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  • WisBar News
    February 09, 2015

    Ostrich Instruction Okay in Gun Purchase Case, Federal Appeals Court Rules

    Joe Forward
    Legal Writer

    Feb. 9, 2015 – A panel for the U.S. Court of Appeals for the Seventh Circuit has affirmed the conviction of a Wisconsin man who failed to disclose a prior conviction for misdemeanor domestic violence on a federal form before purchasing a hunting rifle.

    A jury convicted David Pierotti for “knowingly” making a false statement on the form, developed by the Bureau of Alcohol, Tobacco, and Firearms (ATF). The form asked whether Pierotti was ever convicted of misdemeanor domestic violence. Pierotti previously pleaded no contest to misdemeanor battery against his fiancée.

    Pierotti answered “yes” initially, but when the computer asked him to review his questions, he changed the answer to “no.” He was later charged and convicted for a violation of 18 U.S.C. section 922(a)(6), which makes it a federal crime to “knowingly” make false statements when purchasing firearms from licensed firearm dealers.

    Before attempting to purchase the rifle, Pierotti had received bad information from the local sheriff, a friend. The sheriff had said Pierotti could purchase the rifle so long as his domestic violence conviction was not a felony, but told him to double-check with his former probation officer. According to Pierotti, the probation officer said the same thing.

    Pierotti said he believed he could legally purchase the rifle because he was not a convicted felon. But he did not read the instructions on the ATF form, which would have clarified that misdemeanor domestic battery convictions preclude firearm purchases.

    At trial, Pierotti argued that he didn’t “knowingly” make a false statement. The jury instruction said a person acts knowingly “if he realizes what he in doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.”

    A so-called “ostrich instruction” was added to instruct that the jury could convict if it found, beyond a reasonable doubt, that Pierotti “had a strong suspicion that the statement he made was false and that he deliberately avoided the truth,” as opposed to being careless, merely mistaken, or failing “to make an effort to discover the truth.”

    The jury found Pierotti “knowingly” made the false statement. Upon conviction, he was sentenced to six months of house arrest and a year of supervised release. Pierotti appealed, arguing that it was error to give the jury the “ostrich instruction.”

    But in U.S.A. v. Pierotti, No. 13-3096 (Feb. 3, 2015), a three-judge panel for the Seventh Circuit Court of Appeals affirmed the conviction, rejecting Pierotti’s challenge to the “ostrich instruction” that allowed the jury to convict Pierotti for avoiding the truth.  

    The panel noted that the trial court chose to give the instruction for several reasons. For one, he did not consult with a lawyer who had knowledge of federal gun laws. It also noted the Pierotti did not read the ATF form instructions on misdemeanor domestic violence, and he changed his answer from “yes” to “no” after thinking about it.

    The panel noted that Pierotti was not required to speak with a lawyer on federal gun laws or read the fine-print on hard copy ATF form instructions in order to avoid an ostrich instruction. But his other actions made the instruction appropriate.

    “Putting the facts together, Pierotti’s admitted knowledge of his prior crime, his initial ‘Yes’ answer, his decision not to read the readily available instructions, and his decision to change the answer to ‘No’ provided an adequate predicate for the district court to give the instruction,” wrote Judge Diane Wood for the three-judge panel.

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