U.S. v. Withers, PLAINTIFF-APPELLEE

• Decision Date: 27 September 1996
• Docket Number: V,DEFENDANT-APPELLANT,DEFENDANT-APPELLEE,N,PLAINTIFF-APPELLEE,No. 95-5607,PLAINTIFF-APPELLAN,95-5607
• Citation: 100 F.3d 1142
• Parties: UNITED STATES OF AMERICA,, v. RENEE WITHERS, UNITED STATES OF AMERICA,RENEE WITHERS,o. 95-5652
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1142

100 F.3d 1142

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. RENEE WITHERS, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

V.

RENEE WITHERS, DEFENDANT-APPELLEE.

No. 95-5607, No. 95-5652

United States Court of Appeals, Fourth Circuit

Argued September 27, 1996

Decided: November 19, 1996.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CR-95-91-A).

ARGUED: Peter Paul Vangellow, Falls Church, Virginia, for Appellant. John Patrick Rowley, III, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before Wilkinson, Chief Judge, and Russell and Hall, Circuit Judges. Chief Judge Wilkinson wrote the opinion, in which Judge Russell and Judge Hall joined

Affirmed in part and vacated and remanded in part by published opinion. Chief Judge WILLINSON wrote the opinion, in which Judge RUSSELL and Judge HALL joined.

WILKINSON, Chief Judge:

Renee Withers was sentenced to 40 months imprisonment for importing and conspiring to import heroin in violation of 21 U.S.C. 952 and 963. She argues on appeal that there was insufficient evidence to sustain her conviction, that the district court improperly gave the jury a deliberate ignorance instruction, and that she was prejudiced by the prosecution's inadvertent reference to a co-conspirator's plea agreement. We find none of these arguments persuasive.

The government, meanwhile, appeals the district court's significant downward departure from the Guidelines sentencing range of 121-151 months. The government argues that the district court erred in granting Withers a four-level adjustment for "minimal participation" and a seven-level departure for "diminished mental capacity." Furthermore, the government contends that the district court improperly applied the "safety valve" provision, 18 U.S.C. 3553(f), to avoid the ten-year mandatory minimum sentence set forth in 21 U.S.C. 960 for importing more than one kilogram of heroin. We agree that the district court erred both in disregarding the recommended Guidelines range and the statutory minimum. We therefore affirm Withers' conviction but vacate and remand this case for resentencing in light of the applicable law.

I.

In 1990, Renee Withers was recruited by a friend, Reece Whiting, to serve as a courier in a conspiracy to import heroin into the United States from Thailand. Withers' role was to travel to Japan, then fly to San Francisco, where she would walk luggage containing heroin through customs. She next would leave the luggage at a hotel where it was to be picked up by one of Whiting's associates, Philip Phillips. The evidence showed that Withers made two trips to Japan -- one in October 1990 and another in August 1991. In November 1991, another of Whiting's couriers, Bonita Freeman, was arrested in San Francisco. Freeman's cooperation with law enforcement authorities led to the eventual demise of the conspiracy and the arrest of Withers. At trial, the jury convicted Withers of conspiracy and of the October 1990 importation, but acquitted her of the August 1991 importation.

II.

Withers raises several challenges to her conviction. We shall address them in turn.

A.

First, Withers argues that the evidence adduced at trial was insufficient to sustain her convictions. She contends that the government produced no evidence to refute her assertions that she did not know she was transporting drugs into the United States and believed her trips to Japan were solely to assist Whiting in the establishment of a lingerie business.

There was more than sufficient evidence to sustain Withers' convictions. Although Whiting testified that he never told Withers she would be transporting heroin, the circumstances of her trip were too suspicious to support her claims of ignorance. For example, before Withers left for Japan, Whiting asked her for some of her clothing so he could put it in the luggage that she was to walk through customs. Whiting also had Phillips call Withers so that she would later be able to identify Phillips' voice when he called to give her instructions in Japan. In addition, Whiting asked Withers for a photograph so that Phillips could identify her in San Francisco. Most tellingly, Whiting offered Withers $15,000 plus $5,000 in expenses to make the trips. In this case, we are convinced that a "rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt." United States v. Johnson, 54 F.3d 1150, 1153 (4th Cir. 1995) (citation omitted). Withers' assertions of ignorance in the face of persuasive evidence of knowledge do not cast her conviction into question.

