United States v. Beatricz Ramirez ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3216
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B EATRICZ R AMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00809-5—John W. Darrah, Judge.
A RGUED F EBRUARY 27, 2009—D ECIDED A UGUST 3, 2009
Before M ANION, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Beatricz Ramirez was charged
with one count of wire fraud in violation of 18 U.S.C.
§ 1343. Following a jury trial, she was convicted. She
was sentenced to a term of imprisonment of 18 months
and ordered to pay restitution. Ramirez appealed her
conviction, arguing that the district court erred by giving
the jury an ostrich instruction and by refusing to
include language stating that mere negligence did not
2 No. 08-3216
support a finding of knowledge. For the following
reasons, we affirm.
I. BACKGROUND
Luis Uribe was a successful mortgage broker for
Freedom Mortgage in the Elgin, Illinois area. But his
legitimate success was not good enough for him. So he
devised a fraudulent mortgage scheme, using the
identities of former clients with good credit to obtain
mortgage financing for persons who could not qualify
for mortgages and padding his wallet in the process.
The scheme basically worked like this: A person with
poor or no credit would find a house he or she wanted to
buy, and Uribe used the name and identifiers of another
person in negotiating the purchase contract and applying
for financing. Sometimes the names and identifiers
used were those of various individuals, including Jorge
Itoralde, Griselda Sanchez, and Uribe’s brother, Carlos,
who agreed to sell their credit histories to non-qualifying
buyers. On other occasions, Uribe used the names and
identifiers he had stolen from former clients. Then he
arranged for someone to use a fake identification card in
the name of the person whose identity had been stolen to
pose as the buyer at the closing. After the closing, the
person with poor or no credit would move into the
house and try to make the mortgage payments. The
record does not disclose that the title to the property
was ever passed to that person.
Uribe did business with Beatricz Ramirez, a licensed real
estate agent, over a three-year period beginning in 2003.
No. 08-3216 3
Ramirez began working as a realtor for Starck Realty in
Elgin, Illinois in about October 2003. (She had worked a
short time as a realtor for another office prior to that.)
She was trained about a real estate agent’s responsi-
bilities, including how to fill out contracts. Between
April and mid-July of 2005, Ramirez acted as the buyer’s
agent in seven fraudulent transactions that were part
of Uribe’s scheme.
The only issue at trial was whether Ramirez
knowingly participated in the scheme.1 To establish
knowing participation, the government presented the
testimony of Uribe; the testimony of Rafael Cruz, another
participant in the scheme; statements by Ramirez to the
FBI during its investigation of the fraud; Ramirez’s grand
jury testimony; and evidence of numerous suspicious
circumstances surrounding the fraudulent transactions.
Ramirez testified at trial on her behalf and denied know-
ingly participating in the scheme.
Uribe, who was cooperating with the government,
testified that when he had a client for whom he was
going to apply for a fraudulent loan and who had not
yet found a home, he referred him or her to Ramirez.
1
She conceded the existence of the fraudulent scheme and
stipulated that on or about August 31, 2005, a truth-in-lending
disclosure statement purportedly signed by Maria Moreno, an
interstate wire communication, was faxed from Illinois to
First NLC Financial Services LLC in Deerfield Beach, Florida.
This communication was the basis for the wire-fraud count
with which she was charged.
4 No. 08-3216
According to Uribe, both he and the persons referred
informed Ramirez that these individuals could not
qualify for financing in their own names. Ramirez
worked directly with these buyers, showing them
houses, and thus knew their names. Once the buyer
found a house he or she wanted to live in, Ramirez
filled out a form real estate purchase contract. At first,
Ramirez filled in the buyer’s name, and Uribe would
return it to her crossed or whited out. Eventually he
asked her for blank purchase contract forms, indicating to
her, he claims, that the title companies were complaining
about the changes in the contracts. Ramirez complied and
gave him blank contract forms. Then Uribe filled in the
blanks with the name of the person whose identity he
had stolen and returned the completed contract to
Ramirez to provide to the seller or listing agent. The name
of the person to whom Ramirez showed the house and
whom she knew would live in the house did not
appear anywhere on the purchase contract.
Uribe testified that Ramirez asked him where he was
getting the identities he used to obtain the fraudulent
loans, and he told her that he was using the names and
identities of former clients as the purported buyers. He
also testified that he told Ramirez that a third person
with fake identification in the name of the former client
would attend the closing and sign as the purported buyer.
Uribe claimed that Ramirez asked him how he was able
to get so many mortgage applications using one
person’s identity, and he told her that as long as the
loans closed within a thirty- to sixty-day period of each
other, several closings could take place with the same
No. 08-3216 5
identity—credit reports were not updated in a shorter
time period. Uribe also testified that he had a few conver-
sations with Ramirez in which she expressed concern
over the fraudulent loan transactions. According to
Uribe, she indicated that she knew what he was doing
was not right and questioned him whether he knew what
he was doing.
Uribe further testified that he instructed Ramirez to
negotiate a seller’s concession, which required the seller
to pay a specified amount purportedly toward closing
costs, in the purchase contracts. He said that he ex-
plained to her that the concession was necessary to pay
his commission and to pay the persons who attended
the closings posing as the purported buyers, including
Rafael Cruz. According to Uribe, Ramirez said that was
fine with her. The evidence was that Ramirez did, in
fact, negotiate seller’s concessions in the purchase
contracts involved in some of the seven fraudulent trans-
actions for which she was the buyer’s agent, including a
house at 1365 Kaskaskia. (And, in fact, Ramirez even
admitted that she negotiated the seller’s concession on
the Kaskaskia property.)
Cooperating witness Rafael Cruz testified that he met
Uribe in 2004 when Cruz refinanced his home. Cruz
wanted to buy a new home, so he returned to Uribe. Uribe
told Cruz that he could not qualify for a loan but
indicated that he could help Cruz get a loan—at a cost.
