United States v. William Mikaitis ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐2783
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
WILLIAM MIKAITIS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 361 — Virginia M. Kendall, Judge.
____________________
ARGUED NOVEMBER 10, 2021 — DECIDED APRIL 29, 2022
____________________
Before MANION, ROVNER, and WOOD, Circuit Judges.
MANION, Circuit Judge. William Mikaitis stood trial on
drug charges. The government argued he was a no‐show doc‐
tor at a weight‐loss clinic who participated in illegally distrib‐
uting drugs. But he denied knowing about illegal activity. The
district judge issued a deliberate‐avoidance instruction. The
jury convicted. The judge sentenced Mikaitis to 30 months. He
appeals, arguing that the evidence did not support the in‐
struction. But we affirm.
2 No. 20‐2783
I. Facts
Michael Jennings ran Results Weight Loss Clinic in Lom‐
bard, Illinois. He was not a doctor or other medical profes‐
sional. He worked with a doctor to keep Results open, but that
doctor lost his license. So Jennings needed another doctor.
Someone connected Jennings to Mikaitis, a doctor licensed in
Illinois with several decades of experience. They met around
October 2012. Mikaitis was working full‐time for a hospital in
Lockport, Illinois. Jennings offered to pay Mikaitis cash to se‐
cure a Drug Enforcement Agency registration number for the
clinic and to review patient charts. Mikaitis agreed. So he ob‐
tained a DEA number and authorized Jennings to use it and
Mikaitis’s credit card to order phentermine and other diet
medications in bulk to distribute to patients. These diet pills
are controlled substances. Over the next two years, Jennings
ordered over 530,000 pills for over $84,000 using Mikaitis’s
credit card and DEA number. Jennings reimbursed Mikaitis
for these costs.
The bulk drug shipments Jennings ordered were initially
delivered to Mikaitis’s Lockport office. But Mikaitis allowed
Jennings to take the drugs from Lockport to Results. And Mi‐
kaitis changed the delivery address so future shipments went
directly to Results.
Jennings saw many patients at Results. Mikaitis appeared
weekly to get $1,750 cash and review four to eight charts. He
always entered the clinic through a side door, went “right to
Mr. Jennings’ office” to review the files set aside for him, and
“didn’t look anywhere in the clinic,” according to Mikaitis’s
testimony. He decided whether to allow drugs based on those
charts. But Results also gave drugs—in person and by mail—
to many patients whose charts he never reviewed. He testified
No. 20‐2783 3
he knew Jennings lacked a medical license. Mikaitis testified
he never saw any signs the clinic shipped out drugs. But a
nurse practitioner who worked at the clinic testified she no‐
ticed almost immediately that Jennings was unlawfully dis‐
tributing drugs. She quit two days after starting.
In all, Jennings paid Mikaitis about $98,000 cash, in addi‐
tion to reimbursement for over $85,000 in drug costs. Mikaitis
deposited most of his weekly cash into a bank account he
shared with his mistress, which funded their affair.
II. Charges and Trial
A grand jury indicted Mikaitis on 17 counts.
Count 1 charged Mikaitis and Jennings with conspiracy
“to knowingly and intentionally” distribute benzphenter‐
mine, phendimetrazine, and phentermine. Counts 2–8
charged them with “knowingly and intentionally” distrib‐
uting controlled substances “outside of the usual course of
professional practice and without a legitimate medical pur‐
pose.” Counts 9–15 charged them with misbranding drugs,
“with intent to defraud or mislead.” Count 16 charged them
with conspiracy “to knowingly conduct and attempt to con‐
duct” a financial transaction involving proceeds from drug
dealing. Count 17 charged Mikaitis with “knowingly en‐
gag[ing] and attempt[ing] to engage in” a monetary transac‐
tion involving criminally derived property.
Mikaitis stood trial solo. A key dispute was his mens rea.
The government had to prove his knowledge. He denied hav‐
ing guilty knowledge. During opening statements, defense
counsel explained that as far as Mikaitis understood, the pa‐
tients would undergo exams to determine if they were fit for
drugs, he would review the charts after these exams to
4 No. 20‐2783
determine if each patient qualified to receive drugs, and no
patient would receive drugs without a legitimate medical
purpose and his approval. The defense was that Jennings
went behind Mikaitis’s back and committed crimes without
his knowledge.
