U.S. v. Heredia, 03-10585.

• Decision Date: 24 October 2005
• Docket Number: No. 03-10585.,03-10585.
• Citation: 429 F.3d 820
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carmen Denise HEREDIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 820

429 F.3d 820

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 7, 2004.

Filed October 24, 2005.

COPYRIGHT MATERIAL OMITTED

Wanda K. Kay, Tucson, AZ, for the appellant.

Nathan D. Leonardo (argued) and Jeffrey H. Jacobson, Assistant U.S. Attorneys, Tucson, AZ, for the appellee.

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 ALEX KOZINSKI, WILLIAM A. FLETCHER, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Carmen Heredia ("Heredia") was convicted of knowingly possessing contraband with intent to distribute in violation of 21 U.S.C. § 841(a) (2000), after the district court instructed the jury that the "knowingly" element is satisfied if she was deliberately ignorant of the truth. The issue on appeal is whether the evidence was sufficient to warrant the "deliberate ignorance" or "Jewell" jury instruction. See United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc). After the jury returned the guilty verdict, Heredia moved for a new trial on the grounds that the evidence did not warrant the Jewell instruction. The district court denied the motion, and Heredia now appeals.

We find that the government did not provide sufficient evidence to warrant the deliberate ignorance instruction. We therefore reverse the district court's denial of Heredia's motion for a new trial, and remand.

I. BACKGROUND

Heredia was driving from Nogales, Arizona, to Tucson when she was stopped at a Border Patrol checkpoint. In the car with her was her mother, Raquel Moreno; her aunt, Beatriz Moreno; and two of Heredia's young children. The Border Patrol agent noticed a perfume scent emanating from the car, and referred the car to the secondary inspection area. There, Heredia was asked to open the trunk. When neither the ignition key nor the interior trunk release button worked, an agent removed the back seat and saw two suspicious bundles. A complete search of the car produced twelve bundles, yielding 349.2 pounds of marijuana. The bundles were covered with dryer sheets, a method for concealing the odor of marijuana, that produces a strong detergent scent in the car. Heredia was arrested and charged with knowingly possessing contraband with intent to distribute, in violation of 21 U.S.C. § 841(a).

The facts leading up to Heredia driving the car to Tucson are subject to much dispute by the witnesses. Heredia testified at trial that she had visited Nogales, Arizona to attend a funeral and had stayed at the home of an aunt, Belia Alavarado. She left her aunt's home early in the morning and returned to Tucson with her husband and children. After her husband went to work, and her oldest child went to school, Heredia's mother called and asked if Heredia would accompany her back to Nogales for a dentist's appointment. Heredia gathered her two youngest children and, along with her mother, rode a public shuttle to Nogales. Belia picked up the group at the shuttle stop in Nogales and took them back to her house. From there, Heredia's mother borrowed an automobile owned by Belia, drove it to the dentist's office, and returned from the office with her sister, Heredia's aunt, Beatriz Moreno. While Heredia, her children, her mother, and Beatriz waited at the house, Belia took the car on an errand, and returned a couple hours later.

Heredia told a DEA agent that as she prepared to take Belia's car to Tucson, Heredia noticed a strong detergent odor in the car. When she asked Belia about it, Belia claimed that she had spilled "Downey" in the car a few days earlier. The DEA agent further testified that Heredia admitted to finding the explanation implausible, but nonetheless elected to drive the car to Tucson. Heredia later denied ever smelling the Downey or discussing it with her aunt.

Heredia further testified that as they drove along the interstate, she noticed that her aunt and mother were acting strangely: they both appeared nervous, her aunt was drinking alcohol, and her mother was smoking more than usual. When Heredia asked her mother to stop smoking because one of her children had bronchitis, her mother put out the cigarette, immediately sprayed air freshener in the car, and opened the window. Heredia admitted at trial that at that point, she began to suspect that something was wrong. She further admitted that this suspicion was informed by the fact that her mother and aunt seemed to have undue amounts of cash on hand, and that her mother's boyfriend abused drugs. Heredia testified that the thought occurred to her that there might be drugs in the car, and that she considered turning around. By the time that her suspicion rose to that level, however, she had passed the last interstate exit before the checkpoint.