Cruz understood that he would pay someone to sign
the contracts for him. Uribe referred Cruz to Ramirez to
find a home. Ramirez showed properties to Cruz and his
6 No. 08-3216
wife, Juana Angelito, and they decided to buy one at
286 Chaparral. Uribe applied for a mortgage loan for the
property in the name of Jorge Itoralde, who had agreed
to sell his credit history. Itoralde attended the closing
for 286 Chaparral and signed the contracts in his own
name. Uribe testified that Ramirez knew that Uribe
applied for the mortgage using Itoralde’s name because
Uribe told her so and because she knew that Cruz paid
Itoralde $5,000 for the use of his name and identity—Cruz
had complained to her about how much he had to
pay Itoralde.
In early 2005 Uribe asked Cruz if he would be able to
obtain fake IDs, using names and identifiers Uribe would
provide. Uribe also asked Cruz to attend real estate
closings posing as the persons whose names would
appear on the fake IDs and contracts. Cruz agreed to do
so. Cruz attended at least three closings posing as Luis
Gonzalez, a former client of Uribe’s whose identity
Uribe had stolen. Cruz testified at trial that the first
Gonzalez closing involved a property at 212 Hill, which
he believed was purchased by two young people. Cruz
said that Uribe drove him to the closing and on the
way, they discussed that Ramirez would be there. Uribe
told Cruz that he would advise Ramirez that Cruz
was posing as Gonzalez because she already knew Cruz
from helping him find his home at 286 Chaparral. Uribe
testified that he did, in fact, tell Ramirez that Cruz would
be posing as Gonzalez, and she laughed and said some-
thing like “as long as the documents match and the IDs
match,” it was fine with her. Cruz testified that Ramirez
arrived late at the closing on 212 Hill, but was in time
to see him sign the closing documents.
No. 08-3216 7
Ramirez, however, testified at trial that she did not
attend the closing for 212 Hill. She also testified that the
buyers were Alejandro Cano and his wife, not the “two
young persons,” as claimed by Cruz. Ramirez stated that
she prepared the purchase contract for the Canos and
then sent it to the selling agent for approval. The
contract was approved. After receiving the signed
contract from the seller, Ramirez forwarded it to the
attorney as well as the lender, Uribe. She explained that
Uribe had referred the Canos to her. She subsequently
received a letter, dated May 12, 2005, from the Canos’
lawyer, Salvador Lopez, indicating that there had
been a change in the buyer and that the buyer was Luis
Gonzalez.
The second Gonzalez closing involved a property at
1238 Surrey. Ramirez showed the home to Alejandro
Espinoza and another young male. Uribe testified that
Ramirez attended the closing on 1238 Surrey. Ramirez
testified that she arrived late at the closing, but ad-
mitted that she saw Cruz in the room where the closing
took place. She also testified that after the closing, she
received a call from Cruz, who said, “I’m Rafael Cruz,
Luis Gonzalez, or whoever I’m supposed to be.”
The third Gonzalez closing, which took place in June
2005, involved a property at 386 Vincent Place. Ramirez
showed this property to Dennis Davis, an individual she
had met at a shopping mall while looking for sunglasses.
At trial Ramirez admitted that she referred Davis to
Uribe for a loan and discussed with him that if he
did not qualify for a loan, Uribe could find someone to
8 No. 08-3216
assist him, what she referred to as a “co-signer.” Ramirez
explained that she understood a “co-signer” to be someone
who signed for a property on behalf of the person who
would live there. She claimed not to know that there was
anything wrong in telling him that. Ramirez admitted
that she attended the closing for 386 Vincent Place, but
again claimed to have arrived late. But she also admitted
that she saw Cruz at the closing and that she knew, at the
closing, that Cruz was claiming to be Luis Gonzalez.
Jose Bahena testified at trial that he had discussed
purchasing a home with Uribe who told him that he
could not get a loan in his own name. Uribe also told
Bahena that Uribe could get him a loan anyway—Uribe
would get a co-signer. Bahena said that Ramirez
showed him a house at 1365 Kaskaskia, which he liked, so
she told him to get together with Uribe to get a loan. The
contract date on the purchase contract for 1365 Kaskaskia
was July 14, 2005. Bahena testified that he contacted
Uribe and eventually attended a closing for the property.
Bahena said that Uribe and Maria Moreno, his co-signer,
also attended the closing, but Ramirez did not. Bahena
testified to his understanding that both he and Moreno
would sign the closing papers and that he was supposed
to pay her $1,000 for helping him. However, Bahena
said that he did not sign any papers at the closing. Uribe
had told him that he did not qualify and only Moreno
qualified. After the closing Bahena met Ramirez to
obtain the keys to the house.
FBI Special Agent Brian E. Smith testified that during
the summer of 2006 he was involved in an investigation
No. 08-3216 9
of mortgage fraud in the Elgin, Illinois area. In the course
of his investigation he determined that Ramirez was the
realtor on seven of twenty-one properties he had
identified as having been obtained with fraudulent mort-
gages. Smith interviewed Ramirez in June 2006. Ramirez
told Smith that Luis Uribe was a mortgage broker
who referred clients to her—in fact, in 2005 the majority
of Ramirez’s referrals were from Uribe—and she
referred clients to him. She said that she had done ap-
proximately 33 properties with Uribe over a two-year
period and had attended between eight and ten closings
with him. Ramirez admitted that she found homes
for persons she knew could not qualify for mort-
gages—persons referred by Uribe. She also told Smith
that co-signers purchased the properties and the persons
living in the homes paid the mortgages. Ramirez advised
the agent that she earned two and one-half percent com-
mission on the sales price of the homes on which she
worked with Uribe.
Ramirez indicated to Agent Smith that in the
beginning she filled out the purchase contracts with the
information she received from Uribe on the persons
who wanted to buy a property. However, because those
persons did not qualify, the title company was getting
frustrated with the changes in the contracts, and Uribe
therefore asked for blank contracts, which she gave him.
Ramirez also said that Uribe had told her that credit
reports were updated every 60 to 90 days or so and that
multiple properties purchased would not show up within
that time period. Before interviewing Ramirez, Agent
Smith had been unable to identify who had obtained the
10 No. 08-3216
stolen IDs used in the mortgage scheme. Ramirez
identified Cruz as the person who did that.
