U.S. v. Sanchez-Robles, SANCHEZ-ROBLE

• Decision Date: 20 March 1991
• Docket Number: D,No. 90-50018,SANCHEZ-ROBLE,90-50018
• Citation: 927 F.2d 1070
• Parties: 32 Fed. R. Evid. Serv. 673 UNITED STATES of America, Plaintiff-Appellee, v. Susanaefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1070

927 F.2d 1070

32 Fed. R. Evid. Serv. 673

UNITED STATES of America, Plaintiff-Appellee, v. Susana SANCHEZ-ROBLES, Defendant-Appellant.

No. 90-50018

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 8, 1990.

Opinion and Memorandum Jan. 17, 1991.

Opinion and Memorandum Withdrawn March 20, 1991.

Order and Opinion March 20, 1991.

Martha M. Hall and Robert L. Swain, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Brian T. Kelly and Michael G. Wheat, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

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

Before NORRIS, HALL and RYMER, Circuit Judges.

ORDER

The appellee's request for publication is GRANTED.

The opinion and memorandum dispositions filed January 17, 1991, are withdrawn and the attached opinion filed in its stead authored by Judge Rymer.

OPINION

RYMER, Circuit Judge:

A jury found Susana Sanchez-Robles guilty of importing cocaine, importing marijuana and possessing marijuana and cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a), 952 & 960. She appeals on grounds of insufficiency of the evidence, prosecutorial misconduct, error in several evidentiary rulings and error in giving a "deliberate ignorance" instruction under 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), where the only evidence to support a Jewell instruction was her presence in a van which agents said reeked of marijuana. Because there were no circumstances to arouse in Sanchez-Robles's mind a suspicion of illegal activity aside from the strong odor and because that odor, if recognized, would establish only her actual knowledge of illegality and not deliberate ignorance, the Jewell instruction was inappropriate. Accordingly, we reverse.

I. Facts

Sanchez-Robles, a mother of five, lived in El Centro, California. She frequently visited friends and relatives in Mexicali, Mexico. She claims that on June 30, 1989, four of her daughters, aged 4 to 17, asked her to take them to Mexico for tacos. A friend named Armando Lopez, whom she said she had known for one month, had left a van at her apartment, so she borrowed it and left for Mexico with her daughters at around 10 p.m. that evening. Sanchez-Robles claims that she did not use her own car that night because her other daughter, Guadalupe, had borrowed it to go out on a date. Guadalupe and her boyfriend testified that they went out together that night, taking the Sanchez-Robles car to Mexicali and returning at around midnight. Sanchez-Robles and the four daughters made the trip to Mexico in the Lopez van.

Upon their return to the United States at 11:50 p.m., a customs official at the Calexico port of entry overheard Sanchez-Robles speaking in Spanish to her daughters, all of whom were sitting on the front seats of the van, telling them to be quiet and not say anything. The inspector noticed an odor inside the van, which he recognized as marijuana. When he opened the side door of the van, the odor was stronger. He referred the van to a secondary inspection area, where another officer noticed the odor and took the family inside. A search of Sanchez-Robles found nothing illegal. The officer at the secondary inspection area characterized the odor from the driver's window of the van as a six on a scale of one to ten, with ten being the strongest, and the odor from the rear of the van as an eight-to-nine. Drug-sniffing dogs alerted customs agents to several areas in the van, and when inspectors took the vehicle apart, they found 43 pounds of cocaine and 417 pounds of marijuana hidden throughout. The dismantling process took an hour and a half, and as the inspectors were removing the contraband, they had to take fresh air breaks because the odor was so strong. After the van doors had been open for approximately five minutes, the odor of marijuana carried across to the far side of the secondary inspection lot.

Sanchez-Robles denied any knowledge of the drugs and claimed that she does not recognize the smell of marijuana. The district court's Jewell instruction was as follows If you have a reasonable doubt that the defendant actually believed that the vehicle she was in did not contain a controlled substance, then she did not have the requisite knowledge and you must find her not guilty.

