U.S. v. Alvarado, OQUELI-HERNANDE

• Decision Date: 28 January 1988
• Docket Number: D,85-5280,Nos. 85-5278,OQUELI-HERNANDE,s. 85-5278
• Citation: 838 F.2d 311
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Gustavo ALVARADO, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Oscarefendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 311

838 F.2d 311

UNITED STATES of America, Plaintiff/Appellee, v. Gustavo ALVARADO, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Oscar OQUELI-HERNANDEZ, Defendant/Appellant.

Nos. 85-5278, 85-5280.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 1, 1986.

Decided May 18, 1987.

Amended Jan. 28, 1988.

Marilyn E. Butler, Federal Public Defender, Joseph F. Walsh, Los Angeles, Cal., for defendants-appellants.

Manuel A. Medrano, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before J. BLAINE ANDERSON, CANBY and WIGGINS, ^* Circuit Judges.

AMENDED OPINION

J. BLAINE ANDERSON, Circuit Judge:

Gustavo Alvarado (Alvarado) and Oscar Oqueli-Hernandez (Oqueli) were indicted for conspiring to import (Count I), for importing (Count II), and for possessing with the intent to distribute (Count III), 12.7 kilograms of cocaine. A jury found both guilty on all counts. Alvarado and Oqueli sought a new trial charging that: 1) the trial judge gave an erroneous jury instruction, and 2) the prosecutor in his closing argument made false representations that warranted a mistrial. The court denied the motion and both were subsequently sentenced. Alvarado and Oqueli both appeal the trial court's denial of their motions for a new trial.

I. FACTS

On July 22, 1986, Alvarado, Oqueli, Oqueli's son Yuri, and Roberto Katan (Katan) arrived at the Los Angeles airport on a Varig Airlines flight from Brazil. At the luggage carousel, Oqueli picked up Alvarado's suitcase and Yuri's suitcase and proceeded through customs. Oqueli showed the customs agent a diplomatic pass, and the agent allowed Oqueli to pass through without being checked. Oqueli was General Consul for Honduras from January, 1984 to January, 1985. His diplomatic pass had expired with the termination of his post, but the customs agent was unaware of that fact.

Alvarado took Oqueli's brown suitcase and black suitcase from the carousel and went to the customs station. As Alvarado gave the customs agent his flight ticket and other travel documents, she noticed that his hands trembled. With his flight ticket, Alvarado also handed the customs agent an unused Japan Airlines ticket from Brazil to the United States scheduled for three days earlier. Then, without prompting, Alvarado told the customs agent that he was a doctor. Also, Alvarado was well-dressed, yet was carrying a red gym-type zipper bag.

The customs agent found Alvarado's conduct suspicious and decided to refer him to the secondary inspection station for further examination. At secondary, the agent asked to check the black suitcase. Alvarado explained that his friend, Oscar Oqueli, who was standing by the exit with his son and Katan, had the key. A customs agent escorted Alvarado to the exit, and he was given a set of keys by Katan. Upon returning to the secondary check station, Alvarado attempted to open the black suitcase, fumbled with the keys, and dropped them. He explained that these were not the keys to the black suitcase, but instead belonged to the brown suitcase, and offered to open it. The brown suitcase contained only clothes and dental equipment. Alvarado then stated that his friend had the keys to the black suitcase. When asked why he didn't get them the first time, he stated he had forgotten to ask for them. By that time, Oqueli, his son, and Katan had left the airport and could not be located. Alvarado agreed to have the black suitcase opened with a crowbar, but he explained that the suitcase was not his, but Oscar Oqueli's, and that he was not responsible for its contents. When the suitcase was opened, Alvarado immediately turned pale. After moving the clothing around, the customs agent found eleven packages of cocaine at the bottom of the case.

After his arrest, Alvarado told a DEA agent, through an interpreter, that Oqueli owned the black suitcase and that Alvarado did not know about the cocaine. There was conflicting evidence about whether Alvarado said he was paid for taking the suitcase. The interpreter testified that Alvarado said that Oqueli offered to give him a $5,000 gift when he returned to the United States if Alvarado would carry his suitcase. Alvarado testified that there was never any discussion of being paid to carry the suitcase.

After his arrest, Alvarado, in cooperation with the DEA agents, called Oqueli and left a message for him to come to the Marriot Hotel and pick up Alvarado and the suitcases. A few hours later, Oqueli's sister arrived at the hotel. She found Alvarado, and without engaging him in other conversation, asked for change. When he gave it to her, she made a telephone call and left.

Alvarado again called Oqueli and arranged to meet him at the airport. Oqueli arrived at the airport in a taxi with Katan. When the taxi passed by Alvarado, he waved at the occupants. There was no acknowledgment. Oqueli exited the cab a short distance from Alvarado and motioned for Alvarado to remain there. Oqueli then walked to a nearby telephone booth and made a telephone call. At that time, the telephone in the telephone bank nearest Alvarado began to ring. Alvarado let it ring. Oqueli hung up the telephone and walked hurriedly toward Alvarado. He picked up both suitcases and walked hurriedly away. When DEA agents attempted to stop Oqueli, he resisted. Oqueli and Katan were arrested.

After his arrest, Oqueli explained that the black suitcase was his and that he had lent it to Alvarado in Rio. He also said that he was, among other things, in the import-export business in the United States. Oqueli stated that he was unaware of the cocaine in the suitcase.

Alvarado and Oqueli were tried together for importing, conspiring to import, and possessing with the intent to distribute, 12.7 kilograms of cocaine. During their closing arguments, defense counsel asserted that Katan was responsible for placing the cocaine in the suitcase. In response, government counsel asserted that the grand jury was unable to find probable cause to indict Katan. He then implied that defendants' failure to call Katan as a witness was evidence that Katan was not the real culprit. The trial judge sustained an objection to this line of argument. The judge admonished government counsel and instructed the jury that a defendant does not have the burden of calling any witness and that "no inference could be drawn" where a defendant chooses not to call a witness.

After this argument, it was revealed that it was not the grand jury but government counsel who chose not to prosecute Katan. Because of the government's misstatements, the judge gave the following instruction to the jury as requested by the defendants.

Now, we're on our concluding instructions. You'll recall that when the government was arguing that Mr. Katan was not indicted by the grand jury, he had been cleared, sort of, by the grand jury, or words to that effect, I instructed you to disregard that; but I'm going to give you an instruction in addition to that.

You are not to consider Mr. Medrano's, the prosecutor's, argument regarding why Mr. Katan was not charged in this case. Mr. Medrano was wrong when he argued to you in his rebuttal argument that the grand jury did not find probable cause to believe that Mr. Katan had committed a crime. He was also wrong when he argued to you that the grand jury decided not to charge Mr. Katan.

The United States Attorney's Office chose not to prosecute Mr. Katan. The case against Mr. Katan was never presented to the grand jury, so the grand jury was never asked whether there was probable cause to charge Mr. Katan.

After two days of deliberation, the jury asked the court to clarify the relationship between the words "know" and "intent" and the word "cocaine" in the statute. In response, the judge reread his instructions on "knowledge" and "intent" and then gave an earlier rejected Jewell instruction stating:

Now, the instruction which I originally refused but I'm going to give you now is this: The element of knowledge. It's Devitt and Blackmar's Volume 1, Section 14.09.

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately--notice I say "deliberately"--closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge.

Stated another way: A defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It's entirely up to you as to whether you find any deliberate closing of the eyes and the inference to be drawn from any such evidence. A showing of negligence or mistake alone is not sufficient to show a finding of willfulness or knowledge. If you find a defendant who you are considering believed what was in the boxes was not a controlled substance, then you must acquit.

Both defense counsel objected to this instruction. The objection was denied.

The jury deliberated for another thirty minutes and then returned a verdict against both defendants on all three counts in the indictment.

Defense counsel moved for a new trial on the ground that the prosecutor made a false misrepresentation during his closing argument, and on the ground that there was no evidence to justify a Jewell instruction and the Jewell instruction as given was deficient. The trial judge denied the motion for a new trial.

II. DISCUSSION

A. Jewell Instruction

In light of the evidence adduced at trial in this case, the district court's decision to instruct the jury on the doctrine of deliberate avoidance was error. The relevant evidence points to actual knowledge, rather than deliberate avoidance, and therefore does not support the giving of a Jewell instruction. See United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098-99 (9th Cir.1985). See also United States v. Jewell, 532 F.2d...