Agent Smith testified that Ramirez told him that she
attended at least three closings where Cruz signed as
Gonzalez. Smith inquired about a property at 1238 Surrey
Road, and Ramirez told him that it was one of the proper-
ties for which Cruz signed as Gonzalez. Ramirez also
said that Gonzalez’s address on the contract for 1238
Surrey was listed as 212 Hill. And Ramirez volunteered
to Smith that she attended the closing for 212 Hill and
again saw Cruz sign as Gonzalez. Agent Smith asked
Ramirez about 1365 Kaskaskia, and she told him that she
found that property for someone named Bahena. Smith
told her that the named buyer on the property was Maria
Moreno, and Ramirez volunteered that if it was Maria
Moreno, it wasn’t the real Maria Moreno because Uribe
had other people signing and posing as Maria Moreno.
Ramirez offered that Cruz’s wife, sister or girlfriend, she
wasn’t sure which, had signed as Maria Moreno and
another purported buyer, Olga Trejo.
Ramirez also told Agent Smith that she had gone to the
mall to purchase sunglasses and met a person who had
poor or no credit, but wanted to buy a home. According
to Smith, Ramirez said that she told the man that she
had a friend, Luis Uribe, who could find a co-signer to
buy the property for him at the cost of $1,500. Ramirez
advised Smith that she found this person a home and
attended the closing. Agent Smith determined through
his investigation that the property was 386 Vincent
Place, with a purchase contract date of April 19, 2005,
and that the purported buyer was Luis Gonzalez.
No. 08-3216 11
As mentioned, Ramirez testified before the grand jury.
The government read the transcript of her grand jury
testimony at trial. Ramirez’s grand jury testimony
repeated much of what she had said during Agent
Smith’s interview. She testified that over the past two
years she did approximately 33 real-estate sales transac-
tions with Luis Uribe for which she was the real estate
agent for the buyers of the properties. She admitted that
for all of the properties, her buyer was supposed to live
in the property and pay the mortgage, but another
person’s name was on the mortgage; that she would
send Uribe contracts and he would let her know that the
person did not qualify and he needed another person’s
name on the contract; that as the realtor it normally was
her responsibility to write up a contract for the property
in the name of her buyer; and that Uribe ultimately re-
quested blank contract forms from her and would fill in
the information himself. Ramirez further testified that
she attended at least three closings where Cruz showed
identification indicating that he was Luis Gonzalez
and signed the mortgage contract and title of the
property as Gonzalez. She admitted that she knew Cruz
wasn’t Gonzalez. She also admitted that on one
occasion Cruz called her and introduced himself as
Rafael Cruz and then corrected himself, saying he was
Luis Gonzalez or whoever he was supposed to be.
Ramirez further testified that she attended the closing
for 386 Vincent Place in June 2005 and believed that was
when she learned that Cruz and Gonzalez were not
the same person.
12 No. 08-3216
Before the grand jury Ramirez also testified that she had
a conversation with Uribe in which she said that Luis
Gonzalez was buying so many properties so fast, that
she couldn’t draw up the contracts, and was embar-
rassed to show the contracts around her office. She said
that Uribe had told her not to worry, a person could buy
as many properties as he wants, and credit reports are
only updated every three months, so the properties
would not show up. At trial, Ramirez testified that this
conversation had taken place before any of the Gonzalez
closings.
Ramirez also testified at trial that she sold Cruz his house
at 286 Chaparral and that she knew the house was not
purchased in Cruz’s name, but was signed for in Jorge
Itoralde’s name because Cruz could not qualify for a
mortgage. She claimed that every time Uribe gave her
another person’s name, she took it as a “co-signer.” Though
Ramirez readily admitted that she knew who Cruz was
when she saw him at a Gonzalez closing, she was quick to
deny that she actually witnessed Cruz sign any closing
documents. She offered the explanation that she went to
the closing late. But she conceded that she knew the
property had been applied for and signed for in Luis
Gonzalez’s name.
Ramirez testified that she attended the closing on
201 North 9th Street. Olga Trejo was the purported
buyer for that property. Ramirez also testified that she
attended the closing on 2185 Heather Lane. Co-defendant
Griselda Sanchez was the purported buyer for that prop-
erty. Ramirez denied knowing that Moreno was not going
No. 08-3216 13
to be living in these properties. Ramirez explained that
she only learned that as a result of the investigation
into the mortgage fraud.
At trial Ramirez admitted that some of Uribe’s referrals
involved purchasing homes in the name of other per-
sons’ identities and that she sent him blank contracts so he
could fill in the name of the person who would actually
sign for the home. She agreed that she had found a home
for Jose Bahena at 1365 Kaskaskia, drew up a contract,
dated July 14, 2005, which she sent to Uribe, and that he
changed it to show Maria Moreno as the buyer. Ramirez
also admitted that she did these things knowing that
Bahena, not Moreno, would live in the house. Ramirez
claimed, however, to believe that Moreno was a co-signer.
She also claimed that her testimony before the grand jury
and her statement to Agent Smith during his interview
that, if 1365 Kaskaskia was purchased in the name of
Maria Moreno then it wasn’t the real Maria Moreno, was
based on a conclusion she had drawn from her aware-
ness about the investigation. She made the same claim
with respect to her statement to Agent Smith that she
knew Cruz had a woman who lived with him and attend-
ing closings, signing as Maria Moreno and Olga Trejo.
Ramirez denied that Uribe instructed her to negotiate
a seller’s concession and denied that he told her he
needed a seller’s concession so he and Cruz could
get paid. She acknowledged that it was the realtor’s
responsibility to negotiate any type of seller’s concession,
however. Ramirez further denied knowing that Uribe
would take his commission from the seller’s concession,
even though she admitted she knew the loans were
14 No. 08-3216
100% financed and that the buyers had no cash on hand.
And she denied any knowledge of fake IDs. She also
denied knowingly participating in a scheme to defraud
and she denied ever intending to defraud anyone.
