In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3967
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JADWIGA M ALEWICKA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 424— Elaine E. Bucklo, Judge.
A RGUED S EPTEMBER 27, 2011—D ECIDED D ECEMBER 29, 2011
Before F LAUM, K ANNE, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. This appeal follows Jadwiga
Malewicka’s conviction for structuring transactions to
avoid reporting requirements in violation of 31 U.S.C.
§ 5324(a)(3). Malewicka raises two issues on appeal.
First, she argues that the amount she is required to
forfeit, $279,500.00, is excessive in violation of the Eighth
Amendment. Next, she argues that the ostrich instruc-
tion given at trial was improper. For the reasons set forth
below, we affirm.
2 No. 10-3967
I. Background
A. Factual Background
Malewicka emigrated to the United States from Poland
in 1986 at the age of 26. Upon her arrival, she began
supporting herself by cleaning houses, eventually
forming her own cleaning service business in 1992,
Skokie Maid Service (“Skokie Maid”). In conjunction
with the start of her business, she also opened a business
checking account at Liberty Bank to conduct Skokie
Maid’s services. Malewicka used a separate checking
account for her personal funds.
Skokie Maid’s customers generally paid by checks
made out to Skokie Maid. Malewicka would deposit the
checks in Skokie Maid’s checking account, keep a portion
of the funds as a fee, and then withdraw the remaining
amount to pay individual cleaners.
In February 2006, Malewicka was approached by a
bank teller, Ada Ventura. Ventura approached her
because she thought Malewicka had withdrawn more
than $10,000 in cash. Under 31 C.F.R. § 103.22(b)(1) the
bank is required to document and report all transac-
tions involving withdrawals of cash greater than $10,000.
Ventura testified that she provided Malewicka with a
brochure that explained this requirement. Malewicka
denied Ventura’s account of this encounter, asserting
that no brochure was provided and that there was no
discussion of the bank’s § 103.22 obligations.
Following the encounter between Malewicka and
Ventura, Malewicka continued banking at Liberty Bank.
Often, she would withdraw approximately $9,900 on
No. 10-3967 3
one day, and the following day withdraw approximately
$2,000. Malewicka never withdrew $10,000 or more on
one day. On numerous occasions, however, she with-
drew more than $10,000 over the course of two days
(but less than 24 hours). An analysis of bank records
revealed that between January of 2002 and April of 2008,
Malewicka’s withdrawals of approximately $9,900
totaled over $2.4 million. During this period, Malewicka
withdrew amounts over $9,000 and less than $10,000 on
244 occasions.
B. Procedural History
On May 28, 2008, the Grand Jury returned an indict-
ment against Malewicka for 23 counts of structuring
transactions for the purpose of avoiding bank reporting
requirements in violation of 31 U.S.C. § 5324(a)(3). The
government took the case to trial, but the initial prosecu-
tion resulted in a mistrial. Malewicka was retried on
March 22-23, 2010.
The government proposed an “ostrich” instruction
which provided that:
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 someone had
withheld some important fact yet shut her eyes for
fear of what he/she would learn, you may conclude
that he/she acted knowingly as I have used that term.
The district court gave this instruction over Malewicka’s
objection. The jury found Malewicka guilty on all 23
4 No. 10-3967
counts. Then, the jury was asked to determine whether
the amount of money alleged in the indictment to have
been used in connection with the structuring offenses—
$279,500—was subject to forfeiture. The jury returned
a special verdict in favor of the government subjecting
the entire $279,500 to forfeiture.
Malewicka filed post-trial motions to set aside
verdicts and enter judgment of acquittal and/or for a
new trial. Her motions argued that the forfeiture verdict
constituted an excessive fine in violation of the Eighth
Amendment. Malewicka also reiterated her objection
to the ostrich instruction. The district court denied
Malewicka’s post-trial motions in their entirety.
Malewicka was sentenced on December 16, 2010. The
court recognized that she had no criminal history,
had employed many people, “raised a couple of children
and . . . made other contributions to the community.” The
court sentenced Malewicka to three years of probation
and ordered her to pay a forfeiture amount of $279,500,
as well as an additional judgment of $4,800.
