OBJECTIONS TO JEWELL/
"DELIBERATE IGNORANCE"
AND "DRIVER-IN-POSSESSION"
INSTRUCTIONS
Attorneys for Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
(HON. )
UNITED STATES OF AMERICA, ) Criminal No.
)
Plaintiff, ) DEFENDANT'S OBJECTIONS TO
) GOVERNMENT'S PROPOSED
v. ) "DELIBERATE IGNORANCE"
) AND "DRIVER-IN-POSSESSION"
THE DEFENDANT, ) INSTRUCTIONS
)
Defendant. )
______________________________)
Defendant objects to the Government's requests for (1) a "deliberate
ignorance" instruction and (2) a "driver-in-possession" instruction. Under
the facts of this case as they have been presented at trial, such instructions would be
reversible error under the most recent, applicable Ninth Circuit precedents United States v. Sanchez-Robles, 927 F.2d 1070
(9th Cir. 1991) and United States v.
Rubio-Villareal, 927 F.2d 1495 (9th Cir. 1991).
I.
STATEMENT OF FACTS
[omitted]
II.
A "DELIBERATE IGNORANCE" JURY INSTRUCTION WOULD
BE A MISINTERPRETATION AND MISAPPLICATION OF
UNITED STATES V. JEWELL, AND WOULD PERMIT
THE JURY ERRONEOUSLY TO CONVICT DEFENDANT
In its most recent analysis of the issue, a unanimous panel of the Ninth Circuit held that where the government's evidence and theory tended to establish "actual knowledge of illegality and not deliberate ignorance," it is reversible error to give the Jewell instruction. Sanchez-Robles, 927 F.2d at 1075.
In Sanchez-Robles, the Ninth Circuit reiterated that the "deliberate ignorance" instruction, first authorized in United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc, four judges dissenting), cert. denied, 426 U.S. 917 (1976), is to be used "sparingly" and only in those "comparatively rare cases where . . . there are facts that point in the direction of deliberate ignorance." Sanchez-Robles 927 F.2d at 1073. (quoting United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir. 1977)). The court recited a long line of precedents that have rejected a Jewell instruction because of the substantial risk, very much present in this case, that a "jury will convict based on a negligence standard: that the defendant should have known that the conduct was illegal." United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987), cert. denied, 487 U.S. 1222 (1988). See also United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir. 1984), cert. denied, 474 U.S. 829 (1985); United States v. Garzon, 688 F.2d 607, 609 (9th Cir. 1982).
In Sanchez-Robles, the Government relied on the strong smell of marijuana in the vehicle to justify its request for a "deliberate ignorance" instruction. The Government contended that as a result of the smell, the defendant should have been on notice that something was amiss and should have attempted to ferret out the contraband. Her alleged failure to do so was, according to the Government's theory, evidence of deliberate ignorance and conscious avoidance. The Ninth Circuit summarily rejected that theory. The court held that if the defendant recognized the strong odor as marijuana, then she had actual knowledge of illegality and thus a "deliberate ignorance" instruction was inappropriate and prejudicial. If, on the other hand, she neither smelled anything unusual nor recognized the odor as marijuana, then she had no notice that anything was amiss and did not deliberately avoid learning the incriminating facts. The essence of the Ninth Circuit's holding is that if the Government's evidence can be viewed as establishing actual knowledge, then a "deliberate ignorance" instruction is not appropriate. In its analysis of the precedents, the Court of Appeals made clear that a Jewell instruction is only available where (1) the defendant is aware of a high probability of the criminal activity charged in the indictment and (2) there is evidence that the defendant deliberately or consciously avoided learning the truth, in order to have a defense in the event of subsequent arrest and prosecution. See also Alvarado; United States v. Pacific Hide and Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir. 1985). The facts must indicate that the "defendant tried to close his eyes or ears to what was happening." United States v. Beckett, 724 F.2d 855, 856 (9th Cir. 1984).