The government marshaled a parade of nearly 20 wit‐
nesses to illegal activity at Results. Yet the theme of cross‐ex‐
aminations was: But you have no idea if Dr. Mikaitis knew of
any of this alleged illegal activity, do you? For example, an
Illinois health services investigator testified about the initial
investigation of an anonymous complaint that Jennings acted
as a doctor at Results without a license. The investigator de‐
termined Jennings was not a medical professional. But cross
established that the complaint did not mention Mikaitis, that
the investigator only saw Jennings give drugs to a patient out‐
side Mikaitis’s presence, and that the investigator did not hear
if Jennings ever told Mikaitis about seeing that patient. De‐
fense pressed: “You have no way of knowing … whether Mi‐
chael Jennings lied to Dr. Mikaitis about what he was doing
at that clinic when Dr. Mikaitis wasn’t there.”
“That’s correct, sir.”
As another example, a DEA agent testified she entered Re‐
sults posing as a new patient. Jennings weighed her and took
her blood pressure but did not require other tests, conduct an
exam, take blood, or discuss her medical history. Yet he sold
her a bottle of phentermine. She did not see Mikaitis at Re‐
sults. But on cross, that was the main point: she never saw Mi‐
kaitis at Results. She did not hear if Jennings called Mikaitis
and mentioned her. She did not know what Jennings told Mi‐
kaitis about who completed the forms or who took the blood‐
pressure information. She admitted she did not know if
No. 20‐2783 5
Jennings ever reported her visit to Mikaitis or showed him her
information.
As yet another example, an actual patient testified that the
first time she visited Results, she had her blood pressure and
pulse checked and her history reviewed, and got a month’s
worth of pills. Results did not do an exam, blood work, or any
other tests. She returned a few times and found a similar pro‐
cess. After these initial visits, she stopped going in. Instead,
she called and gave her blood pressure, weight, and payment.
And Results mailed drugs to her. This happened monthly for
about two years. She never returned to Results for any check‐
up. But again, cross suggested she could not implicate Mikai‐
tis. She did not recall ever seeing him at Results and did not
know if he was shown her patient file or told about her visits.
Nurse Practitioner Parminder Singh testified. She visited
Results as a patient in February 2013. She only saw Jennings
and assumed he was a medical provider. He weighed her and
took her blood pressure but did no exam or other tests. Yet he
gave her drugs. Learning her occupation, he asked her to
cover Mikaitis. She agreed. She worked there for two days, in
January 2014. She was the provider seeing patients. The only
other person there was Jennings. She learned he was taking
phone orders and arranging to mail drugs out. She asked
about his medical background but he dodged. She realized
after the second day he was not a medical provider. She left
because staying jeopardized her license. Again, defense
blamed Jennings and pursued its ignorance theme during
cross. Singh reiterated that when she went to Results as a pa‐
tient and as an employee, the only other person present with
Results was Jennings. He acted as if he was a doctor or nurse
practitioner. She never met or spoke with Mikaitis. She did
6 No. 20‐2783
not know what Jennings told Mikaitis about her resignation.
She did not know which charts Jennings showed Mikaitis, or
if he signed off on charts, or if Jennings told Mikaitis the truth.
Mikaitis took the stand and maintained his ignorance. Jen‐
nings told him he would review the charts before drugs went
out. But he admitted Jennings never told him who prepared
the charts. Mikaitis never agreed to see patients at Results. He
believed Jennings had a nurse practitioner to see patients and
prepare charts, but acknowledged Jennings did not tell him
that. Mikaitis signed for a new nurse practitioner: Singh. Mi‐
kaitis believed she would see patients. Jennings never told
him she quit. Mikaitis did not know Jennings pretended to be
a doctor. Jennings gave the charts to Mikaitis, who relied on
Jennings for accuracy. Mikaitis’s understanding was that be‐
fore any patient got drugs, he would have to review the chart
and approve. His understanding was no patient would get
drugs without his approval. He never would have agreed to
allow Jennings to give drugs before he, Mikaitis, had the op‐
portunity to review the patient’s history. Mikaitis claimed he
had no way to know Jennings’ acts outside his presence other
than what Jennings told him. Mikaitis testified he did not pay
close attention to the volume of pills Jennings ordered.