Pursuant to 31 U.S.C. § 5317(c), the court imposing
sentence shall order the forfeiture of all property in-
volved in the offense, and any property traceable thereto.
II. Discussion
A. The Forfeiture
We review the constitutionality of the district court’s
forfeiture amount de novo. United States v. Segal, 495
F.3d 826, 840 (7th Cir. 2007). Malewicka argues that
No. 10-3967 5
United States v. Bajakajian forms a basis for the reduction
of her forfeiture amount. 524 U.S. 321 (1998). Pointing to
the factual similarities between the two cases, she
contends that the imposition of a forfeiture in the
amount of $279,500 was grossly disproportionate to
the offense for which she was convicted. Though we
acknowledge that the forfeiture amount is significant,
we do not find it so grossly disproportionate to her
offense as to violate the Eighth Amendment.
The Eighth Amendment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted.” U.S. C ONST.
amend. VIII. It is well recognized that the Eighth Amend-
ment’s limitations apply where a judgment of forfeiture
has been entered against a criminal defendant in con-
nection with the conviction of a federal offense. Bajakajian,
524 U.S. at 328. When assessing whether a judgment
exceeds the bounds of the Eighth Amendment’s limita-
tions, “the touchstone of the constitutional inquiry . . . is
the principle of proportionality: the amount of the forfei-
ture must bear some relationship to the gravity of the
offense that it is designed to punish.” Id. at 334. In deter-
mining proportionality for punitive forfeiture, a court
“must compare the amount of the forfeiture to the
gravity of the defendant’s offense. If the amount of the
forfeiture is grossly disproportional to the gravity of the
defendant’s offense, it is unconstitutional.” Id. at 336-37.
In Bajakajian, the defendant was arrested in Los Angeles
International Airport while attempting to board a flight
to Italy with $357,144 in undeclared cash hidden in his,
6 No. 10-3967
and his family members’, luggage. Bajakajian, 524 U.S. at
324-25. He was charged with one count of wilfully
failing to report that he was transporting more than
$10,000 outside the United States, one count of making
a false material statement to the United States Customs
Service, and a third count which sought forfeiture of
the $357,144. Id. at 325. The defendant pled guilty to the
first charge, the second charge was dismissed, and a
bench trial was held regarding the forfeiture allegation.
Id. At the conclusion of the bench trial, the district
court acknowledged that the entire sum involved in the
offense was subject to forfeiture. Id. at 326. However,
because of the disproportionality between the crime
and the requested forfeiture amount of $357,144,
the district court ordered that defendant forfeit only
$15,000. Both the Ninth Circuit and the Supreme Court
affirmed.
The Supreme Court considered four factors when
determining whether the forfeiture was excessive: (1) the
essence of the crime and its relation to other criminal
activity; (2) whether the defendant fit into the class of
persons for whom the statute was principally designed;
(3) the maximum sentence and fine that could have
been imposed; and (4) the nature of the harm caused by
the defendant’s conduct. Bajakajian, 524 U.S. at 337-39;
United States v. Varrone, 554 F.3d 327, 331 (7th Cir. 2009).
Considering these factors, the Court found that for-
feiture of the entire amount would have been uncon-
stitutional. Applying these factors here, we do not find
a Constitutional violation.
No. 10-3967 7
The first factor considered by the Supreme Court in
Bajakajian was the essence of the crime and its relation
to other criminal activity. Looking at the essence of the
crime, in Bajakajian, the Court noted that the defendant’s
conviction was solely a reporting offense. Id. at 337.