There is absolutely no evidence in this case either that Defendant * (1) recognized that there was a high probability of drug smuggling or (2) took any steps to avoid learning the truth. The only conceivably suspicious circumstance is that Defendant * was offered $200 to drive the car from Mexico into the United States at other than a designated checkpoint. But the defendant was specifically told that the purpose of the car was to transport illegal aliens, including the purported owner of the car. There was no discussion of drugs; no reason to think there was anything in the trunk; and no reason to look in the trunk if the car was, in the future, to be used for transporting illegal aliens. It is noteworthy that when asked what was in the trunk, the defendant said, "Nothing." He did not say that he did not know or he had not checked, which might have indicated that he had avoided finding out. Rather, he expressed his reasonable conclusion and belief that someone intending to use a car to smuggle aliens would have no reason to place contraband in the trunk. Indeed, one would expect that the alien smuggler would leave the trunk virtually empty in order to make room for and conceal additional aliens. Further, he did not equivocate in giving consent to the search of the trunk. Consistent with his assertion that there was nothing in the trunk, he immediately consented to its search.
The facts of Jewell, the seminal deliberate ignorance instruction case, stand in marked contrast to the facts presented here. In Jewell, "Ray," a stranger, offered the defendant and the defendant's companion marijuana. The defendant and his companion declined. Ray then asked if they would drive his car back to Los Angeles. The defendant's companion, "wanted no part of driving the vehicle." He testified, "It didn't sound right to me." Jewell accepted the offer. Id. at 699. Jewell was arrested at the border and charged with possessing marijuana and bringing it into the united States. Id. at 700.
At trial, a Drug Enforcement Administration agent testified that Jewell had stated he thought there was probably something wrong and something illegal in the vehicle, but he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn't find anything, and, therefore, he assumed that the people at the border wouldn't find anything either.Id. at 699, n. 2 (emphasis omitted).
During trial, Jewell was asked whether he had seen the special compartment where the marijuana was hidden when he opened the trunk. He replied, "Well, you know, I saw a void there, but I didn't know what it was." He testified that he did not do any further investigation. He also testified that the secret compartment was in the car when he got the car. Id. at 699.
The trial court instructed the jury that they could convict if the defendant was not actually aware that there was marijuana in [the car and] his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.Id. at 700. In holding that the instruction was appropriate, the court of appeals stated that deliberate ignorance is different from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. "The court could properly find willful blindness only where it can almost be said that the defendant actually knew."
Id. at 704 (quoting G. Williams, Criminal Law: The General Part, § 57, n.6 at 159 (2d ed. 1961)).
In the instant case, there was no mention of marijuana and no investigation of the vehicle. Nor was there any reason to do so. Defendant reasonably believed that he knew the purpose of the car, i.e., to transport sometime illegal aliens in the future. He would therefore have no reason to search for secret compartments or concealed contraband.
Most instructive of the cases in the Ninth Circuit that allow the use of a Jewell instruction, is Murrieta-Bejarano, 552 F.2d 1323. In Murrieta-Bejarano, the Court stated that although "the question is close[,] . . . we think that there were sufficient facts to justify the instruction." Id. at 1325. Murrieta-Bejarano therefore delineates the minimum facts that will allow a Jewell instruction.
The defendant in Murrieta-Bejarano was charged with possession of marijuana with intent to distribute and importation of marijuana. The defendant was arrested while attempting to cross the border in a truck that contained 138 pounds of marijuana in a compartment under the bed of the truck. The defendant testified that he had been told to drive the truck to a gas station in Tucson to meet his employer's cousin and the cousin was to drop him downtown so that he could visit his uncle, who allegedly worked in a nearby poultry farm. The owner of that poultry farm testified that the uncle was no longer employed there, and he had last seen the uncle sometime the year before. After the visit, the cousin was to return with the truck and a refrigerator which Murrieta was then to take to his employer in Mexico. Id. at 1325. His earnings were about $8.00 a day, but he had $100 in currency, which he said was to be used to bribe Mexican Customs officials. He did not know the source and did not inquire about the refrigerator. He never asked whether there were any other reasons for the trip. Additionally, he and his employer had made a similar refrigerator transporting trip two weeks before his arrest. At that time, the employer had also driven a "safari" vehicle to Tucson for repairs, which could have been done in Mexico. Based on those facts, the Ninth Circuit held that the Jewell instruction was proper. (1)
Id.
