United States v. Araiza-Jacobo

• Decision Date: 28 February 2019
• Docket Number: No. 17-40958,17-40958
• Citation: 917 F.3d 360
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Martin ARAIZA-JACOBO, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

917 F.3d 360

UNITED STATES of America, Plaintiff-Appellee

v.Martin ARAIZA-JACOBO, Defendant-Appellant

No. 17-40958

United States Court of Appeals, Fifth Circuit.

FILED February 28, 2019

John Richard Berry, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Kayla R. Gassmann, Evan Gray Howze, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Martin Araiza-Jacobo was caught attempting to cross the United States border carrying two bags of hard candies impregnated with over 5.1 kilograms of methamphetamine. The central issue at Araiza-Jacobo's criminal trial was whether he knew what he was really carrying. The district court instructed the jury it could find Araiza-Jacobo had culpable knowledge if he had been "deliberately ignorant" of the disguised drugs. "We have often cautioned against the use of the deliberate ignorance instruction," United States v. Oti , 872 F.3d 678, 697 (5th Cir. 2017), because it can lead juries to dilute the mens rea requirement in criminal statutes. We conclude it was error to give the instruction here. But we also conclude it was harmless error, given the substantial evidence that Araiza-Jacobo actually knew he was carrying illicit candy. We therefore affirm his conviction.

I.

A.

Araiza-Jacobo worked as a cruzador ("crosser" in Spanish), carrying goods back and forth, on foot, over the Gateway Bridge connecting Brownsville, Texas to Matamoros, Mexico. He commonly delivered food and groceries, earning five or six dollars per trip. Though not a citizen, Araiza-Jacobo is a lawful permanent resident of the United States. As a regular cruzador who made multiple trips across the border every working day, Araiza-Jacobo was known to the U.S. border patrol agents who guarded the bridge.

On one of these trips, when crossing the bridge from Mexico into the United States, Araiza-Jacobo was inspected by Oscar Garcia, a border agent with over ten years of experience. Araiza-Jacobo told Garcia that he was going home and that he was crossing with two bags of candy and two tortas (sandwiches). By all accounts, Araiza-Jacobo did not appear excessively nervous as he approached Garcia. The two bags looked identical and were labeled "El Piñatero Mega , Piñata Party Candy Mix." The bags were partly transparent, revealing the candy inside. Araiza-Jacobo attempted to divert the agents' attention away from the candy bags with the sandwiches—which apparently smelled especially delicious because it was around lunchtime.

Despite the distraction, within twelve seconds Garcia suspected there was something "wrong" with the bags. The "weight" of the bags and their "texture" felt "kind of odd." He could see "through the clear [part of the bags], where you [could] see what was inside, that the specific contents wasn't [sic ] what was ... said to be outside." Upon closer inspection, Garcia detected two distinct types of candies, one that matched the graphics on the bags and one that did not. Garcia sent the bags through an x-ray machine and noticed that the two types of candies appeared different in the x-ray images. Garcia and his partner agent, Eliodoro Ozuña, observed that the mismatched candies were unusually hard. Araiza-Jacobo became "really nervous" only after officials began a closer inspection of the bags. When asked why the candies were so hard, Araiza-Jacobo suggested they were "old candy." Although the packaging stated the candies were lollipops, some of the candies had no sticks.

The irregular candies, when opened with a knife, spilled out a crystalized "white powdery substance." Araiza-Jacobo suggested the substance was "Sal-Limon"—a salty and sour powder sometimes sold as candy. Garcia and Ozuña did not believe Araiza-Jacobo and handcuffed him. The agents called in a canine officer, whose dog alerted to the substance. A narcotics test kit yielded positive for methamphetamine. As it turned out, there were just over five kilograms of 98% pure methamphetamine inside the candies. Besides the sandwiches and bags, Araiza-Jacobo also had $440 and a battered Resident Card in his possession.

After the drugs were discovered, two Homeland Security Investigations agents, George Lopez and Javier Mata, interrogated Araiza-Jacobo for several hours. Araiza-Jacobo waived his Miranda rights and willingly participated. Although Araiza-Jacobo answered the officers' questions without hesitation, he contradicted himself and altered his story several times.

