U.S. v. de Francisco-Lopez

• Decision Date: 17 July 1991
• Docket Number: FRANCISCO-LOPE,D,No. 90-4019,90-4019
• Citation: 939 F.2d 1405
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo deefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1405

939 F.2d 1405

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo de FRANCISCO-LOPEZ, Defendant-Appellant.

No. 90-4019.

United States Court of Appeals, Tenth Circuit.

July 17, 1991.

Rehearing Denied Oct. 1, 1991.

Suzanne K. Cavanaugh, Bountiful, Utah, for defendant-appellant.

Dee Benson, U.S. Atty., and David J. Schwendiman, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

PER CURIAM.

Eduardo de Francisco-Lopez was convicted of possession with intent to distribute five kilograms or more of a mixture containing cocaine. He appeals, claiming that the conviction was not supported by sufficient evidence and claiming that the jury should not have been instructed concerning deliberate ignorance of an operative fact. We agree that deliberate ignorance instruction should not have been given to the jury, and we reverse.

Mr. Lopez, who lived with his wife and child in Los Angeles, was driving alone from Los Angeles to New York City when he was stopped by Utah state highway patrolmen for speeding on the interstate highway. During the stop, one of the officers noticed that the rear door vents on the car were held in place by pop rivets instead of the factory-installed Phillips-head screws. After Mr. Lopez consented to a search of the car, the patrolman determined that there were hidden sheet metal compartments cleverly welded in the car's frame, containing what appeared to be drugs. Mr. Lopez was placed under arrest and, under a search warrant, the car was partially dismantled. Approximately fifteen kilograms of nearly pure cocaine, packaged for distribution, were extracted from the compartments.

Mr. Lopez was indicted on one charge, that he did "knowingly and intentionally possess with intent to distribute approximately fifteen (15) kilograms of a mixture containing cocaine, a Schedule II controlled substance within the meaning of 21 U.S.C. Sec. 812; all in violation of 21 U.S.C. Sec. 841(a)." R. Vol. I tab 1. Of the four elements which make up this charge--possession, scienter, involvement with a scheduled controlled substance, and intent to distribute--only the scienter requirement was contested before the jury. It was uncontroverted at trial that Mr. Lopez was in at least constructive possession of the cocaine, see United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987) (exercise of dominion and control of location of narcotics constitutes constructive possession), because there was sufficient nexus between Mr. Lopez, the car and the drugs. See id. at 882. The parties stipulated that the material discovered in the car consisted of approximately fifteen kilograms of ninety-two to ninety-nine percent pure cocaine. R. Supp. Vol. I at 161-65. There was no question raised that the quantity, packaging, and purity of the cocaine found in the car's hidden compartments were consistent with cocaine which was in the middle of the distribution process. See United States v. Parrish, 925 F.2d 1293, 1297 (10th Cir.1991) ("A large quantity of cocaine can be sufficient to support a judgment that a defendant intended to distribute the drug."). However, Mr. Lopez consistently denied that he knew the cocaine was in the car and, after the prosecution's evidence was presented at trial, moved unsuccessfully for dismissal on the grounds that the circumstantial evidence upon which the prosecution relied was insufficient to find guilt beyond a reasonable doubt.

The prosecution's case consisted of inferences arising from the unusual circumstances by which Mr. Lopez came into possession of the car and was driving it from Los Angeles to New York; a telephone call to Los Angeles from the motel at which he spent the first night on the road; and two isolated comments which he made to law enforcement officials after he was stopped for speeding. Mr. Lopez, who was experienced in auto mechanics, claims to have been hired by a mysterious stranger known to Mr. Lopez only as "Juan" to do some minor repair work on the car and then, about three weeks later, to drive it to New York. Mr. Lopez did not immediately accept the offer, but he did accept cash for expenses and payment, and eventually repaired the car and set off on his journey with minimal direction where he was to drop off the car. His first night on the road to New York, he made a six-minute telephone call from his motel room to a person in Los Angeles that he testified he had not seen in years. The highway patrolman testified that when Mr. Lopez was stopped for speeding, he told the highway patrol officers that he was driving to New York to see "his lady and her child." R. Supp. Vol. I at 125. Finally, after the drugs were found and he had been arrested, he asked an FBI agent, "How many?" Id. at 98.