Mary Roberts, the manager of the Starck Realty Elgin,
Illinois, office, testified at trial. Roberts had 31 years’
experience in real estate and was a licensed agent and
broker. She testified that she hired Ramirez in late 2003
and that Starck Realty trains its agents on the importance
of accuracy in drawing up sales contracts. Roberts
testified about the usual real estate transaction: the real
estate buyer’s agent would complete the contract with
the buyer, have the buyer sign it, and then present it to
the listing agent who presents it to the seller, and once
the parties reach an agreement, the contract is signed,
initialed, dated and provided to the attorneys and lender.
Roberts testified that in September 2005, while covering
for Ramirez who was on vacation, she fielded some calls
from sellers’ agents about Ramirez’s transactions. Roberts
pulled the files in question and discovered that the same
lender and same attorney were involved in each transac-
tion, which alarmed her somewhat. When Ramirez re-
turned, Roberts spoke with her about her concerns about
this pattern, asked her if everything was okay, and asked
her to use a different attorney or lender. Ramirez re-
sponded that everything was okay—she had asked Uribe
and he said not to worry, he would take care of her.
Roberts also testified that in 2004—including the time
frame of the mortgage scam—Ramirez earned commissions
of around $16,000 on written contracts of $700,000 and
No. 08-3216 15
in 2005 her earned commissions had climbed to $58,550
on written contracts of approximately $5 million. This
made Ramirez the top agent in the Starck Realty
Elgin office that year.
II. ANALYSIS
Ramirez contends that the district court erred in
giving the ostrich (conscious or deliberate avoidance)
instruction because the government failed to produce
any evidence that she deliberately avoided learning the
truth. She asserts that the government misused the
ostrich instruction in an effort to convince the jury that
a reasonable person in her position would have
inquired further and discovered the truth. She also com-
plains that the instruction did not include language
stating that mere negligence was insufficient to prove
knowledge.
A. Giving the Ostrich Instruction 2
The district court instructed the jury that to sustain the
charge of wire fraud, the government must prove, inter
2
As the court recently explained, this instruction derives its
name from the incorrect belief “that ostriches when frightened
bury their head in the sand.” United States v. Black, 530 F.3d 596,
604 (7th Cir. 2008), cert. granted, 129 S. Ct. 2379 (2009). In truth,
when an ostrich senses danger and can’t run away, “it flops to
the ground and remains still, with its head and neck flat on the
ground in front of it” and merely looks as if it has buried its
head in the sand. Id. (citation omitted).
16 No. 08-3216
alia, that the defendant “knowingly devised or partici-
pated in the scheme to defraud, as described in the in-
dictment.” The court further instructed:
When the phrase “knowingly” is used in these
instructions, it means that the defendant realized
what he or she was doing and was aware of the
nature of his or her conduct, and did not act
through ignorance, mistake or accident. Knowl-
edge may be proved by the defendant’s conduct,
and by all the facts and circumstances sur-
rounding 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 some-
one had withheld some important facts, yet shut
her eyes for fear of what she would learn, you may
conclude that she acted knowingly, as I have
used the word.
This instruction is substantially the same as Instruction
4.06 of the Federal Criminal Jury Instructions of the
Seventh Circuit (1999), but more on the similarity later.
We review the district court’s decision to give the
ostrich instruction for an abuse of discretion, viewing the
evidence in the light most favorable to the government.
United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007),
cert. denied, 128 S. Ct. 932 (2008). Our review is limited,
seeking to determine whether the ostrich instruction
correctly stated the applicable law. See United States v.
Curry, 538 F.3d 718, 731 (7th Cir. 2008). It is considered
No. 08-3216 17
within the context of all of the instructions as a whole to
determine if they adequately and correctly informed
the jury of the applicable law. Id.The “ostrich” instruction “explain[s] to the jury that the
legal definition of ‘knowledge’ includes the deliberate
avoidance of knowledge.” United States v. Carrillo, 269
F.3d 761, 769 (7th Cir. 2001); see also United States v.
Severson, No. 08-1508, 2009 WL 1751545, at *5 (7th Cir.
June 23, 2009) (stating that the ostrich instruction
“explains to the jury that guilty knowledge also includes
the deliberate avoidance of knowledge”); Black, 530 F.3d
at 604 (“An ostrich instruction tells the jury that to
suspect that you are committing a crime and then take
steps to avoid confirming the suspicion is the equivalent
of intending to commit the crime.”). This instruction is
appropriate when the defendant claims a lack of guilty
knowledge, and the government has presented evidence
sufficient for a jury to infer that the defendant deliber-
ately avoided the truth. Severson, 2009 WL 1751545, at *5;
Carani, 492 F.3d at 873. The focus of the instruction is
on the defendant, not a reasonable person. United States
v. Carrillo, 435 F.3d 767, 782 (7th Cir. 2006).
Evidence of deliberate avoidance can be placed in
two general categories. The first is physical avoidance,
which is where the defendant physically acts to avoid
confirming her suspicions. Black, 530 F.3d at 604; Carrillo,
435 F.3d at 780. Sticking one’s head under the hood of a
vehicle during a drug deal is an example. See United States
v. Diaz, 864 F.2d 544, 551 (7th Cir. 1988). The second
category of deliberate avoidance is psychological avoid-
ance, which is “a mental act—’a cutting off of one’s normal
18 No. 08-3216
curiosity by an effort of will.’ ” Carrillo, 435 F.3d at 780(quoting United States v. Giovannetti, 919 F.3d 1223, 1229
(7th Cir. 1990)). An example comes from United States
v. Leahy, 464 F.3d 773 (7th Cir. 2006), cert. denied, 128 S. Ct.
46 (2007), where the defendant insurance broker was
exposed to numerous and obvious red flags throughout
a business relationship, was aware of problems with an
audit, yet asked no questions and, when confronted
with an allegation of insurance fraud, did not disagree.