In the instant case, unlike Murrieta-Bejarano, defendant has a plausible explanation for driving the vehicle, there were no additional suspicious circumstances and no demonstratively false information provided to defendant.
The Government's theory in the instant case is actual knowledge. It has not pointed to a single fact suggesting that defendant took any steps to avoid learning the truth about the contents of the trunk. While we submit the evidence is insufficient to establish knowledge, the facts the Government has attempted to adduce will undoubtedly be used by the Government to argue actual knowledge. For example, the Government has stressed that defendant was "very nervous" when stopped. Further, the Government notes that defendant spent considerable time with the purported owner of the car, traveling with him from Tijuana to Tecate. The Government also contends that the agent could smell marijuana before opening the trunk. Presumably, the inference they will request the jury to draw is that the defendant could also smell the marijuana.
Finally, the agent testified that Defendant * stated that he did not know of the marijuana until after the trunk was opened. They contend that he could not see the substance in the trunk and therefore must have known what it was at an earlier time. While we dispute a number of factual premises, the important point for present purposes is that this theory, too, should support an argument of actual knowledge, not mere suspicion.
While we submit that the individually and cumulatively the facts fail to establish actual knowledge, we can readily perceive the Government's argument. The Government has in the past, and can be expected here, to argue that the extreme nervousness supported actual guilty knowledge. They can also argue that on the long drive between Tijuana and Tecate, defendant could have discussed the contraband with **. They could contend that the smell of marijuana must have wafted through the car. They could contend that his post-arrest statement manifested an earlier knowledge of marijuana.
Even assuming the jury could draw the inferences suggested by the Government's arguments, the inference would lead to "actual knowledge," not mere suspicion. Indeed, the smell of marijuana--assuming it was recognized as such by the defendant--is precisely what the Ninth Circuit in Sanchez-Robles held tended to establish actual knowledge and would not support a Jewell instruction.
There are numerous cases in the Ninth Circuit where the court of appeals rejected the Jewell instruction precisely because the government's evidence tended to establish actual knowledge and not mere suspicion.
For example, in Beckett, 724 F.2d 855, the Ninth Circuit held that a Jewell instruction was error. In Beckett, the defendant was in a hotel room where another person was selling cocaine to an undercover officer. During the transaction, the agent showed the defendant a transparent bag full of cocaine and asked the defendant if he knew what it was. The defendant said, "Yes." The agent asked him if the cocaine in the bag was the same as the cocaine the agent had received earlier. The defendant said he thought so but did not know. Id. at 855-56.
The court noted that: nothing indicates that the defendant tried to close his eyes or ears to what was happening. Rather, Beckett's statements to the agent--if credited by the jury--would tend to establish actual knowledge; it would not tend to establish that the defendant was consciously avoiding learning that he was involved in a criminal transaction.
Id. at 856. The court held that the use of the Jewell instruction in that case was error and reversed.
In Garzon, 688 F.2d 607, the Ninth Circuit again held that the Jewell instruction, under the facts of the case, was improper. In Garzon, the government's case portrayed the defendant as a "willful, knowing participant in all phases of the [drug] deal." Id. at 609. The defendant, however, denied all knowledge that a drug deal was going on and claimed to be innocently present in a short meeting where he opened up "a paper bag containing cocaine to show the DEA agents, without knowledge that cocaine was involved." Id. at 609. The Ninth Circuit reversed.
The court of appeals in Garzon stated that "even if the circumstances are highly suspicious, the instruction is improper unless the defendant acted deliberately to avoid learning the truth." Id. at 609. The court noted that "failure to inquire will occasionally constitute deliberate ignorance," id. (citing United States v. Nicholson, 677 F.2d 706, 710-711 (9th Cir. 1982)), but noted that there must be evidence "that the defendant purposely contrived to avoid learning all the facts in order to have a defense in the event of being arrested and charged." Id. (citation omitted). The court held that in Garzon there was insufficient evidence for a trier of fact to reasonably conclude that the defendant contrived to avoid learning of the deal. The court noted that the defendant's conduct was inconsistent with conscious avoidance, but it was up to the jury to determine whether he was telling the truth in denying that he knew it was cocaine. Id. The Ninth Circuit therefore reversed the conviction.