However, the government can satisfy its burden of proof as to guilty knowledge by proving beyond a reasonable doubt that, although the defendant was not actually aware that there was a controlled substance in the vehicle at the time of her arrest, she nevertheless was aware of a high probability that the vehicle contained a controlled substance, and her ignorance of the presence of a controlled substance was solely and entirely a result of her 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.

II. Jewell Instruction

Though we consider jury instructions as a whole to evaluate their adequacy, "whether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990).

A Jewell instruction is premised on the notion that a defendant cannot insulate herself from criminal liability by consciously preserving a lack of actual knowledge of the criminal activity. "To act 'knowingly' ... 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." Jewell, 532 F.2d at 700. To fall within Jewell, a defendant must make "a calculated effort to avoid the sanctions of the statute while violating its substance. 'A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.' " Id. at 704 (footnote omitted) (quoting G. Williams, Criminal Law: The General Part, Sec. 57 at 159 (2d ed. 1961)).

Because of the risk that a jury might convict a defendant on mere negligence--"that the defendant should have known his conduct was illegal"--we have recognized that the instruction should be used sparingly. United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982). "The Jewell instruction should not be given in every case where a defendant claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance." United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.1977). "Thus, even if the circumstances are highly suspicious, the instruction is improper unless the defendant acted deliberately to avoid learning the truth." Garzon, 688 F.2d at 609; see also United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985) (emphasizing that Jewell instruction is rarely appropriate).

Our cases upholding a Jewell instruction involved facts and circumstances creating a high probability of criminal activity that the defendant then ignored. In our cases disallowing a Jewell instruction, there were no suspicious circumstances surrounding the activity beyond direct evidence of the illegality itself, which goes only to actual knowledge.

For example, in Jewell itself the defendant entered the United States driving a car containing 110 pounds of marijuana concealed in a secret compartment. 532 F.2d at 698. He claimed a stranger who had given only his first name had approached him in Tijuana, Mexico and offered to sell him marijuana. When he declined, the stranger offered him $100 to drive a car across the border. He accepted and saw a secret compartment in the trunk of the car, but he declined to investigate further. Id. at 699 n. 2. Under those circumstances, we held that there was both circumstantial evidence of actual knowledge of the marijuana, id. at 698, and evidence that "he deliberately avoided positive knowledge of the contraband to avoid responsibility in the event of discovery." Id. at 699.

Cases following Jewell show a similar pattern of suspicious circumstances that go beyond direct evidence of the criminal activity itself. In United States v. Murrieta-Bejarano, 552 F.2d 1323 (9th Cir.1977), the defendant drove his employer's truck across the United States-Mexico border and was told to meet a man at a gas station. Murrieta-Bejarano claimed that the man dropped him off elsewhere, took the truck, loaded it with a refrigerator and returned. Murrieta-Bejarno then drove the truck back across the border, never having asked about the source of the refrigerator or why he could not be present for its loading. Even though he asserted that he had no actual knowledge of the drugs found in the truck at the second border crossing, the suspicious circumstances surrounding his trip created an awareness of the high probability of criminal activity and thus supported a Jewell instruction. Id. at 1325.

In United States v. Nicholson, 677 F.2d 706 (9th Cir.1982), the defendant invested $20,000 cash in an unspecified deal with someone he knew to be a drug smuggler. Nicholson was promised a high return on his investment, was given no documentation of the deal and later delivered $10,000 on one hour's notice in a brown paper bag. Id. at 707-08. We upheld a deliberate ignorance instruction. See also United States v. Perez-Padilla, 846 F.2d 1182 (9th Cir.1988) (per curiam) (man placed baggie in defendant's jacket and gave him $300 to transport it to Tijuana); United States v. McAllister, 747 F.2d 1273 (9th Cir.1984) (stranger known only by first name offered defendant $25 to drive truck from San Diego to Los Angeles, delivered truck at 2 a.m. and instructed defendant to drive through closed truck scales area on highway to...