United States v. Eduardo De Francisco-Lopez

939 F.2d 1405, 1991 WL 128715

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 1, 1991
• Docket: 90-4019
• Status: Published

Opinions

PER CURIAM.

Eduardo de Francisco-Lopez was convicted of possession with intent to distribute five kilograms or more of a mixture containing cocaine. He appeals, claiming that the conviction was not supported by sufficient evidence and claiming that the jury should not have been instructed concerning deliberate ignorance of an operative fact. We agree that deliberate ignorance instruction should not have been given to the jury, and we reverse.

Mr. Lopez, who lived with his wife and child in Los Angeles, was driving alone from Los Angeles to New York City when he was stopped by Utah state highway patrolmen for speeding on the interstate highway. During the stop, one of the officers noticed that the rear door vents on the car were held in place by pop rivets instead of the factory-installed Phillips-head screws. After Mr. Lopez consented to a search of the car, the patrolman determined that there were hidden sheet metal compartments cleverly welded in the car’s frame, containing what appeared to be drugs. Mr. Lopez was placed under arrest and, under a search warrant, the car was partially dismantled. Approximately fifteen kilograms of nearly pure cocaine, packaged for distribution, were extracted from the compartments.

Mr. Lopez was indicted on one charge, that he did “knowingly and intentionally possess with intent to distribute approximately fifteen (15) kilograms of a mixture containing cocaine, a Schedule II controlled substance within the meaning of 21 U.S.C. § 812; all in violation of 21 U.S.C. § 841(a).” R. Vol. I tab 1. Of the four elements which make up this charge — possession, scienter, involvement with a scheduled controlled substance, and intent to distribute — only the scienter requirement was contested before the jury. It was uncon-troverted at trial that Mr. Lopez was in at least constructive possession of the cocaine, see United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987) (exercise of dominion and control of location of narcotics constitutes constructive possession), because there was sufficient nexus between Mr. Lopez, the car and the drugs. See id. at 882. The parties stipulated that the material discovered in the car consisted of approximately fifteen kilograms of ninety-two to ninety-nine percent pure cocaine. R. Supp. Vol. I at 161-65. There was no question raised that the quantity, packaging, and purity of the cocaine found in the car’s hidden compartments were consistent with cocaine which was in the middle of the distribution process. See United States v. Parrish, 925 F.2d 1293, 1297 (10th Cir.1991) (“A large quantity of cocaine can be sufficient to support a judgment that a defendant intended to distribute the drug.”). However, Mr. Lopez consistently denied that he knew the cocaine was in the car and, after the prosecution’s evidence was presented at trial, moved unsuccessfully for dismissal on the grounds that the circumstantial evidence upon which the prosecution relied was insufficient to find guilt beyond a reasonable doubt.

The prosecution’s case consisted of inferences arising from the unusual circumstances by which Mr. Lopez came into possession of the car and was driving it from Los Angeles to New York; a telephone call to Los Angeles from the motel at which he spent the first night on the road; and two isolated comments which he made to law enforcement officials after he was stopped for speeding. Mr. Lopez, who was experienced in auto mechanics, claims to have been hired by a mysterious stranger known to Mr. Lopez only as “Juan” to do some minor repair work on the car and then, about three weeks later, to drive it to New York. Mr. Lopez did not immediately accept the offer, but he did accept cash for expenses and payment, and eventually repaired the car and set off on his journey with minimal direction where he was to drop off the car. His first night on the road to New York, he made a six-minute telephone call from his motel room to a person in Los Angeles that he testified he had not seen in years. The highway patrolman testified that when Mr. Lopez was stopped for speeding, he told the highway patrol officers that he was driving to New York to see “his lady and her child.” R. Supp. Vol. I at 125. Finally, after the drugs were found and he had been arrested, he asked an FBI agent, “How many?” Id. at 98.