Mikaitis tried to varnish an incriminating text he sent to
Jennings about the mistress picking up the cash one day: “Let
her get it. Don’t give her any info. She’s okay. Better that she
knows very little. Thanks. She’ll be there by 7.” Mikaitis testi‐
fied he and his mistress were having a disagreement and he
did not want her to know the cash amount supplied that time.
The ignorance defense persisted through cross. Mikaitis
admitted he knew Jennings was not a doctor or nurse. Mikai‐
tis insisted he “knew nothing about Michael Jennings.”
No. 20‐2783 7
Mikaitis admitted he did not ask Jennings about his medical
background, did not interview Singh, and did not know who
the nurse practitioner was at Results before her. The prosecu‐
tor asked if he ever saw a nurse practitioner at Results. Mika‐
itis: “I went right to Mr. Jennings’ office, and I didn’t look an‐
ywhere in the clinic.”
Mikaitis admitted he did not ask Jennings who dispensed
pills. He relied on Jennings. Mikaitis admitted he did not tell
his hospital he had outside employment, despite agreeing to
get written approval before taking any outside job of that na‐
ture. He admitted he did not report the cash on his tax returns.
He told his accountant about the income, but he was not sure
of the details. Mikaitis did not ensure his tax returns were cor‐
rect before signing. He admitted his mistress knew how much
cash he received weekly. This undermined his explanation
about telling Jennings, “Don’t give her any info.” Mikaitis ad‐
mitted he never looked at patient files stored and available in
the front of the office. He testified he never suspected, during
two years, that Jennings was dispensing over 500,000 pills.
On redirect, Mikaitis testified he did not go through the
front entrance at Results. Instead, he always entered through
the side door, because it was “[c]onvenient.” He testified he
would not have seen what was going on with the patients
when he entered through the side door. He reviewed patient
files in Jennings’s office. Jennings never said he signed his
name as a doctor when Mikaitis was not there or gave a pa‐
tient drugs before showing the chart to Mikaitis. Jennings
never said he shipped drugs without Mikaitis signing off.
As the judge instructed the jury, to support a conviction
on Count 1, the government had to prove Mikaitis knowingly
became a member of the conspiracy with intent to advance it.
8 No. 20‐2783
On Counts 2–8, the government had to prove he knowingly
distributed controlled substances, and did so outside the
usual course of professional practice and not for a legitimate
medical purpose. On Counts 9–15, the government had to
prove he acted with intent to defraud or mislead, which in‐
cludes knowledge of the essential nature of the fraud. On Count
16, the government had to prove he knowingly joined the con‐
spiracy with intent to advance it, and he knew the financial
transaction involved the proceeds of some form of activity
that constitutes a felony. On Count 17, the government had to
prove he knew the transaction involved criminally derived
property.
Over Mikaitis’s objection, the judge instructed the jury
about deliberate avoidance:
A person acts knowingly if he realizes what he is doing
and is aware of the nature of his conduct, and does not
act through ignorance, mistake, or accident. In decid‐
ing whether the defendant acted knowingly, you may
consider all of the evidence, including what the de‐
fendant did or said.
You may find that the defendant acted knowingly if you
find beyond a reasonable doubt that he had a strong
suspicion that Michael Jennings was distributing con‐
trolled substances outside of the usual course of pro‐
fessional practice and without a legitimate medical
purpose and that he deliberately took actions to avoid the
truth. You may not find that the defendant acted know‐
ingly 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.
No. 20‐2783 9
(Emphasis added.)
The jury convicted Mikaitis on all counts. He moved for
judgment of acquittal or for a new trial. The judge denied his
motions and sentenced him to 30 months in prison for each
count, to be served concurrently. Mikaitis appeals.
