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United States v. Pierotti

United States Court of Appeals, Seventh Circuit

February 3, 2015

DAVID PIEROTTI, Defendant-Appellant

 Argued September 22, 2014

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CR-42 -- Lynn Adelman, Judge.

For United States of America, Plaintiff - Appellee: Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI.

For David Pierotti, Defendant - Appellant: Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI.

Before WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.


Page 918

WOOD, Chief Judge.

A few weeks before the start of the 2012 deer-hunting season in Wisconsin, David Pierotti decided to buy a .243-caliber Remington rifle at his local Walmart. There, a clerk asked him to sit down at a computer to fill out an electronic version of ATF form 4473, a required step in the firearm-purchase process. The form poses a series of questions for any potential gun buyer, including one that asks whether the purchaser has ever been convicted of a misdemeanor crime of domestic violence. Pierotti's initial response to this question was " Yes," which was correct; in 2011, he was convicted in Wisconsin of misdemeanor battery against his then-fiancé e. When Pierotti clicked on a button to submit his completed form, however, a window popped up advising him to review his answers. He then changed his response to only one question--the one about domestic-violence misdemeanors--and submitted the form again. He did not seek further information before reviewing his answer, even though he could have done so by clicking on a link providing instructions for this question. Had he clicked, he would have seen that his prior offense was in fact a misdemeanor of domestic violence. Pierotti's incorrect answer prompted the government to prosecute him for a violation of 18 U.S.C. § 922(a)(6), which makes it a federal crime knowingly to make false statements in connection with the purchase of a firearm.

At Pierotti's trial, the district court instructed the jury on the definition of the word " knowingly" in section 922(a)(6). In doing so, it included (over Pierotti's objection) the ostrich instruction, which informs the jury that one way to find that the defendant acted " knowingly" is if he strongly suspected his statement was false and deliberately avoided the truth in making it. The jury found Pierotti guilty, and he was sentenced to six months' house arrest and one year of supervised release. He now appeals, arguing that the district court erred by providing the ostrich instruction, that his actions did not meet its definition of " knowingly," and thus that he is entitled to a new trial. We conclude that the instruction was proper, however, and so we affirm the conviction.


In October 2011, Pierotti pleaded no contest in Wisconsin Circuit Court to the

Page 919

crime of battery upon a woman who was his fiancé e at the time. This was a misdemeanor offense. Just over a year later, Pierotti decided that he wanted to hunt for deer during the upcoming fall season. He first obtained a rifle hunting license at a local sporting goods store. At some point soon afterward, he ran into a friend who was a local sheriff. Pierotti informed the friend that his probation from his battery misdemeanor had expired, and asked him whether Pierotti could legally go gun hunting from that point forward. The friend asked if Pierotti's prior conviction was for a felony; because it was not, the friend (mistakenly) told Pierotti that he was " good to go," but advised him to ask his probation officer as well. Pierotti did so, and received the same answer. In Pierotti's retelling, the officer also based her response on the fact that Pierotti had not previously been charged with a felony.

Following these conversations, Pierotti visited the Walmart in Berlin, Wisconsin, on November 8, 2012. He selected a rifle and spoke to a clerk about buying it. After taking Pierotti's driver's license, the clerk instructed Pierotti to fill out ATF form 4473 at a computer kiosk in the store. (This is a form required by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.) After answering several other questions, he arrived at question 11-i, which asked: " Have you ever been convicted in any court of a misdemeanor crime of domestic violence?" Pierotti clicked " Yes." At trial, he explained that he knew at the time that he had been convicted of a misdemeanor, and " that's why I just instinctively just clicked on 'yes.'" After responding to the remaining questions, Pierotti submitted the form; a pop-up window then appeared. It said, " We recommend reviewing Section A at this time to make any changes/corrections that may be necessary." After seeing this message, Pierotti went back through his answers, and changed only one--his response to question 11-i. At the time, he recalled later, that question was " the only one that's bugging me now," and it suggested to him that the computer " knows something that I don't know." Pierotti also thought back to his probation officer's opinion that he could legally go hunting with a gun given his lack of a felony conviction. So he changed his " Yes" answer to " No," and submitted the form again. He did not, however, click on a blue link (labeled " Click to See Instructions for Question 11.i" ) below question 11-i before doing so. If he had, a long definition of " ...

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