Moreover, Bajakajian was only found guilty of one of-
fense. This differs from the case at hand. Though Ap-
pellant argues that her crime too was a simple reporting
offense, in fact, her crime differs in both quality and
quantity. True, Malewicka’s underlying activities—
depositing and withdrawing cash from the bank—were
lawful. However, unlike Bajakajian’s reporting failure,
Malewicka’s crime affected more than just herself and
the government; her actions also implicated the bank
as an intermediary actor and affected its legal duty to
report certain transactions. United States v. Ahmad,
213 F.3d 805, 817 (4th Cir. 2000) (“Ahmad’s deposit struc-
turing activities not only caused the government to
lose information, but also implicated an intermediary actor,
the First Virginia Bank, and affected its legal duty to report
certain transactions.”). Furthermore, while Bajakajian
committed a single offense, Malewicka was convicted of
actively concealing the nature of her transactions on
twenty-three occasions to avoid filing Currency Transac-
tion Reports (“CTR”).1 Her conduct, therefore, was
much more extensive than that of Bajakajian and more-
over, required significant planning.
1
The evidence showed that Malewicka engaged in a pattern
of such conduct that spanned at least six years, though she
was only charged with 23 violations between March 3, 2006
and April 26, 2008.
8 No. 10-3967
The Supreme Court also looked to motivation and
connection to other criminal activity in analyzing the
first factor. In Bajakajian, the defendant committed his
crime out of fear and distrust for the government.
Bajakajian, 524 U.S. at 326. This fear was rooted in his
background (Bajakajian grew up an Armenian minority
in Syria). Id. The Court noted that while this was no
excuse for lying, it explained his failure to report the
cash, and helped establish that his reporting failure
was unconnected to any other crime—a finding that
was “highly relevant to the determination of the grav-
ity” of his offense. Id. at 339. Here, there is no evidence
that Malewicka’s structuring was connected to any
other crime, though the district court certainly found
this conclusion suspect.2 Nonetheless, Malewicka pro-
vided no reason for her conduct at all; she explained
only that she chose withdrawal amounts because they
were “just a number” of no significance, or because
the numbers reminded her of the Da Vinci Code. The
district court found Malewicka untruthful, and culpable
for her actions, and even guilty of obstruction. Accord-
ingly, while Malewicka’s structuring was not connected
to other crimes, an important consideration when de-
termining the gravity of the offense, because of the numer-
ous violations of the statute and the prolonged period
2
The district court appeared unconvinced that tax evasion was
not the underlying motivation for Malewicka’s actions.
(“My understanding was really that’s mostly what this case
is really about . . . I’m not sure why the government didn’t
prosecute her for the tax cases.”).
No. 10-3967 9
of time over which they occurred, the first factor weighs
in favor of forfeiture of the full amount.
The second factor asks whether the defendant fits into
the class of person for whom the statute was principally
designed. In Bajakajian, the Court noted that the
defendant did not fall into this category as the statute,
31 U.S.C. § 5316(a)(1)(A), was designed for the “money
launderer, drug trafficker, or tax evader.” Id. at 338.
Instead, Bajakajian declined to report that he was taking
in excess of $10,000 out of the country with the purpose
of paying a legitimate debt. In contrast, Malewicka was
convicted pursuant to § 5324. That section has been
described as “a reporting statute intended to facilitate
the government’s efforts to uncover and prosecute
crime and fraud,” noting that “[b]y forcing financial
institutions to file CTRs, Congress hoped to maximize
the information available to federal regulatory and crimi-
nal investigators.” United States v. Castello, 611 F.3d 116,
122 (2d Cir. 2010). “[T]he overall goal of the statute was
to interdict the laundering of illegally obtained and
untaxed monies in legitimate financial institutions.” Id.
In Bajakajian, the defendant did not facilitate any
offense that the statute was designed to protect against—
instead, he was carrying his own earned money to repay
a lawful debt. Bajakajian, 524 U.S. at 338. Here, while
Malewicka was not charged with wrongdoing in con-
nection with the structured funds, she remains
a person for whom the statute was designed. She is an
employer who deals mainly in cash. Even if she did not
intentionally facilitate tax evasion, she nonetheless pre-
vented the bank from filing CTRs in compliance with
10 No. 10-3967
the statute, which frustrated the statute’s purpose. See
Castello, 611 F.3d at 120-24 (defendant was acquitted
of money laundering and tax evasion, but the court
nonetheless found that he fell into the class of person
for whom § 5324 was designed). “By forcing
financial institutions to [file CTRs], Congress hoped to
maximize the information available to federal regulatory
and criminal investigators.” United States v. St. Michael’s
Credit Union, 880 F.2d 579, 582 (1st Cir. 1989); see also
Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 27 (1974) (“The
absence of such records . . . was thought to seriously
impair the ability of the Federal Government to enforce
the myriad criminal, tax, and regulatory provisions of
laws which Congress had enacted.”); but cf. United States
v. Ramirez, 421 Fed. Appx. 950, 952 (11th Cir. 2011)
(analogizing structuring offense to reporting offense).