Mr. Lopez was sentenced to ten years in prison, to be followed by five years of conditional probation. He timely appealed, raising two issues: (i) whether there was sufficient evidence for a jury to find beyond a reasonable doubt that he was guilty of the charged crime, and (ii) whether it was error for the court to have instructed the jury concerning “deliberate ignorance” of the presence of the drugs found hidden in the car.¹

I.

The standard by which we judge Mr. Lopez' argument that the evidence was insufficient for conviction is well-established. “The evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986).

In the case before us, the prosecution relied on circumstantial evidence as proof that Mr. Lopez had actual knowledge that the car contained controlled substances. The prosecution dismissed many parts of Mr. Lopez’ narrative as unbelievable fabrications and substituted what it considered to be a more believable hypothesis for the events leading up to Mr. Lopez’ arrest. That hypothesis, of course, included the assumption of actual knowledge by Mr. Lopez of his criminal activity. Under the challenge of credibility, there was abundant circumstantial evidence by which the jury could properly infer beyond a reasonable doubt that Mr. Lopez had actual knowledge he was transporting a large amount of cocaine with intent to distribute.

Mr. Lopez argues the evidence was insufficient on two grounds. First, he contends the evidence was wholly circumstantial. However, circumstantial evidence, taken together with any reasonable inferences which flow from such evidence, is sufficient to establish guilt beyond a reasonable doubt. See id. at 1529.

Second, he argues that the evidence presented could have been consistent with either innocence or guilt. This issue has also been addressed and resolved by this court. We have rejected the suggestion that the appellate court should review the evidence to determine whether it was consistent with a finding of innocence. Id. at 1531. The reviewing court may not substitute its judgment for the jury’s determination whether the evidence at trial was sufficient to establish guilt beyond a reasonable doubt. Id. (citing Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)).

[T]he appropriate inquiry is whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. [307,] 319 [, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ]. Thus, it is anomalous [sic] to suggest that the appellate court should evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence.

Id. (emphasis in original); see also Parrish, 925 F.2d at 1297 (“[T]he evidence required to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.”); cf. United States v. Nelson, 419 (9th Cir.1969) (appellate court must not substitute its analysis for that of the jury because it may consider inferences “which, though entirely possible or even probable, are drawn from evidence which the jury may have disbelieved”).

II.

Mr. Lopez’ second argument, whether the deliberate ignorance instruction was properly tendered to the jury, is more difficult. We examine jury instructions as a whole to evaluate their adequacy, and examine de novo the propriety of tendering an individual jury instruction. See United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). When reviewing the tender of a deliberate ignorance jury instruction, we view the evidence in the light most favorable to the government. United States v. Fingado, 934 F.2d 1163, 1166 (10th Cir.1991).

In the context of the instruction we must analyze, “deliberate ignorance” refers to circumstantial evidence that the person against whom it is employed has actual knowledge of a fact in issue. Employing such circumstantial evidence allows the government to prove a defendant had actual knowledge of an operative fact by proving deliberate acts committed by the defendant from which that actual knowledge can be logically inferred. See United States v. Ochoa-Fabian, 935 F.2d 1139, 1141-1142 (10th Cir.1991). The acts relied upon, however, must be deliberate and not equivocal, otherwise the defendant’s acts do not imply the avoidance of knowledge which is the key to the inference of actual knowledge. “A deliberate ignorance instruction alerts the jury ‘that the act of avoidance of knowledge of particular facts may itself circumstantially show that the avoidance was motivated by sufficient guilty knowledge to satisfy the ... “knowing” element of the crime.’ ” United States v. Ashby, 864 F.2d 690, 693-94 (10th Cir.1988) (quoting United States v. Manriquez Arbizo, 833 F.2d 244, 248) (10th Cir.1987)), cert. denied, — U.S. —, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990).

When someone knows enough to put him on inquiry, he knows much. If a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge.

United States v. Ramsey, 785 F.2d 184, 189 (7th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2924, 91 L.Ed.2d 552 (1986).