Similarly, in Alvarado, 838 F.2d 311, the Court of Appeals held that a Jewell instruction was error. In Alvarado, the defendant arrived in Los Angeles on a flight from Brazil with a co-defendant and two other people. The co-defendant carried Alvarado's suitcase through Customs after showing a diplomatic pass. Alvarado took the co-defendant's suitcases from the carousel and went to the Customs station. The Customs inspector noticed that the defendant's hands were trembling. Alvarado also had an unused Japan Airlines ticket from Brazil to the United States scheduled for three days earlier. Additionally, Alvarado, without prompting, told the Customs agent that he was a doctor. Finally, Alvarado was well dressed, and yet was carrying a red gym-type zipper bag. Id. at 312.
The Customs agent found Alvarado's conduct suspicious and referred him to the secondary inspection. At secondary, the agent asked to check the black suitcase. Alvarado explained that his co-defendant, standing near the exit with his son, had the key. Alvarado retrieved a key, but instead opened the brown suitcase. Alvarado stated that he had forgotten to ask for the keys to the black suitcase. By that time, the co-defendant and his companions had left the airport and could not be located. Alvarado agreed to have the black suitcase opened with a crowbar, but explained that the suitcase was not his, but rather belonged to his co-defendant and that he was not responsible for its contents. Customs found eleven packages of cocaine at the bottom of the case. Id. at 312-13. The Ninth Circuit ruled that the Jewell instruction was error as to Alvarado and as to
Alvarado's co-defendant, because all the facts pointed only to actual or no knowledge. Id. at 316.
There are clearly insufficient facts in this case to allow any form of a Jewell instruction. Defendant * both testified and told the agent at the time that he did not know any marijuana was contained in the vehicle. He was given a plausible explanation for the transportation of the vehicle, which did not refer in any way to drugs or other contraband. He did not search the vehicle or make any other inspection, and had no reason to do so. When asked what was in the trunk, he did not protest ignorance; he flat out denied there was anything there. Similarly, when stopped he did not feign indifference or calm; he plainly manifested his nervousness (which we submit may well have been the physical result of his hepatitis). Finally, the Government's contention that he manifested a knowledge about marijuana during his interview--even leaving aside defendant's explanation--would, if believed, tend to establish actual knowledge and not mere suspicion.
Therefore, like the Sanchez-Robles, Beckett, Garzon and Alvarado cases, this is clearly a case where the defendant had actual or no knowledge at all. Under those circumstances, this is no one of those "rare cases" in which a Jewell instruction may be given. This is a case where the giving of such an instruction would constitute reversible error.
III.
SINCE DEFENDANT DID NOT HAVE EXCLUSIVE CONTROL OF THE CAR
FOR A SUBSTANTIAL PERIOD OF TIME,
THE "DRIVER-IN-POSSESSION" INSTRUCTION
WOULD CONSTITUTE REVERSIBLE ERROR
In United States v. Rubio-Villareal, 927 F.2d 1495 (9th Cir. 1991), the Ninth Circuit held that a jury instruction which stated that "if you [jury] find that the defendant was the driver of a vehicle containing contraband in this case; and if you find that the cocaine was found inside that vehicle, and concealed in its body, you may infer from these two facts, that the defendant knew that the cocaine was in the automobile... ."
Id. at 1500, was "improper in that
it failed to inform the jurors that they could infer knowledge only if they found that
Rubio-Villareal drove a truck that contained concealed cocaine and they found that there were other
facts (such as prior control of the vehicle, which, when considered along with that
circumstance, supported the inference."
Id. at 1501. (Emphasis in original).