III. Analysis
On appeal, Mikaitis does not claim the ostrich instruction
misstated the law. He only claims that the evidence did not
support the instruction. So we review the judge’s decision to
give the ostrich instruction for abuse of discretion, viewing
the evidence in the light most favorable to the government.
United States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015).
Due process requires the government to prove every ele‐
ment of an offense beyond a reasonable doubt. See In re Win‐
ship, 397 U.S. 358, 364 (1970). The government may not satisfy
a mens rea of knowledge with a showing of mere negligence,
indifference, or apathy. “The instruction cannot allow a con‐
viction on the basis of mere negligence because if it did, then
it would effectively do away with the mens rea requirement
of knowledge, thereby impermissibly relieving the prosecu‐
tion of its burden of showing every element of the case be‐
yond a reasonable doubt.” United States v. Carrillo, 435 F.3d
767, 781 (7th Cir. 2006) (cleaned).
A judge should only issue any jury instruction “when it
addresses an issue reasonably raised by the evidence.” United
States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010). A judge must
be cautious in deciding to issue an ostrich instruction because
it risks conviction for mere negligence or indifference. See id.at 904–05. A properly worded, appropriately given ostrich in‐
struction informs the jury that deliberate avoidance of
10 No. 20‐2783
knowledge is a form of knowledge at least functionally equiv‐
alent to actual knowledge.1 A judge should only issue an os‐
trich instruction where (1) defendant claims to lack guilty
knowledge and (2) the government presents evidence from
which a jury could conclude defendant deliberately avoided
the truth. United States v. Tantchev, 916 F.3d 645, 653 (7th Cir.
2019).
Prong 1 is rarely at issue on appeal, and is not at issue here.
Mikaitis’s main defense was lack of guilty knowledge.
Prong 2 is the controversy. We have explained that an os‐
trich instruction “‘should not be given unless there is evi‐
dence that the defendant engaged in behavior that could rea‐
sonably be interpreted as having been intended to shield him
from confirmation of his suspicion that he was involved in
criminal activity.’” United States v. Guzman‐Cordoba, 988 F.3d
391, 407 (7th Cir. 2021) (quoting United States v. Macias, 786
F.3d 1060, 1062 (7th Cir. 2015)). In Macias, a criminal case
about an ostrich instruction, we drew upon the Supreme
Court’s analysis in Global‐Tech Appliances, Inc. v. SEB S.A., 563
U.S. 754 (2011), a civil case about willful blindness: “As the
Supreme Court put it in Global‐Tech … 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).” Macias, 786 F.3d at 1062 (quoting
1See United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007) (“Deliberate
avoidance is not a standard less than knowledge; it is … another way that
knowledge may be proven.”); United States v. Ramsey, 785 F.2d 184, 188–
90 (7th Cir. 1986) (“An ostrich instruction informs the jury that actual
knowledge and deliberate avoidance of knowledge are the same thing. …
[A] person who has enough knowledge to prompt an investigation [but]
avoids further knowledge really does ‘know’ all that the law requires.”).
No. 20‐2783 11
Global‐Tech, 563 U.S. at 769); see also Tantchev, 916 F.3d at 653
(further assimilating Global‐Tech into the criminal context).
Relying on Global‐Tech, Mikaitis argues the ostrich instruc‐
tion is only appropriate where the government offers some
evidence (1) that the defendant subjectively believed there
was a high probability that a specific fact existed and (2) that
the defendant took some specific, deliberate action to avoid
learning that fact. Mikaitis argues the government did not
prove either element, so the judge should not have given the
ostrich instruction. He maintains the erroneously given in‐
struction supplied an independent basis for conviction and
lowered the government’s mens rea burden.
But here, ample evidence demonstrated (when viewed in
the light most favorable to the government) that Mikaitis sub‐
jectively believed that there was a high probability he was
participating in criminal activity at Results and that he took
specific, deliberate actions to avoid learning that fact. Mikaitis
buried his head in the sand. He tried to manufacture denia‐
bility, like a doctor called in advance to a duel.2
From the beginning of his arrangement with Jennings, Re‐
sults used Mikaitis’s DEA number to order and dispense con‐
trolled substances. Results did not use any other physician or
DEA number during this period. Yet Mikaitis and Jennings
arranged that Mikaitis would not see patients.
