U.S. v. Chen

• Decision Date: 18 September 1990
• Docket Number: No. 89-2659,89-2659
• Citation: 913 F.2d 183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mei-Fen CHEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

913 F.2d 183

UNITED STATES of America, Plaintiff-Appellee, v. Mei-Fen CHEN, Defendant-Appellant.

No. 89-2659.

United States Court of Appeals Fifth Circuit.

Sept. 18, 1990.

George McCall Secrest, Jr., Houston, Tex., for defendant-appellant.

Mervyn Hamburg, Atty., Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., Frances H. Stacy, Asst. U.S. Atty., Henry R. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEE, POLITZ, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Convicted of knowingly maintaining a place for the purpose of distributing and using a controlled substance (count one) and knowingly renting property for the purpose of unlawfully storing, distributing and using a controlled substance (count two), in violation of 21 U.S.C. Sec. 856, Mei-Fen Chen (Chen) was sentenced to imprisonment for thirty months on count one and probation on count two, and the property forming the subject matter of the counts was forfeited. ¹ Chen challenges the district court's use of a deliberate ignorance charge for both counts. Because we hold that the charge was improper for count one, we REVERSE and REMAND on that count, Sec. 856(a)(1), and AFFIRM as to count two, Sec. 856(a)(2), and the forfeiture. ²

I.

Chen acquired the Della Motel in 1979 and operated it into the late 1980's. During this period, the neighborhood surrounding the motel deteriorated; and the motel became an area for drug traffickers. They sold drugs in the motel parking lot, as well as occupying motel rooms and storing and selling drugs there. These activities were described at trial by an undercover police officer who participated in the investigation of drug activities at the motel from 1981 to 1985. He testified that he made purchases of drugs in both the motel parking lot and the motel rooms.

Another undercover officer testified that in July 1987, he walked into the motel office and asked Chen where he could purchase cocaine and that Chen told him he could go to almost any room and pointed out a man in the parking lot.

In August 1987, federal and local drug enforcement agents executed a warrant to search the motel. Several tenants were arrested, and drugs and drug paraphernalia were discovered in the motel rooms. A Drug Enforcement Agency Agent testified that no narcotics or paraphernalia were discovered in the office or residence in the motel of Chen or her family. In a locked closet upstairs, close to but outside Chen's living quarters, the agents did discover a coffee jar that contained six packets of cocaine and a prelude tablet. The items were within an envelope marked with the words "Gwen" and "105." ³

Four former tenants of the motel testified at trial; all four had criminal records for drug related offenses. While all four resided at the motel during various time periods, three were residents during both 1986 and 1987 and one during 1987. ⁴ One testified that she did not know anyone at the Della motel during 1986 and 1987 who was not involved in selling drugs; that no one ever got thrown out of the motel for selling drugs, only if they failed to pay rent.

The tenants testified that they stayed at the motel because, as one stated, it "was a place where all drug users hung out" in the area and "you [were] kind of protected there." Another testified that the motel "was nicknamed the shooting gallery" and "[a] shooting gallery is just a term for the activity that goes on there." The tenants stated that Chen never told them to cease their drug activities even after they returned from prison for drug offenses. They maintained that Chen knew they were involved in drug trafficking and testified as follows:

* Chen had witnessed drug transactions and drug use in the motel rooms.

* Chen alerted tenants when she became aware that law enforcement officers planned to search certain rooms.

* Chen would encourage the tenants to make drug sales so that their rent could be paid.

* Chen stored drugs and drug proceeds for the tenants.

* Chen loaned money to the tenants to purchase drugs for resale.

Chen testified, denying that she was aware that drug transactions were taking place in her motel. She admitted seeing syringes in the parking lot but stated she believed they came from a nearby hospital. She maintained that she had never seen drugs being used or sold in the rooms and did not remember the visit of the undercover agent asking where he could get cocaine. She stated that she was unaware of the items found in the storage closet and denied the other events related by the tenants. Other witnesses testified as to Chen's reputation for honesty and of her good character.

The government then called two Houston police officers in rebuttal. One testified that he had made more than sixty visits to the Della Motel and had helped to execute search warrants there. He stated that the keys to the rooms given to the police by Chen often would not work and as a result, doors had to be broken. The other testified that while he was in an informant's room, an "oriental lady" telephoned the room to warn that the police were coming.

Chen was indicted for (1) "knowingly maintain[ing] a place, to wit, the Della Motel ... for the purpose of distributing and using a controlled substance," 21 U.S.C. Sec. 856(a)(1) and (b); and (2) "while managing and controlling a building, to wit, the Della Motel ... as an owner, agent, employee, and mortgagee, did knowingly and intentionally rent, lease, and make available for use, for compensation, said building for the purpose of unlawfully storing, distributing, and using a controlled substance," 21 U.S.C. Sec. 856(a)(2) and (b). Chen was not charged with opening the motel for the purpose of distributing a controlled substance, another basis for an offense under Sec. 856(a)(1), because the Della was not originally opened for that purpose; rather, the drug activity at the Della was at least partially a result of the deterioration of the neighborhood around the Della.

II.

In assessing Chen's challenge to the deliberate ignorance instruction, we must, of course, review the instructions in their totality and the jury's verdict; in so doing, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.), petition for cert. filed, No. 89-2024 (June 19, 1990). "[T]his circuit's standard of review ... requires us to uphold a jury's verdict unless that verdict is based upon record evidence [on] which no rational trier could have found guilt beyond a reasonable doubt." United States v. Smith, 890 F.2d 711, 712 (5th Cir.1989); see also Munoz-Fabela, 896 F.2d at 911. And, the standard of review for the jury instructions "is whether the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them." United States v. Stacey, 896 F.2d 75, 77 (5th Cir.1990) (quoting, United States v. August, 835 F.2d 76, 77 (5th Cir.1987)).

To convict Chen under Sec. 856(a)(1), the jury had to find that Chen (1) knowingly (2) maintained the Della Motel (3) for the purpose of distributing and using any controlled substance. United States v. Onick, 889 F.2d 1425, 1431 (5th Cir.1989). To convict her under Sec. 856(a)(2), the jury had to find that Chen (1) managed or controlled the Della Motel (2) either as an owner, lessee, agent, employee or mortgagee and (3) knowingly and intentionally rented, leased or made available for use for compensation, the building for the purpose of unlawfully storing, distributing and using a controlled substance. Id. at 1431, n. 1.

At trial, the court, in part, instructed the jury as follows:

18. An act is done "willfully" or "intentionally" if done voluntarily and purposely with the intent to do something the law forbids, that is, with the purpose either to disobey or to disregard the law.

An act is done "knowingly" if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. The purpose of adding the word "knowingly" is to insure that no one will be convicted for an act done because of mistake or accident, or other innocent reason.

19. Actual knowledge on the part of the defendant that she was renting, leasing, or making available for use the building, room, or enclosure for the purpose of unlawfully storing, distributing, or using a controlled substance is an essential element of the offense charged. You may not find the defendant guilty unless you find beyond a reasonable doubt that she knew that she was renting, leasing, or making available for the use the rooms for the purpose of unlawfully storing, distributing, or using a controlled substance. It is not sufficient to show that the defendant may have suspected or thought that the rooms were being used for such purposes.

20. [Deliberate Ignorance] The element of knowledge may be satisfied by inferences drawn from proof that the defendant deliberately closed her eyes to what would otherwise have been obvious to her. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, the defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact.

It is entirely up to you whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge.

Although the district judge gave other instructions on the elements of the offense for each count (Sec. 856(a)(1) and (a)(2)), he did not give separate instructions on the knowledge component for each offense under Sec. 856, rather the...