In Rubio-Villareal, the government relied on the conduct of the defendant after crossing the border into the U.S. to justify it's request for a "driver-in-possession" instruction. The government argued that since Rubio-Villareal was the only person to handle the vehicle for a month after crossing the border, and because he claimed the truck as his own, this was enough to infer the existence of specific knowledge on the part of the defendant. The Ninth Circuit rejected that argument, holding that
"because the government bears the burden of proving every element beyond a reasonable doubt, an instruction which shifts the burden of persuasion to the defendant is unconstitutional."
Id. at 1500 (quoting Sandstrom v. Montana, 442 U.S. 510, 524). The court further held that "instead of receiving an instruction requiring them to find sufficient facts (including the driving of the vehicle to warrant an inference of knowledge, the jurors were told that it was enough that Rubio-Villareal drove a vehicle containing contraband" and that instruction constituted reversible error. Id. at 1501. See also United States v. Martinez, 514 F.2d 334 (9th Cir. 1975).
All of the evidence in the present case indicates that the defendant had exclusive control for a very brief period of time, in fact, only a matter of minutes. From the time the defendant met ** in Tijuana and was offered the $200 to drive the vehicle across the border until they reached the vantage point on the U.S. side of the border at Jacumba, California, ** was present in the vehicle with the defendant at all times. Defendant was only alone in the vehicle for the 10 minute period (at the most) starting at the vantage point on the Mexico side of the border until he was stopped at the gas station in Jacumba, California by the border patrol agent. The defendant was therefore clearly not in exclusive control of the vehicle for a substantial period of time. The defendant was told by ** that the car was to be used to transport illegal aliens; he had no reason to believe that the vehicle contained any kind of contraband as he was instructed that the illegal aliens would cross on foot and meet him at the gas station. Defendant therefore had no reason to inspect the vehicle. In fact, when the defendant saw the border patrol agent signal him over at the gas station, the agent was no in his vehicle. Had the defendant known there was any kind of contraband in the vehicle, it would have taken a matter of minutes for him to re-enter Mexico where the agent had no jurisdiction to arrest him. In fact, defendant complied with the agent's signal and entered the gas station. At no time did defendant have any reason to believe that anything was in the trunk; when asked by the border patrol agent what was in the trunk, defendant replied "nothing" and freely consented to a search of the trunk.
There are no facts other than that defendant was driving the vehicle when it was searched which would indicate that he had any knowledge of the marijuana contained in the trunk of the vehicle. The vehicle was not registered to defendant - the vehicle was verified as having been stolen in an area of Mexico where evidence at trial demonstrated that defendant was nowhere near. Defendant was offered $200 by ** to drive the vehicle after ** learned that defendant was suffering from hepatitis and had sustained medical expenses as a result. ** explained why he wanted the vehicle in the United States, i.e. for purposes of travelling north once safely across the border. ** also informed Defendant that he had smuggled aliens in this manner on previous occasions. Since ** had no legal right to enter the U.S., he needed someone with proper documents to accomplish the entry. Defendant's alleged nervous demeanor when arrested by the border patrol agent is easily attributed to the fact that he was expecting at least ** to meet him at the gas station and Defendant knew ** did not have proper documents permitting him to be in the U.S. At no time did Defendant indicate that he had any knowledge whatsoever that the real purpose behind his driving the vehicle was to import drugs, rather than to transport illegal aliens, once inside the U.S. The Ninth Circuit's holding in Rubio-Villareal provides no justification for the giving of a "driver-in-possession" instruction.
IV.
CONCLUSION
For the reasons set forth above, Defendant * respectfully requests that this Court not give either the deliberate ignorance or the driver-in-possession instruction.
Respectfully submitted,
Dated: Attorneys for Defendant *
JEWELL.CJA/CJA SEMINAR 1993
1. Not only did the majority opinion describe the facts as close in Murrieta-Bejarano, but the then Judge, now
Justice, Kennedy, dissented to the use of the Jewell
instruction, stating:
To permit the Jewell instruction here is to permit it in any number of smuggling cases. The danger is that juries will avoid questions of scienter and convict under the standards analogous to negligence. Such convictions are wholly inconsistent with the statutory requirements of scienter.
Id. at 1326.