                                 In the

       United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 13-2166
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                   v.

ROBERTO MACIAS,
                                                 Defendant-Appellant.
                       ____________________

           Appeal from the United States District Court for the
             Northern District of Illinois, Eastern Division.
              No. 09 CR 546–7 — Elaine E. Bucklo, Judge.
                       ____________________

         ARGUED MAY 19, 2015 — DECIDED MAY 26, 2015
                       ____________________

      Before POSNER, EASTERBROOK, and MANION, Circuit Judg-
es.
   POSNER, Circuit Judge. The defendant was convicted of
conspiring to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and of conduct-
ing an unlicensed money-transmitting business in violation
of 18 U.S.C. § 1960. He was sentenced to 300 months (25
years) for the conspiracy offense and 60 months (5 years), to
run concurrently with the conspiracy sentence, for the mon-
2                                                      No. 13-2166


ey-transmitting offense. His appeal is limited to the first
conviction, and complains primarily (and is his only com-
plaint with sufficient merit to warrant discussion) about the
judge’s giving a “deliberate indifference” instruction to the
jury (colloquially, an “ostrich” instruction). The instruction
the judge gave (which is almost word for word Instruction
4.10 in Pattern Criminal Jury Instructions of the Seventh Circuit,
p. 50 (2012), which superseded an earlier version criticized in
United States v. Ramsey, 785 F.2d 184, 188–91 (7th Cir. 1986);
cf. United States v. Josefik, 753 F.2d 585, 589 (7th Cir. 1985))
states: “You may find that the defendant acted knowingly if
you find beyond a reasonable doubt that he had a strong
suspicion that the money transported in this case was the
proceeds of narcotics trafficking and that he deliberately
avoided the truth. You may not find that the defendant acted
knowingly if he was merely mistaken or careless in not dis-
covering the truth, or if he failed to make an effort to discover the
truth.” The first clause that we’ve italicized is the one that
the defendant particularly challenges, and the second is the
one that he claims exonerates him of deliberate indifference.
    Macias had once been a member of a conspiracy to
smuggle illegal immigrants across the United States-Mexico
border. Among his specific duties had been transporting the
immigrants to this country. After being convicted for that
offense he had left the smuggling business, moved back to
Mexico, and created a bus company to transport legal Mexi-
can immigrants to the United States. In 2007 he was ap-
proached by a member of the La Familia Michoacana drug
cartel (it’s unclear whether Macias knew the person was rep-
resenting the cartel) and was asked to assist, for generous
pay, in moving money from the United States to Mexico. He
testified that he didn’t know that the money he was to move
No. 13-2166                                                3


consisted of proceeds from the sale of illegal drugs; he said
he assumed and indeed was told by the person who recruit-
ed him into the conspiracy that the money came from smug-
gling Mexicans into the United States. He never asked what
was being smuggled, and so (if his testimony is believed)
never was disabused of his assumption that it was people,
not drugs, that were being smuggled.
    If as he claims he was an unwitting member of a drug
conspiracy, he was not guilty of membership in the conspir-
acy. For suppose a stranger asks you to help him carry a box
to a house across the street, and you oblige. Unbeknownst to
you the house is a stash house and the box contains cocaine.
You are not guilty of conspiring to distribute illegal drugs,
even though you have assisted in that distribution. A total
dupe is not a conspirator.
    A federal agent who specializes in investigating the
smuggling of immigrants into the United States testified as
an expert witness that the sums of money that Macias han-
dled for the drug conspiracy greatly exceeded the sums in-
volved in human smuggling. The jury could have inferred
from this that Macias knew he was working for drug smug-
glers, as no one other than Macias has suggested that any
other type of smuggling from Mexico is equally lucrative.
But obviously the government lacked confidence that it
could “sell” such an inference to the jury. Despite his past
involvement in human smuggling Macias may not have
known what the federal agent knew about the financial lim-
its of human smuggling. And he may have thought that
since his experience in smuggling was limited to human
smuggling, this was the only kind of smuggling he would be
hired to assist in.
4                                                  No. 13-2166


