532 F.2d 697 (9th Cir. 1976), 74-2832, United States v. Jewell

Docket Nº:74-2832.
Citation:532 F.2d 697
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Demore JEWELL, Defendant-Appellant.
Case Date:February 27, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 697

532 F.2d 697 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Charles Demore JEWELL, Defendant-Appellant.

No. 74-2832.

United States Court of Appeals, Ninth Circuit

February 27, 1976

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Robert W. Ripley, Jr., San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.



BROWNING, Circuit Judge:

We took this case in banc to perform a simple but necessary " housekeeping" chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by21 U.S.C. § 841(a)(1), as a "general intent" crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent "to manufacture, distribute, or dispense." United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.

This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that "The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing." 501 F.2d at 1346. We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975).

In the course of in banc consideration of this case, we have encountered another problem that divides us.

Appellant defines "knowingly" in 21 U.S.C. §§ 841 and 960 to require that positive knowledge that a controlled substance is involved be established as an element of each offense. On the basis of this interpretation, appellant argues that it was reversible error to instruct the jury that the defendant could be convicted upon proof beyond a reasonable doubt that if he did not have positive knowledge that a controlled substance was concealed in the automobile he drove over the border, it was solely and entirely because of the conscious purpose on his part to avoid learning the truth. The majority concludes that this contention is wrong in principle, and has no support in authority or in the language or legislative history of the statute.

It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was

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false. 1 On the other hand there was evidence from which the jury could conclude that appellant spoke the truth that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery. 2 If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was he didn't because he didn't want to find it."

The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake. 3

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The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States (count 1: 21 U.S.C. § 952(a)), and that he "knowingly" possessed the marihuana (count 2: 21 U.S.C. § 841(a)(1)). The court continued:

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, "One with a deliberate antisocial purpose in mind . . . may deliberately 'shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having 'knowledge' of the facts as they are ultimately discovered to be." 4 J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . 'knowingly.' " 5 Professor Glanville Williams states, on the basis both English and American authorities, "To the requirement of actual knowledge there is one strictly limited exception. . . . (T)he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge." 6 Professor Williams concludes, "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law." 7

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: "When knowledge of the existence of a particular fact is an element of an offense, such

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knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." 8 As the Comment to this provision explains, "Paragraph (7) deals with the situation British commentators have denominated 'wilful blindness' or 'connivance,' the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist." 9

The Supreme Court, in Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969), applied the Model Penal Code definition of knowledge in determining the meaning of "knowing" in former 21 U.S.C. § 176a. In Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970), the Court adopted the Model Penal Code definition in defining "knowingly" in 21 U.S.C. § 174. 10 The Turner opinion recognizes that this definition of "knowingly" makes actual knowledge unnecessary: "(T)hose who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin." 298 F.2d at 849. The Supreme Court again adopted the Model Penal Code definition of knowledge and approved the language of Griego in Barnes v. United States, 412 U.S. 837, 845 & n.10, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380, 387 (1973).

It is true that neither Leary, Turner, nor Barnes involved a jury instruction. However, United States v. Squires, 440 F.2d 859, 863-64 & n.12 (2d Cir. 1971), and United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973), recognize that the Supreme Court's approval of the Model Penal Code definition of knowledge implies approval of an instruction that the requirement of knowledge is satisfied by proof of a "conscious purpose to avoid learning the truth." 11...

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