U.S. v. Baron, 95-10369
| Decision Date | 12 July 1996 |
| Docket Number | No. 95-10369,95-10369 |
| Parties | 96 Cal. Daily Op. Serv. 6616, 96 Daily Journal D.A.R. 10,815 UNITED STATES of America, Plaintiff-Appellee, v. Jose Tamayo BARON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark R. Lippman, La Jolla, California, for defendant-appellant.
Joan G. Ruffennach, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-95-00061-SMM.
Before: O'SCANNLAIN and LEAVY, Circuit Judges, and HUFF, ** District Judge.
We must decide whether the district court committed plain error by giving a Jewell "deliberate ignorance" instruction in this drug trafficking case.
In February 1995, while driving through Arizona, appellant Jose Tamayo Baron was pulled over for speeding by Department of Public Safety ("DPS") Patrol Officer Jennifer Lynn Huskisson. When Baron rolled down his driver's side window, Huskisson noticed an "overpowering" cherry fragrance coming from inside the car. Baron produced a title for the vehicle; however, the title was not in his name, and it indicated that the record owner had sold the vehicle in November 1994. Baron was also unable to provide a vehicle registration or proof of insurance. When Huskisson asked Baron who owned the car, he stated that it was owned by a female friend whose name he could not recall. He also stated that the female friend had loaned the car to an individual whom he later identified as "Alberto Salgado," and that Salgado had in turn loaned him the car. Huskisson noticed that the car was very clean and contained no luggage or personal effects. She observed a screwdriver on the passenger floorboard, and noted that Baron's hands shook slightly as he handed her his social security card.
Suspecting that the vehicle might be stolen, Huskisson radioed in for a check on the vehicle's registration and title. While waiting for a response, Huskisson continued talking to Baron. Baron told her that Salgado had told him that he had driven the car from Phoenix to Los Angeles for a visit. Baron also claimed that late the night before, Salgado had told him that he (Salgado) had to fly back to Phoenix immediately for an unexpected job interview, and that he had asked Baron to drive the car back to Phoenix for him.
Soon thereafter, Huskisson received negative registration and license checks, indicating that the car was not stolen and that Baron's license was valid. Huskisson asked Baron whether someone was buying the car, and Baron said no, that a male friend was letting Salgado use the car. Huskisson then informed Baron that she was issuing him a warning, not a citation. While Baron was walking back to his car, Huskisson asked him if he had any drugs or weapons, a large amount of money, or any kind of contraband in the car. Baron answered each question in the negative. Huskisson then requested and received Baron's written consent to search the vehicle. During her search, Huskisson noticed that screws on the passenger-side running board appeared to have been tampered with, and that there were scratches on the right rear quarter panel.
A few minutes later, a canine unit and other officers arrived. The dogs immediately alerted on the left and right rear quarter panels of the car. Reaching in through the trunk, one of the officers removed a large, round package wrapped in duct tape. The package field-tested positive for amphetamines. Baron was placed under arrest and advised of his Miranda rights. He acknowledged that he understood his Miranda rights, but did not expressly waive them. He was not questioned further at that point, and did not make any additional statements. A pager was removed from his belt, and $200 was removed from his pocket. The total traffic stop took approximately 20 minutes.
Prior to leaving the scene, Officer Huskisson turned control of the case over to La Paz County Narcotics Task Force Detective Frank Haws. Huskisson informed Haws that Baron spoke and understood English, had consented to a search of his vehicle, and had been read his Miranda rights. Haws then searched the vehicle and discovered two hidden compartments, one in each rear quarter panel. The compartments had hinged panels with trunk-lock mechanisms that were connected by wires to the rear defrost switch. Haws removed packages containing a total of 27 pounds of methamphetamine from the two compartments.
Approximately one and one half to two hours later, at the local DPS office, Detective Haws asked Baron if he wanted to talk, and Baron responded affirmatively. Haws did not provide Baron with additional Miranda warnings. Baron told Haws that at 12:30 a.m. the night before, while he was sleeping, he heard Alberto Salgado tapping at his window. He claimed that he had known Salgado for approximately three months. He told Haws the same basic story that he had told Huskisson, stating that Salgado had asked him to drive the car to Phoenix because Salgado had to fly back to Phoenix unexpectedly for a job interview. Baron also stated that Salgado had given him the $200 in cash to purchase a plane ticket back to Los Angeles. He explained that he was supposed to leave the car in an unspecified parking lot at Sky Harbor Airport in Phoenix. At Haws' request, Baron agreed to cooperate by making a controlled, observed delivery of the car and drugs to the airport.
After Baron agreed to cooperate, Haws contacted DEA Agent Shannon Scheel. Haws, Baron and members of the narcotics task force drove to Phoenix, where they met Scheel at approximately 7:30 p.m. at a convenience store. At Scheel's direction, Baron parked the car at the airport. Baron was then taken to a Phoenix Police Department substation. Without readvising Baron of his Miranda rights, Scheel asked Baron to retell everything he had told Officer Huskisson and Detective Haws. Scheel told Baron that the case had become a federal case, and that Scheel would honor promises made to Baron by the state officers. Scheel's questioning began at 10:00 p.m. and ended at approximately 12:30 a.m. when Baron stopped cooperating and requested an attorney.
Baron was indicted in March 1995 on one count of possession with intent to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1). Before trial, Baron moved to suppress his statements to Huskisson, Haws and Scheel on the grounds that the statements were involuntary and were obtained in violation of his Miranda rights. The district court denied Baron's motion, and all three officers testified during the trial. In addition to testifying to the facts discussed above, Scheel also testified that in spite of the fact that Baron told Scheel that he had been unemployed for the last seven or eight months, Baron's wallet contained receipts for a $12,000 cash down payment on a GMC vehicle, a $900 watch, and an additional $800 in miscellaneous electronic, clothing and accessory purchases. Scheel also testified that agents were never able to locate "Alberto Salgado," despite an extensive search.
Baron testified in his own defense. He claimed that he saw nothing out of the ordinary about the car, that he did not know there were drugs in the car, and that he gave permission to search the car because he did not know there were drugs in it. The central disputed issue in the trial was thus Baron's knowledge of the presence of the narcotics.
During closing argument, the prosecutor erroneously stated that Baron had admitted that he suspected that the car contained drugs:
And in the middle of the night, with very odd circumstances, [Salgado] asked-allegedly asked Mr. Tamayo Baron to take this car to Phoenix, and Mr. Tamayo Baron jumps to it just as he's order[ed] to do so. And yet, in spite of all that, maybe this might be drugs, according to him.
RT 5/24/95 at 52 (emphasis added). The government now concedes that this statement was factually erroneous, and that Baron consistently denied during the trial that he suspected that the car he was driving carried drugs.
Baron was convicted and sentenced to 192 months in prison. He now appeals.
Baron first argues that the district court erred by giving a "deliberate ignorance" 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). 1 Because Baron failed to object to this instruction during trial, we review his claim for plain error. See, e.g., United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987). In order to prevail, Baron must show that (1) an error occurred; (2) the error was plain, clear or obvious; and (3) the error prejudiced his "substantial rights" in that it "affected the outcome of the proceedings." People of Territory of Guam v. Cruz, 70 F.3d 1090, 1092 n. 2 (9th Cir.1995) (citing United States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993)). If Baron is able to meet his burden on these three points, we have authority to reverse his conviction; however, we should exercise our discretion to do so only if the error seriously affected the fairness, integrity or public reputation of the proceedings. Id.
In Jewell, the defendant was arrested while driving a car across the Mexican-American border with marijuana in a concealed compartment. As was the case here, the defendant was indicted under 21 U.S.C. § 841(a)(1) for possession of controlled substances with intent to distribute. We noted in Jewell that section 841(a)(1) "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.' " Id. at 698 (citation omitted). The key question in Jewell, as in the instant case, was whether the defendant had the requisite knowledge.
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