This instruction is rarely appropriate, however, because it is a rare occasion when the prosecution can present evidence that the defendant deliberately avoided knowledge. See United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 487 U.S. 1222, 108 S.Ct. 2880, 101 L.Ed.2d 915 (1988); United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982); United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.1977). We emphasize that the deliberate ignorance instruction should be given only when evidence has been presented showing the defendant purposely contrived to avoid learning the truth. See United States v. Markopoulos, 848 F.2d 1036, 1040 (10th Cir.1988); Alvarado, 838 F.2d at 314 (“[T]he facts must support the 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 a subsequent prosecution.”); United States v. Littlefield, 840 F.2d 143, 147-50 (1st Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988); United States v. White, 794 F.2d 367, 371 (8th Cir.1986).

The evidence must establish that the defendant had subjective knowledge of his criminal behavior. Such knowledge may not be evaluated under an objective, reasonable person test. See United States v. Jewell, 532 F.2d 697, 707 (9th Cir.) (Kennedy, J., dissenting) (“The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinate factor, may allow a jury to convict on an objective theory of knowledge — that a reasonable man should have inspected the car and would have discovered what was inside.”), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976);² contra United States v. Nicholson, 677 F.2d 706, 710-11 (9th Cir.1982) (“The circumstances surrounding the investment opportunity-presented to the defendant would have put any reasonable person on notice that there was a ‘high probability’ that the undisclosed venture was illegal.”) (emphasis added).

The deliberate ignorance instruction must not be given unless evidence, direct or circumstantial, shows that defendant’s claimed ignorance of an operant fact was deliberate. While the same evidence cannot be used as proof for the mutually exclusive categories of actual knowledge of an operant fact and deliberate ignorance of that same fact, it is possible for the government to present evidence showing the defendant had actual knowledge and evidence of defendant’s avoidance of that same knowledge. See, e.g., Ochoa-Fabian, 935 F.2d at 1142 (“[W]here, as here, the evidence supports both actual knowledge and deliberate ignorance, the instruction is properly given.”); Sanchez-Robles, 927 F.2d at 1074 (“ ‘[I]f there is evidence of both actual knowledge and of deliberate ignorance, a [deliberate ignorance] instruction is appropriate.’ ” (citation omitted) (emphasis in original)). However, the deliberate ignorance instruction must not be tendered to the jury unless sufficient independent evidence of deliberate avoidance of knowledge has been admitted.³

We emphasize, the same fact or facts cannot be used to prove both actual knowledge and deliberate indifference because the two are mutually exclusive concepts. If evidence proves the defendant actually knew an operant fact, the same evidence could not also prove he was ignorant of that fact. Logic simply defies that result.

“The danger in giving the instruction where there is evidence of direct knowledge but no evidence of avoidance of knowledge is that the jury could still convict a defendant who merely should have known about the criminal venture.” Manriquez Arbizo, 833 F.2d at 249. Conviction because the defendant “should have known” is tantamount to conviction for negligence, contrary to section 841(a) which requires intentional misbehavior. See United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985) (“It is not enough that defendant was mistaken, recklessly disregarded the truth, or negligently failed to inquire.”); United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987) (same). Accord United States v. Beckett, 724 F.2d 855, 856 (9th Cir.1984); Murrieta-Bejarano, 552 F.2d at 1326 (Kennedy, J., dissenting) (“The danger is that juries will avoid questions of scienter and convict under the standards analogous to negligence ... wholly inconsistent with the statutory requirement of scienter.”); United States v. Hanlon, 548 F.2d 1096, 1101-02 (2d Cir.1977) (condemning the use of the word “reckless” in deliberate ignorance jury instructions); United States v. Bright, 517 F.2d 584, 587 (2d Cir.1975) (“A negligent or a foolish person is not a criminal when criminal intent is an ingredient.”).