True, Malewicka is not convicted of money laundering
or tax evasion, but her structuring crimes could have
facilitated such conduct in just the way the statute
was designed to frustrate. Castello, 611 F.3d at 123. Ac-
cordingly, the second factor weighs in favor of forfeiture
of the full amount.
The third factor considers the maximum fine and sen-
tence that could have been imposed. In Bajakajian, the
Court focused on the Sentencing Guidelines, but noted
that “other penalties that the Legislature has authorized
are certainly relevant evidence.” Bajakajian, 524 U.S. at
339 n. 14. “[J]udgments about the appropriate punish-
ment for an offense belong in the first instance to the
legislature.” Id. at 336.
No. 10-3967 11
Comparing Bajakajian’s maximum Sentencing Guide-
lines fine of $5,000 with the statutory maximum which
consisted of a maximum fine of $250,000 and a term of
imprisonment of five years, the Court explained that
the disparity between the two ranges “undercut[] any
argument based solely on the statute, because they show
that respondent’s culpability relative to other potential
violators of the reporting provision—tax evaders, drug
kingpins, or money launderers, for example—is small
indeed.” Id.
It is not a simple task to translate the gravity of a crime
into monetary terms. Two bodies, however, have under-
taken this charge. The first is Congress which has
specified through criminal laws the m aximum
permissible fine for a given offense. United States v. 817
N.E. 29th Drive Wilton Manors, 175 F.3d 1304, 1309 (11th
Cir. 1999). The second body to offer guidance is the
United States Sentencing Commission. This judicial
agency puts forth guidelines designed to proportion
punishment with greater precision than criminal legisla-
tion. Id. at 1310; Bajakajian, 524 U.S. at 350 (Kennedy, J.,
dissenting). There is a strong presumption of constitu-
tionality where the value of a forfeiture falls within the
fine range prescribed by Congress or the Guidelines.
817 N.E. 29th Drive Wilton Manors, 175 F.3d at 1309-10.
These pronouncements reflect the considered legislative
judgment as to what is excessive, and a court should
be hesitant to substitute its opinion for that of the peo-
ple. Id. at 1309.
Here, much like Bajakajian, the discrepancy between
the two penalties is great. Under statute, Bajakajian
12 No. 10-3967
faced a maximum term of imprisonment of five years,
a maximum fine of $250,000, or both. His Guidelines
recommendation, however, was substantially lower—
a term of imprisonment not more than six months, a
maximum fine of $5,000, or both. Bajakajian, 524 U.S. at
339. Pursuant to statute, Malewicka faced no more than
five years in prison, a maximum statutory penalty
of $250,000, or both; because Malewicka was convicted
of twenty-three separate violations, the possible penalty
totaled $5,750,000. 31 C.F.R. § 103.59. On the other
hand, under the Guidelines Malewicka faced a period of
incarceration of zero to six months, and a maximum
fine of $10,000. There is an obvious disparity between
the Guidelines maximum and the statutory maximum,
and Bajakajian suggests that this reflects the relative
culpability of Malewicka as compared to other violators.
For multiple reasons, we do not believe that the
penalties here “confirm a minimal level of culpability” as
they did in Bajakajian. Unlike Bajakajian, Malewicka is
not a one-time offender and in fact committed
numerous violations over an extended period of time.3
3
Relying on United States v. Ramirez, Malewicka argues that
even multiple violations of the anti-structuring statute can
result in forfeiture amount in violation of the Eighth Amend-
ment. 421 Fed. Appx. at 952. While this may be true, we do not
believe it to be the case here. Ramirez was found guilty of
structuring 103 transactions, though his money was not con-
nected to illegal activity, and he made no effort to conceal his
actions. Id. at 952. The government requested that Ramirez
(continued...)