2 “If they don’t reach a peace, that’s alright / Time to get some pistols and
a doctor on site / You pay him in advance, you treat him with civility / You
have him turn around so he can have deniability.” Lin‐Manuel Miranda
et al., “Ten Duel Commandments,” Hamilton: An American Musical, Act I
(2015).
12 No. 20‐2783
Mikaitis only visited Results once a week. He entered
through a side door. He admitted he “went right to Mr. Jen‐
nings’ office, and … didn’t look anywhere in the clinic.” He
physically avoided seeing Jennings or any other unlicensed
person consulting with a patient. He physically avoided the
front desk and the file storage. He avoided opening readily
available, voluminous patient files that showed Results was
dispensing controlled substances without his review and
without a physical exam. He avoided evidence of illegal mail‐
ings of drugs even though Results mailed out about 2,700
shipments during the scheme. Instead, he merely retrieved
cash and reviewed a narrow selection of patient files.
He acted like the defendant in Diaz, who absented himself
from the crime scene or buried his head under a car hood:
Here, the trial record contained ample evidence to sup‐
port the inference that the defendant’s modus operandi
was to insulate himself from the actual drug transac‐
tion so that he could deny knowledge of it. During the
other observed transactions, he had absented himself
from the scene. On this occasion, while present, he ar‐
gued that he was preoccupied with his disabled vehicle
and did not know that he was standing in the middle
of his friends’ drug transaction. Nor, he submits, did
he realize that by raising the automobile’s hood, he ac‐
tually facilitated the transaction. Under these circum‐
stances, it was not error to give the instruction.
United States v. Diaz, 864 F.2d 544, 551 (7th Cir. 1988). Like‐
wise, the evidence showed Mikaitis absented himself from
Results. He was—in the light most favorable to the govern‐
ment—a “no‐show doctor.” Despite knowing he was the only
doctor with Results, knowing his name and license and DEA
No. 20‐2783 13
number were on the line, knowing Jennings was not a doctor
or nurse, knowing Results was open six days a week, know‐
ing Jennings ordered vast amounts of pills (relative to the
scarce files Mikaitis reviewed), knowing these pills are con‐
trolled substances, knowing pills kill, and knowing how legit‐
imate medical practices operate given his experience, Mikaitis
intentionally absented himself from Results. He only ap‐
peared about once a week to review a few charts and collect
cash. Sometimes his mistress retrieved the cash.
And even when he went to Results, he intentionally took
a physical route allowing him to avoid confronting incrimi‐
nating facts. He used a side door and went straight to Jen‐
nings’s office, symbolically burying his head in sand or under
a car hood.
Other evidence supporting the instruction involves the in‐
itial bulk order under Mikaitis’s DEA number. The supplier
delivered 40,000 pills to Mikaitis at Advocate in Lockport,
where he did not have a weight‐loss practice. He allowed Jen‐
nings to remove the pills from Lockport. Mikaitis admitted he
knew his DEA registration required the pills to be maintained
and dispensed from the registration location, and admitted he
violated this provision. He redirected the routing so the sup‐
plier delivered subsequent orders to Results in Lombard. This
supports several reasonable inferences. First, it indicates he
subjectively believed there was a high probability Results
dealt with large quantities of drugs, significantly exceeding
the volume required for the meager number of patients whose
charts he reviewed. Second, it indicates he took an affirmative
step to reroute deliveries to Lombard, which shielded him
from one means of learning further details about the drug
quantities.
