US v. Artero

• Decision Date: 31 July 1997
• Docket Number: No. 95-50079.,95-50079.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Riccardo Edoardo ARTERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F.3d 1256

UNITED STATES of America, Plaintiff-Appellee, v. Riccardo Edoardo ARTERO, Defendant-Appellant.

No. 95-50079.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1996.

Decided July 31, 1997.

Stephen R. Scarborough, Federal Public Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.

Debra R. Torres-Reyes, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Before: HALL, O'SCANNLAIN and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

This case raises two trial issues: (1) the instructions on "beyond a reasonable doubt" and on lost evidence, and (2) ethnic composition of the grand jury.

I. FACTS

Artero was convicted of smuggling marijuana across the Tijuana-San Diego border in his gas tank (importation in violation of 21 U.S.C. §§ 952 and 960, and possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1)).

Artero was driving into the United States from Mexico. The initial inspector at U.S. Customs thought the car was too clean and lacking in personal effects, so he directed Artero to a secondary inspection. When the inspectors had Artero open the trunk, they saw a full plastic gasoline container, which was very unusual. The inspector asked why, and Artero's answer, that the gas in Mexico was bad, seemed strange. So the inspector looked at the gas tank under the car, which also looked too clean, cleaner than the rest of the underside of the car. The narcotics dog scratched at the back of the car, and the gas tank sounded solid instead of hollow. An inspector tried to drive the car to the service station where they routinely remove gas tanks, but it ran out of gas, though the gas gauge was past the full mark. When they got the gas tank off the car and took it apart, specially packaged marijuana filled almost all the space that was designed to hold gasoline.

II. ANALYSIS

Artero raises three points on appeal, the "beyond a reasonable doubt" instruction, denial of an instruction inviting the jury to draw a negative inference from the government's loss of the one gallon gas can, and the composition of the grand jury.

A. Jury Instructions.

1. "Beyond a Reasonable Doubt" Instruction.

The trial judge used a modified version of the Federal Judicial Center form book instruction for "beyond a reasonable doubt." Here is the instruction as given, underlined to show the parts we discuss:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If you are firmly convinced that the defendant is guilty, you must find him guilty.

But if you think there's a real possibility that the defendant is not guilty, you must give him the benefit of the doubt and find him not guilty. You may not convict on the basis of mere suspicion.

(Emphasis added). Except for the last sentence, which Artero does not attack, this instruction is substantially copied from the Federal Judicial Center form book. Federal Judicial Center, Pattern Criminal Jury Instructions 28 (1988) (instruction 21).

Artero's argument is directed at the phrase "real possibility" in the sentence, "But if you think there's a real possibility that the defendant is not guilty, you must give him the benefit of the doubt and find him not guilty." He says "real possibility" is more than "reasonable doubt," and also that the phrasing implies that it is the defendant's burden to establish the "real possibility."

We have already concluded that "real possibility" is permissible in United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir.1986). This case differs only in that there was an objection in the district court, while in Bustillo we reviewed for plain error. We see no reason to limit Bustillo to plain error. We explained in United States v. Newport, 747 F.2d 1307 (9th Cir.1984), that "the term `real' means a doubt which is authentic, genuine, actual and true instead of its opposite meaning i.e. `unreal, apparent, or imaginary' doubt." Id. at 1308. The Supreme Court has held that a reasonable doubt is, at a minimum, one based on reason, so "a fanciful doubt is not a reasonable doubt." Victor v. Nebraska, 511 U.S. 1, 17, 114 S.Ct. 1239, 1248, 127 L.Ed.2d 583 (1994). Victor makes that distinction in the context of approving the phrase "not a mere possible doubt." Id.

