US v. Concha, 99-2171

• Decision Date: 01 December 2000
• Docket Number: No. 99-2171,99-2171
• Citation: 233 F.3d 1249,2000 WL 1769584
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH SANTANA CONCHA, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

233 F.3d 1249 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH SANTANA CONCHA, Defendant-Appellant.

No. 99-2171

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 1, 2000

Appeal from the United States District Court for the District of New Mexico. (D.C. No. CR-98-183-BB)

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New Mexico,for Defendant-Appellant.

Robert D. Kimball, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BALDOCK,HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Joseph Santana Concha was convicted of assault and of being a felon in possession of a firearm. Because he had at least three previous convictions for violent felonies, his sentence was enhanced under the Armed Career Criminal Act. On appeal, Concha challenges both his conviction and the sentence enhancement. We have jurisdiction under 18 U.S.C. 3742(a) and 28 U.S.C. 1291.

Concha argues that his conviction must be reversed because the district court gave a "deliberate ignorance" instruction to the jury when there was no evidence that Concha deliberately ignored anything. We find that giving this instruction was not plain error because (1) it was a correct statement of the law, (2) the prosecution did not argue a deliberate-ignorance theory of the case, and (3) the instruction did not affect Concha's substantial rights because the evidence of Concha's actual knowledge was overwhelming.

Concha attacks the sentence enhancement because three of his four predicate convictions took place in the United Kingdom. Contrary to the Fourth and Sixth Circuits, which found the statutory language to be unambiguous, we find it unclear whether Congress intended to include foreign convictions as predicate offenses under the Armed Career Criminal Act. Because there are strong arguments on both sides of the question, we invoke the rule of lenity and hold that foreign convictions should not be counted.

We thus AFFIRM the conviction but VACATE the sentence and REMAND.

BACKGROUND

On the night of December 10, 1997, Joseph Santana Concha and his half-sister were brought to the Taos police station in connection with a domestic dispute. Concha, who was drunk, became verbally abusive toward the dispatcher. Sergeant Danny Anthony Pacheco intervened and a scuffle ensued, during which Concha gained possession of Pacheco's loaded gun. Sergeant Pacheco testified that Concha tried to shoot him, but Pacheco jammed two of his fingers behind the trigger to prevent it from firing. Pacheco wrested the gun away from Concha and, with the help of the dispatcher, subdued him.

Concha was charged with assault with intent to commit murder and assault with a dangerous weapon (Counts I and III), use of a firearm in connection with these two counts (Counts II and IV), and felon in possession of a firearm (Count V). Concha stipulated that he was a felon and admitted hitting Sergeant Pacheco. He testified, however, that he was drunk, confused, and missing his glasses; he did not intend to commit murder; and although he did not believe that he had taken the gun during the struggle, he was not sure whether he had obtained possession of it.

The jury acquitted Concha on Counts I through IV, convicting him instead on two counts of the lesser included charge of simple assault under 18 U.S.C. 113(a)(5), and convicted him on Count V, being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). The government sought to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e), which increases the penalty for being a felon in possession of a firearm if the defendant has three previous convictions for violent felonies. The government introduced evidence of four prior convictions: convictions for burglary in 1970 and 1976, a conviction for arson in 1975, and a conviction for a "Lewd and Lascivious Act Involving Child Under 14" in 1980. The first three of these the convictions for burglary and arson took place in the United Kingdom; the fourth conviction was from California. The district court accepted this evidence over Concha's objection and sentenced Concha to 180 months' imprisonment, the statutory minimum. See 18 U.S.C. 924(e)(1).

Concha raises two issues on appeal. First, he argues that the district court's "deliberate ignorance" jury instruction was not warranted by the evidence. Second, he argues that the prior convictions do not meet the requirements of the Armed Career Criminal Act, and so his enhancement was improper. In part, Concha contends that foreign convictions should not be counted toward the three convictions required by the Armed Career Criminal Act.