Id. at 794-96. Psychological avoidance, which supports an
ostrich instruction, is to be distinguished from a defen-
dant’s simple lack of mental effort, lack of curiosity, or
ordinary ignorance, which does not. Black, 530 F.3d at
604; Carrillo, 435 F.3d at 780. “The circumstances sur-
rounding the defendant may be sufficient to infer that,
given what the defendant knew, [s]he must have forced
[her] suspicions aside and deliberately avoided con-
firming for [herself] that [s]he was engaged in criminal
activity.” Carani, 492 F.3d at 873 (citing Carrillo, 435 F.3d
at 781). The focus is on what the defendant knew and
whether that knowledge raises a reasonable inference
that she remained deliberately ignorant of facts constitut-
ing criminal knowledge. Carrillo, 435 F.3d at 781. This
case principally implicates the psychological branch of
knowledge avoidance.
The ostrich instruction must be given cautiously so as
not to allow a jury to convict a defendant for mere negli-
gence, effectively eliminating the knowledge require-
ment. Id. This concern may be addressed by carefully
considering whether the evidence supports an inference
of deliberate avoidance. See id. at 782-84.
No. 08-3216 19
The government points to the following evidence in
support of the ostrich instruction:
! Ramirez knew that virtually all her business
came from Uribe, not from former customers
or referrals;
! she knew that the persons referred by Uribe
could not qualify for mortgages, yet sought
100% financing on the purchase price of the
homes they wanted to buy;
! from April through mid-July 2005, Ramirez
assisted seven bad-credit clients referred by
Uribe in finding homes;
! she filled out the purchase contracts and then
Uribe crossed out or whited out the buyers’
names;
! Uribe told Ramirez that the changes in the
contracts upset the title company, so she
started sending him blank contract forms;
! in the seven transactions Ramirez received
finalized contracts that listed the buyer as
someone other than the person(s) to whom she
had shown the house and who she knew
would live in the house;
! Ramirez knew that Luis Gonzalez appeared as
the purported buyer in three purchase transac-
tions during a six-week period from mid-April
through May 2005;
! she was aware that the properties would not be
occupied by someone named Luis Gonzalez;
20 No. 08-3216
! she had never met anyone named Luis Gonza-
lez and did not know whether he was a real
person;
! Ramirez attended three closings where Luis
Gonzalez was named the buyer on the con-
tracts;
! at those closings she witnessed Rafael Cruz
sign the contracts in Gonzalez’s name;
! Ramirez previously had sold Cruz a property,
so she knew his name was not Gonzalez;
! she knew Cruz would not live in those homes;
! Ramirez admitted that by the third transaction
she knew that Cruz was pretending to be
someone he was not;
! nonetheless, she continued to associate with
and participate in real estate transactions
involving Uribe and Cruz;
! Ramirez asked Uribe how he was able to get so
many mortgage applications using one per-
son’s identity, and he explained that as long as
they closed the loans within thirty or sixty
days, the credit reporting companies would
not pick it up;
! Ramirez knew that Maria Moreno appeared as
the purported buyer of two properties in
purchase transactions dated three weeks
apart in June and July 2005;
No. 08-3216 21
! Ramirez knew that Maria Moreno would not
occupy these properties and she had never
met anyone named Maria Moreno;
! Ramirez attended one closing for which Maria
Moreno was the purported buyer and was
present when Cruz’s wife Juana Angelito
signed the contract as Moreno;
! Ramirez knew Angelito and knew that she
would not take possession of the property; and
! Ramirez’s commissions quickly skyrocketed
and she outpaced all of the other agents in
her office based almost exclusively on trans-
actions involving clients with bad credit who
could not qualify for mortgages.
All of these circumstances suggest that Ramirez con-
sciously turned a blind eye to the true nature of these
transactions.
Yet there is even more evidence to support the
district court’s decision to give the ostrich instruction:
! in late 2004, Ramirez showed properties to
Cruz and his wife, Angelito; when they found
a home at 286 Chaparral, she asked him
whose name the property would be in; and
he said that it would not be in his or his wife’s
name and she should contact Uribe who
would have that information;
! Uribe told Ramirez that he applied for the
mortgage for 286 Chaparral using the identity
22 No. 08-3216
of Jorge Itoralde, and Cruz complained to her
about how much he had to pay Itoralde to
use his identity;
! Ramirez had received training on the impor-
tance of accuracy in drawing up sales con-
tracts;
! she was aware that her boss Mary Roberts,
who had greater experience and training,
questioned the transactions with Uribe
because they involved the same lender and
same attorney;
! Ramirez claimed at trial that she believed the
persons who signed as the buyers were “co-
signers,” yet none of the seven contracts identi-
fies a “co-signer” and none contains the
name of her buyer;
! she testified before the grand jury that she told
Uribe that Gonzalez was buying properties so
fast, she was embarrassed to show the con-
tracts around her office;
! she also testified before the grand jury that the
woman who lived with Cruz showed up at
closings pretending to be someone else; and
! Ramirez’s practices in filling out purchase
contracts for transactions involving Uribe
diverged from the typical process described
by Roberts: Typically, the agent completes the
purchase contract with the buyer, provides
it to the seller or seller’s agent and, only after
No. 08-3216 23
the seller has approved the contract, forwards
it to the lender. Ramirez, by contrast, provided
partially completed or blank purchase con-
tracts to Uribe who changed or filled in the
buyer information and then returned the
forms to Ramirez, apparently before she pro-
vided the forms to the seller’s agent.
In deciding whether the evidence supports the ostrich
instruction, we should consider all of these circumstances
together because each of them was known to Ramirez.
See United States v. Conner, 537 F.3d 480, 487 (5th Cir.
2008) (“Alone, each might not have justified a deliberate
ignorance instruction, but when taken together they
present facts that justify the instruction.”).
Ramirez argues that the government presented evidence
that she had direct knowledge of the scheme to
defraud, but not a single piece of evidence of deliberate
avoidance. However, evidence need not “be placed in
either an actual knowledge category or a deliberate avoid-
ance category.” Carrillo, 435 F.3d at 784. The govern-
ment may present evidence that supports both theories.
