U.S. v. McAllister

Decision Date20 November 1984
Docket NumberNo. 83-5127,83-5127
Citation747 F.2d 1273
PartiesUNITED STATES of America, Defendant-Appellant. v. Philbert Rufus McALLISTER, Plaintiff-Appellee,
CourtU.S. Court of Appeals — Ninth Circuit

Barbara Davis, San Diego, Cal., for plaintiff-appellant.

Patrick O'Toole, Asst. U.S. Atty., San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUG and FLETCHER, Circuit Judges, and REDDEN, * District Judge.

HUG, Circuit Judge:

Philbert Rufus McAllister appeals his conviction for violation of 8 U.S.C. Sec. 1324, which prohibits transportation of aliens who have illegally entered the country. He contends the district court erred in instructing the jury that the Government could prove the knowledge element of the charge by establishing McAllister consciously avoided learning he was transporting aliens. He also claims a violation of Fed.R.Crim.P. 16. We affirm.

I

Border patrol agents posted at the San Clemente checkpoint saw a truck that entered the adjacent truck scales area, continued through the truck scales, and then went behind the scales inspection area and continued towards the freeway. The agents were suspicious of the truck's activities because it was early morning, the scales were closed, and there was a sign on the freeway stating they were closed. They stopped the truck and asked the driver, McAllister, to identify himself. They also asked if he was willing to open the back of the truck. McAllister agreed and rolled up the rear door about a foot. This revealed the feet and legs of several people; an agent then rolled up the rear door the rest of the way to reveal 31 aliens. The agents testified that McAllister remained expressionless when the truck door was opened and said only, "There are people in there."

McAllister testified that he had no knowledge of the truck's contents. He explained the truck belonged to a man named Danny, who had approached McAllister in a restaurant in San Diego. McAllister stated that he had not known Danny prior to that meeting. According to McAllister's testimony, he became involved with the truck in the following manner: He told Danny that he was unemployed and looking for work and that he had learned to drive a truck in the service. Danny then offered McAllister $25 to drive Danny's truck from San Diego to Los Angeles. About 2:00 a.m. the following morning, Danny brought the truck to McAllister's home. After a stop to buy gasoline, Danny gave McAllister directions to the freeway and instructed him to drive through the San Clemente truck scales area, even though it was closed. Danny also stated that he would drive his car and would meet McAllister on the freeway and lead him to his destination in Los Angeles. McAllister neither inspected the back of the truck nor asked Danny what was in it. He said he inferred it was furniture, but he did not know if he was expected to help unload furniture and he did not know why he would be delivering furniture at 2:00 a.m.

McAllister did drive through the closed truck scales area, which enabled him to avoid the checkpoint of the border patrol. At one point he testified that he did this because a large highway sign said "All Trucks Stop Here." At another point he testified that he could not see the sign because it was raining too hard. The agents testified it was not raining at that time and the 20 X 25 foot sign said "Truck Scales Area Closed."

II

To establish that McAllister had violated 8 U.S.C. Sec. 1324, the Government was required to prove that McAllister transported an alien "knowing that he [was] in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry in the United States occurred less than three years prior thereto ...." The Government proposed to carry its burden of proof by showing that McAllister made a conscious effort to avoid acquiring the required knowledge, and it therefore requested a jury instruction based on United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Over McAllister's timely objection, the jury was instructed as follows:

[H]owever, the government can complete the burden of proof as to guilty knowledge by proving beyond a reasonable doubt that, although the defendant was not actually aware that the aliens were in the United States illegally and that the aliens' last entry had occurred within the last three years, he nevertheless was aware of a high probability that the vehicle contained aliens who were illegally in the United States and whose entry had occurred within the last three years, and defendant's ignorance of the presence of the illegal aliens in the vehicle was solely and entirely the result of his having made a conscious effort to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

Of course, guilty knowledge cannot be established by demonstrating mere negligence or even foolishness on the part of the defendant.

Before drawing an inference of guilty knowledge, you should be convinced beyond a reasonable doubt that the defendant willfully blinded himself to what he had every reason to believe were the facts.

The instruction correctly stated the law. However, McAllister contends there was insufficient evidence to justify giving the instruction.

A Jewell instruction is properly given only when a defendant claims a lack of guilty knowledge and there are facts in evidence that support an inference of deliberate ignorance. United States v. Henderson, 721 F.2d 276, 277 (9th Cir.1983); United States v. Suttiswad, 696 F.2d 645, 651 (9th Cir.1982); United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.1977). As we emphasized in Murrieta-Bejarano, the cases in which the facts point to deliberate ignorance are comparatively rare, and they must be carefully distinguished from instances where the defendant was merely negligent. The Government may not carry its burden by demonstrating that the defendant was mistaken, recklessly disregarded the truth, or was negligent in failing to inquire. Suttiswad, 696 F.2d at 652; United States v. Williams, 685 F.2d 319, 321 (9th Cir.1982); Jewell, 532 F.2d at 704 n. 21. Instead, the facts must support the inference that the defendant was aware of a high probability of the existence of the fact in question. Suttiswad, 696 F.2d at 652; Jewell, 532 F.2d at 704 n. 21. An instruction given without an adequate factual basis may improperly lead the jury to infer guilty knowledge without proof of conscious avoidance of the truth. Murrieta-Bejarano, 552 F.2d at 1325.

The evidence in this case was sufficient to support the inference of deliberate ignorance. Several factors suggested a high probability that McAllister knew he was engaged in transporting aliens who had illegally entered within the last three years. These included the suddenness of the trip, the fact that it was made at 2:00 a.m., the lack of a specific destination, and the fact that Danny was traveling to Los Angeles also, but would not accompany the truck. McAllister testified he neither looked in the back of the truck nor asked what it contained. He stated he did not know or attempt to learn Danny's last name. He did not ask where he was going in Los Angeles or how he would return to San Diego. McAllister drove through the truck scales area that was closed, which avoided passing the normal border checkpoint where any aliens who had illegally entered could be discovered. His testimony concerning his reason for doing so was inconsistent and implausible and justified a reasonable inference that he did so because he believed illegal aliens were in the truck. These facts all indicate "the defendant tried to close his eyes or ears to what was happening." United States v. Beckett, 724 F.2d 855, 856 (9th Cir.1984). The inference is strengthened by the agents' observation that McAllister did not appear surprised to see the aliens when the back of the truck was opened. The use of the Jewell instruction thus was not error.

III

McAllister also claims a violation of rights afforded him under Fed.R.Crim.P. 16. In response to the request of the defendant under Rule 16(a)(1)(A), the Government provided the interview form I-44 that Agent...

To continue reading

Request your trial
44 cases
  • U.S. v. Herrero
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 16, 1990
    ...ignorance." ' " Id. (quoting United States v. White, 794 F.2d 367, 371 (8th Cir.1986), that quoted, in turn, 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)). This is based upon the recognition "[t]he ostrich in......
  • U.S. v. Hiland
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 19, 1990
    ...an inference of deliberate ignorance.' " 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)). The first requirement is clearly met here because both......
  • U.S. v. Valencia
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 16, 1990
    ...' " 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 We conclude that the district court did not err in giving the o......
  • People v. Otto
    • United States
    • California Supreme Court
    • July 9, 1992
    ...state and federal standards for nonconstitutional error. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243; United States v. McAllister (9th Cir.1984) 747 F.2d 1273, 1277; Fed.Rules Crim.Proc., rule 52(a); 28 U.S.C. § 2111.) There has been no definitive statement by the federal courts co......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT