862 F2d 875 United States v. Torres-Benavidez

862 F.2d 875

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 87-1369.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1988.
Decided Nov. 14, 1988.

Before ALARCON, FERGUSON and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM*

2

Appellant Mario Torres-Benavidez ("Torres") appeals from his conviction for importation of cocaine and possession with intent to distribute in violation of 21 U.S.C. Secs. 952 and 841(a)(1). Torres seeks reversal on the following grounds:

3

1. The district court committed reversible error by giving the jury a Jewell instruction.

4

2. The district court committed plain error in its formulation of the Jewell instruction.

5

We disagree and affirm.

FACTS

6

On April 27, 1987, appellant/defendant Mario Torres-Benavidez ("Torres") attempted to enter the United States by car at the port of entry in San Luis, Arizona. Appellant's nervous behavior combined with the appearance of the trunk's interior prompted Customs Inspector Benny Franklin to seek a secondary inspection. Franklin found approximately 115 pounds of cocaine concealed in the trunk and gas tank. Customs officials arrested Torres.

7

At trial, Torres testified that his contact in Mexico, "Jaime", paid him $350 to assist in purchasing a car, to register the car in appellant's name, to drive it across the border into the United States, and to park it in front of a store so that illegal aliens could use it. Torres disclaimed any knowledge of a cocaine smuggling operation.

8

At the end of trial, over appellant's objection, the district court instructed the jury on deliberate ignorance as proof of the element of knowledge.1

9

Torres was found guilty of both importation and possession with intent to distribute. He was sentenced to concurrent terms of ten years imprisonment on each count. Torres timely appeals.

I.

10

Torres objects to the use of the Jewell instruction on the grounds that it is misleading and unsupported by the evidence. He asserts that the instruction allowed the jury to convict him on legally insufficient proof. He claims the evidence was unclear and did not indicate that he deliberately avoided knowledge of cocaine smuggling. This contention lacks merit.

11

Whether a Jewell instruction is properly given is a question of law which this court reviews independently without deference to the trial court's determination. United States v. Stenberg, 803 F.2d 422, 433 (9th Cir.1986). In reviewing the issuance of a Jewell instruction, this court determines whether there was evidence to support an inference of deliberate avoidance. United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 108 S.Ct. 2880 (1988) (emphasis added). A Jewell instruction is properly given only when the defendant claims a lack of guilty knowledge and the proof at trial supports an inference "that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of subsequent prosecution." Alvarado, 838 F.2d at 314.

12

A Jewell instruction is inappropriate if the defendant was merely mistaken, recklessly disregarded the truth, or negligently failed to inquire. McAllister v. United States, 747 F.2d 1273, 1275 (9th Cir.1984), cert. denied, 474 U.S. 829 (1985). In addition, a Jewell instruction should not be given when the evidence shows that the defendant had either actual knowledge or no knowledge of the facts in question. United States v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir.1988).

13

If, however, there is evidence of both actual knowledge and deliberate ignorance, a Jewell instruction is appropriate. Id. (citing United States v. Jewell, 532 F.2d 697, 698-99 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976)).

14

In the present case, the government presented evidence showing actual knowledge. In addition, the record contains evidence that would lead a rational juror to conclude that Torres' ignorance was deliberate. Customs Inspector Shelley testified that Torres said the cocaine "was in the back somewhere." Torres testified that he did not know the cocaine was hidden in the car until his arrest when an officer informed him that contraband had been found. We review conflicts in the evidence in a light most favorable to the prevailing party and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984); United States v. Spears, 631 F.2d 114, 117 (9th Cir.1980) (same test applies to both bench and jury trials).

15

In this case, a reasonable jury could have chosen to disbelieve Torres' uncorroborated explanation concerning how he knew that cocaine was hidden in the car. As this court held in United States v. Cisneros, 448 F.2d 298 (9th Cir.1971):

16

A trier of fact is not compelled to accept and believe the self-serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn. Id. at 305.

17

In addition to this admission of actual knowledge, there is substantial evidence revealing deliberate avoidance of further knowledge about the cocaine. Torres tacitly admitted during cross-examination that he deliberately averted his eyes to the suspicious circumstances surrounding his interaction with Jaime. He did not ask for Jaime's last name at any time. He allowed Jaime to leave with the car that was registered to Torres. He did not ask why Jaime needed another car nor where he was going with this car. Moreover, he did not even ask if he would ever see Jaime again. He met Jaime only briefly sixteen months earlier, and yet he agreed to participate in this sham automobile purchase.

18

Approximately three weeks later, Jaime paid Torres $350 to drive the Ford through the port of entry. Again, Torres avoided asking questions which might have alerted him to the true nature of the circumstances. He did not ask Jaime why he was paid $350 to drive an empty car a short distance across the border. He never asked Jaime what was in the car. He did not determine why Jaime could not drive the car himself. He did not ask if he would see Jaime again after taking the car across the border. He did not inquire as to the identity of the person who would pick up the car on the American side of the border. Furthermore, he did not ask where the money came from. We have held that a failure to inquire may constitute deliberate ignorance. United States v. Nicholson, 677 F.2d 706, 715-16 (9th Cir.1982). Torres' failure to inquire into these highly suspicious circumstances amply demonstrates deliberate avoidance of knowledge of illegal activity.

