U.S. v. Valle-Valdez

Decision Date08 March 1977
Docket NumberNo. 76-1953,D,VALLE-VALDE,76-1953
Citation554 F.2d 911
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Julio C.efendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John L. Cleary, argued, Lewis A. Wenzell, Federal Public Defender, San Diego, Cal., for defendant-appellant.

Terry J. Knoepp, U.S. Atty., Douglas G. Hendricks, Asst. U.S. Atty., argued, San Diego, Cal., for plaintiff-appellee; Douglas G. Hendricks, Asst. U.S. Atty., San Diego, Cal., on the brief.

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

Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, * District Judge.

WALLACE, Circuit Judge:

Valle-Valdez appeals his conviction of possession with intent to distribute 677 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). He contends that a jury instruction pertaining to conscious purpose to avoid learning the truth about the presence of the contraband was erroneous in light of United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 50 L.Ed.2d 1188 (1976), and that the error requires reversal. We agree and reverse.

I

Immediately prior to Valle-Valdez' arrest, a Border Patrol agent observed him driving an automobile westbound on Highway 98 approximately 25 miles west of Calexico. The car was traveling at 75 miles per hour, swerving and riding low in the rear. The agent stopped Valle-Valdez, who immediately exited from the automobile and walked to its rear. His demeanor was normal until he was asked to open the trunk, at which time he became noticeably nervous. 1 Valle-Valdez opened the trunk, revealing 302 kilo bricks of marijuana in plain view. He was then arrested. A customs agent drove the automobile to Calexico; while doing so, he noticed that the odor of marijuana permeated the passenger compartment and that the vehicle swayed and was difficult to control, due, in part, to the weight in the rear.

Valle-Valdez testified during the trial that a Pepe or Pablo Robles approached him in a bar in Mexicali and offered to pay him $100 if he would drive a car from Calexico to San Diego where he would park it at a bus depot and leave the keys in the ashtray. Valle-Valdez accepted. He testified that Robles paid him $100 in cash, directed him to pick up the automobile at a bank parking lot in Calexico, and advised him that the keys would be in the ashtray. Valle-Valdez maintained that he was completely unaware that the vehicle contained marijuana and did not even suspect that such was the case.

Without the benefit of United States v. Jewell, supra, which was decided two and one-half years later, 2 the district judge fashioned an instruction which he believed to be appropriate:

You may not find the Defendant guilty unless you find beyond a reasonable doubt that he knew marijuana was in the vehicle at the time that it was driven. Fact of knowledge, however, may be established by direct or circumstantial evidence, just as any other fact in the case. The government has the burden of proving beyond a reasonable doubt that the Defendant had actual knowledge that marijuana was contained in the vehicle. It can meet that burden by proving beyond a reasonable doubt that the Defendant acted with a conscious purpose to avoid learning the truth of the contents of the vehicle.

Valle-Valdez objected to the emphasized language.

II

In Jewell, our court sitting en banc wrestled with two questions: whether and under what circumstances a conscious purpose not to find the truth could be equated with the knowledge required for conviction under section 841(a)(1). Relying on the Model Penal Code, we held that such knowledge could be established by showing either that the accused had positive knowledge of the presence of the contraband or that he acted "with an awareness of the high probability of the existence of the fact in question." 532 F.2d at 700-01, 704 & n.21. 3 Thus, actual or positive knowledge is not necessary to convict the accused if he was aware of a high probability of the crucial fact even though he consciously or deliberately disregarded that probability in an effort to remain ignorant of the fact.

In the present case, the government contends that the challenged jury instruction is not inconsistent with Jewell. It points to the fact that the trial judge, in drafting the instruction, relied on Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962), a case cited with approval by us in Jewell. 532 F.2d at 701-02 & nn.12 & 15. This argument is not persuasive because, although we approved the theory developed in Griego, we did not adopt its specific language. Rather, we stated that a proper jury instruction would direct the jury to convict only on finding beyond a reasonable doubt that the defendant was aware of the high probability that the vehicle carried contraband. 532 F.2d at 704 n.21.