No. 10-3967 13
Additionally, as an employer depositing and withdrawing
large sums of cash, she is indeed a person for whom
the statute was designed. Furthermore, though the
Bajakajian Court focused on the Guidelines range, there,
the forfeiture of $357,144 exceeded both the maximum
statutory fine of $250,000 and the maximum fine under
3
(...continued)
forfeit all of the funds that he was convicted of structuring,
$967,100. Considering these facts in light of Bajakajian, the
Ramirez court found that a forfeiture twelve times greater than
the sentencing guidelines was excessive. Id. Accordingly, it
arbitrarily chose to order the defendant to forfeit $1,000 per
count, resulting in a total forfeiture amount of $103,000. Brief
of United States of America, Ramirez, 421 Fed. Appx. 950, at *12.
We find Ramirez unpersuasive. First, the Ramirez analysis
is vague on facts. It states that Ramirez did structure transac-
tions to avoid reporting requirements, but did not attempt
to conceal his crime, without further explanation, which
renders direct comparison difficult. Ramirez also minimizes
the harm caused by this crime by stating that his structuring
was “only” a reporting crime and affected “only” the IRS and
bank by depriving them of information. Ramirez, 421 Fed. Appx.
at 952. Cf. United States v. Ahmad, 213 F.3d 805, 817 (4th Cir.
2000) (recognizing the significance of structuring crimes). While
this may be true, the judiciary should not lightly discount the
severity or impact of crimes proscribed by the legislature.
Moreover, we know that Malewicka was exactly the type of
person to whom Congress intended the statute to apply. The
evidence showed that over a six-year period, Malewicka
structured almost $2.5 million. Though her violations were
not connected to other crimes, they were certainly well
thought out and deliberately executed.
14 No. 10-3967
the sentencing guidelines of $5,000. Here, the forfeiture
does exceed the maximum Guideline range, but not
the statutory range. Finally, the language of both the
Guidelines and the statute supports forfeiture. Pursuant
to the Guidelines, “[f]orfeiture is to be imposed upon
a convicted defendant as provided by statute.” U.S.S.G.
§ 5E1.4. Malewicka was convicted of twenty-three
separate violations of § 5324(a)(3). Section 5317(c) governs
the imposition of sentence as to any violation of § 5324
and dictates that a district court “shall order the de-
fendant to forfeit all property, real or personal, involved
in the offense.” Acknowledging the disparity between
the Guidelines range and the forfeiture amount, when
considering the essence of this crime, this factor does
not suggest a constitutional violation.
Finally, the fourth factor examines the nature of the
harm caused by the offense. Malewicka argues that the
harm caused was minimal, and that if gone undetected,
would only have deprived the government of informa-
tion that she made certain cash withdrawals. While
it is true that her acts deprived the government of
nothing but information, this characterization greatly
downplays the significance of her crime. Malewicka kept
information regarding numerous transactions from
the government over a period of years. The concerns
underlying her crime were significant enough that Con-
gress enacted a statute to ensure that such information is
collected, and by concealing her withdrawals, she thwarted
the bank’s reporting duties. See Ahmad, 213 F.3d at
817 (“Ahmad’s deposit structuring activities not only
No. 10-3967 15
caused the government to lose information, but also
implicated an intermediary actor, the First Virginia
Bank, and affected its legal duty to report certain trans-
actions.”). Moreover, section 5324’s intent is to aid the
government’s efforts to uncover and prosecute crime
and fraud. Castello, 611 F.3d at 122. By structuring her
transactions to avoid reporting requirements, Malewicka
inhibited the government’s ability to effectively uncover
and identify fraud. This factor weighs in favor of forfeiture.
Malewicka goes on to note that the forfeiture is par-
ticularly unfair because the funds did not belong to
her. This fact, however, does not alter the Bajakajian
analysis. In Castello, the amount of forfeiture was based
on the structure proceeds of checks cashed at the defen-
dant’s check cashing business. Castello, 611 F.3d at 120-
124. Similarly, in Ahmad, 213 F.3d at 817, the forfeiture
amount was based on the amount of structured funds
sent on behalf of clients at the defendant’s money
exchange business. Moreover, the statute specifies only
that the forfeiture be based on property involved in the
offense. That the funds were not Malewicka’s is of no
consequence.