Id. Much of the evidence described above supports both
theories. Take, for example, Ramirez’s own testimony
that she saw Cruz in the room at the second Gonzalez
closing and afterwards he called her, saying words to
the effect of “I’m Cruz, or Luis Gonzalez, or whoever
I’m supposed to be.” This could support a finding that
at that point in time Ramirez knowingly participated in
the fraud. It also could support an inference of deliberate
avoidance: If Ramirez was unaware of the fraudulent
24 No. 08-3216
scheme at that time, Cruz’s presence at a closing that
he seemingly had no reason to attend should have
raised her suspicions. But she didn’t question his pres-
ence. Ramirez’s testimony about the third Gonzalez
transaction presents another illustration of the dual
nature of the information she possessed. She admitted
that as of that point, she knew Cruz was posing as and
signing for Gonzalez. This could support a finding that
Ramirez knew she was participating in the scheme to
defraud. It also could support a reasonable inference
that Ramirez deliberately avoided discovering whether
the person who signed for Maria Moreno at the two
subsequent Moreno closings was in fact Maria Moreno.
“A person’s knowledge of his or her cohorts’ involve-
ment with illegal or suspicious activities is a fact we
have consistently found significant in giving an ostrich
instruction.” Carrillo, 435 F.3d at 783.
Similar circumstances were presented in United States
v. Nguyen, 493 F.3d 613 (5th Cir. 2007), where the court
held that the ostrich instruction was warranted. The
defendants, the Nguyen brothers, were involved in a
mortgage scheme that used inflated appraisals, false
documentation, and “straw borrowers” to obtain home
financing loans. The Nguyens worked at a title company
and acted as the notary, escrow, and closing agents
for several real estate transactions which were part of the
scheme. They completed and submitted forms to loan
companies regarding bogus sales; they notarized straw
borrowers’ false affidavits stating their intent to occupy
the homes; and they put cashier’s check numbers on
No. 08-3216 25
forms showing a down payment was received, though
they never saw the actual check or inquired about the
check. Id. at 617. The Nguyens repeated these practices
many times within a short time frame, and they often
used the same straw borrowers. Id. at 618. The court
concluded that the government had presented evidence
sufficient to raise an inference of subjective knowledge.
Id. at 620. The court said that participation in a single
suspicious transaction might be insufficient to support
the ostrich instruction, id. at 620, but explained that
“[t]he sheer intensity and repetition in the pattern of
suspicious activity coupled with the [defendants’] con-
sistent failure to conduct further inquiry” did, id. at 622.
And so it was with Ramirez, who faced a similarly
intense and repetitious pattern of highly suspicious
activity. She knew that the clients Uribe referred to her
could not qualify for mortgages yet sought 100%
financing on the purchase price of the homes they
wanted to buy. She provided Uribe with incomplete or
blank purchase contracts. Every finalized contract she
received from Uribe listed as the buyer someone other
than the person with whom she had worked. Her buy-
ers’ names were nowhere to be found on the
purchase contracts. Furthermore, Luis Gonzalez was the
purported buyer for three purchases in a six-week period,
and Maria Moreno was the purported buyer in two
purchases in less than three weeks. Cruz even told her
that he was taking on the Gonzalez persona, as needed.
Ramirez knew that the persons who would occupy the
homes were not on the contracts.
26 No. 08-3216
And there is even more: viewing the evidence in the
light most favorable to the government, as we must,
Ramirez attended three closings where she witnessed
Rafael Cruz, whom she knew was not Gonzalez, sign
the contracts as Luis Gonzalez, the purported buyer.
Even accepting Ramirez’s version of the facts, she
attended two closings where she saw Cruz even though
he had no legitimate reason to be there. She knew that
Cruz was not the person to whom she had shown the
houses and that he would not live in the houses. Ramirez
even admitted that she attended the third Gonzalez
closing at which time she understood Cruz was claiming
to be Gonzalez! Yet she was quick to say that she never
saw Cruz sign anything, which by itself could rea-
sonably be understood as an effort to hide her head in
the sand. The evidence thus reveals “a paradigm case”
for giving an ostrich instruction: Ramirez acknowledges
her association with Uribe and his cohorts, “but, despite
circumstantial evidence to the contrary, denies knowl-
edge of the group’s illegal activity.” United States v. Paiz,
905 F.2d 1014, 1022 (7th Cir. 1990), abrogated on other
grounds by Gozlon-Peretz v. United States, 498 U.S. 395(1991); Diaz, 864 F.2d at 550.
Yet Ramirez failed to ask questions—other than the one
to Uribe about how he was able to use a name so many
times—or take any other action. Uribe’s response to
her that credit reporting companies wouldn’t pick it up
if they acted quickly enough itself should have
prompted further questions. But even if that by itself
didn’t heighten Ramirez’s suspicions, when considered
together with the other events as they unfolded—Ramirez
questioned Uribe about this before any of the Gonzalez
No. 08-3216 27
closings—such a response would have made her
strongly suspicious that things were not as they seemed
to be. And the fact that Ramirez accepted Uribe’s ex-
planation that everything was fine, without question,
further supports an inference that she deliberately hid
her head in the sand to avoid learning the truth. See
United States v. Newell, 315 F.3d 510, 528-29 (5th Cir.
2002) (holding ostrich instruction appropriate where
principal in advertising agency accepted client’s rep-
resentations that charges were for legitimate marketing
expenses without any proof that marketing-related ex-
penses were incurred, hesitated in seeking legal advice,
and persisted in questionable practices even after a co-
worker had questioned her about them).
We acknowledge that distinguishing between delib-
erate avoidance and simple lack of mental effort, lack of
curiosity, ordinary ignorance, or mere negligence often
involves “close calls.” See United States v. McClellan, 165
F.3d 535, 549 (7th Cir. 1999). But in cases such as this,
we should defer to the district court’s exercise of discre-
tion to give the ostrich instruction. Id. And this is so even
in cases in which there is evidence of direct, or actual,
knowledge. See Carrillo, 435 F.3d at 783-84 (finding no
abuse of discretion in giving ostrich instruction where
some evidence established direct knowledge and some
evidence raised an inference of deliberate ignorance).
Accordingly, we conclude the district court did not
abuse its discretion by giving the ostrich instruction to
the jury.