During the interview, Araiza-Jacobo stated he met a vendor selling candy next to the bridge, who introduced him to a man who needed two bags of candy brought into the United States for a payment of seven dollars. Araiza-Jacobo thought the man "looked trustworthy." He observed the bags, saw "they were candies," and thought they "looked okay." He also claimed the man said he would later call Araiza-Jacobo with the name and description of a woman who would receive the candy.

Araiza-Jacobo pointed out a phone number in his contacts belonging to the unknown man, and he allowed Lopez to examine his phone. Lopez noted several calls between Araiza-Jacobo's phone and the unknown man's number. Upon this revelation, Araiza-Jacobo began to change his story and continued to do so as more phone data came to light. Araiza-Jacobo had not mentioned these additional calls in his original story. Instead, he had suggested that his contact with the man had been more limited and that he did not know the man's name and had never seen him before. According to Lopez, Araiza-Jacobo was often evasive, answering questions not actually asked him. Finally, Araiza-Jacobo admitted he had been "ignorant" and "a dumbass."

Araiza-Jacobo stated that he had $440 in his possession because he was saving all the money he could from his odd jobs to get a new Resident Card, which was worn down through constant use. He was able to save all his earnings because his wife gave him money. Araiza-Jacobo later changed this story to say that his wife had not given him money in two years, but he still lived in a small house next to her house.

B.

The government charged Araiza-Jacobo with four crimes: Possessing a Schedule II controlled substance (methamphetamine) with intent to distribute, conspiring to do so, importing methamphetamine, and conspiring to do so. See 21 U.S.C. §§ 841, 846, 952, 960, 963. Each crime has a mens rea requirement, meaning the government must prove the defendant committed the offense "knowingly and intentionally." Id. ; see also United States v. Moreno-Gonzalez , 662 F.3d 369, 372–74 (5th Cir. 2011) ; United States v. Morin , 627 F.3d 985, 989 (5th Cir. 2010) (applying mens rea requirement). Araiza-Jacobo pleaded not guilty, contending he was unaware of the drug's presence in the candy bags.

At trial, because it was undisputed that Araiza-Jacobo brought methamphetamine into the United States from Mexico, the only issue was whether he acted knowingly and intentionally. The government proceeded on two alternative theories of guilt: (1) Araiza-Jacobo had actual knowledge that he was carrying a controlled substance; or (2) he had remained deliberately ignorant of the drugs and of the schemes to import and distribute them.

Jesus Estrada Gerrero, a cruzador and friend of Araiza-Jacobo, testified at trial that he and Araiza-Jacobo had spent time together a few days before the arrest. While together, Estrada received a phone call from an unknown man in Matamoros, asking whether Estrada "could cross a piñata and a box of candy" and then, once in the United States, ship those items to Atlanta. Estrada declined because he did not know how to read, write, or ship things. Araiza-Jacobo, who had been listening, asked what the call had been about. After learning the details of the job, he requested the number, saying, "I'll do it." After calling the number and speaking with the anonymous man, Araiza-Jacobo told Estrada he had agreed to bring the goods across the bridge. Estrada testified that such random requests are not unusual for cruzadores . He also testified, however, that if someone wanted goods from Mexico, he would ask for cash and then purchase the items in Mexico himself. Estrada explained he was very careful about what he brought across the border because he feared transporting something illegal: "You don't know what they might have inside[.]" He cautioned Araiza-Jacobo about bringing goods from Mexico.

Dora Torres, who worked at a store near the Gateway Bridge in Brownsville, also testified. She explained she would occasionally ask Araiza-Jacobo to bring her a torta or candy from Mexico, including on the day of his arrest. Araiza-Jacobo had confided to Torres he was struggling to make ends meet, and she recommended he go north to find a better job. Araiza-Jacobo's estranged wife, Christina Araiza, also testified. She described Araiza-Jacobo as "street savvy" and a "very smart man" who knew "what's right and ... wrong." She said his arrest surprised her: She "never thought he would do something like that" because "he was always against everything illegal." Agents Garcia and Ozuña testified, relating the facts of their encounter with Araiza-Jacobo and their discovery of the drugs. Defense counsel introduced video evidence of the interrogation conducted by Lopez to establish that Araiza-Jacobo consistently maintained he knew nothing about the drugs.

After both sides had rested, the parties and the trial judge had a preliminary jury charge conference. The prosecution and the defense debated at length whether to include a deliberate ignorance instruction. Over defense counsel's objection, the district court decided that the instruction would be appropriate. The district court explained its reasoning as follows:

[T]he video that was introduced by

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