483 F.3d 913 (9th Cir. 2007), 03-10585, United States v. Heredia

Docket Nº:03-10585.
Citation:483 F.3d 913
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carmen Denise HEREDIA, Defendant-Appellant.
Case Date:April 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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483 F.3d 913 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Carmen Denise HEREDIA, Defendant-Appellant.

No. 03-10585.

United States Court of Appeals, Ninth Circuit.

April 2, 2007

Argued and Submitted Dec. 12, 2006.

Amended April 30, 2007.

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Wanda K. Day, Tucson, AZ; Jeffrey T. Green, Eric A. Shumsky, Eamon P. Joyce and Matthew J. Warren, Sidley Austin, LLP, Washington D.C., for the defendant-appellant.

Paul K. Charlton, United States Attorney for the District of Arizona; Christina M. Cabanillas, George Ferko and Bruce M. Ferg, Assistant United States Attorneys, Tucson, AZ, for the plaintiff-appellee.

Kenneth W. Starr, Michael D. Shumsky and Gregory L. Skidmore, Kirkland & Ellis, LLP, Washington, D.C.; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for the National Association of Criminal Defense Lawyers as amicus curiae in support of the defendant-appellant.

Saji Vettiyil, Vettiyil & Associates, P.C., Nogales, AZ, for Arizona Attorneys for Criminal Justice, as amicus curiae in support of the defendant-appellant.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-02-00773-JMR-JJ M.


Opinion by Judge KOZINSKI; Concurrence by Judge KLIENFELD; Dissent by Judge GRABER.


KOZINSKI, Circuit Judge.


Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows:

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As our cases have recognized, deliberate ignorance, otherwise known as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). A willfully blind defendant is one who took deliberate actions to avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substantial and unjustifiable risk that his conduct was criminal; a negligent defendant is one who should have had similar suspicions but, in fact, did not.


We revisit United States v. Jewell, 532 F.2d 697(9th Cir.1976) (en banc), and the body of caselaw applying it.


Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a "very strong perfume odor" emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).

At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to Nogales, where her mother had a dentist's appointment. After the appointment, she borrowed her Aunt Belia's car to transport her mother back to Tucson. 1 Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a "detergent" smell in the car as she prepared for the trip and asked Belia to explain. Belia told her that she had spilled Downey fabric softener in the car a few days earlier, but Heredia found this explanation incredible.

Heredia admitted on the stand that she suspected there might be drugs in the car, based on the fact that her mother was visibly nervous during the trip and carried a large amount of cash, even though she wasn't working at the time. However, Heredia claimed that her suspicions were not aroused until she had passed the last freeway exit before the checkpoint, by which time it was too dangerous to pull over and investigate.

The government requested a deliberate ignorance instruction, and the judge obliged, overruling Heredia's objection. The instruction, cribbed from our circuit's Model Jury Instruction 5.7, read as follows:

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the vehicle driven by the defendant and deliberately avoided learning the truth. You may not find such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant, or if you find that the defendant was simply careless. 2

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On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge. 3 Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.


While Jewell has spawned a great deal of commentary and a somewhat perplexing body of caselaw, its core holding was a rather straightforward matter of statutory interpretation: " '[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it." 532 F.2d at 702. In other words, when Congress made it a crime to "knowingly ... possess with intent to manufacture, distribute, or dispense, a controlled substance," 21 U.S.C. § 841(a)(1), it meant to punish not only those who know they possess a controlled substance, but also those who don't know because they don't want to know. 4

Overturning a long-standing precedent is never to be done lightly, and particularly not "in the area of statutory construction, where Congress is free to change [an] interpretation of its legislation." Ill. Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Even in the criminal context, where private reliance interests are less compelling, 5 stare decisis concerns still carry great weight, particularly when a precedent is as deeply entrenched as Jewell. See Evans v. United States, 504 U.S. 255, 268-69, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (noting that stare decisis carries considerable weight when "many other courts ... have interpreted the statute in the same way"). Since Jewell was decided in 1976, every regional circuit--with the exception of the D.C. Circuit--has adopted its central holding. See n. 11 infra. Indeed, many colloquially refer to the deliberate ignorance instruction as the " Jewell instruction." See, e.g., United States v. Bussey, 942 F.2d 1241, 1246 (8th Cir.1991); United States v. Lara-Velasquez, 919 F.2d 946, 951 n. 5 (5th Cir.1990). Congress has amended section 841 many times since Jewell was handed down, but not in a way that would cast doubt on our ruling. Given the widespread acceptance of Jewell across the federal judiciary, of which Congress must surely have been aware, we

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construe Congress's inaction as acquiescence. 6

That said, there are circumstances when a precedent becomes so unworkable that keeping it on the books actually undermines the values of evenhandedness and predictability that the doctrine of stare decisis aims to advance. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Here, we recognize that many of our post- Jewell cases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts--and ourselves--to apply with consistency. 7 But, rather than overturn Jewell, we conclude that the better course is to clear away the underbrush that surrounds it.


The parties have pointed out one area where our cases have not been consistent: Whether the jury must be instructed that defendant's motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime. 8 Jewell itself speculated that defendant's motive for failing to learn the truth in that case was to "avoid responsibility in the event of discovery." 532 F.2d at 699. 9 Yet the opinion did not define motive as a separate prong of the deliberate ignorance instruction. And, we affirmed, even though the instruction given at Jewell's trial made no mention of motive. Id. at 700. Since then, we've upheld two-pronged instructions, similar to the one given here, in at least four other published opinions. See United States v. Shannon, 137 F.3d 1112, 1117 n. 1 (9th Cir.1998) (per curiam); United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir.1984); United States v. Henderson, 721 F.2d 276, 278 (9th Cir.1983); United States v. Suttiswad, 696 F.2d 645, 650 (9th Cir.1982).

The first mention of the motive prong came in a dissent by then-Judge Kennedy, who also authored the dissent in Jewell. See United States v. Murrieta-Bejarano, 552 F.2d 1323, 1326 (9th Cir.1977) (Kennedy, J., dissenting). Judge Kennedy's chief

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concern was with what he viewed as the absence of deliberate avoidance on the part of the defendant in that case. See id. at 1325. At any rate, he was not writing for the court. Yet some of our opinions seem to have adopted the motive prong, providing little justification for doing so other than citation to Judge Kennedy's dissent. See, e.g., United States v. Baron, 94...

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