28 No. 08-3216
B. Refusing to Include Negligence Language
Ramirez argues that the district court compounded its
error in giving the ostrich instruction by failing to
instruct the jury that mere negligence in discovering the
truth was not sufficient to infer knowledge. Along those
lines, she contends that the government suggested that
the jury could find deliberate avoidance because a rea-
sonable person in her position would have inquired
further and discovered the truth.
We have cautioned that “a jury must not be invited to
infer that a particular defendant deliberately avoided
knowledge on the basis of evidence that only supports
the inference that a reasonable person in the situation
would have deliberately avoided knowledge.” Carrillo,
435 F.3d at 782. In arguing that the government invited the
jury to do that here, Ramirez first points to a single sen-
tence in the government’s closing argument: “Remember,
there are so many red flags in each of these transactions
that there’s a high risk that an honest real estate broker,
one who isn’t intent on defrauding, will catch onto the
scam, will turn Uribe in.” We are not persuaded that
this sentence has the effect that Ramirez attributes to it.
There is little risk that this single line from the govern-
ment’s closing argument led the jury to find that Ramirez
deliberately avoided knowledge because a reasonable
broker would have inquired further and discovered the
fraud. The context of this sentence seems to dispel any
notion of juror confusion. The government was ex-
plaining why Uribe needed to enlist a real estate agent
who was in on the fraudulent scheme—someone he
could trust would not turn him in to authorities.
No. 08-3216 29
Furthermore, the government repeatedly stated in its
closing argument that it had to prove that Ramirez acted
knowingly or with knowledge. The Assistant U.S.
Attorney accurately quoted the jury instruction on the
elements of wire fraud that the jury was to receive im-
mediately following the arguments, including “that the
defendant knowingly devised or participated in the
scheme to defraud, as described in the indictment” and
“did so knowingly and with the intent to defraud.” She
added that “this case boils down to a single issue: Did
Beatriz Ramirez knowingly participate in a scheme to
fraudulently obtain mortgages?” The prosecutor
reiterated that “the government must prove that the
defendant knowingly participated . . . in a scheme to
defraud.” Moreover, government counsel accurately
explained that “knowingly” as used in the instructions
the court was to give to the jury meant “that the
defendant realized what he or she was doing, was aware
of the nature of his or her conduct, [and] did not act
through ignorance, mistake or accident.” The government’s
closing argument did not suggest that the jury could
convict Ramirez because of her failure to do what a
reasonable person in her situation would have done. Nor
did the government’s closing suggest that a guilty
finding could be based on mere negligence.
Ramirez also argues that the government used Roberts’
testimony to suggest that a reasonable broker would
have seen the red flags in the transactions involving Uribe
and inquired further. The government responds that it
pointed to Roberts’ testimony as evidence that Ramirez,
who knew much more about the suspicious circum-
30 No. 08-3216
stances than Roberts did, actually knew of the fraud, not
that Ramirez should have known about it. We have
found that an ostrich instruction was appropriately
given under similar circumstances. See United States v.
Leahy, 464 F.3d 773, 796-97 (7th Cir. 2006) (contrasting
defendant’s claimed ignorance despite years of involve-
ment with suspicious workers compensation insurance
accounts with the reaction of a coworker, who immedi-
ately realized that the accounts were based on inac-
curate employee job classifications), cert. denied, 128 S. Ct.
46 (2007). Roberts was somewhat alarmed after fielding
a few phone calls for Ramirez while she was on vacation
and briefly reviewing her files. Though Ramirez did
not have the same level of experience as Roberts,
Ramirez was deeply involved with the suspicious files
and related transactions. They were her ticket to success.
As for the district court’s refusal to instruct the jury
that mere negligence in not discovering the truth could
not be equated with knowledge, Ramirez contends that
such language was supported by the evidence that she
was a relatively new and inexperienced real estate agent
and that she was trusting.3 A variation provided by the
Seventh Circuit pattern ostrich instruction indicates that
“mere negligence” language should be included when
3
In her brief Ramirez asserts that Roberts opined that she
was trusting and naive. Actually, Ramirez’s attorney said
during a sidebar that Roberts would testify that Ramirez
was naive and trusting. Roberts testified, however, that
Ramirez was trusting and caring. We also note that Ramirez
did not argue a negligence theory to the jury; her theory of
defense was simply that she lacked guilty knowledge.
No. 08-3216 31
appropriate in a given case. Federal Criminal Jury Instruc-
tions of the Seventh Circuit 4.06 (1999) (“You may not
conclude that the defendant had knowledge if he/she
was merely negligent in not discovering the truth.”).
The district court’s ostrich instruction did not include
such language.
It seems unlikely that the jury could have found
Ramirez guilty based on mere negligence, given the
instructions as a whole made it clear that the govern-
ment had to prove that she knowingly participated in
the fraudulent scheme. See Carrillo, 269 F.3d at 770 (con-
cluding it unlikely that the jury convicted the defendants
based only on negligence given the instructions that “[a]
defendant’s presence at the scene of a crime and knowl-
edge that a crime is being committed is not alone
sufficient to establish the defendant’s guilt” and “[a]
defendant’s association with conspirators . . . is not suffi-
cient to prove his participation or membership in a con-
spiracy”); Paiz, 905 F.2d at 1022-23 (concluding ostrich
instruction’s effect was neutralized by other instructions
including a “mere presence” instruction which “negate[d]
any chance that the jury would convict . . . on any finding
other than” knowing participation in the conspiracy).
And, we add that we disagree that there was any
evidence that Ramirez was merely negligent. She either
knew or she actively and deliberately avoided learning
the truth. Moreover, the government did not argue that
Ramirez was guilty because she was negligent, or other-
wise failed to do what a reasonable real estate agent
would have done.
32 No. 08-3216
And other instructions cannot be disregarded. As
noted, we consider not only the ostrich instruction but
all of the instructions as a whole to determine if they
adequately and correctly informed the jury of the ap-
plicable law. See, e.g., United States v. DiSantis, 565 F.3d
354, 359 (7th Cir. 2009); United States v. Curry, 538 F.3d
718, 731 (7th Cir. 2008). The district court gave several
other instructions regarding knowledge and intent:
A scheme is a plan or course of action formed
with the intent to accomplish some purpose. . . .
