U.S. v. Farfan-Carreon

• Citation: 935 F.2d 678
• Decision Date: 27 June 1991
• Docket Number: No. 90-8370,D,FARFAN-CARREO,90-8370
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ignacioefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 678

935 F.2d 678

UNITED STATES of America, Plaintiff-Appellee, v. Ignacio FARFAN-CARREON, Defendant-Appellant.

No. 90-8370.

United States Court of Appeals, Fifth Circuit.

June 27, 1991.

Robert F. Castanoda, Asst. Federal Public Defender, and Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

Bill Baumann, LeRoy M. Jahn, Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Texas.

Before HIGGINBOTHAM and DUHE, Circuit Judges. ¹

DUHE, Circuit Judge:

The appellant Ignacio Farfan-Carreon challenges his conviction for possession of marijuana with intent to distribute and importation of marijuana, arguing that the evidence is insufficient to sustain his conviction, and that the trial court improperly instructed the jury. He also contends that the district court erred in denying his motion pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure, to take the deposition of an unavailable witness. Because we agree that Ignacio made an adequate showing under the rule, we reverse and remand.

Facts and District Court Proceedings

Farfan, a taxi driver, attempted to drive a pickup truck bearing Texas license plates across the U.S. border near El Paso. When stopped at the checkpoint, he presented the border patrol agent with his credentials, indicating to the agent that he was bringing nothing across the border. When the agent stepped to the rear of the truck to inspect its bed, he noted what he perceived to be an irregularity in the position of the bumper. Suspecting the bumper concealed a hidden compartment, the agent questioned Farfan, who informed him that he was driving his friend's truck across the border to purchase auto parts. A search of the truck confirmed the agent's suspicions: 324 pounds of marijuana were discovered in a cleverly disguised compartment.

Later that day, Farfan admitted that he had fabricated his original story regarding the auto parts. He told the agents that he had been approached by a man known to him as "Pilingas" earlier that day at his taxi stand. Farfan admitted that Pilingas, whose real name was Jorge Contreras, had a questionable reputation, and was a reputed alien smuggler. Pilingas offered Farfan twenty dollars to drive the truck across the border, where the two aliens who owned it would pick it up. When Farfan asked Pilingas if the truck contained contraband, he became belligerent, indignantly insisting that it did not. Apparently satisfied, Farfan agreed to drive the truck across the border. Throughout the proceedings, Farfan maintained that he was unaware that marijuana was concealed inside the truck.

Farfan was indicted for importation of marijuana and possession of marijuana with intent to distribute, violations of 21 U.S.C. Secs. 952(a), 960(a)(1), and 841(a)(1). From a jury verdict convicting him for both offenses, he takes this appeal.

Rule 15(a)

Federal Rule of Criminal Procedure 15(a) provides in pertinent part:

Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition ...

The district court retains broad discretion in granting a Rule 15(a) motion, and considers the particular characteristics of each case to determine whether the "exceptional circumstances" requirement has been satisfied. United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976).

On the morning of trial, Farfan filed a motion pursuant to the rule to take the deposition of Pilingas. Although the motion was unaccompanied by a supporting affidavit, defense counsel declared in open court when questioned by the judge that Pilingas was a resident of Mexico, and thus beyond the subpoena power of the court. Counsel also indicated that Pilingas had refused to re-enter the United States voluntarily, since the Justice Department had threatened him with arrest. Finally, defense counsel speculated that although Pilingas would avoid inculpating himself, he would probably testify that Farfan had no knowledge of the marijuana concealed in the truck. The government filed its objections, complaining that Farfan had neglected to file a supporting affidavit. The district court later denied the motion, finding that Farfan had failed to submit a sworn affidavit demonstrating "exceptional circumstances." ²

We conclude the district court abused its discretion in denying the Rule 15(a) motion. We find no requirement in the language of Rule 15 that the motion must be supported by an affidavit, nor do the cases we have reviewed indicate that our court has imposed such a rigid requirement. In this case, any affidavit filed by Farfan would have contained the same representations by counsel that were made orally in open court. Accordingly, we find no substantial difference in the trustworthiness of either vehicle.

Similarly, we disagree with the trial court's conclusion that Farfan failed to demonstrate "exceptional circumstances." Because Pilingas is a Mexican national, he is beyond the subpoena power of the court, and could not be compelled to appear. See 28 U.S.C. Sec. 1783. While the trial judge suggested that Pilingas might return voluntarily, we find that possibility unlikely in light of the government's threat to prosecute him if he entered the country. ³ Although not required by the rule, we note that Pilingas' probable testimony is material, since it bears upon Farfan's knowledge of the hidden contents of the truck. In light of these conclusions, we must reverse Farfan's conviction, and remand this case to the district court.

The Jury Instruction

We choose to address the propriety of the district court's jury instructions as a guide to the district judge on remand of this case. Farfan contends that the district court improperly instructed the jury on "deliberate ignorance," and erroneously refused to balance its instruction as he requested. ⁴ Finding that the facts of this case support the issuance of that instruction, we approve the district court's version.

When reviewing a jury instruction, we determine whether "the charge, as a whole, is a correct statement of the law and whether it clearly instructed the 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). A trial judge is under no obligation to give a requested jury instruction that is inaccurate, argumentative, or duplicative. United States v. L'Hoste, 609 F.2d 796 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980).

Our court has recognized "deliberate ignorance" in situations where the defendant "has good and sufficient reason to believe that a condition exists, but deliberately avoids learning of it." United States v. de Luna, 815 F.2d 301, 302 (5th Cir.1987). With specific regard to drug importation cases, our court has approved a nearly identical deliberate ignorance instruction when a defendant "through willful blindness fails to confirm [a suspicion that he was transporting controlled substances.]" United States v. Lara-Velasquez, 919 F.2d 946, 950-951 & n. 7 (5th Cir.1990), citing United States v. Restrepo-Granda, 575 F.2d 524, 528 (5th Cir.), cert. denied, 439 U.S. 935, 99 S.Ct. 331, 58 L.Ed.2d 332 (1978).

Because the instruction poses the risk that the jury will convict a defendant upon a lesser showing of guilt, it may only issue when the evidence at trial raises two inferences:

(1) that the defendant was subjectively aware of the high probability of illegal conduct, and

(2) that the defendant purposefully contrived to avoid learning of the illegal conduct.

Lara-Velasquez, 919 F.2d at 951; see also, United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2880, 101 L.Ed.2d 915 (1988).

Thus, before it is entitled to a deliberate ignorance instruction, the government must do more than prove that a reasonable person in Farfan's position would have been suspicious of the circumstances. For example, in de Luna, the defendant was offered $10,000 to drive a load of "cabbage" across the border, even though the usual price for such a service was only $1,000. At trial, de Luna testified that the truck belonged to a "friend" whose name he could not recall. He claimed he did not know where he was to deliver the cabbage once he arrived in the United States, or why his employer was willing to pay such a high price for his services. Our ...