USA v. Ciesiolka

• Decision Date: 26 July 2010
• Docket Number: No. 09-2787.,09-2787.
• Citation: 614 F.3d 347
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark CIESIOLKA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

614 F.3d 347

UNITED STATES of America, Plaintiff-Appellee,

v.Mark CIESIOLKA, Defendant-Appellant.

No. 09-2787.

United States Court of Appeals,Seventh Circuit.

Argued April 21, 2010.

Decided July 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Joshua P. Kolar, Attorney (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Kerry C. Connor, Attorney (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.

Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

CUDAHY, Circuit Judge.

Mark Ciesiolka was convicted in 2008 of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named “Ashley,” engaged in a series of sexually explicit, instant-messaging (“IM”) conversations on an online Yahoo forum with the defendant. The sting, however, was marred by numerous oddities. The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user's interests included “beer” and “Purdue University.” When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet. The officer admitted: “I lie about my age.”

The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that “Ashley” was under 18. We find that the district court improperly relieved the government of that burden by providing the jury with an ostrich instruction. Moreover, given the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case. It did so by introducing voluminous evidence under Fed.R.Evid. 404(b) of the defendant's other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, “SC,” who claimed that Ciesiolka had had sex with her several times when she was 15. This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction. Because the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied, and since the evidence introduced in unconstrained fashion strikes us as perhaps being excessively prejudicial in light of its probative value, we reverse and remand for a new trial.

I. BACKGROUND

Pursuant to Indiana's Safe Childhood Project, Detective Sergeant Carrie Costello, an officer with the Purdue University Police Department, initiated an Internet sting operation to lure and prosecute pedophiles who were operating online. The defendant in the present case, Mark Ciesiolka, walked right into the trap. On August 2, 2006, he encountered a person by the name of “Ashley” in a Yahoo adults-only chat room, entitled “Indiana Romance.” Ashley's Yahoo profile photo was of a woman in her 20s (a fellow police officer) and her stated interests included “Purdue University” and “beer.” The profile did not state her age.

Starting on August 2 and proceeding over the following two-and-a-half weeks, Ciesiolka and Ashley exchanged numerous, sexually explicit IM messages. At trial, those messages were read aloud to the jury by officer Costello, playing herself, and by special agent Christian Ebel-Orr, playing the role of Ciesiolka. The defendant and Ashley informed each other that they lived in Columbus and Lafayette, respectively. He asked her why she was in a forum for married people. He inquired as to whether her mom and dad were home, and asked whether she had a boyfriend. Somewhat oddly, in response to Ciesiolka's request for pictures of herself, Ashley sent a different photo of the same woman in her late 20s whose picture adorned Ashley's online profile. Ciesiolka responded that she looked 21 or so. Ashley, however, maintained that she was only 13.

The defendant asked Ashley whether she was a virgin and whether she masturbated. She feigned the lack of knowledge one might expect of a 13-year-old, saying that she “think[s] so ... means no sex, right?” As to masturbation, she wrote “[n]ot sure what that is.” During ensuing conversations, the defendant requested more photos; Ashley repeatedly asked to see him on his web cam. Ashley told him she'd gotten in trouble for staying over at a friend's house where her friend had gotten some beer. When asked how much she drank, Ashley explained: “I didn't. Don't like the taste of beer, really, but everyone else did, so I got in trouble.” Later, Ashley wrote that she doesn't usually wear panties, but when she does they're thongs. The defendant subsequently provided her with instructions on how to masturbate. Ashley referred to her mother's being “40 something.” When asked whether she shaves, she replied that there's “[n]ot much to shave.” The defendant exposed himself and masturbated via his web cam during an IM exchange. He later asked whether it was sad that he was “looking to a younger lady to tell [him] that [he was] still sexy.”

Following these IM conversations, which were both more explicit and offensive than the preceding summary might suggest, the talk eventually turned to meeting up. Ciesiolka said: “I would come see you but might get in trouble.” He and Ashley ultimately agreed to meet at a Pizza King at 5 o'clock on Friday, August 18. This seemed like an opportune time, since Ashley said that her mother was leaving that Friday for the weekend to attend a wedding. Ashley said that she would tell her mom that she was meeting friends to eat. Later, the defendant asked Ashley if she'd mind if he brought his 12-year-old son with him to their meeting. He asked whether she'd have sex with him and explained that he'd teach both of them. On August 14, Ciesiolka asked whether “she was going to tell on [him],” explaining that he “would get into really big trouble.”

Despite the arrangement, Ciesiolka never showed up on August 18. In a subsequent message, the defendant explained to Ashley that he couldn't meet with his son there, since he believed his son would tell. Ashley then wrote: “I lie about my age.” When Ashley subsequently referenced her upcoming birthday, Ciesiolka asked: “You will be 15?,” to which Ashley responded “14.”

Following the last IM conversation, the authorities were able to track down the defendant, who was arrested on August 19. During the ensuing trial, the government introduced evidence of Ciesiolka's prior bad acts under Fed.R.Evid. 404(b). This included other IM conversations the defendant had had with unidentified third parties-exchanges that were replete with lewd and offensive details. The jury was also shown approximately 100 images of child pornography or “child erotica” that had been found on the defendant's computer. In addition, the jury heard testimony from a woman to the effect that the defendant had had sex with her numerous times when she was 15 years old.

The content of his IM conversations with Ashley, in conjunction with the Rule 404(b) evidence introduced by the government at trial, makes clear that Ciesiolka is, at the very least, a potentially dangerous individual. But that fact does not translate into our affirming his ensuing conviction. Because we find numerous errors in the district court's handling of the present case, and since we cannot confidently conclude that these errors were harmless, we reverse and remand for a new trial.

II. DISCUSSION

A. The District Court Erred in Providing the Jury with an Ostrich Instruction

A focal point of Ciesiolka's appeal concerns his strenuous objection to the district court's jury instruction number 18 (the “ostrich instruction”), which provided:

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 as 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. You may not conclude that the Defendant had knowledge if he was merely negligent in not discovering the truth.

Ciesiolka contends that this instruction served to relieve the government of its obligation to prove beyond a reasonable doubt that he believed that Ashley was a minor. He argues that the instruction allowed the jury to convict him based merely on his suspicion of, and indifference to, Ashley's being underage. Ciesiolka also contends that an ostrich instruction has no proper application to the present setting, where learning the “truth” would have revealed that “Ashley” was an adult police officer. Of course, discovering that truth from the outset would have resulted in Ciesiolka's not having violated 18 U.S.C. § 2422(b).

We are thus faced with the question whether the ostrich instruction was appropriately given to the jury. This specific question, arising in the context of 18 U.S.C. § 2422(b), is a matter of first impression for this court.

An ostrich instruction obviously fits somewhat awkwardly with a sting operation of the kind presented by this case. Such an instruction is typically employed to capture individuals who deliberately close their eyes to the truth. See United States v. Carani, 492 F.3d 867, 873 (7th Cir.2007). We have approved the use of ostrich instructions in a few cases involving police undercover or “sting” operations, but only in limited...