U.S. v. Ochoa-Fabian, OCHOA-FABIAN

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BALDOCK and BRORBY, Circuit Judges, and FINESILVER; SHERMAN G. FINESILVER
• Citation: 935 F.2d 1139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus, a/k/a Jose Jesus Fabian-Ochoa, Defendant-Appellant.
• Docket Number: No. 89-2283,OCHOA-FABIAN
• Decision Date: 10 June 1991

Page 1139

935 F.2d 1139 UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus OCHOA-FABIAN, a/k/a Jose Jesus Fabian-Ochoa,
Defendant-Appellant. No. 89-2283. United States Court of Appeals,
Tenth Circuit. June 10, 1991.
Rehearing Denied Aug. 23, 1991.

Page 1140

William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for defendant-appellant.

James Murphy, Asst. U.S. Atty., (Rhonda P. Backinoff, Asst. U.S. Atty. and William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before BALDOCK and BRORBY, Circuit Judges, and FINESILVER, District Judge. ¹

SHERMAN G. FINESILVER, Chief Judge.

The appellant, Jesus Ochoa-Fabian, appeals his conviction and prison sentence on a one-count indictment for unlawfully and intentionally possessing with the intent to distribute more than 100 kilograms of marijuana, a schedule I controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. Sec. 2. Appellant argues that his conviction was the result of an improper jury instruction. He also takes exception to the district court's application of the United States Sentencing Commission Guidelines relating to the acceptance of responsibility of a convicted offender. We AFFIRM.

I.

Appellant was charged in a one-count indictment together with two codefendants, Jose Daniel Gazes-Grajales and Victoriano Diaz-Olivas, with violations of the noted federal drug statutes. We are solely concerned with the disposition of appellant's case.

At a jury trial, four witnesses were called by the government. Of current import was the testimony of Agent Michael Dalton of the United States Border Patrol, Agent Charles Justice of the United States Border Patrol, and Agent Richard Sanders of the United States Drug Enforcement Agency. Agent Dalton testified that on March 3, 1989, appellant entered the Border Patrol checkpoint located on Interstate 10 at approximately 7:35 p.m. He was

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driving a 1979 Ford pickup truck with a camper shell attached. The codefendants were passengers in the vehicle.

Agent Dalton detected a strong odor of perfume or deodorant which he believed was used to mask the odor of marijuana. Upon questioning, appellant stated that he was coming from El Paso, Texas, and going to California to seek employment. Agent Dalton noted that the bed of the pickup was freshly carpeted, containing only a spare tire and a six-pack of beer. When he saw no luggage in the vehicle and realized that Gazes-Grajales did not have a permit to travel more than twenty-five miles from the border, he became "very suspicious." Agent Dalton asked for and received permission to walk a drug-sniffing dog around the vehicle.

Agent Justice, a trained dog handler, testified that he brought a drug-sniffing dog to the pickup. Through appropriate activity, the dog indicated to Agent Justice that illicit drugs were hidden in the vehicle. After peeling back a bit of the carpet, Agent Justice found a compartment which contained marijuana. The three occupants of the vehicle were formally arrested.

Agent Sanders testified that he interviewed the three individuals at the scene. They indicated that they had met at a bar in Juarez, Mexico, and decided appellant and Diaz-Olivas would travel with Gazes-Grajales to Arizona. Gazes-Grajales would stay in Arizona while the others would proceed to California. Agent Sanders stated that appellant's lack of nervousness at the checkpoint was suspicious.

At the close of testimony, the government submitted a "deliberate ignorance" instruction. Despite appellant's objection, the instruction was read to the jury. It stated,

"[t]he element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise be obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. The required knowledge is established if the defendant is aware of a high probability of the existence of the fact in question unless he actually believes it does not exist. It is entirely up to you as to whether you find any...