Applying Jewell, we conclude that the instruction given in the present case was deficient. That instruction permitted conviction on proof "beyond a reasonable doubt that the Defendant acted with a conscious purpose to avoid learning the truth of the contents of the vehicle." As far as it goes, this instruction is correct. The error or deficiency lies in the instruction's failure to add that the defendant's "conscious purpose to avoid learning the truth" is culpable only if the jury also finds beyond a reasonable doubt that he was aware of the high probability that the vehicle carried contraband. A deliberate avoidance of knowledge is culpable only when coupled with a subjective awareness of high probability.

Because Valle-Valdez denied any knowledge or suspicion that contraband was in the automobile, a factual issue arose regarding his awareness of the high probability of the contraband's presence. That issue should have gone to the jury. The effect of the court's instruction was to keep the question from the jury and to create the possibility that Valle-Valdez was convicted for violating section 841(a)(1) even though he did not possess contraband "knowingly," as that word has been interpreted by us in Jewell. See United States v. Short, 493 F.2d 1170, 1172 (9th Cir.), cert. denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974); Peterson v. United States, 344 F.2d 419, 427-28 (5th Cir. 1965); cf. United States v. Henny, 527 F.2d 479, 484 (9th Cir. 1975), cert. denied, 425 U.S. 991, 96 S.Ct. 2201, 50 L.Ed.2d 815 (1976).

III

Determining that the instruction was deficient does not end our analysis, however. The issue remains whether the error requires reversal.

We are reluctant to order a retrial nearly four years after the initial trial with the attendant risk of lost witnesses, fading memories and stale evidence when the delay was wilfully instigated by the defendant. In the present case, Valle-Valdez jumped bail before a verdict was returned and remained a fugitive until his apprehension in 1976. Nevertheless, the government does not contend that we should deny a retrial because of the delay. We therefore do not reach that question and turn to the substantive issue regarding reversal.

Valle-Valdez timely and properly objected to the deficient instruction. We must reverse, therefore, unless the instruction is deemed harmless error. 4 Compare United States v. Petersen, 513 F.2d 1133, 1136 (9th Cir. 1975), United States v. Henson, 513 F.2d 156, 157-58 (9th Cir. 1975), and United States v. Duhart, 496 F.2d 941, 944-45 (9th Cir.), cert. denied,419 U.S. 967, 95 S.Ct. 230, 42 L.Ed.2d 182 (1974), with United States v. Henny, supra, 527 F.2d at 484-85, United States v. Davis, 501 F.2d 1344, 1345 (9th Cir. 1974), United States v. Goodrich, 493 F.2d 390, 394 (9th Cir. 1974), and United States v. Murray, 492 F.2d 178, 198 (9th Cir. 1973), cert. denied, 419 U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974). The standards guiding appellate determination of harmless error are variable, often confusing and frequently left unarticulated. Basically, however, those standards are statements of the degree of certainty an appellate court must achieve regarding the effect of the error on the verdict. For example, under one standard, an appellate court reverses unless it is more probable than not that the error did not materially affect the verdict; under another standard, unless it is highly probable that the error did not materially affect the judgment. 5 Perhaps the most clearly articulated standard comes from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where the Supreme Court held:

(B)efore a federal constitutional error can be held harmless, the (appellate) court must be able to declare a belief that it was harmless beyond a reasonable doubt.

Id. at 24, 87 S.Ct. at 828. Stated in perhaps more readily applicable terms, the Chapman rule does not require an appellate court to reverse unless there is a reasonable possibility that the error materially affected the verdict. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); see also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). 6

Which standard an appellate court selects depends on the type of case on appeal criminal or civil 7 or on the type of error committed in the trial court constitutional or nonconstitutional. 8 If the error in the present case was "a federal constitutional error," as that phrase is used in Chapman, we would of course be bound to apply the reasonable possibility test. An argument can be made that the deficient jury instruction violated the Fifth Amendment's due process clause inasmuch as the instruction permitted the jury to convict Valle-Valdez without finding beyond a reasonable doubt all elements of the statutory offense. See generally Moore v. United States, 429 U.S. 20, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Nevertheless, we do not believe that the Supreme Court contemplated such a...

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