"The Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Id. at 5, 114 S.Ct. at 1243. The Federal Judicial Center form book instruction used for the challenged passage is the one recommended by Justice Ginsburg in her concurrence in Victor. Id. at 26-27, 114 S.Ct. at 1253-54 (Ginsburg, J., concurring). The trial judge may require a "real possibility" of doubt because "a fanciful doubt is not a reasonable doubt." Id. at 17, 114 S.Ct. at 1248. The phrase "real doubt" does not suffer the infirmity of requiring the jury to have "grave uncertainty," "substantial doubt," and a "real tangible substantial basis" for doubt, before they can acquit, as the unconstitutional instruction did in Cage v. Louisiana, 498 U.S. 39, 40, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991).

The Federal Judicial Center form has the virtue of using the common phrase "give him the benefit of the doubt." Most jurors are likely to have spoken that way themselves, when they mean "I think something is probably true, but I'm not sure, so I'll give him the benefit of the doubt." That is the right way for the jurors to interpret "beyond a reasonable doubt" — not just whether they think the defendant more likely than not committed the crime charged, or even that he most probably did, but whether they are sure that he did, and if not, he should get the benefit of what is merely a doubt and not a probability. The "real possibility" phrase, in the context of the whole instruction, does not put a thumb on the scales as the Cage instruction did, telling the jury that it could not acquit unless the doubt rose to "grave uncertainty," "substantial doubt," and a "real tangible substantial basis." One can imagine reasonable jurors in Cage saying, erroneously, "I'm not sure he did it, but I don't have a real tangible substantial basis for that — it's just that the evidence leaves open a real possibility that he didn't do it, so I have to convict because I can't identify a real tangible substantial basis for my doubt." By contrast, under the Federal Judicial Center form book instruction used here, that juror would be led to say, correctly, "So I have to give him the benefit of the doubt, even though he probably did it." We do not consider whether the language "you may not convict on ... mere suspicion," implies that anything more than mere suspicion, such as probable cause or preponderance of evidence, will suffice, because Artero has not put that sentence at issue.

2. Denial of Adverse Inference Instructions.

At trial, the government was unable to introduce the gas can that Customs had found in Artero's trunk. Government personnel had lost the gas can. The government put into evidence the car's gas tank, or what it claimed was the car's gas tank, but the chain of custody was poorly established. Artero asked for a jury instruction that "you may infer" from the government's failure to introduce the gas can as evidence "that the container never existed." He also asked for an instruction telling the jury that "you are not required to believe that the gas tank placed in evidence is the one recovered from Mr. Artero's automobile," and that "you may consider whether its characteristics are the ones the government claims it had on the night the car was seized."

The gas can from the trunk was important to scienter. Artero could have innocently driven a car with its gas tank full of marijuana, if he were a "blind mule." A blind mule is a person used by criminals to carry contraband across a border, who does not know that he is carrying the contraband. A driver is less likely to be unaware of the existence of a can of gasoline in his trunk than an altered gas tank — all of us look in the trunk much more often than we look at the undersides of our cars, and a full gas can usually smells. The gas can in the trunk substantially reduced the likelihood that the jury might doubt scienter.

Evidence on the gas can was so weak that reasonable jurors might have inferred, as defense counsel argued, that the gas can never existed. Inspector David Morris, who had picked out Artero's car as suspicious and noticed that his gas tank was cleaner than the rest of the undercarriage, said there was a small red plastic gas can, probably 1.1 gallons, in the trunk, emitting a strong odor of gasoline when he opened the trunk. Inspector Robert Schulze drove the car (and had it pushed when it ran out of gas) to the service station, had the gas tank removed, and saw the marijuana packages inside it where gasoline should have been. He saw the gas can in the trunk too, but he guessed it was a two or three gallon container. Special Agent Susan Aarons, the case agent called in to take custody of the evidence, arrest the defendant, and help prosecute the case, testified that the gas tank was placed in a hallway, and that she mistakenly did not see that it was put back into the vehicle until a couple of months afterward, when she retrieved it from the Port of Entry in San Ysidro. She had written in her report that Inspector Morris had told her there was a full five gallon gasoline container, but when she photographed the trunk of the car, the gas can was not in the trunk. Although she photographed the car, the gas tank, and the marijuana, she did not photograph the gas can. She testified that ...