930 F2d 30 United States v. Kin Shing Ket Chow

930 F.2d 30

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
KIN SHING KET CHOW, Defendant-Appellant.

No. 90-10243.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 12, 1991.*
Decided April 2, 1991.

Before FLETCHER, WILLIAM A. NORRIS and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Appellant Chow appeals his conviction and sentence for possession of heroin with intent to distribute, importation of heroin, and smuggling. He argues that there was insufficient evidence that he knew the substance he was smuggling was a controlled substance under 21 U.S.C. Sec. 841(a)(1). He also challenges the jury instructions and the constitutionality of his ten-year sentence.

3

* The sufficiency of the evidence is reviewed for plain error because appellant waived his objection by not renewing his motion for acquittal after the close of the evidence. United States v. Ramirez, 880 F.2d 236, 238 (9th Cir.1989).

4

Circumstantial evidence may prove knowledge or intent in cases involving possession or importation of large quantities of narcotics. United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 111 S.Ct. 394 (1990). Appellant need not know the precise nature of the substance in order to be convicted under 21 U.S.C. 841(a)(1); it is enough that he knows it to be a controlled substance. See United States v. Lopez-Martinez, 725 F.2d 471, 474-75 (9th Cir.), cert. denied, 469 U.S. 837 (1984). In this case, the heroin was elaborately concealed on appellant's person in packages strapped to his abdomen. His suit was specially tailored to conceal the heroin. Although appellant testified that he did not know what the packages contained, he admitted that he was suspicious and assumed he was transporting something illegal. Given appellant's knowing participation in concealing the substance and his admission that he suspected that what he was carrying was illegal, the jury could have reasonably believed that appellant knew he was carrying a controlled substance.

5

This case is easily distinguished from United States v. Ramirez, 880 F.2d 236, in which we reversed a conviction for possession of cocaine with intent to distribute because there was insufficient evidence of knowing possession. In Ramirez, the only evidence of knowing possession was the circumstantial evidence that appellant had slept in a room containing concealed drugs and drug-related items. We held that the circumstances demonstrated "neither participation nor guilty knowledge and cooperation." Id. at 239. In this case, by contrast, the jury could infer guilty knowledge from appellant's cooperation in concealing the substance by strapping it to his body.

II

6

Appellant challenges two aspects of his jury instructions. First, he challenges the giving of the Jewell instruction, which allows the jury to infer knowledge if it finds that the evidence supports an inference of deliberate ignorance. United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985). Second, he challenges the court's substitution of "prohibited drug" for "controlled substance" in the description of the elements of the offense.

7

The parties dispute the appropriate standard of review for the challenge to the Jewell instruction. Because appellant objected to the instruction at the end of the government's case, but did not renew that objection just before the jury was instructed, the government contends that appellant waived the objection and thus our review is only for plain error. Appellant argues that the objection was properly preserved and did not need to be renewed at the close of all the evidence. We need not decide this issue, because we hold the instruction was properly given under either standard.

8

Appellant argues that the government did not "present evidence indicating that [appellant] purposely contrived to avoid learning all of the facts in order to have a defense in the event of subsequent prosecution." Pacific Hide, 768 F.2d at 1098. Without such evidence, the danger would be that appellant was impermissibly convicted on the basis of mere negligence. Id. Here, appellant testified that he did not look in the packages that were strapped to his body, despite his suspicion that the substance inside was illegal. Although he asked the supplier what was in the packages, he was satisfied with the vague answer that he was carrying some kind of Chinese herbal medicine. Like the defendant in United States v. Perez-Padilla, 846 F.2d 1182 (9th Cir.1988), who contended that he did not know that the substance he was smuggling was cocaine, the appellant here "tried to close his eyes or ears to what was happening." Id. at 1183 (quoting United States v. McAllister, 747 F.2d 1273, 1276 (9th Cir.1984), cert. denied, 474 U.S. 829 (1985)). We hold there was sufficient evidence of deliberate ignorance to support the use of the Jewell instruction.

9

Appellant also challenges the trial court's substitution of "prohibited drug" for "controlled substance" in her description of the elements of the offense. Because the appellant did not object to this alteration at trial, our review is for plain error.

10

Appellant's concern is that the jury might have erroneously thought that appellant's admission that he knew he was carrying "Chinese medicine" and suspected it was "illegal" was sufficient to convict him under the statute. Appellant argues that knowing possession of a "prohibited drug" is not necessarily knowing possession of a "controlled substance" under 21 U.S.C. Sec. 841(a)(1).

11

There is no reason to believe the jury was familiar with the technical meaning of "controlled substance" under the statute. From a layman's standpoint, the term "prohibited drug" is a more precise description of what is forbidden by the statute than "controlled substance" would have been. In short, it is not highly probable that the difference in language would have "materially affected the verdict." See United States v. Kessi, 868 F.2d 1097, 1103 (9th Cir.1989).

III

12

Appellant also challenges the imposition of a mandatory minimum ten-year sentence. He argues that the imposition of such a sentence without consideration of mitigating factors violates due process, and the severity of the sentence violates the 8th Amendment. We have previously upheld the ten-year mandatory minimum sentence against both challenges. See United States v. Sharp, 883 F.2d 829, 831 (9th Cir.1989) (due process); United States v. Contreras, 895 F.2d 1241, 1243 (9th Cir.1990) (8th Amendment).

13

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3