U.S. v. Heredia

• Decision Date: 02 April 2007
• Docket Number: No. 03-10585.,03-10585.
• Citation: U.S. v. Heredia, 481 F.3d 1188 (9th Cir. 2007)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carmen Denise HEREDIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

481 F.3d 1188

UNITED STATES of America, Plaintiff-Appellee, v.Carmen Denise HEREDIA, Defendant-Appellant.

No. 03-10585.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2006.

Filed April 2, 2007.

Wanda K. Day, Tucson, AZ; Jeffrey T. Green, Eric A. Shumsky, Eamon P. Joyce and Matthew J. Warren, Sidley Austin, LLP, Washington D.C., for the defendant-appellant.

Paul K. Charlton, United States Attorney for the District of Arizona; Christina M. Cabanillas, George Ferko and Bruce M. Ferg, Assistant United States Attorneys, Tucson, AZ, for the plaintiff-appellee.

Kenneth W. Starr, Michael D. Shumsky and Gregory L. Skidmore, Kirkland & Ellis, LLP, Washington, D.C.; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for the National Association of Criminal Defense Lawyers as amicus curiae in support of the defendant-appellant.

Saji Vettiyil, Vettiyil & Associates, P.C., Nogales, AZ, for Arizona Attorneys for Criminal Justice, as amicus curiae in support of the defendant-appellant.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding.D.C. No. CR-02-00773-JMR-JJM.

Before: SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, RYMER, KLEINFELD, HAWKINS, THOMAS, SILVERMAN, GRABER, McKEOWN, PAEZ, TALLMAN, CLIFTON,CALLAHAN and BEA, Circuit Judges.

KOZINSKI, Circuit Judge:

We revisit United States v. Jewell,532 F.2d 697(9th Cir.1976)(en banc), and the body of caselaw applying it.

I

DefendantCarmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona.Heredia was at the wheel and her two children, mother and one of her aunts were passengers.The border agent at the scene noticed what he described as a "very strong perfume odor" emanating from the car.A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor.Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).

At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to Nogales, where her mother had a dentist's appointment.After the appointment, she borrowed her Aunt Belia's car to transport her mother back to Tucson.¹Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a "detergent" smell in the car as she prepared for the trip and asked Belia to explain.Belia told her that she had spilled Downey fabric softener in the car a few days earlier, but Heredia found this explanation incredible.

Heredia admitted on the stand that she suspected there might be drugs in the car, based on the fact that her mother was visibly nervous during the trip and carried a large amount of cash, even though she wasn't working at the time.However, Heredia claimed that her suspicions were not aroused until she had passed the last freeway exit before the checkpoint, by which time it was too dangerous to pull over and investigate.

The government requested a deliberate ignorance instruction, and the judge obliged, overruling Heredia's objection.The instruction, cribbed from our circuit's Model Jury Instruction 5.7, read as follows:

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the vehicle driven by the defendant and deliberately avoided learning the truth.You may not find such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant, or if you find that the defendant was simply careless.²

On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge.³Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.

II

While Jewell has spawned a great deal of commentary and a somewhat perplexing body of caselaw, its core holding was a rather straightforward matter of statutory interpretation: "`[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it."532 F.2d at 702.In other words, when Congress made it a crime to "knowingly . . . possess with intent to manufacture, distribute, or dispense, a controlled substance,"21 U.S.C. § 841(a)(1), it meant to punish not only those who know they possess a controlled substance, but also those who don't know because they don't want to know.⁴

