United States v. Avila
| Decision Date | 11 July 2013 |
| Docket Number | No. 12-40470,12-40470 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. CAROLINA AVILA, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court
for the Southern District of Texas
Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*
**
Carolina Avila appeals her convictions for conspiring to and substantively importing and possessing with the intent to distribute more than 500 grams of methamphetamine. She contends that insufficient evidence supported her convictions, that the jury improperly received a "deliberate ignorance" instruction, that the prosecutor made prejudicial closing remarks, and that the cumulative effect of these errors rendered her trial unfair. We AFFIRM.
Avila attempted to enter the United States by vehicle at the Hidalgo Port of Entry near McAllen, Texas. She was accompanied by her year-and-a-half-old daughter and Santos Lozano. Avila and her daughter are United States citizens, and Lozano is a legal permanent resident. Avila drove, while Lozano occupied the passenger seat. An opened case of twelve, forty-ounce Corona beer bottles sat in the back of the vehicle. Avila was nineteen years old.
Avila's minivan proceeded to the inspection checkpoint. Customs and Border Protection Officer Ezequiel Mendoza asked her a series of routine questions and checked the passengers' identification documents. Avila stated that she had recently flown in from Illinois to visit family in Reynoso, Mexico, and was staying in Mission, Texas. Avila declared the case of Corona.
Instead of waving Avila through to another station where Lozano, who was over twenty-one, could pay excise taxes on the beer, Mendoza decided to inspect the bottles. As he lifted a bottle out of the case, he noticed "particles" floating in the liquid. Because it was dark, he used a flashlight to take a closer look. Although the bottle and its contents appeared to be just like any other bottle of Corona beer, Mendoza observed fragments of a solid substance dispersed throughout the liquid. He removed several other bottles from the case, all containing the same unknown substance. Mendoza called a "K9" officer to the scene. The dog alerted to the case of beer.
Mendoza ordered Avila to proceed to a secondary screening area, where Avila related the same story of her visit to Customs Officer Tricia Aguon. Aguon asked Avila about her relationship to Lozano, and she identified him as a family friend. Aguon then inspected the bottles of beer and found the same floating particles as Mendoza. A field test returned a positive identification for methamphetamine. Avila also possessed $457 in cash. Lozano had none.
The officers then turned Avila over to United States Immigration and Customs Enforcement ("ICE") Agents Jeffrey Kicklighter and J.J. Flores. Under ICE policy, Kicklighter and Flores interviewed Avila together. They took notes, but made neither a video nor audio recording of the interrogation.
Avila retold her story, this time adding that she had taken a cab from Harlingen to Hidalgo and then crossed the border to meet her father, a Mexican citizen who had traveled to Reynoso from Nuevo Laredo to see her. Avila also told the agents that, in addition to seeing her father and uncle, she intended to visit Laredo—a three-hour drive away—so that she could see her mother, who was scheduled for surgery the next morning. Avila again described Lozano as a family friend, and she stated that he and his Corona were en route to a fish-fry in Mission.
Kicklighter and Flores then interviewed Lozano. After finding unspecified discrepancies between his and Avila's version of events, the agents returned to ask Avila additional questions. This time she told a much different story.
Avila shared that her father had a history of drug trafficking and that he had asked her to take the beer bottles across the border. Although Avila disavowed any knowledge of the bottles' contents, she related that her father had described the bottles using Spanish slang that she associated with illegal substances. Her father also allegedly told her that he would ensure that she received proper compensation for her efforts and that the bottles were ultimately destined for Dallas. Instead of a longstanding family friend, Lozano turned out to be an individual that Avila had met just hours before, when she picked him up at La Plaza Mall in McAllen per her father's instructions. Avila denied ever touching or examining the beer bottles.
Avila subsequently was charged with (1) conspiring to import 500 grams or more of methamphetamine, (2) importing 500 grams or more of methamphetamine, (3) conspiring to possess with intent to distribute 500 gramsor more of methamphetamine, and (4) possessing with intent to distribute more than 500 grams of methamphetamine. At trial, the Government introduced testimony from Mendoza, Aguon, and Kicklighter, as well as an expert who testified that the beer bottles contained approximately 7.5 kilograms of methamphetamine, worth at least a quarter-million dollars in South Texas and much more in Dallas. Avila did not testify, and the defense rested without calling witnesses or introducing evidence. The jury convicted Avila on all four counts, and the district court sentenced her to 121 months in prison and to five years of supervised release.
Avila raises four issues on appeal. She contends that insufficient evidence supports each count of conviction. She further argues that the district court abused its discretion by issuing a "deliberate ignorance" instruction, which she claims allowed the jury to conclude that the Government satisfied its mens rea burden without showing actual knowledge. Avila also asserts that the prosecutor made comments during closing arguments that improperly bolstered Kicklighter's testimony. Finally, in Avila's view, the cumulative effect of the deliberate ignorance instruction and the prosecutor's remarks caused her to receive an unfair trial. We reject each of these arguments below.
Avila first objects to the sufficiency of the evidence underlying her convictions. At trial, Avila contended that the evidence showed only that she unwittingly played into a plan hatched by her father and carried out by Lozano. Avila argues on appeal that, at most, the evidence stands in equipoise, obviating the possibility that a rational jury could have determined that the Government proved the elements of each count beyond a reasonable doubt.
We disagree. Avila essentially asks us to ignore virtually all trial testimony in the Government's favor. The Government introduced direct and circumstantial evidence—primarily, but not exclusively, from Kicklighter andan expert—that rationally supported each element of each charged offense. The Government specifically presented evidence suggesting that, among other things, Avila admitted that she agreed to transport an illegal substance across the border for monetary compensation at the behest of her drug-trafficker father, that she knew the contraband would be further distributed at least as far as Dallas, and that the timing of her and Lozano's border crossings coincided with the second version of events she related to Agent Kicklighter. This evidence satisfied the Government's burden. See, e.g., United States v. Ojebode, 957 F.2d 1218, 1223-28 (5th Cir. 1992) ().
Avila cross-examined the Government's witnesses about this evidence and presented an alternative version of events during closing arguments. The jury carried out its role as factfinder and found Avila guilty on each count. Viewed in the light most favorable to the jury's verdict, the evidence as a whole supported Avila's convictions beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Miller, 146 F.3d 274, 281 (5th Cir. 1998).
Avila contends that this instruction allowed the jury to convict her on an inference of deliberate ignorance despite the Government's having presented only a direct-knowledge theory of guilt.
The district court appropriately instructed the jury on deliberate ignorance. Contrary to Avila's arguments, the record shows that the Government presented direct and circumstantial evidence supporting both that Avila actually knew of the drug scheme and that, at the least, she intentionally limited her knowledge of certain details.1 For example, although she heard her father describe the bottles with a slang term reserved for contraband, she consciously avoided examining the bottles or further inquiring into their contents.2 As the district court correctly recognized, this simply is not a case where the evidence presents a binary choice between actual knowledge or mere negligence. See, e.g., United States v. Mendoza-Medina, 346 F.3d 121, 133 (5th Cir. 2003). Accordingly, the district court committed no error in giving a deliberate ignorance instruction.3
During closing argument, Avila's attorney attacked the Government's case in part by...
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