In a single conspiracy, each defendant may perform a different function to further the illegal objective of the conspiracy. United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir. 1990); Varelli, 407 F.2d at 742. Only where the conspirators have different interests and distinct goals will the court find the existence of multiple conspiracies.

Determining the existence of a single conspiracy is a question of fact for the jury; thus, "the jury gets first crack at deciding `whether there is one conspiracy or several when the possibility of a variance appears.'" United States v. Paiz, 905 F.2d 1014, 1019 (7th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2278, 114 L.Ed.2d 729 (1991) (quoting United States v. Percival, 756 F.2d 600, 609 (7th Cir. 1985)). When evaluating a challenge to the sufficiency of the evidence, "[t]he test is whether, after viewing the evidence in the light most favorable to the government, ` any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.'"

We have approved the above formulation of the "conscious avoidance" or "ostrich" instruction in a number of previous cases. See United States v. Valencia, 907 F.2d 671, 679 (7th Cir. 1990); United States v. Paiz, 905 F.2d 1014, 1022-23 (7th Cir. 1990); United States v. Defazio, 899 F.2d 626, 635-36 (7th Cir. 1990); United States v. Herrero, 893 F.2d 1512, 1537-38 (7th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990); United States v. Talkington, 875 F.2d 591, 595-96 (7th Cir. 1989); United States v. Diaz, 864 F.2d 544, 549-51 (7th Cir. 1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989). In United States v. Bigelow, 914 F.2d 966, 970 (7th Cir. 1990), we set forth the law currently applicable to the review of a conscious avoidance instruction:

The "sham prosecution" exception provides that "when sovereign A's prosecution serves merely as a 'cover and tool' for sovereign B such that sovereign A's prosecution can be called that of sovereign B, the prosecution by sovereign A is barred it if would be barred to sovereign B." United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir. 1990). There are several problems with Gil's argument that his counsel should have objected to the federal prosecution on the grounds that it was a "sham prosecution."

It has long been established, however, that two separate sovereigns, such as the federal government and a state government, may prosecute an individual "for the same act if that act violates the laws of each." United States v. Paiz, 905 F.2d 1014, 1023 (7th Cir. 1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). The dual-sovereignty doctrine is based on the common-law view of crime as an offense against the sovereignty of government.

"'" Talkington, 875 F.2d at 596 (quoting United States v. White, 794 F.2d 367, 371 (8th Cir. 1986) (quoting United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir. 1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 76 (1985))). See United States v. Paiz, 905 F.2d 1014, 1022-23 (7th Cir. 1990); United States v. Defazio, 899 F.2d 626, 635-36 (7th Cir. 1990); United States v. Herrero, 893 F.2d 1512, 1537-38 (7th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990); United States v. Talkington, 875 F.2d 591, 595-96 (7th Cir. 1989); United States v. Diaz, 864 F.2d 544, 549-51 (7th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989); United States v. Ramsey, 785 F.2d 184, 189-91 (7th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2924, 91 L.Ed.2d 552 (1986). We disagree with Martinez' suggestion that the "complex and attenuated" nature of the theory under which he was prosecuted (aiding and abetting an attempt) rendered the ostrich instruction inappropriate.

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 knowledge 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, 111 S.Ct. 840, 112 L.Ed.2d 919 (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.

To support this contention, Levy cites this court's decision in United States v. Paiz for the proposition that an indictment must apprise the defendant of the possibility that enhanced penalty provisions could apply. 905 F.2d 1014, 1033 (7th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). 21 U.S.C. § 851 states in pertinent part:

We have repeatedly approved this instruction as an accurate statement of the law regarding the deliberate avoidance doctrine. See, e.g., Craig, 178 F.3d at 896; Neville, 82 F.3d at 760; United States v. Jackson, 33 F.3d 866, 874 (7th Cir. 1994); 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, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Although Alvarez acknowledges our precedent, she asks us to stray from it, citing cases from the Second and Ninth Circuits suggesting that a proper instruction should inform the jury that the defendant must have been aware of a "high probability" of a fact's existence and deliberately avoided learning of it.

Although frequently noted, this exception is "an extremely narrow one" and is rarely applied. United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir. 1990); see also United States v. Rector, 111 F.3d 503, 507 (7th Cir. 1997) (noting the exception "has been discussed by courts in the process of rejecting its application ever since [it was created]"); Guzman, 85 F.3d at 827 ("[Bartkus exception] limited to situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings"). The "sham prosecution" exception has been discussed by this court but has never been applied to grant a defendant relief.