Heredia's mother and aunts also testified at trial, likewise denying knowledge of the marijuana. Their testimony not only contradicted Heredia's, but contradicted each other's and, often times, was internally inconsistent. Belia claimed that Heredia had left Belia's house with her husband, and that at that point the trunk of the car was empty, thus implying that Heredia and/or her husband might have placed the marijuana in the car. Belia denied spilling detergent in the car. Beatriz gave testimony that directly contradicted her earlier statements to a Drug Enforcement Administration agent concerning whether Heredia's husband was present and the sequence in which Beatriz and Heredia had each arrived at Belia's house. Heredia's mother likewise gave multiple statements concerning the persons present and the sequence in which they arrived that directly contradicted previous interviews. Collectively, the testimony offered by Beatriz, Belia, and Heredia's mother, Raquel, suggested that Heredia or her husband could have been responsible for the marijuana in the vehicle.

The district court instructed the jury on the government's alternative theories: that Heredia either knew the marijuana was in the car from the outset, or that she was deliberately ignorant. The court gave the following deliberate ignorance or Jewell instruction:

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.

See NINTH CIR. MODEL JURY INSTRUCTIONS 5.7. Heredia timely objected to the instruction. After the jury returned a guilty verdict, Heredia filed a motion for a new trial on the grounds that the evidence did not warrant the deliberate ignorance instruction. The district court denied the motion in a minute order, and Heredia appealed.

II. STANDARD OF REVIEW

The court reviews a district court's decision to give a deliberate ignorance instruction de novo. United States v. Shannon, 137 F.3d 1112, 1117 (9th Cir.1998).

III. ANALYSIS

In Jewell, we first considered whether one can "knowingly" possess contraband without having actual knowledge of it. Jewell was approached by a stranger in Tijuana and offered money to drive across the border in a vehicle that Jewell knew contained a secret compartment. Jewell, 532 F.2d at 699 n. 1. Although the government presented only circumstantial evidence that Jewell knew that the compartment contained marijuana, it argued that Jewell deliberately avoided obtaining actual knowledge in order to avoid responsibility. Id. at 699. Noting that "the rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law," we held that evidence of deliberate ignorance is sufficient to meet the knowledge requirement of 21 U.S.C. § 841(a). Id. at 700 n. 7 (citing G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART, § 57 at 159 (2d ed.1961)). We observed that interpreting § 841(a) to require actual knowledge would make deliberate ignorance a defense, and that "[i]t cannot be doubted that those who traffic in drugs would make the most of it." Id. at 703. We observed that deliberate ignorance or willful blindness differ from positive knowledge "only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance." Id. at 704. Accordingly, we held that the government's evidence of deliberate ignorance was sufficient to meet the knowledge requirement of § 841(a), and affirmed the conviction. Id. at 704.

In the years since we decided Jewell, we have restricted the circumstances under which we will permit the instruction to be issued. We have warned that the instruction is "rarely appropriate," and should be given only when the government presents "specific evidence" that the defendant "(1) actually suspected that he or she might be involved in criminal activity, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself or herself with a defense in the event of prosecution." United States v. Baron, 94 F.3d 1312, 1318 n. 3 (9th Cir.1996). It is not enough that the defendant "was mistaken, recklessly disregarded the truth or negligently failed to inquire." United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987) (citing United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985)). The instruction should therefore "be rarely given because of the risk that the jury will convict on a standard of negligence: that the defendant should have known the conduct was illegal." United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.1988) (citing United States v. Garzon, 688 F.2d 607 (9th Cir.1982)). The purpose of the Jewell instruction is to...