In addition, courts must studiously guard against the danger of shifting the burden to the defendant to prove his or her innocence. See Murrieta-Bejarano, 552 F.2d at 1325 (“The effect of a [deliberate ignorance] instruction in a case in which no facts point to deliberate ignorance may be to create a presumption of guilt.”); cf. Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979) (disapproving of jury instructions that contain presumptions which shift the burden of proof of an element of a crime to the defendant).

In summary, the deliberate ignorance instruction must not be tendered to the jury unless evidence, circumstantial or direct, has been admitted to show that the defendant denies knowledge of the operant fact and the defendant’s conduct includes deliberate acts to avoid actual knowledge of that operant fact. See United States v. Picciandra, 788 F.2d 39, 46, 47 (1st Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 166, 93 L.Ed.2d 104 (1986). The form and content of the jury instruction may not suggest to the jury that the defendant’s conduct is based on negligence or recklessness. Cf. Glick, 710 F.2d at 643 (requirements for content of deliberate ignorance jury instruction).

Turning to the case before us, the district court instructed:

The defendant’s knowledge may be established by proof that the defendant was aware of a high probability that the materials were narcotics unless despite this high probability the facts show that the defendant actually believed that the materials were not narcotics. Knowledge that the materials] were narcotics may be inferred from circumstances that would convince an average ordinary person that this is the fact.

R. Supp. Vol. IV at 90. Mr. Lopez consistently denied actual knowledge of possession of cocaine intended for distribution. Even when viewed cumulatively in the light most favorable, to the government, none of the evidence presented at trial is sufficiently probative of the element of deliberation which is essential to the government’s hypothesis that Mr. Lopez acted to deliberately avoid knowledge of the presence of drugs in the car to support the deliberate ignorance instruction.

While the circumstances under which Mr. Lopez came to be driving the car were suspicious, without more they are equivocal. “ ‘[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowlege.’ ” Jewell, 532 F.2d at 700 (quoting G. Williams, Criminal Law: The General Part, § 57, at 157 (2d ed. 1961) (emphasis added); see also Ramsey, 785 F.2d at 189 (deliberate ignorance is evidenced by defendant with “lurking suspicion” who “goes on as before and avoids further knowledge”) (emphasis added). Mr. Lopez testified he suspected at some point the car may have had drugs in it, but he dismissed the idea, reasoning that, “A car that somebody leaves you like that shouldn’t have drugs, should it, all the time that I was going to have the car.” R. Supp. Vol. II at 41. He testified his suspicions that the car might have been stolen were allayed when the insurance agency issued insurance for the car because he thought that insurance companies had the capacity to cross-check for stolen vehicles when insurance was applied for and did so routinely. The compartments were built so cleverly into the car’s body that it took sophisticated narcotics experts to (a) detect the difference in the type of fastener used for the air vents and (b) find the alternate access through the wheel wells, which was not discovered until the car was dismantled. Even viewed in the light most favorable to the government, these compartments would not have been obvious to an experienced mechanic preparing the car for cross-country travel, even a suspicious mechanic who was looking for clues. See Glick, 710 F.2d at 643 (defendant cannot “deliberately close his eyes to what would otherwise be obvious to him” (emphasis in original)). This case is far removed from those in which the clues of association with the crime charged were so obvious that the clues, combined with suspicion, necessarily implicated the defendant. See, e.g., Ashby, 864 F.2d at 694 (strong odor of marijuana); Glick, 710 F.2d at 642 (blatant accounting irregularities).

None of the evidence in this case creates a direct or circumstantial connection between the cocaine found in the car and Mr. Lopez’ profession of ignorance about the presence of the cocaine. None of the evidence, viewed separately or cumulatively in the light most favorable to the government, leads to the conclusion that despite his profession of ignorance, Mr. Lopez knew there were drugs hidden in the car. Cf. Jewell, 532 F.2d at 704 (“ ‘A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.’ ” (citation omitted)). Perhaps Mr. Lopez was negligent and should have more strongly suspected and more thoroughly investigated the possibility that he was becoming involved in a drug transport operation from an objective standard. But the statute under which Mr. Lopez was convicted requires knowing, intentional conduct and holds the government to proof under a subjective standard.