19

Further, the jury could properly infer from Torres' display of noticeable stress at the port of entry that he was aware of a high probability that the car contained a controlled substance. Torres' actions demonstrated that he wanted to cross the border without inspection of the car. When a lane was closed in front of him, he aggressively cut in front of other automobiles. Inspector Franklin testified that Torres would not look at him during routine questioning. Instead, he nervously glanced back and forth between Franklin, the front windshield, and the rear view mirror while keeping both hands on the steering wheel. When asked to open the trunk, he repeatedly looked back over his shoulder towards Mexico. His hands were shaking and he missed the trunk's keyhole more than once. Finally, upon arrest, he did not show surprise when informed of the charge of illegal importation of narcotics. United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.1977) (lack of surprise at the discovery of marijuana hidden in the truck supported the inference that he was aware of the possible existence of drugs); accord McAllister, 747 F.2d at 1276 (lack of surprise upon discovery of illegal aliens in the back of his truck strengthened the inference that McAllister believed they were there).

20

Based upon our review of the record, there is sufficient evidence supporting a finding of both actual knowledge of the presence of cocaine in the vehicle and deliberate avoidance of such knowledge. His admission that cocaine was "in the back somewhere" amply demonstrated knowledge that he was importing a controlled substance. Furthermore, the totality of the circumstances supports an inference of awareness of a high probability of cocaine. Based upon his failure to ask questions logically raised by suspicious circumstances, his nervous behavior at the border, combined with the common knowledge in border towns that heavy drug-smuggling occurs often, id. at 1325, a reasonable jury could logically infer that Torres deliberately avoided knowledge of the presence of cocaine in the automobile in order truthfully to claim ignorance if the cocaine were found.

21

We conclude, therefore, that the district court did not err in giving the Jewell instruction.

II.

22

Torres next contends that the district court committed plain error in its formulation of the Jewell instruction because the court failed to define the terms "high probability" and "careless." Torres concedes that no objection was made to the wording of the instruction.

23

Ordinarily, a district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). In reviewing the adequacy of the trial court's formulation, we review whether the instructions fairly and adequately cover the issues presented. United States v. Patton, 771 F.2d 1240, 1243 (9th Cir.1985) (citing United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert. denied, 435 U.S. 944 (1978)).

24

Here, Torres admittedly failed to object specifically to the formulation of the jury instruction at trial. Therefore, he did not preserve the issue on appeal and this court reviews the formulation for plain error. United States v. Patton, 771 F.2d 1240, 1242 (9th Cir.1985); United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). In reviewing for plain error, we examine for a "highly prejudicial error affecting substantial rights." Bustillo, 789 F.2d at 1367 (citing United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)). We reverse criminal convictions for plain error only as an exceptional remedy when it is necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. Giese, 597 F.2d at 1199. Furthermore, an improper instruction will rarely lead to a finding of plain error. United States v. Glickman, 604 F.2d 625, 632 (9th Cir.) cert. denied, 444 U.S. 1080 (1979).

25

In the present case, the district court's formulation of the Jewell instruction was proper. The instruction adequately covered the essential elements required by Jewell: (1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless the accused actually believes it does not exist. Jewell, 532 F.2d at 704 n. 21. No previous Jewell instruction cases have defined "high probability." In fact, this court has upheld the use of a Jewell instruction that failed to include the requisite "high probability" element. See United States v. Suttiswad, 696 F.2d 645, 652 (9th Cir.1982).

26

In addition, the district court's use of the word "careless" was neither misleading nor prejudicial. Instead, it was an attempt by the court to protect Torres from a conviction based upon a showing of mere carelessness. Furthermore, the court's instruction specifically directed the jury to find the element of knowledge only if Torres realized what he was doing and did not act through ignorance, mistake, or accident.

27

In the context of the entire charge, the language used by the court substantially complied with the law of this circuit. Because the alleged infirmities did not create a miscarriage of justice, the court's formulation of the Jewell instruction did not constitute plain error.

28

AFFIRMED.

FERGUSON, Circuit Judge, dissenting:

29

In United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 108 S.Ct. 2880 (1988), the late Judge J. Blaine Anderson for this circuit declared the following with regard to the Jewell instruction:

30

In light of the evidence adduced at trial in this case, the district court's decision to instruct the jury on the doctrine of deliberate avoidance was error. The relevant evidence points to actual knowledge, rather than deliberate avoidance, and therefore does not support the giving of a Jewell instruction. See United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098-99 (9th Cir.1985). See also United States v. Jewell, 532 F.2d 697 (9th Cir. (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).

31

Judge Anderson then set forth the rule of law in this circuit:

32

If the evidence indicates that [the defendants] had either actual knowledge or lacked any knowledge of the possession of the cocaine, then the giving of the Jewell instruction was inappropriate.

33

Id.; see also United States v. Beckett, 724 F.2d 855, 856 (9th Cir.1984).

34

The government does not contend that the evidence of actual knowledge in this case was so strong that a conviction was compelled. It relies solely on the Jewell instruction. As the instruction was in error by all standards required in this circuit, I would reverse the conviction.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The instruction was:

You may find that the defendant acted knowingly if you find beyond a reasonable doubt, that the defendant was aware of a high probability that cocaine was in the Ford LTD automobile and deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that the defendant actually believed that cocaine was not in the Ford LTD automobile, or if you find that the defendant was simply careless.