Considering all of the factors, we affirm the forfeiture
award entered by the district court. In doing so,
we recognize that the forfeiture amount is not an insub-
stantial amount. However, when weighing the for-
feiture against the severity of Malewicka’s crime, we
do not find a constitutional violation.
16 No. 10-3967
B. The Ostrich Instruction
We review a decision to give an ostrich instruction
for abuse of discretion, viewing all evidence in the light
most favorable to the government. United States v.
Severson, 569 F.3d 683, 689 (7th Cir. 2009). The court
evaluates de novo whether the instruction was appro-
priate as a matter of law. United States v. Tanner, 628
F.3d 890, 904 (7th Cir. 2011). Where the court concurs
that an instruction was inappropriately given, reversal
is warranted unless the government can demonstrate
beyond a reasonable doubt that the error was harmless.
United States v. Ciesiolka, 614 F.3d 347, 354 (7th Cir. 2010).
The so-called ostrich instruction, which instructs
the jury that it can consider the defendant’s willful igno-
rance of any fact as actual knowledge of that fact, is to
be given “cautiously” and only for “narrow” uses.
Ciesiolka, 614 F.3d at 352-53. An ostrich instruction is
appropriate only “where the actions of the defendant
and the surrounding circumstances indicate that the
only way the defendant could not have known of the
illegal activity is by affirmatively avoiding the knowl-
edge.” United States v. L.E. Myers Co., 562 F.3d 845, 854
(7th Cir. 2009) (internal quotation and citation omitted).
For an ostrich instruction to be permissible, (1) the defen-
dant must claim lack of guilty knowledge and (2) the
government must present evidence that suggests that
the defendant deliberately avoided the truth. Tanner, 628
F.3d at 904. The ostrich instruction is to inform the jury
that under certain circumstances, constructive knowl-
edge when paired with steps to avoid knowledge can
No. 10-3967 17
amount to actual knowledge. “[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.” United States v. Caliendo, 910 F.2d 429, 435
(7th Cir.1990) (internal quotation and citation omitted).
At trial, the government presented evidence of both
actual knowledge and deliberate avoidance. The govern-
ment relied on the testimony of Ada Ventura, a Liberty
Bank teller, to support both theories. Ventura testified
that on February 24, 2006, she asked Malewicka for a
copy of her driver’s license while Malewicka was con-
ducting a transaction at the bank. According to Ventura,
Malewicka inquired why Ventura needed the license
and stated, “Are you going to fill out a report on me? . . .
I didn’t take more than $10,000 out.” Ventura testified
that she provided Malewicka with a copy of a “CTR
pamphlet” which instructed the reader as to the bank’s
requirement to report cash transactions in excess of
$10,000. Ventura also testified that at Malewicka’s
urging, she reviewed her transactions, and realized that
Malewicka was correct that she had not withdrawn
$10,000. At a later date, Malewicka asked Ventura if she
had looked into the transaction, and Ventura told her
that she had, and indeed Malewicka was correct—she
had not withdrawn $10,000. Ventura testified that
Malewicka responded that “she knew it—that she was
right and she knew what she was doing.” Malewicka
denied ever saying such things to Ventura and further
denied that Ventura provided any brochure or dis-
cussed the reporting requirement. Instead, Malewicka
testified that Ventura asked her to sign a form before
leaving the bank, which she did.
