U.S. v. Rubio-Villareal

Citation967 F.2d 294
Decision Date11 June 1992
Docket NumberRUBIO-VILLAREA,No. 89-50655,D,89-50655
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Juanefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Martha M. Hall, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Nancy L. Worthington, and David Curnow, Asst. U.S. Attys. San Diego, Cal., for plaintiff-appellee.

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

Before: WALLACE, Chief Judge, BROWNING, HUG, SCHROEDER, PREGERSON, ALARCON, CANBY, NORRIS, REINHARDT, LEAVY and T.G. NELSON, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Juan Rubio-Villareal appeals his convictions on several charges relating to the importation and possession of cocaine. On March 13, 1991, a panel of this court reversed his conviction on several grounds. United States v. Rubio-Villareal, 927 F.2d 1495 (9th Cir.1991). We accepted the government's suggestion to rehear the case en banc for the purpose of considering the propriety of an instruction that permitted the jury to infer that the defendant knew contraband was contained in the vehicle from two facts alone: (1) that the defendant was the driver, and (2) that contraband was concealed in the body of the vehicle. We hold that this instruction is deficient and remand the case to the panel for consideration of whether the error was harmless. The facts and Parts I, III, and IV of the panel opinion are unchanged by this opinion. Part II of the panel opinion is vacated and replaced by this opinion.

I

The district court gave the following permissive inference instruction:

You are instructed that if you find that the defendant was the driver of a vehicle containing contraband in this case; and if you find that the cocaine was found inside that vehicle and concealed in its body, you may infer from these two facts, that the defendant knew that the cocaine was in the automobile; however, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrants any inference which the law permits the jury to draw.

We approved the use of a substantially similar instruction in United States v. Castillo-Burgos, 501 F.2d 217, 218-19 (9th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284 (1974). 1 In doing so we relied on three previous cases that did not involve challenges to jury instructions. Rather these three cases involved the sufficiency of the evidence to support the conviction of the driver of a vehicle in which contraband was concealed. See United States v. Ramos, 476 F.2d 624, 625 (9th Cir.), cert. denied, 414 U.S. 836, 94 S.Ct. 182, 38 L.Ed.2d 72 (1973); United States v. Dixon, 460 F.2d 309, 309-10 (9th Cir.) (per curiam), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972); United States v. Ascolani-Gonzalez, 449 F.2d 159, 159-160 (9th Cir.1971) (per curiam).

In judging the propriety of a permissive inference by reference to the holdings in sufficiency of the evidence cases, we appear to have made a questionable step in our reasoning. The standard of review employed in sufficiency of the evidence cases is highly deferential. When reviewing for sufficiency of the evidence we view the evidence in the light most favorable to the prosecution and we will affirm the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Adler, 879 F.2d 491, 495 (1988). When a sufficiency of the evidence case is used as the basis for an inference instruction, the effect is not to protect the deliberative process of the jury but to intrude upon it, perhaps impermissibly.

Our subsequent cases have cast some doubt upon the propriety of the Castillo-Burgos instruction in certain situations. Shortly after Castillo-Burgos, we expressed doubt about the instruction when the defendant was not the sole occupant of the car. United States v. Campbell, 507 F.2d 955, 957 (9th Cir.1974). Then, in United States v. Martinez, 514 F.2d 334, 341-42 (9th Cir.1975), we held that a substantially similar instruction constituted reversible error when the evidence did not show that the defendant actually "controlled" the vehicle. Id. at 338-39, 342. 2 However, Martinez did not overrule Castillo-Burgos. In fact, we stated that "[t]here will be many cases in which the instruction would be perfectly proper." Id. at 342. We have occasion today to reconsider whether the permissive inference instruction we approved in Castillo-Burgos is proper. Upon reconsideration, we hold that it is not.

