U.S. v. Perez-Padilla

• Decision Date: 22 February 1988
• Docket Number: D,No. 87-5118,PEREZ-PADILL,87-5118
• Citation: 846 F.2d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1182

846 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo PEREZ-PADILLA, Defendant-Appellant.

No. 87-5118.

United States Court of Appeals Ninth Circuit.

Submitted Feb. 22, 1988. ^*

Memorandum April 6, 1988.

Opinion May 23, 1988.

Burford B. Wiley, Ball, Wiley & Cheney, San Diego, Cal., for defendant-appellant.

Marian E. McGuire, Asst. U.S. Atty., Criminal Div., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, Chief Judge, HUG and BEEZER, Circuit Judges.

PER CURIAM:

Alfredo Perez-Padilla was stopped by customs agents at a checkpoint at San Ysidro, California while on his way to Mexico. The agents searched him and his possessions and found a clear plastic baggie containing cocaine inside a jacket in his suitcase. Perez-Padilla appeals his conviction for possessing 147.5 grams of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) on two grounds.

1. Perez-Padilla claims that the trial judge erred in denying his motion to suppress statements he made to customs officers. The claim is frivolous. Perez-Padilla testified at the hearing on his motion to suppress that customs officers had coerced his confession by threatening to turn him over to Mexican authorities if he did not provide information. At trial appellant admitted on cross-examination that in fact he had not been threatened.

2. Perez-Padilla expressly agreed to the giving of a Jewell instruction, United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc), but now contends the instruction was plain error. The basis for the claim of error is not clear. Customs agents testified that after his arrest Perez-Padilla stated he knew he was carrying cocaine. At trial Perez-Padilla testified he believed the package he carried contained something illegal but thought it was jewelry or a weapon, not drugs--that in fact he did not think drugs were taken into Mexico from the United States. His argument on appeal seems to be that a Jewell instruction was improper for a blend of two reasons: (1) only his actual knowledge was at issue, in view of his testimony as to what his actual knowledge was; and (2) there was no proof that he thought the substance was cocaine, as required for conviction under 21 U.S.C. Sec. 841(a)(1), rather than jewelry or weapons.

It is true that a Jewell instruction should not be given when the evidence is that the defendant had either actual knowledge or no knowledge at all of the facts in question. United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.1988); United States v. Beckett, 724 F.2d 855, 856 (9th Cir.1984). However, if there is evidence of both actual knowledge and of deliberate ignorance, a Jewell instruction is appropriate. Jewell, 532 F.2d at 698-99. The Jewell instruction was properly given in this case. There was sufficient evidence that Perez-Padilla deliberately avoided knowledge...