Mr. Lopez was sentenced to ten years in prison, to be followed by five years of conditional probation. He timely appealed, raising two issues: (i) whether there was sufficient evidence for a jury to find beyond a reasonable doubt that he was guilty of the charged crime, and (ii) whether it was error for the court to have instructed the jury concerning "deliberate ignorance" of the presence of the drugs found hidden in the car. ¹

I.

The standard by which we judge Mr. Lopez' argument that the evidence was insufficient for conviction is well-established. "The evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986).

In the case before us, the prosecution relied on circumstantial evidence as proof that Mr. Lopez had actual knowledge that the car contained controlled substances. The prosecution dismissed many parts of Mr. Lopez' narrative as unbelievable fabrications and substituted what it considered to be a more believable hypothesis for the events leading up to Mr. Lopez' arrest. That hypothesis, of course, included the assumption of actual knowledge by Mr. Lopez of his criminal activity. Under the challenge of credibility, there was abundant circumstantial evidence by which the jury could properly infer beyond a reasonable doubt that Mr. Lopez had actual knowledge he was transporting a large amount of cocaine with intent to distribute.

Mr. Lopez argues the evidence was insufficient on two grounds. First, he contends the evidence was wholly circumstantial. However, circumstantial evidence, taken together with any reasonable inferences which flow from such evidence, is sufficient to establish guilt beyond a reasonable doubt. See id. at 1529.

Second, he argues that the evidence presented could have been consistent with either innocence or guilt. This issue has also been addressed and resolved by this court. We have rejected the suggestion that the appellate court should review the evidence to determine whether it was consistent with a finding of innocence. Id. at 1531. The reviewing court may not substitute its judgment for the jury's determination whether the evidence at trial was sufficient to establish guilt beyond a reasonable doubt. Id. (citing Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)).

[T]he appropriate inquiry is whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. [307,] 319 [, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ]. Thus, it is anomolous [sic] to suggest that the appellate court should evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence.

Id. (emphasis in original); see also Parrish, 925 F.2d at 1297 ("[T]he evidence required to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt."); cf. United States v. Nelson, 419 F.2d 1237, 1245 (9th Cir.1969) (appellate court must not substitute its analysis for that of the jury because it may consider inferences "which, though entirely possible or even probable, are drawn from evidence which the jury may have disbelieved").

II.

Mr. Lopez' second argument, whether the deliberate ignorance instruction was properly tendered to the jury, is more difficult. We examine jury instructions as a whole to evaluate their adequacy, and examine de novo the propriety of tendering an individual jury instruction. See United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). When reviewing the tender of a deliberate ignorance jury instruction, we view the evidence in the light most favorable to the government. United States v. Fingado, 934 F.2d 1163, 1166 (10th Cir.1991).

In the context of the instruction we must analyze, "deliberate ignorance" refers to circumstantial evidence that the person against whom it is employed has actual knowledge of a fact in issue. Employing such circumstantial evidence allows the government to prove a defendant had actual knowledge of an operative fact by proving deliberate acts committed by the defendant from which that actual knowledge can be logically inferred. See United States v. Ochoa-Fabian, 935 F.2d 1139, 1141-1142 (10th Cir.1991). The acts relied upon, however, must be deliberate and not equivocal, otherwise the defendant's acts do not imply the avoidance of knowledge which is the key to the inference of actual knowledge. "A deliberate ignorance instruction alerts the jury 'that the act of avoidance of knowledge of particular facts may itself circumstantially show that the avoidance was motivated by sufficient guilty knowledge to satisfy the ... "knowing" element of the crime.' " United States v. Ashby, 864 F.2d 690, 693-94 (10th Cir.1988) (quoting United States v. Manriquez Arbizo, 833 F.2d 244, 248) (10th...