A scheme to defraud is a scheme that is intended
to deceive or cheat another and to obtain money
or property or cause the loss of money or property
to another.
The phrase “intent to defraud” means that the
acts charged were done knowingly, with the
intent to deceive or cheat the victim in order to
cause gain of money or property to the defendant
or loss of money or property to another.
The court further instructed that:
Any person who knowingly aids, counsels,
commands, or induces or procures the com-
mission of an offense may be found guilty of that
offense. A person must knowingly associate with
the criminal activity, participate in the activity
and try to make it succeed.
If the defendant knowingly causes the acts of
another, the defendant is responsible for those
acts as though she personally committed them.
No. 08-3216 33
...
If a defendant performs acts that advance a
criminal activity, but had no knowledge that a
crime was being committed or was about to be
committed, those acts alone are not sufficient to
establish the defendant’s guilt.
This last instruction is analogous to the “mere presence”
instruction discussed in Carrillo, 269 F.3d at 770, and Paiz,
905 F.2d at 1022-23. These instructions advised the jury
that it had to find that Ramirez acted knowingly in order
to be guilty. When we look to the instructions as a
whole, we conclude that the jury was appropriately
instructed that it could not convict absent a finding that
Ramirez acted “knowingly.” The absence of the “mere
negligence” variation of the ostrich instruction does
not seem to us to have been an error in this case.
C. Harmless Error
As a backup position, the government also argues that
even if the ostrich instruction was improperly given or
worded, the error was harmless given the extensive
evidence of Ramirez’s direct knowledge, including her
own repeated incriminating statements. We agree.4
4
Ramirez contends, without any analysis or citation to perti-
nent authority, that the district court’s giving of the ostrich
instruction denied her due process. Such an argument is
considered waived. United States v. Tockes, 530 F.3d 628, 633
(7th Cir. 2008).
34 No. 08-3216
Even if the district court erred in giving the ostrich
instruction or in declining to include language advising
the jury that mere negligence was insufficient for a
guilty finding, Ramirez’s conviction should be upheld if
the error was harmless. See Pope v. Illinois, 481 U.S. 497,
501-03 (1987); Black, 530 F.3d at 602. An error is harmless
“if the evidence is so strong that a jury would have
reached the same verdict absent the erroneous instruc-
tion . . . .” United States v. Ramsey, 406 F.3d 426, 432 (7th
Cir. 2005). The easiest case for harmless error in giving
an ostrich instruction is where the defendant’s own
testimony establishes his or her knowledge of the crim-
inal activity. See United States v. Nobles, 69 F.3d 172, 187
(7th Cir. 1995) (reasoning that the ostrich instruction
was unlikely to affect the jury’s consideration of the
defendant’s own words indicating knowledge of drug
possession); United States v. Josefik, 753 F.2d 585, 589 (7th
Cir. 1985) (concluding the ostrich instruction was “com-
pletely harmless as to [one defendant], for there was
direct evidence that he himself described the scotch
as stolen”).
Here, we have Ramirez’s own testimony at trial which
supports a finding that she knew, at the very least, by the
third Gonzalez closing that Cruz was showing up at
closings for which he was not the buyer, or, for that
matter, the seller, was using a false name and false
identity, and was posing as someone he was not. This is
obviously false, deceptive, and illegal. Despite knowing
that Cruz and Uribe were involved in these fraudulent
activities, Ramirez’s association with and participation
No. 08-3216 35
in the scheme continued. Ramirez’s knowledge that
Uribe, Cruz, and others were involved in fraud-
ulent loan transactions, along with her knowledge of the
numerous suspicious circumstances that surrounded
those and other transactions gave her sufficient knowl-
edge to permit a jury to infer that she remained deliber-
ately ignorant of facts constituting criminal knowledge.
In arguing that the errors in the giving of the ostrich
instruction were not harmless, Ramirez relies on the
fact that Uribe did not mention her in his sworn state-
ment prepared by the government, reviewed by Uribe
and his attorney, and presented under oath to the grand
jury regarding the scheme. Uribe testified, however, that
he had told the government about Ramirez before he
testified to the grand jury. He also testified that his state-
ment to the grand jury did not contain every detail that
he knew about the fraud. Ramirez responds that she was
“hardly a mere detail.” While this seems to be an accurate
characterization of her role, Uribe’s omission of any
mention of Ramirez in his statement to the grand jury
cannot be considered in isolation. We consider all of the
evidence, and we find plenty of evidence of Ramirez’s
actual knowledge, including her own testimony on the
stand that, even if she was in the dark in the beginning, by
the third Gonzalez closing, at the latest, she knew of the
criminal activity. We might add that the third Gonzalez
closing, which Ramirez testified occurred in June 2005,
occurred prior to the August 31, 2005 wire transfer,
which served as the basis for Count 3—the count on
which Ramirez was convicted.
36 No. 08-3216
Ramirez also focuses on Uribe’s testimony that “it
was my understanding, or my thought, that Ms. Ramirez
may have—or did know about the scheme.” She argues
that, given the government’s view that Uribe was the
“head of the scheme” and she was only a helper, Uribe’s
testimony shows a “shocking lack of certitude.” But
Ramirez overlooks Uribe’s testimony in response to
the next two questions following this testimony:
Q: Did you tell the government whether the
defendant knew of any other co-schemers or
participants in this fraud?
A. At that time I believe I did, yes, ma’am.
Q. And what did you say?
A. I did at that time mention the fact that Ms.
Ramirez had known and had met Mr. Rafael
Cruz, who eventually posed as Luis Gonzalez
for some of these properties.
It seems that rather than being unsure about whether
Ramirez knew about the scheme, Uribe’s word choices
reflect discomfort in testifying. And, in the end, it
doesn’t really matter given the plentiful evidence that
Ramirez knew about and knowingly participated in the
fraudulent scheme. This was not a close case.
III. CONCLUSION
For the foregoing reasons, we A FFIRM Ramirez’s con-
viction and the district court’s judgment.
8-3-09