Overturning a long-standing precedent is never to be done lightly, and particularly not "in the area of statutory construction, where Congress is free to change [an] interpretation of its legislation."Ill. Brick Co. v. Illinois,431 U.S. 720, 736, 97 S.Ct. 2061, 52 L.Ed.2d 707(1977).Even in the criminal context, where private reliance interests are less compelling,⁵ stare decisis concerns still carry great weight, particularly when a precedent is as deeply entrenched as Jewell.SeeEvans v. United States,504 U.S. 255, 268-69, 112 S.Ct. 1881, 119 L.Ed.2d 57(1992)(noting that stare decisis carries considerable weight when "many other courts . . . have interpreted the statute in the same way").Since Jewell was decided in 1976, every regional circuit—with the exception of the D.C. Circuit — has adopted its central holding.See n. 11 infra.Indeed, many colloquially refer to the deliberate ignorance instruction as the "Jewell instruction."See, e.g., United States v. Bussey,942 F.2d 1241, 1246(8th Cir.1991);United States v. Lara-Velasquez,919 F.2d 946, 951 n. 5(5th Cir.1990).Congress has amended section 841 many times since Jewell was handed down, but not in a way that would cast doubt on our ruling.Given the widespread acceptance of Jewell across the federal judiciary, of which Congress must surely have been aware, we construe Congress's inaction as acquiescence.⁶

That said, there are circumstances when a precedent becomes so unworkable that keeping it on the books actually undermines the values of evenhandedness and predictability that the doctrine of stare decisis aims to advance.SeePayne v. Tennessee,501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720(1991).Here, we recognize that many of our post-Jewellcases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts—and ourselves—to apply with consistency.⁷But, rather than overturn Jewell,we conclude that the better course is to clear away the underbrush that surrounds it.

III

The parties have pointed out one area where our cases have not been consistent: Whether the jury must be instructed that defendant's motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime.⁸Jewell itself speculated that defendant's motive for failing to learn the truth in that case was to "avoid responsibility in the event of discovery."532 F.2d at 699.⁹Yet the opinion did not define motive as a separate prong of the deliberate ignorance instruction.And, we affirmed, even though the instruction given at Jewell's trial made no mention of motive.Id. at 700.Since then, we've upheld two-pronged instructions, similar to the one given here, in at least four other published opinions.SeeUnited States v. Shannon,137 F.3d 1112, 1117 n. 1(9th Cir.1998)(per curiam);United States v. McAllister,747 F.2d 1273, 1275(9th Cir.1984);United States v. Henderson,721 F.2d 276, 278(9th Cir.1983);United States v. Suttiswad,696 F.2d 645, 650(9th Cir.1982).

The first mention of the motive prong came in a dissent by then-Judge Kennedy, who also authored the dissent in Jewell.SeeUnited States v. Murrieta-Bejarano,552 F.2d 1323, 1326(9th Cir.1977)(Kennedy, J., dissenting).Judge Kennedy's chief concern was with what he viewed as the absence of deliberate avoidance on the part of the defendant in that case.Seeid. at 1325.At any rate, he was not writing for the court.Yet some of our opinions seem to have adopted the motive prong, providing little justification for doing so other than citation to Judge Kennedy's dissent.See, e.g., United States v. Baron,94 F.3d 1312, 1318 n. 3(9th Cir.1996);United States v. Kelm,827 F.2d 1319, 1324(9th Cir.1987);United States v. Pac. Hide & Fur Depot, Inc.,768 F.2d 1096, 1098(9th Cir.1985);United States v. Garzon,688 F.2d 607, 609(9th Cir.1982).Three other federal circuits have followed suit.SeeUnited States v. Puche,350 F.3d 1137, 1149(11th Cir.2003);United States v. Willis,277 F.3d 1026, 1032(8th Cir.2002);United States v. Delreal-Ordones,213 F.3d 1263, 1268-69(10th Cir.2000).

Heredia argues that the motive prong is necessary to avoid punishing individuals who fail to investigate because circumstances render it unsafe or impractical to do so.She claims that she is within this group, because her suspicions did not arise until she was driving on an open highway where it would have been too dangerous to pull over.She thus claims that she had a motive other than avoiding criminal culpability for failing to discover the contraband concealed in the trunk.

We believe, however, that the second prong of the instruction, the requirement that defendant have deliberately avoided learning the truth, provides sufficient protections for defendants in these situations.A deliberate action is one that is "[i]ntentional; premeditated; fully considered."Black's Law Dictionary 459 (8th ed.2004).A decision influenced by coercion, exigent circumstances or lack of meaningful choice is, perforce, not deliberate.A defendant who...