18 No. 10-3967
Malewicka argues that the ostrich instruction was
inappropriately given because the government failed to
offer any evidence, or argument, to show that she had
deliberately avoided learning that Liberty Bank was
required to report any cash withdrawals involving
more than $10,000. Instead, the government put forth
evidence of actual knowledge. Accordingly, by the
terms of the government’s own evidence, an ostrich
instruction was unnecessary and inappropriate. The
government, though, is not precluded form presenting
evidence of both an actual knowledge theory and a con-
scious avoidance theory, as it did here. United States
v. Carrillo, 269 F.3d 761, 769 (7th Cir. 2001). As the gov-
ernment’s theory goes, if Malewicka was given the pam-
phlet, and chose to ignore it, she was deliberately by-
passing the reporting requirements. Even if Malewicka
had some knowledge or suspicion of the CTR require-
ments before being handed the pamphlet, if after
receiving the pamphlet she did not know that the bank
was obligated to report cash transactions over $10,000,
and that it was illegal to evade reporting by structuring,
such a lack of knowledge would be the product of de-
liberate avoidance. That Malewicka denied ever re-
ceiving the pamphlet is of no consequence—the cred-
ibility of her testimony is for the jury to decide. It is
true that the government put forth no evidence to
show that Malewicka deliberately avoided receiving
the pamphlet (e.g., that she refused to accept it, or refused
to read it), but instead submitted Ventura’s testimony
to refute Malewicka’s denial of ever receiving the pam-
phlet. If the jury found Ventura credible as to the fact
No. 10-3967 19
that she gave Malewicka the pamphlet, it is reason-
able to conclude that Malewicka deliberately avoided
learning about the CTR requirement. Given these facts,
the decision to give the instruction was proper.
Even if the trial court did err in giving the ostrich
instruction, the error was harmless given the evidence
that Malewicka did know of the CTR reporting require-
ments and acted to avoid them. Tanner, 628 F.3d at 905
(“Ironically, the same evidence that helped establish
the impropriety of the ostrich instruction renders that
instruction entirely harmless.” ). The government is not
precluded from presenting evidence of both an actual
knowledge theory and a conscious avoidance theory.
Carrillo, 269 F.3d at 769. To sustain a conviction under
§ 5324, the government must allege and prove that the
defendant had knowledge of a bank’s federal reporting
requirements and that she acted to avoid them.
United States v. Van Allen, 524 F.3d 814, 820 (7th Cir.
2008). The government did just that.
Regarding actual knowledge, bank records show
that Malewicka did not make a single withdrawal of
over $10,000 throughout a six-year period. Between
January 2002 and April 2008, cash was withdrawn in
amounts between $9,000 and $10,000 on 244 occasions.
On near 80 of these occasions, the transaction was
followed by, or preceded by, an additional transaction,
in less than 24 hours, resulting in a total withdrawal
of more than $10,000. This court has found that
repeated transactions below $10,000 are evidence of
intent to structure in violation of § 5324. See United States
20 No. 10-3967
v. Cassano, 372 F.3d 868, 878-79 (7th Cir. 2004), vacated
on other grounds, 543 U.S. 1109 (2005) (citing United States
v. Booker, 543 U.S. 220 (2005)). (“[I]it is unlikely, to the
point of absurdity, that it was pure coincidence
that all fifty-one checks cashed by [defendant] were in
denominations under $10,000.”). Moreover, Malewicka’s
comments to Ventura when asked for her driver’s license
number also support a finding of intentional evasion.
As to the conscious avoidance theory, the government
presented evidence that Malewicka chose to remain
ignorant to the reporting rules and illegality of evasion.
This court has noted that “the danger of giving the in-
struction where there is evidence of direct knowledge
but no evidence of avoidance of knowledge is that the
jury could still convict a defendant who merely should
have known about the criminal venture.” United States
v. Caliendo, 910 F.2d 429, 435 (7th Cir. 1990) (internal
citations and quotations omitted). However, this court
has deemed the error harmless where there is evidence
that the defendant indeed had the requisite knowledge.
Id. (“[T]he evidence reveals that Vito Caliendo did know
about the conspiracy’s illegal purpose and, indeed,
went to great lengths to bring about and protect that
purpose. For this reason, we conclude that Vito Caliendo
was not prejudiced by the ostrich instruction given.”).
Here, there was sufficient evidence to show that under
an actual knowledge theory, Malewicka was guilty of
structuring transactions. Accordingly, any error in
giving the ostrich instruction was harmless.
No. 10-3967 21
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
12-29-11