DISCUSSION

I. Jury Instructions

Concha did not object to the deliberate ignorance instruction at trial. We therefore review it for plain error. See Fed. R. Crim. P. 30, 52(b); United States v. Bornfield, 145 F.3d 1123, 1129 (10th Cir. 1998), petition to recall mandate denied, 184 F.3d 1144 (10th Cir. 1999), cert. denied, 120 S. Ct. 986, 145 L. Ed. 2d 935 (2000). A plain error is grounds for reversal only when (1) the error is clear or obvious and (2) it affects the defendant's substantial rights. See United States v. McHorse, 179 F.3d 889, 903 (10th Cir.), cert. denied, 120 S. Ct. 358, 145 L. Ed. 2d 280 (1999). "It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).

The district court instructed the jury that to convict Concha of being a felon in possession of a firearm, it had to conclude that he had knowingly possessed a firearm. The court then instructed the jury as follows:

The word "knowingly," as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, and not because of mistake or accident. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

(Emphasis added). Concha does not contend that this is an inaccurate statement of the law. Indeed, we recently upheld identical instructions under the plain-error standard. See United States v. Delreal-Ordones, 213 F.3d 1263, 1267 n.3 (10th Cir. 2000) ("[T]he instruction adequately insured that Defendant only would be convicted if his ignorance was willful rather than negligent."). Rather, Concha argues that there is not sufficient evidence of deliberate ignorance in the record to support this instruction. In evaluating this claim, we view the evidence in a light most favorable to the Government. See id. at 1264.

This court has recognized that instructing the jury on deliberate ignorance "is rarely appropriate," because it is rare for the government to present evidence that a defendant deliberately avoided knowledge of a matter. See United States v. de Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991) (per curiam). But we need not decide whether this was one of the rare cases that warrants a deliberate-ignorance instruction, because we conclude that there was no plain error in giving the instruction. Concha has not met his burden of showing that the instruction affected his substantial rights.¹ Cf. United States v. Scott, 37 F.3d 1564, 1578-79 (10th Cir. 1994) (finding that an improper deliberate-ignorance instruction can be harmless error).

Here, there was overwhelming evidence of Concha's actual knowledge that he possessed Sergeant Pacheco's gun, such that "a reasonable jury would be compelled to find" knowledge. See United States v. Barbee, 968 F.2d 1026, 1035 (10th Cir. 1992) (finding an improper deliberate-ignorance instruction harmless when there was "overwhelming" evidence of actual knowledge and "a reasonable jury would be compelled" to so find). According to the unrefuted testimony of Pacheco, Concha stated that he would "grab [Pacheco's] gun and shoot" him. Michael Martinez, the police dispatcher, heard Concha say, "I'm going to get your . . . gun and I'm going to kill your ass, I'm going to kill you." Pacheco testified that Concha then reached for the weapon, pulled it out of Pacheco's holster, wrestled with Pacheco to aim it at Pacheco's unprotected ribs, and tried to pull the trigger.

Concha testified that he "may have" threatened to kill Pacheco, but that "[e]ven if the intention was there, I can guarantee you I was in no shape" to carry it out because he was intoxicated. Just two days after the incident, however, Concha gave a oral statement to the police in which he admitted taking Pacheco's gun. Although Concha tried to cast doubt on the accuracy of that statement at trial, he acknowledged that he could not say "beyond a shadow of a doubt I did not take that gun." Viewed in the light most favorable to the government, this uncontested evidence is overwhelming as to Concha's actual knowledge that he possessed Pacheco's gun. See United States v. Sasser, 974 F.2d 1544, 1553 (10th Cir. 1992) ("[W]hen sufficient evidence of a defendant's guilt exists, the tendering of a 'willful blindness' instruction is harmless beyond a reasonable doubt even when the government does not introduce evidence to support such a theory.").

We recognize that in some cases, a deliberate-ignorance instruction might allow a jury to convict a defendant for negligent, rather than knowing, acts. See United States v. Hilliard, 31 F.3d 1509, 1517 (10th Cir. 1994) (finding error because the evidence of actual knowledge was not compelling); de Francisco-Lopez, 939 F.2d at 1410. In this case, however, the challenged instruction explicitly instructed the jury that neither mistake nor negligence was sufficient to support a conviction. This distinguishes the instruction from the one that ...