U.S. v. Feroz, 1150

• Decision Date: 01 June 1988
• Docket Number: No. 1150,D,1150
• Citation: 848 F.2d 359
• Parties: UNITED STATES of America, Appellee, v. Mirahmad FEROZ, Defendant-Appellant. ocket 87-1439.
• Court: U.S. Court of Appeals — Second Circuit

Page 359

848 F.2d 359

UNITED STATES of America, Appellee, v. Mirahmad FEROZ, Defendant-Appellant.

No. 1150, Docket 87-1439.

United States Court of Appeals, Second Circuit.

Argued May 11, 1988.

Decided June 1, 1988.

Daniel H. Murphy, II, New York City, for defendant-appellant.

Jerome C. Roth, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before KAUFMAN, PIERCE, and ALTIMARI, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York following a jury trial before the Honorable Joseph M. McLaughlin. Appellant, who was convicted of importing heroin into the United States, claims on appeal that the district court erroneously instructed the jury on "conscious avoidance", and therefore his conviction should be vacated. Although we agree with appellant that the court's instruction was incomplete, we do not believe that the court committed plain error, and we therefore affirm.

BACKGROUND

On April 22, 1987, appellant arrived at John F. Kennedy International Airport on a flight from London carrying a passport in the name of "Mirahmad Feroz" and an attache case concealing 971.56 grams of 54% pure heroin in a secret compartment. Appellant, who states that his real name is Mohammed Ishaq Feroz, was arrested and charged with "knowingly and intentionally" importing heroin into the United States, in violation of 21 U.S.C. Sec. 952(a), and with "knowingly and intentionally" possessing heroin with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1).

At trial, Feroz claimed that he had been unaware that the attache case contained contraband. Feroz testified that a man named Mirahmad, whom he had known in Afghanistan, had offered to help him emigrate from India to the United States. Two hours before the initial flight was ready to depart from Delhi, India to London, Mirahmad presented Feroz with a false passport, a ticket, and the attache case, which appeared to be empty.

Prior to instructing the jury Judge McLaughlin asked defense counsel if the proposed charge was "all right". Counsel replied that he was not happy with the proposed "conscious avoidance" charge, but he offered no specific objection at that time or later. The court subsequently instructed the jury that the government was required to prove beyond a reasonable doubt that Feroz had knowingly and intentionally imported heroin into the United States. The court then gave the following "conscious avoidance" charge:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid knowledge would permit an inference of knowledge. Stating that another way, a defendant's knowledge of a fact may be inferred from his willful blindness to the existence of the fact. It is entirely up to you as to 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 enough to support a finding of willfulness or knowledge.

Two hours into its deliberations, the jury sent a note asking whether "the deliberate closing of one's eyes and ears as to what is being carried [is] a presumption of guilt." With the agreement of defense counsel, the court reread the original instruction on conscious avoidance. The jury subsequently sent another note asking whether the defendant could be convicted if he knew that the attache case contained a controlled substance, but not necessarily heroin. In response, the court reiterated that knowledge is an essential element of the crime, defined "knowledge", and gave the conscious avoidance charge once more--again without objection. Feroz was subsequently convicted of the importation charge and acquitted of the charge of possession with intent to distribute.

DISCUSSION

As we have written previously, the conscious avoidance charge is "used where a defendant has claimed lack of some specific aspect of knowledge necessary to conviction but where the evidence may be construed as deliberate ignorance." United States v. Lanza, 790 F.2d 1015, 1022 (2d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 211, 93 L.Ed.2d 141 (1986). This court has repeatedly emphasized that, in giving the conscious avoidance charge, the district judge should instruct the jury that knowledge of the existence of a particular fact is established (1) if a person is aware of a high probability of its existence, (2) unless he actually believes that it does not exist. United States v. Shareef, 714 F.2d 232, 233 (2d Cir.1983); United States v. Cano, 702 F.2d 370, 371 (2d Cir.1983) (per curiam); United States v. Aulet, 618 F.2d 182, 191 (2d Cir.1980); United States v. Morales, 577 F.2d 769, 774 n. 4 (2d Cir.1978); United States v. Bright, 517 F.2d 584, 587-88 (2d Cir.1975).

On at least two occasions, this court has considered whether a district court's failure to include the foregoing language in a conscious avoidance charge constitutes plain error. In Cano, the defendant claimed at trial that he had been unaware that certain envelopes in his possession contained cocaine. The judge charged the jury on conscious avoidance four times; each time, he told the jury that they might find the requisite knowledge if they found that the defendant had been aware of a high probability that the envelope contained drugs but had deliberately closed his eyes to that probability. The judge also stated each time that mere...