B.

Second, Withers argues that the district court erred in giving the jury a deliberate ignorance instruction. Withers asserts such an instruction was unjustified because she was never told of the contents of the luggage she walked through customs and because her ignorance of its contents was complete.

"The willful blindness instruction allows the jury to impute the element of knowledge to the defendant if the evidence indicates [a defendant] purposely closed his eyes to avoid what was taking place around him." United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). In this case, there was overwhelming evidence that no reasonable person would have believed that the trip to Japan was for anything other than an illicit purpose. Indeed, Withers' assertions of ignorance in the face of these condemning circumstances presents precisely the sort of scenario that the deliberate ignorance instruction was designed to address. See id. at 204. Furthermore, the district court was careful to limit the reach of the deliberate ignorance instruction, telling the jury that it should not infer that a defendant had knowledge "from proof of a mistake, negligence, carelessness, or belief in an inaccurate proposition." See United States v. Mancuso, 42 F.3d 836, 846 (4th Cir. 1994). We cannot hold that the district court abused its discretion when it gave this instruction. See United States v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994).

C.

Lastly, Withers claims that she was prejudiced when the prosecution inadvertently mentioned the plea agreement of Bonita Freeman. During Freeman's testimony, Withers' counsel objected to the introduction of Freeman's plea agreement, and the prosecutor agreed to avoid the subject. Later in Freeman's examination, the prosecutor asked her whether she had entered a plea agreement in California. Withers' counsel objected and the Judge directed the prosecutor to move on. Withers' counsel acknowledges that the prosecutor's reference to the plea was inadvertent.

In United States v. Blevins, 960 F.2d 1252 (4th Cir. 1992), we addressed the issue of the prejudicial effect of the admission of nontestifying co-defendants' guilty pleas. We noted that such evidence "raises the concern that a defendant might be convicted upon the charges against the co-defendants, rather than upon an individual assessment of the remaining defendant's personal culpability." Id. at 1260 (citation omitted). Nevertheless, we expressed doubt that the mention of a guilty plea by a testifying co-defendant -- a situation more analogous to the case at hand -- would be error since the defendant would have the opportunity to cross-examine the witness. Id. at 1260 n.3.

Even if the mention of Freeman's plea agreement was error, however, it was plainly harmless. In the instant case, it was uncontroverted that Withers transported heroin into the United States from Japan. The conviction turned on whether the jury believed her assertion of ignorance of the contents of the luggage. We have noted the overwhelming evidence that would have led a jury to question the credibility of Withers' defense. We are convinced that the brief mention of Freeman's plea agreement did nothing to change the outcome of the trial. Freeman's testimony described the method she used for transporting drugs through customs. That method was identical to the one used by Withers and therefore corroborated the testimony of other witnesses who had described how Withers had accomplished transporting heroin into the United States. Freeman also testified that she was arrested as soon as she took the heroin through customs in San Francisco. Given Freeman's testimony on her methods of importation and her arrest, it is difficult to imagine that the mere mention of her plea agreement did anything further to prejudice Withers. Any error, therefore, does not warrant a reversal of her conviction. See Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).¹

III.

We turn next to the sentencing issues. Having been convicted of transporting 8.4 kilograms of heroin into the United States in October 1990, Withers was subject to a ten-year minimum sentence for the importation of more than one kilogram of heroin. 21 U.S.C. 960. Furthermore, the presentence report recommended a base Guideline level of 32 for the offense, which set a sentencing range of 121-151 months imprisonment. This was calculated from a level of 34 for the importation of between 3 and 10 kilograms of heroin, U.S.S.G. 2D1.1(c)(3), minus a two-level "minor role" adjustment, U.S.S.G. 3B1.2. The probation officer specifically rejected a "minimal role" adjustment, concluding that "the relatively large amount of heroin involved precludes . . . a four-level decrease for .. . 'minimal' participation." The district court, however, reduced the base Guideline level to 21 by applying a four-level "minimal role" adjustment and a seven-level "diminished mental capacity" departure, and avoided the 120 month mandatory sentence of 21 U.S.C. 960 by applying the safety valve provision of 18 U.S.C. 3553(f). These reductions resulted in...