USA v. Delreal-Ordones

• Decision Date: 30 May 2000
• Docket Number: No. 99-2188,D,DELREAL-ORDONE,99-2188
• Citation: 213 F.3d 1263
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE G.efendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1263

213 F.3d 1263 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE G. DELREAL-ORDONES, Defendant-Appellant.

No. 99-2188

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 30, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-126-BB)

David N. Williams, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Benjamin A. Gonzales, Assistant Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

Before BALDOCK, HOLLOWAY, and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

A single-count indictment charged Defendant Jose Delreal-Ordones with possession with intent to distribute in excess of one kilogram of methamphetamine in violation of 21 U.S.C. 841(a)(1).¹ A jury found Defendant guilty, and the district court sentenced him to 121 months imprisonment. On appeal, Defendant contends the evidence was insufficient to support the district court's instruction that the jury could find Defendant "knowingly" possessed the methamphetamine if he "deliberately blinded" himself to the fact it was located in his suitcase aboard an Amtrak train traveling from Los Angeles, California to Dodge City, Kansas. We exercise jurisdiction under 28 U.S.C. 1291.

In reviewing a challenge to a "deliberate ignorance" instruction based on insufficient evidence, we view the evidence in a light most favorable to the Government, United States v. Bornfield, 145 F.3d 1123, 1129 (10th Cir. 1998), and examine the instructions as a whole to determine whether, considered in their entirety, the instructions accurately informed the jury of the applicable law, United States v. Hanzlicek, 187 F.3d 1228, 1233 (10th Cir. 1999). Ultimately, however, we review the district court's decision to give a deliberate ignorance instruction de novo. United States v. de Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991). Mindful of these standards, we affirm the judgment of the district court.²

I.

Viewed in a light most favorable to the Government, the trial record reveals the following facts. On February 11, 1998, DEA Special Agent Michael Mans was waiting when the eastbound Amtrak passenger train arrived at the Albuquerque depot from Los Angeles shortly after 1:00 p.m. Agent Mans checked the train's passenger reservations and noted that on February 9, Defendant had purchased a one-way ticket from Los Angeles to Dodge City, Kansas with cash. Agent Mans boarded the train and observed Defendant exiting compartment eight of the sleeper car. Agent Mans also observed a black "stewardess-sized" suitcase in the compartment. Agent Mans approached Defendant and asked to speak with him. Defendant agreed. Agent Mans asked to see Defendant's ticket. Defendant returned to his compartment and retrieved his ticket. The ticket appeared in proper form.

When Defendant returned to the train after eating lunch, Agent Mans asked Defendant if he had any luggage onboard which the agent could search. Defendant answered yes and consented to Agent Mans' search of his suitcase. Returning to his sleeper car with Agent Mans, Defendant retrieved a key from his wallet and unlocked the suitcase. For security reasons, Agent Mans, rather than Defendant, unzipped the suitcase. Within the suitcase, Agent Mans located a "Fab" laundry detergent box inside two plastic "grocery-type" bags tied at the top. Agent Mans untied the bags and removed the box which appeared to have been opened and resealed. The box was "leaking a large amount of soap from both the top and bottom." Defendant gave Agent Mans permission to open the box. Inside the box, Agent Mans located four plastic-wrapped bundles which he believed contained narcotics. When the bundles' contents tested positive for methamphetamine, Agent Mans arrested Defendant.

A short time later at DEA offices, Agent Mans and two other agents interviewed Defendant, hoping to determine both the source and destination of the drugs. Defendant indicated that when he boarded the train in Los Angeles, he placed his suitcase in a common area. Somewhere between Los Angeles and Albuquerque, he decided to place his luggage in his sleeper compartment. When Defendant discovered he had lost the key to his suitcase, he obtained another key which fit the lock from a female passenger. Agent Mans asked Defendant if he was implying that someone on the train had placed the drugs in his suitcase. Defendant answered no, indicating he did not know how the drugs got into his suitcase.