    So the government pressed for the ostrich instruction.
The two clauses in it that we italicized earlier are in tension
with one another. The jury was told both that it could con-
vict Macias of participation (which would, as we said, have
to be knowing in order to be actionable) in the drug conspir-
acy if he deliberately avoided the truth, and that it could not
convict him if he failed to make an effort to discover the
truth. The second clause makes clear that he had no duty of
inquiry. But what does the first clause mean? One possibility
is that it means taking some active measure to avoid con-
firming one’s suspicions. A person who suspected that he
had rented his house to a drug gang might take a wide de-
tour to avoid driving by the house lest he notice someone
carrying what appeared to be illegal drugs out of or into the
house. Nothing like that is claimed to have happened in this
case.
    The other possible meaning of the first clause—the mean-
ing pressed by the government—is what the government
calls “psychological avoidance” (as distinct from physical
avoidance, as in the example of changing one’s route of trav-
el to avoid seeing confirmation of one’s suspicions). You
suspect that your house is being used as a stash house, or
that you’re assisting in the smuggling of drugs into the Unit-
ed States, but you shut down your mind to block yourself
from receiving confirmation of your suspicion. It’s what’s
called being “in denial,” or alternatively “refusing to face the
facts.” But its application to this case is obscure. Either
Macias inferred from the difference between the amount of
money he was handling for the new cartel and the amount
he had handled in his human-smuggling operation that he
was now working for a drug cartel, or he thought he was
working for a much larger human-smuggling gang than he
No. 13-2166                                                   5


had worked for previously. In the first case he was guilty,
regardless of the ostrich instruction, and in the second case
he was innocent because the instruction denies that there is
any duty “to make an effort to discover the truth.” There is
no evidence that suspecting he might be working for a drug
cartel Macias took active steps to avoid having his suspi-
cions confirmed. Suppose one of the cartel members had
said to him “let me tell you what we smuggle,” and he had
replied: “I don’t want to know.” That would be ostrich be-
havior (mythical ostrich behavior—ostriches do not bury
their heads in the sand when frightened; if they did, they
would asphyxiate themselves). It seems more likely that the
cartel would not have told him what it was smuggling. For
he had no need to know—and sophisticated gang members,
like naval officers, know that “loose lips sink ships.” Re-
member that he testified that the person who had recruited
him into the conspiracy had told him that it was illegal im-
migrants who were being smuggled into the country; if this
conversation in fact took place, Macias might have believed
that he was assisting in immigrant smuggling rather than
drug smuggling.
    An ostrich instruction should not be given unless there is
evidence that the defendant engaged in behavior that could
reasonably be interpreted as having been intended to shield
him from confirmation of his suspicion that he was involved
in criminal activity. As the Supreme Court put it in Global-
Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 (2011),
the defendant must not only “believe that there is a high
probability that a fact exists” but also “must take deliberate
actions to avoid learning of that fact” (emphasis added). In
United States v. Salinas, 763 F.3d 869, 880–81 (7th Cir. 2014),
we noted that although Global-Tech was a civil case, several
6                                                      No. 13-2166


courts of appeal have deemed its definition of willful blind-
ness applicable to criminal cases. It is quite similar to our
analysis of ostrich instructing in United States v. Giovannetti,
919 F.2d 1223, 1228 (7th Cir. 1990):
     the ostrich instruction is designed for cases in which
     there is evidence that the defendant, knowing or
     strongly suspecting that he is involved in shady deal-
     ings, takes steps to make sure that he does not acquire
     full or exact knowledge of the nature and extent of
     those dealings. … A good example of a case in which
     the ostrich instruction was properly given is United
     States v. Diaz, 864 F.2d 544, 550 (7th Cir. 1988). The de-
     fendant, a drug trafficker, sought “to insulate himself
     from the actual drug transaction so that he could deny
     knowledge of it,” which he did sometimes by absent-
     ing himself from the scene of the actual delivery and
     sometimes by pretending to be fussing under the hood
     of his car. The government points out that the rented
     house [where the illegal activity in Giovannetti was tak-
     ing place] … was a short way down a side street from
     the thoroughfare on which Janis [Giovannetti’s code-
     fendant] commuted to work daily. It would have been
     easy for him to drive by the house from time to time to
     see what was doing, and if he had done so he might
     have discovered its use as a wireroom. He did not do
     so. But this is not the active avoidance with which the
     ostrich doctrine is concerned. It would be if the house
     had been on the thoroughfare, and Janis, fearful of
     what he would see if he drove past it, altered his com-
     muting route to avoid it. Janis failed to display curiosi-
     ty, but he did nothing to prevent the truth from being
     communicated to him. He did not act to avoid learning
     the truth.
And so in this case as well, as far as the evidence shows.
No. 13-2166                                                     7