14 No. 20‐2783
Further evidence supporting the instruction is the huge
quantity of pills involved overall. Mikaitis admitted the sup‐
plier sent 530,000 pills on his DEA number during the two or
so years he was involved with Results. He admitted that is a
lot of pills. Those pills would fill over 17,000 monthly pre‐
scription bottles. The jury could infer he saw red flags when
comparing the sea of pills to the puddle of pre‐selected charts
he reviewed. The jury could infer he suspected the meager
number of patients whose charts he reviewed could not con‐
sume the avalanche of pills ordered on his credit. He told the
jury he did not review the number of pills Jennings pur‐
chased. But Jennings reimbursed Mikaitis to the tune of about
$84,000. And sometimes Mikaitis texted Jennings about these
orders and reimbursements. The jury was free to infer Mikai‐
tis monitored Jennings’s orders. (Indeed, at oral argument,
counsel acknowledged Mikaitis looked at his credit account
sometimes.) The jury was free not to believe his denials.
Further support for the instruction is his text to Jennings:
“Don’t give her any info. … Better that she knows very little.”
This might suggest Mikaitis had outright knowledge of crim‐
inal activity. This inference alone would not support the in‐
struction. “[I]f the evidence against the defendant points
solely to direct knowledge of the criminal venture, it would
be error to give the [ostrich] instruction.” Diaz, 864 F.2d at 550.
But it also raises the reasonable inference he subjectively be‐
lieved there was a high probability of illegal activity, and took
a deliberate, affirmative step to shield himself from the full
truth. He kept his head buried in the sand by trying to bury
his mistress’s head in the sand with his.
Still further evidence indicated Mikaitis tried to hide his
affiliation with Results from Advocate and the IRS. He failed
No. 20‐2783 15
to abide by his agreement to get written approval before en‐
tering into outside work of this sort. He did not even tell Ad‐
vocate about Results. Also, he failed to report his Results cash
on his tax returns. This evidence, in the light most favorable
to the government, supports the instruction because it allows
a reasonable inference that he suspected illegal activity.
Moreover, he failed to ask natural and obvious questions
despite his duties. He saw red flag after red flag but deliber‐
ately averted his eyes. See Tantchev, 916 F.3d at 653. When they
met, he did not ask Jennings about his medical background or
training.3 Mikaitis did not ask what happened to the prior
doctor. He did not question the cash arrangement. He did not
question the volume of prescriptions or the amounts of
money. He never talked with Singh. He did not ask who was
dispensing drugs or who was qualified to do so. Failure to ask
natural and obvious questions can support an ostrich instruc‐
tion, particularly when he was a doctor with heightened du‐
ties. See United States v. Leahy, 464 F.3d 773, 796 (7th Cir. 2006)
(defendant’s failure to inquire despite exposure to red flags
obvious to someone with his training and experience showed
deliberate avoidance).4
Mikaitis relies on Macias for the proposition that the gov‐
ernment cannot rest on purely psychological avoidance to
support an ostrich instruction. But our case is distinguishable.
3 Shortly after admitting this, Mikaitis also admitted he knew Jennings had
no medical license or training when they entered the partnership.
4 See, e.g., Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and In‐
terpretation (The Johns Hopkins Press, 1943) (https://guides.li‐
brary.jhu.edu/bioethics/codes) (“I will apply dietetic measures for the ben‐
efit of the sick according to my ability and judgment; I will keep them from
harm and injustice.”).
16 No. 20‐2783
There, defendant moved drug money for a cartel and was
charged with participating in a drug conspiracy. But he testi‐
fied he thought the money came from human smuggling. This
made some sense because he worked in human smuggling
before. He never asked where the subject money came from.
But this was not unnatural because he had no reason or need
to know the source, and because there was nothing about the
money that would have shown him human smuggling could
not have generated it. Moreover, he testified that the person
who recruited him for the subject job told him the money came
from human smuggling. So we reversed on the ground that
giving the ostrich instruction was an error. “A total dupe is
not a conspirator.” Macias, 786 F.3d at 1061. We criticized the
traditional reliance on “psychological efforts consisting of
cutting off one’s normal curiosity by an effort of will” as a ba‐
sis for giving an ostrich instruction. Id. at 1063 (cleaned). We
bemoaned judges playing psychologists, “folk psychology,”
and needlessly complicated standards. Id. at 1063–64.
In our case, however, Mikaitis was a medical professional
with corresponding duties. The jury was free to conclude the
red flags were obvious to him. The jury was free to find he
suspected the handful of charts he reviewed each week could
not have required the vast quantity of pills ordered on his
credit and could not have generated the steady stream of cash.