Upon further questioning, Defendant stated he had met three men while visiting relatives in Californiabrothers Jose and Marcos Hermosillo, and their friend Ernesto, also known as Escoba. Before leaving Los Angeles on the evening of February 10, Defendant spent a couple of days with the three men at a motel in Compton, California, south of Los Angeles. According to Agent Mans, Defendant stated that

during the time spent with them at the hotel and going out to party that he had ended up missing his train reservation . . . and that they had provided him with a box of Fab laundry detergent as a way of showing him that they weren't such bad guys for making him miss his train.

Defendant also indicated that as an additional gesture of kindness, the three men had given him $100 to purchase the suitcase and some clothes.

Continuing with the interview, Defendant stated that he had not met the three men in California, but at a party in Dodge City in the fall of 1997. Shortly thereafter, Jose Hermosillo offered to buy a motorcycle from Defendant for $5,000. Defendant wanted to sell the motorcycle because he had recently hurt his back and could no longer ride it. In February 1998, the men came to Defendant's home to pick up the motorcycle and haul it to California in the bed of a new truck. Jose Hermosillo gave Defendant $2,500 as a down payment. Defendant retained the title pending final payment. Because none of the three men had a driver's license, they asked Defendant to drive the truck to California for them. Defendant agreed to do so as part of the deal. Although the men originally told Defendant they needed a ride to northern California, they decided to go to Los Angeles instead and ended up with Defendant at a motel in Compton.

Finally, Agent Mans questioned Defendant about the methamphetamine's destination. Agent Mans testified that Defendant stated "he didn't know whether someone would meet him at the train station or if he would go home and someone would call him there." The court permitted Agent Mans to testify that in his opinion "based on what [Defendant] had told us about what was going to happen once he reached Dodge City, I believe that he knew the methamphetamine was there, and that he was not willing to tell us who exactly it was going to."

Following Agent Mans' testimony, Defendant testified on his own behalf. Defendant's testimony regarding his sale of the motorcycle to Jose Hermosillo in Kansas and his subsequent trip to California with the three men was largely consistent with Agent Mans' testimony. Defendant stated that the men had agreed to give him a ride to the Los Angeles Amtrak station on the evening of February 9 to catch his return train, but when the time neared, they told Defendant he was already late and would miss his train. The men agreed to buy Defendant another ticket for the next day. Defendant phoned the station and upgraded his reservation from a coach seat to a sleeper compartment.

Defendant testified that he saw the laundry detergent box for the first time on February 9 at the motel in Compton when the three men told him they were going to wash some clothes. When asked to explain how the box ended up in his suitcase, Defendant replied:

Well, [the next day] when I was fixing to leave, I was taking a shower. They told me they were going to pack the soap, and I told them no. They told me, "What, you don't trust us or something," kind of make it feel like I don't trust them. And I told them, "Well, yeah, I do. Well okay fine." And they just put it in there, and then that was it.

Defendant stated that when he finished his shower, he didn't look in his suitcase because the men had packed his dirty clothes and locked the suitcase for him. Defendant claimed he never suspected that the men had placed drugs in his suitcase because "they were treating me nice," and he trusted them. Defendant repeatedly denied any knowledge of the drugs in his suitcase until he was arrested. Defendant also denied he told Agent Mans that he wasn't sure whether someone would meet him at the train station in Dodge City or phone him at home.

On cross-examination, the Government asked Defendant why he didn't find the three men suspicious. Specifically, the Government asked why, if the three men had driven themselves from California, they couldn't drive themselves back to California. The Government inquired about the three men's lack of any identification which led to Defendant registering the motel room under his own name. The Government also inquired whether any of the men had in fact washed any clothes while staying at the motel with Defendant. Defendant admitted they had not.

Defendant acknowledged that when he opened the suitcase on the train, he noticed detergent leaking from the box into his suitcase:

Q. So you saw the soap leaking out?

A. I saw the soap in the luggage inside.

Q. Was it leaking on your clothes, spilling on your clothes?

A. All over.

Q. All over?

A. Yeah. You can tell there are still some spots of soap there.

Q. When you saw that, what did you do?

A. Well, I just tried to stop it from spilling out.

Defendant admitted that he could have thrown the box away, and provided little explanation why he didn't do so.

II.

Based on the foregoing evidence, the district court instructed the jury that to attain a conviction under 21 U.S.C. 841(a)(1), the Government had the burden of...