    The government states in its brief that if the ostrich in-
struction should not have been given, giving it nevertheless
was a harmless error. Just the other day we had a case in
which we held that the giving of a confusing jury instruction
was a harmless error. United States v. Dobek, 2015 WL
2374768, at *3 (7th Cir. May 19, 2015). But this was because
the evidence of the defendant’s guilt was overwhelming. No
reasonable jury would have acquitted him even if the con-
fusing instruction had not been given; a retrial would there-
fore have been a waste of time. The evidence against Macias
was sufficient but not overwhelming. He may have been un-
aware that he was working for a drug cartel. Given the os-
trich instruction, the jury conceivably could have convicted
Macias because he wasn’t curious enough to discover the
source of the illegal funds. Furthermore, the government’s
entire discussion of harmless error consists of the following
clause in its brief: “given the substantial evidence of Macias’
actual knowledge, any instructional error clearly was harm-
less.” That is not argument, but pure, unsubstantiated con-
clusion, entitled to zero weight.
    The instruction in the Dobek case was necessary to define
for the jury “willfully,” an essential element of the crime that
the defendant was charged with having committed; it just
was poorly worded. The instruction challenged in this case,
the ostrich instruction, was gratuitous. It had no basis in ev-
idence suggestive of an effort by the defendant to avoid con-
firming his suspicions. We don’t know whether he suspected
he was working for a drug cartel or if he did that he took
measures to avoid confirming those suspicions, like telling
his boss, “whatever you do, don’t tell me what you’re smug-
gling because if it’s illegal drugs I will if caught be subject to
a very long prison sentence.”
8                                                  No. 13-2166


    The government further muddies the waters by offering,
as an equivalent to “deliberate indifference,” “psychological
efforts” consisting of “cutting off … one’s normal curiosity
by an effort of will.” That sounds like judge playing psy-
chologist; no matter, for there indeed are circumstances in
which a failure to ask questions is unnatural—a ducking of
responsibility, a violation of duty, and perhaps therefore the
equivalent of taking evasive action to avoid confirming one’s
suspicions. See United States v. Black, 530 F.3d 596, 604 (7th
Cir. 2008), vacated on other grounds under the name Black v.
United States, 561 U.S 465 (2010). United States v. Craig, 178
F.3d 891, 896–99 (7th Cir. 1999), one of the cases in which the
court used the “cutting off” phrase, was such a case. (It is a
dispensable phrase, however, not only because of its air of
folk psychology but also because American law is compli-
cated enough without adding epicycles to every doctrinal
formula. The author of this opinion pleads guilty to having
used the phrase in United States v. Giovannetti, supra, 919 F.2d
at 1229.)
   There is no evidence that the defendant in the present
case was remiss in failing to ask what was being smuggled.
His responsibilities to the drug cartel, which had only to do
with facilitating the transmission of money from the United
States to Mexico, did not require him to know how the mon-
ey had been obtained. Having no need or duty to know, he
was not acting unnaturally in failing to inquire.
   A major puzzle is the government’s failure to charge the
defendant with money laundering—as to which the gov-
ernment’s case would have been a slam dunk and the de-
fendant subject to a 20-year maximum sentence, 18 U.S.C.
§ 1956(a). That would be a severe punishment although less
No. 13-2166                                                9


severe than the 25-year sentence that he received for his al-
leged knowing participation in the drug conspiracy.
    The conviction and sentence for participating in the con-
spiracy are reversed and the case remanded for a new trial
on that charge. The conviction for conducting an unlicensed
money-transmitting business, not having been appealed,
stands. At oral argument, however, the defendant’s lawyer
pointed out that the guidelines range for that offense was
higher than it would have been had his client not also been
convicted of participating in a drug conspiracy. We therefore
order the money-transmitting sentence vacated pending any
further proceedings in the district court.