As the doctor with his name on the wall and his license and
DEA number on the line, he had heightened obligations to in‐
quire. Macias explicitly recognized “there indeed are circum‐
stances 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 con‐
firming one’s suspicions.” Id. at 1063. Our case is one of those.
No. 20‐2783 17
So while Macias criticized “psychological efforts consist‐
ing of cutting off one’s normal curiosity by an effort of will”
as a basis for giving an ostrich instruction, Macias explicitly
carved out our situation. It was well within the judge’s discre‐
tion (and the jury’s ambit) to think Mikaitis’s failure to ask
questions was unnatural, a ducking of responsibility, a viola‐
tion of duty, and equivalent to evasive action to avoid con‐
firming suspicions. Mikaitis was not an incurious dupe.
Besides, we need not rely solely on psychological avoid‐
ance here, as discussed above. It was well within the judge’s
discretion to determine the government presented some evi‐
dence of physical, outward, affirmative, concrete, deliberate
actions and behavior to avoid the truth. And the judge even
added “deliberately took actions to avoid the truth” to the os‐
trich instruction to account for arguments about Macias.
Mikaitis gave potentially innocent explanations: He did
not ask about Jennings’s medical background because he
thought Jennings had proper personnel. It did not matter to
Mikaitis if the pay was cash. He always entered through the
side door for convenience. (And his attorney argued there was
no evidence Mikaitis altered his route.) Mikaitis was having a
“pretty significant disagreement” with his mistress and
“didn’t want her to know the amount of money that was be‐
ing supplied.” He did not ask who was giving drugs because
“Jennings took care of everything” and he “relied on [Jen‐
nings] to do the appropriate things.” But we view the facts in
the light most favorable to the government. To give the in‐
struction, the judge only needed some evidence to support it.
Finally, Mikaitis argues an ostrich instruction can only
show knowledge, not purpose. He contends Counts 2–8 re‐
quired the government to prove he knowingly distributed
18 No. 20‐2783
drugs outside the usual course of professional practice and
not for a legitimate medical purpose. But on appeal he forfeited
this argument by not developing it or citing any law. See Wil‐
liams v. Bd. of Educ. of City of Chi., 982 F.3d 495, 508 (7th Cir.
2020). Besides, like an ostrich, the argument does not fly.5
IV. Conclusion
The judge did not abuse her discretion in issuing the os‐
trich6 instruction. We affirm.
5 See United States v. Westerfield, 714 F.3d 480, 485–86 (7th Cir. 2013) (“If the
jury found … defendant had a strong suspicion that things were not what
they seemed … yet shut her eyes … the jury could conclude [she] acted
with the necessary intent.”) (cleaned); United States v. Flaschberger, 408 F.3d
941, 943 (7th Cir. 2005) (He “had his eyes so tightly shut that the ‘ostrich’
inference supports a finding of intent to deceive.”); United States v.
Caliendo, 910 F.2d 429, 434–35 n.2 (7th Cir. 1990) (Defendants claimed no
knowledge of the activities or purposes—“the prototype” for an ostrich in‐
struction.); United States v. Leonard, 738 F. App’x 7, 11 (2nd Cir. 2018) (He
“either knew or deliberately avoided confirming that he was writing ox‐
ycodone prescriptions that were medically unnecessary. [His] challenge
to the conscious avoidance instruction is meritless.”); United States v. Sa‐
bean, 885 F.3d 27, 45–46 (1st Cir. 2018).
6 “They have the marvellous property of being able to digest every sub‐
stance without distinction, but their stupidity is no less remarkable; for
although the rest of their body is so large, they imagine, when they have
thrust their head and neck into a bush, that the whole of the body is con‐
cealed.” Pliny the Elder, The Natural History, Book X, Ch. 1, § 1, The Ostrich
(77 AD) (Bostock and Riley, 1855) (http://www.perseus.tufts.edu/hopper/
text?doc=Perseus%3Atext%3A1999.02.0137%3Abook%3D10%3Achapter
%3D1).