THE OSTRICH INSTRUCTION: DELIBERATE IGNORANCE IS EQUIVALENT TO POSITIVE

KNOWLEDGE

United States v. Jewell Procedural Basis: En banc appeal from conviction for transport and
(Government) v. (Deliberately Ignorant Drug possession of marijuana.
Smuggler) Facts: Jewell (D) entered the United States with 110 lbs. of marijuana
(1976) 532 F.2d 697 (en banc) concealed in a secret compartment in his trunk. Jewell (D) claimed that he did
not know that the marijuana was in his vehicle. There existed circumstantial
evidence from which the jury could infer that Jewell (D) knew about the
Disk Reference: JEWELL marijuana. However, there was some evidence from which a jury could
conclude that although Jewell (D) knew of the secret compartment, and had
knowledge of facts indicating that it contained marijuana, he deliberately
avoided positive knowledge of the marijuana in order to avoid responsibility if
caught. The trial court denied an instruction offered by Jewell (D) that required
a showing that Jewell (D) knew that he was in possession of marijuana. Instead,
the court said that “knowingly” meant voluntarily and intentionally, and not by
accident or mistake. The Government (P) was required to show that Jewell (D)
“knowingly” brought the marijuana into the United States, and that he
“knowingly” possessed the marijuana. The court also instructed the jury that
the Government (P) would satisfy their burden of proof if they showed that
Jewell’s (D) ignorance of the actual presence of marijuana was a result of a
conscious purpose to avoid learning the truth.
Issue: Are deliberate ignorance and positive knowledge equally culpable
M E M O R Y G R A P H I C states of mind?
Decision and Rationale: (Browning) Yes. The rule that willful
Instant Facts blindness is equivalent to knowledge is essential, and is found throughout
Jewell (D) deliberately avoids positive criminal law. Deliberate ignorance and positive knowledge are equally culpable.
knowledge that marijuana is being loaded for Following the analysis adopted by the Model Penal Code, to act knowingly is not
transport into his car. necessarily to act with positive knowledge, but can also be to act with an
awareness of the high probability of the existence of the fact in question.
Black Letter Rule Furthermore, holding that “knowingly” means positive knowledge would make
“Willful blindness” or deliberate ignorance deliberate ignorance a defense, and would be inconsistent with the Drug Control
is equivalent to knowledge. Act’s general purpose to deal more effectively with drug abuse and drug
offenses. No legitimate interest of an accused is prejudiced by the doctrine that
willful blindness is equivalent to actual knowledge. Society’s interest in imposing
Case Vocabulary sanctions upon all who are equally culpable necessitates the doctrine.
OSTRICH INSTRUCTION: A jury instruction stating Conviction affirmed.
that a defendant may be found to have knowingly Dissent: (Kennedy) In light of the Model Penal Code, the jury instruction
committed a crime if he deliberately avoided acquiring was defective in three respects. First, it fails to mention the requirement that
positive knowledge. Jewell (D) be aware of a high probability that a controlled substance was in the
WILLFUL BLINDNESS/DELIBERATE IGNORANCE: A car. Second, the instruction did not alert the jury that Jewell (D) could not be
culpable state of mind in which an individual seeks to convicted if he actually believed there was no controlled substance in the car.
avoid gaining positive knowledge of a crime in an Third, the jury instruction states that Jewell (D) could be convicted even if found
effort to avoid responsibility. ignorant or “not actually aware” that the car contained a controlled substance.
This is unacceptable, because true ignorance cannot support a conviction when
the statute requires knowledge.

Analysis:
The type of jury instruction given in Jewell is sometimes referred to as the “ostrich instruction.” Although the actual belief that ostriches
hide their heads in the sand to avoid seeing impending danger has been discredited by animal behavior experts, the myth, at least, provides
a valuable analogy. As noted by the court in United States v. Giovanetti, ostriches “are not merely careless birds. They bury their heads
in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge.” The instruction is
appropriate for cases like Jewell’s (D) where there is evidence that the accused knew or strongly suspected a crime was occurring, and then
made efforts to avoid acquiring full or exact knowledge. Undoubtedly, Jewell (D) had a culpable state of mind—should he be punished
for avoiding actual knowledge? The majority finds that willful blindness is morally equivalent to actual knowledge, and the law should
punish equally culpable acts. For the dissent, however, the statutory requirement of “knowledge” is not satisfied by substituting its moral
equivalent, “willful blindness.” Jewell (D) must have been aware that there was a high probability of possession to warrant conviction.
The dissent’s position has support from scholars where the statute governing the trial pointedly requires actual knowledge.

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