U.S. v. Murrieta-Bejarano

• Decision Date: 21 March 1977
• Docket Number: MURRIETA-BEJARAN,No. 76-2855,D,76-2855
• Citation: 552 F.2d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Darioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1323

552 F.2d 1323

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Dario MURRIETA-BEJARANO, Defendant-Appellant.

No. 76-2855.

United States Court of Appeals Ninth Circuit.

March 21, 1977.

Rehearing and Rehearing En Banc Denied April 29, 1977.

Tom O'Toole, Federal Public Defender, Bernardo P. Velasco, Asst. Federal Public Defender, Tucson, Ariz., argued, for defendant-appellant.

Ron Jennings, Asst. U.S. Atty., Tucson, Ariz., argued, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before DUNIWAY, CHOY and KENNEDY, Circuit Judges.

OPINION

DUNIWAY, Circuit Judge:

Murrieta appeals from a judgment of conviction of importation and of possession of marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1), 952(a), and 960(a)(1). We affirm.

FACTS

At the Sasabe, Arizona, port of entry, Murrieta, the driver and sole occupant of a pickup truck, attempted to cross the border. He was nervous and was unable to present any vehicle registration. A search revealed a compartment under the bed of the truck containing 138 pounds of marijuana.

Murrieta told the customs inspector that the truck belonged to his employer, a rancher named Caraveo, and that he had been instructed to drive it to the first gas station in Tucson to meet a cousin of his employer. The cousin was to take Murrieta to visit his uncle and then to take charge of the truck and to return it and a refrigerator to Murrieta later that evening. Murrieta was then to deliver the truck and refrigerator to his employer in Mexico. Murrieta first said that he did, and then that he did not, know or suspect that the truck contained marijuana.

The trial court denied Murrieta's motion for a directed verdict of acquittal. Over Murrieta's objection, the trial court gave the jury a "Jewell " instruction. ¹

I.

The trial court properly denied Murrieta's motion for acquittal. Because Murrieta was the driver and sole occupant of the truck, the jury could properly infer that he knew about the marijuana. United States v. Campbell, 9 Cir., 1974, 507 F.2d 955, 957; United States v. Castillo-Burgos, 9 Cir., 1974, 501 F.2d 217. Thus, the denial of the motion for a judgment of acquittal was proper. United States v. Figueroa-Paz, 9 Cir., 1972, 468 F.2d 1055, 1058.

II.

Murrieta's challenge to the Jewell instruction, which allowed the jury to find the requisite knowledge if Murrieta deliberately remained ignorant of the presence of the marijuana, has more merit. In United States v. Jewell, 9 Cir., 1976, in banc, 532 F.2d 697, 704, n. 21, we held that when such an instruction is proper, the jury should be told "(1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless he actually believes it does not exist." The instruction given in this case conformed to these requirements.

The basic question is whether the Jewell instruction should have been given at all. The government argues that it is proper to give it in every case in which a defendant claims that he did not know the contraband was there. Murrieta argues for a more limited use, and we agree with his position. The Jewell instruction should not be given in every case where a defendant claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance.

The effect of a Jewell instruction in a case in which no facts point to deliberate ignorance may be to create a presumption of guilt. Although no evidence indicates a defendant's conscious purpose to avoid learning the truth, a jury, given the Jewell instruction, might infer that the defendant possessed "knowledge" when it would not otherwise have done so. A particular defendant may not have deliberately remained ignorant and yet not have affirmatively believed that for example the truck did not contain drugs. He might simply not have known one way or the other without any effort on his part to avoid learning the truth.

Although in this case the question is close, we think that there were sufficient facts to justify the instruction. Murrieta, according to his version, had been told to drive to a gas station in Tucson to meet his employer's cousin. The cousin was to drop him downtown so that he could visit his uncle, who allegedly worked on a nearby poultry farm. The owner of the poultry farm, at which Murrieta's uncle supposedly worked, testified that the uncle was no longer employed there, and he had last seen the uncle sometime the year before. The uncle did not testify. After the visit, the cousin was to return with the truck and a refrigerator which Murrieta was then to take to his employer in Mexico. He was not expected to help load the refrigerator. His earnings were about $8.00 per day, but he carried Mexican money worth over $100.00. He said part of it was to be used to pay a bribe to Mexican customs officials on his return. He also testified that he did not know and had never inquired about the source of the refrigerator. He had never asked whether there were any other...