pickup. He also denied knowing that Osinger was a drug
dealer.
Skirvin, testifying on the government’s behalf, told a different story. While
acting as a government informant, he assisted police in arranging a purchase of two
kilograms of cocaine from Osinger. When Osinger and Pedroza arrived at the
McDonald’s parking lot, Skirvin said, he approached the driver’s side window and
told Osinger, who was in the driver’s seat, “[L]et me see the merchandise.” Skirvin
testified Osinger turned to Pedroza, who was seated next to him, and said “Give me
that bag.” Pedroza then, according to Skirvin, picked up a black plastic bag from
the floor of the pickup near his legs and handed it to Osinger, who put the bag on
his lap and opened it so that Skirvin could inspect its contents. At about that time,
Skirvin said, Pedroza got out of the pickup and approached him from around the
front of the vehicle. Skirvin testified that he believed Pedroza was coming to collect
the money, so he told Pedroza: “No, get back into the truck. Let’s get this deal
done.” Pedroza returned to the passenger seat while Skirvin continued to inspect
the cocaine. Skirvin testified that he then said, “Wait right here, I’m going to get
your money,” and walked away while Osinger and Pedroza stayed in the vehicle.
Skirvin alerted the police that Osinger and Pedroza had the drugs, and the police
made the arrest.
No. 05-2917 Page 3
The district court instructed the jury that to convict Pedroza under § 841, it
must find beyond a reasonable doubt that he “knowingly or intentionally possessed
a mixture or substance containing a detectable amount of cocaine . . . with intent to
distribute it.” Over Pedroza’s objection the court defined “knowingly”:
When the word “knowingly” 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 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 his eyes for fear of what he would learn,
you may conclude that he acted knowingly, as I have used that word.
The jury found Pedroza guilty.
On appeal Pedroza challenges the district court’s decision to instruct the jury
on deliberate ignorance. He does not challenge the form of the instruction but
instead argues that any instruction was improper because, he contends, the
evidence at trial supported only a “clear cut ‘binary choice’”: he either knew or did
not know about the drugs in the truck. He contends the evidence was insufficient to
support an inference that he purposefully avoided learning about the drug deal and
that, at most, his failure to listen to Osinger’s telephone conversations or look
around the pickup’s cab demonstrated a “lack of curiosity.” He argues the
instruction effectively allowed the jury to convict him for being negligent in not
finding out about the transaction.
We review a district court’s decision to give an ostrich instruction for abuse of
discretion, viewing the evidence in a light most favorable to the government.
United States v. Carrillo, 435 F.3d 767, 780 (7th Cir. 2006). An ostrich instruction
is appropriate when: (1) the defendant denies guilty knowledge, and (2) there is
enough evidence for a jury to infer that he deliberately avoided learning the truth.
United States v. Fallon, 348 F.3d 248, 253 (7th Cir. 2003). Evidence that the
defendant took overt physical steps to avoid actual knowledge supports an inference
of deliberate ignorance, Carrillo, 435 F.3d at 780, as does a defendant’s “cutting off
of [his] normal curiosity by an effort of will,” United States v. Giovannetti, 919 F.2d
1223, 1229 (7th Cir. 1990); United States v. Craig, 178 F.3d 891, 896 (7th Cir. 1999).
In this case, the district court permissibly instructed the jury on deliberate
ignorance. Contrary to Pedroza’s contention that, at most, he negligently failed to
No. 05-2917 Page 4
discover the exact nature of Osinger’s activities, Pedroza testified that he felt as if
he were being “left out of something” when at the hotel Osinger unexpectedly said,
“Come on, let’s go.” But he nevertheless departed with Osigner, did not ask where
they were going, and then intentionally ignored Osinger’s telephone conversations
en route. This testimony alone supports an inference that Pedroza purposefully
stuck his head in the sand to avoid acquiring full knowledge of his involvement in
Osinger’s activities. See United States v. Rodriguez, 929 F.2d 1224, 1227-28 (7th
Cir. 1991) (concluding that ostrich instruction was proper where defendant did not
ask participants in drug distribution scheme why they needed him to make a trip);
see also United States v. Wallace, 212 F.3d 1000, 1004 (7th Cir. 2000) (instructing
that ostrich instruction is proper where defendant suspects that he is involved in
“shady dealings” and takes steps to avoid acquiring “full or exact knowledge of the
nature and extent of those dealings”). Pedroza also took steps to physically distance
himself from the drug deal when he attempted to leave the vehicle during the
transaction. Although neither mere presence at the scene of a crime nor leaving the
scene if someone suspects something is amiss is enough to establish guilt, a court
may instruct a jury as to willful blindness where the facts support an inference that
the defendant participated in a drug deal but left the scene of the sale to insulate
himself from guilty knowledge of the transaction. See United State v. Diaz,
864 F.2d 544, 551 (7th Cir. 1988). And the government presented substantial
evidence that Pedroza had actual knowledge of the transaction. A reasonable jury
therefore could have concluded either that Pedroza had actual knowledge that he
was participating in a drug deal or that he had deliberately avoided confirming the
truth about his involvement.
This court has frequently upheld the use of an ostrich instruction where a
defendant transported packages containing drugs under suspicious circumstances
and then denied knowledge of the packages’ contents. See United States v. Wilson,
134 F.3d 855, 868-69 (7th Cir. 1998) (collecting cases). This case is no exception.
Moreover, when the government presents substantial evidence that a defendant
had actual knowledge of the illegal activities, any error in giving an ostrich
instruction is harmless. See United States v. Carrillo, 269 F.3d 761, 770 n.3 (7th
Cir. 2001); United States v. Graffia, 120 F.3d 706, 713 n.5 (7th Cir. 1997). We
therefore uphold the district court’s use of an ostrich instruction and AFFIRM
Pedroza’s conviction and sentence.