II

We recognize at the outset that the instruction at issue in this case describes a permissive inference. The jury was clearly instructed that it was not required to draw the inference. A permissive inference is constitutional so long as it can be said "with substantial assurance" that the inferred fact is "more likely than not to flow from the proved fact on which it is made to depend." Ulster County v. Allen, 442 U.S. 140, 166 n. 28, 99 S.Ct. 2213, 2229 n. 28, 60 L.Ed.2d 777 (1979) (quoting Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969)). 3

However, a jury instruction need not be unconstitutional for us to find it defective. We routinely review jury instructions on a case-by-case basis to determine if they misstate the elements of a crime. See, e.g., United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir.1986). In certain instances we have also found it advisable to forbid or limit the use of particular instructions. We have done so in at least two general situations. First, we have disapproved the use of certain instructions when they might permit a jury to convict without finding all the elements of a crime beyond a reasonable doubt. See, e.g., United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982) ("conscious avoidance" instruction should be given rarely because of risk that jury will convict on standard of negligence). Second, we have disapproved instructions that, in our view, confuse the jury or intrude impermissibly on its deliberative process. For example, we have created a per se rule against giving an Allen charge more than once unless the jury has requested that the charge be repeated. United States v. Seawell, 550 F.2d 1159, 1162-63 (9th Cir.1977). The reason for this rule is to prevent the court from intruding on the deliberative process of the jury. As we said in Sullivan v. United States, 414 F.2d 714 (9th Cir.1969), a decision relied on in Seawell, an Allen instruction "approaches the ultimate permissible limits to which a court may go in guiding a jury towards a verdict." 414 F.2d at 716. Our holding in Seawell that the district court may not repeat the instruction did not rely on the Constitution but on "a sound rule of practice." 550 F.2d at 1163.

To give another example, we have joined almost every other circuit 4 in disapproving the instruction that "witnesses are presumed to speak the truth." United States v. Gutierrez-Espinoza, 516 F.2d 249, 250 (9th Cir.1975) (per curiam). Again, the basis for this disapproval was not constitutional, for the Supreme Court had squarely held that this instruction did not violate due process. Cupp v. Naughten, 414 U.S. 141, 148-49, 94 S.Ct. 396, 401, 38 L.Ed.2d 368 (1973). Rather, we disapproved the instruction because we found it "confusing and useless." Gutierrez-Espinoza, 516 F.2d at 250. The Fourth Circuit has elaborated on this rationale in disapproving the use of the instruction, noting that "jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony. This important function should not be encumbered by an assumption that witnesses speak the truth." United States v. Varner, 748 F.2d 925, 927 (4th Cir.1984) (quoting United States v. Safley, 408 F.2d 603, 605 (4th Cir.1969)).

Because our authority to prohibit or limit jury instructions has never been in dispute, we have never taken the occasion to make explicit the source of that authority. When a jury instruction misstates the elements of a crime, our authority clearly derives from our responsibility to interpret federal statutes. 28 U.S.C. § 1331; see, e.g., Douglass, 780 F.2d at 1475. When we limit an instruction because of the possibility that it may lead a jury to convict on an incorrect theory of liability, our authority arguably rests on the same basis. See, e.g., Garzon, 688 F.2d at 609. In some cases, however, the jury instruction that we forbid or limit does not contravene an existing statute. See, e.g., Seawell, 550 F.2d at 1162-63 (Allen charge); Gutierrez-Espinoza, 516 F.2d at 250 ("presumption of truth" instruction). That is true in this case as well.

In forbidding or limiting jury instructions without declaring them unconstitutional or in contravention of a statute, other circuits have seen fit explicitly to invoke their supervisory power over district courts. See, e.g., United States v. Maselli, 534 F.2d 1197, 1203 (6th Cir.1976) (prohibiting "presumption of truth" instruction); United States v. Silvern, 484 F.2d 879, 882-83 (7th Cir.1973) (en banc) (prescribing form of Allen charge); United States v. Thomas, 449 F.2d 1177, 1186-87 (D.C.Cir.1971) (same). Then-Justice Rehnquist, writing for the Court in Cupp v. Naughten, likewise characterized courts of appeals' decisions disapproving the "presumption of truth" instruction as instances of those courts exercising their supervisory power. 414 U.S. 141, 144 n. 4, 146, 94 S.Ct. 396, 399 n. 4, 400, 38 L.Ed.2d 368 (1973). In exercising this power, Justice Rehnquist noted that a court of appeals may require its district courts "to follow procedures deemed desirable from the viewpoint of sound...

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