"Ostrich Instruction" Approved

The Sixth Circuit today published United States v. Matthews. The case involved a group of friends, led by former computer-systems salesman Robert Carlson, who started selling drugs for the Sinoloa Cartel.

One of these friends, Katherine Matthews, went to trial and lost. The Sixth Circuit rejected several arguments that she raised on appeal, including to a challenge to the sufficiency of the evidence and variance between the indictment and trial evidence.

The Sixth Circuit doesn't explain why some decisions are published and others aren't, but this one might be published because it again endorsed the "deliberate-indifference jury instruction," sometimes called the "ostrich instruction." In essence, the trial judge told the jury that it find that Matthews knew Carlson was trafficking drugs if she deliberately ignored it. 

The Sixth Circuit repeated its caution that this instruction must be used sparingly because of the danger that the instruction can be offered to prove knowledge of the aims of a conspiracy, but the instruction cannot be used to prove the existence of an agreement to join a conspiracy or intent to join it. It'd hardly be surprising for jurors to slip up when trying to walk such a fine line. 

Indeed, Matthews argued that the distinction between "knowledge of the aims of a conspiracy" and "intent to join a conspiracy" is nonexistent in a single aim conspiracy case. But the Sixth Circuit found that the trial court's instruction adequately explained this distinction consistent with precedent. 

One other interesting issue addressed in the decision: Carlson's ability to plead the Fifth Amendment -- over a Confrontation Clause challenge -- when he took the stand against Matthews. Carlson testified that he "moved" between $500 million and $1 billion for the cartell, and on cross-examination, invoked the Fifth when asked if he paid taxes on that money. The trial court decided that Carlson could invoke the privilege against self-incrimination in regard to fraud- and tax-based testimony, though he could not invoke the privilege to avoid revealing any lienency he received from the IRS as a result of his negotiations with the government. And the Sixth Circuit approved. This decision may be helpful in advising potential witnesses about the scope of their ability to invoke this privilege if testifying.

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