We hold that when the jury was given the deliberate ignorance instruction, Mr. Lopez was subjected to an inference that he negligently avoided knowledge of the existence of drugs. More importantly, the coupling of this inference with the deliberate ignorance instruction allowed the jury to find that he was guilty if he negligently or foolishly remained ignorant. We cannot allow the verdict to stand when the jury was given the latitude to convict Mr. Lopez of a crime requiring intentional conduct by employing a negligence standard; nor can we allow him to be placed in the position of essentially having to rebut a presumption that he should have known an operant fact. The appeal before us does not present one of the rare cases in which the deliberate ignorance instruction was appropriate.⁴

III.

Having found error in the tendering of the deliberate ignorance instruction, we must determine whether the error was harmless under the circumstances of this case. The standard by which we undertake this last step in our review is very strict. Because we deal with an error of constitutional dimensions, we may only allow the conviction to stand if we find beyond a reasonable doubt that the error was harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); see also Alvarado, 838 F.2d at 317 (reasonable doubt that the error could have tainted the result is grounds for reversal of the conviction). “If the ‘record accommodates a construction of events that supports a guilty verdict, but it does not compel such a construction,’ then reversal is necessary.” Sanchez-Robles, 927 F.2d at 1075 (citation omitted). Thus, at this stage of the analysis we must determine de novo whether the evidence before the jury that the defendant had actual knowledge of his criminal activity was so compelling the jury would necessarily find Mr. Lopez guilty beyond a reasonable doubt, even without the deliberate ignorance instruction.

After reviewing the record, we do not believe the evidence is so one-sided. We conclude a properly instructed jury could have determined the evidence presented at trial was insufficient to find Mr. Lopez had actual knowledge of his possession of cocaine for distribution when viewed from his perspective as a member of the Spanish-speaking community of Colombian immigrants and taking into consideration his difficulty with the English language.⁵ Thus, we have no way of knowing whether the improper instruction was the key to the jury’s decision that Mr. Lopez was guilty, or whether the jury concluded the prosecution’s version of events was indeed the more credible. Under this circumstance, tendering the improper jury instruction cannot be brushed aside as harmless error.

The judgment of the United States District Court for the District of Utah is REVERSED, and the case is REMANDED for a new trial.

1 . Because Mr. Lopez did not raise these issues in the district court, we review them on appeal for plain error under Fed.R.Crim.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”) See United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (Under the plain error standard, reversal is required only to correct “particularly egregious errors, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings.”); United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990); United States v. Mitchell, 783 F.2d 971, 977 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986).

2 . The content of the deliberate ignorance instruction is modeled after section 2.02(7) of the Model Penal Code. “Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” As noted in the comments to this provision, "The original draft ... required only that there be a ‘substantial probability’ of the fact.... This was changed to ‘high’ probability in the view that ‘substantial’ did not imply a sufficient level of probability and weakened the distinction between knowledge and recklessness as modes of culpability.” Id. comment 9 n. 42. The Ninth Circuit translated that guidance into a two-pronged jury instruction. "The jury should have been instructed ... (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 he actually believes it does not exist." Jewell, 532 F.2d at 704 n. 21. This circuit adopted the dual nature provided by section 2.02(7) in United States v. Glick, 710 F.2d 639, 643 (10th Cir.1983) (citing Jewell, 532 F.2d at 704 n. 2[1]), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 229 (1984); cf. United States v. Bright, 517 F.2d 584, 587-88 (2d Cir.1975) (applying section 2.02(7) in discrediting use of reckless standard in the deliberate ignorance jury instruction).

3 . See, e.g., Fingado, 934 F.2d at 1166-67 (deliberate ignorance instruction appropriate when evidence of defendants' awareness of the high probability that he misunderstood the tax laws was established, combined with evidence of defendant’s attempts to avoid paying taxes); Ashby, 864 F.2d at 694 (deliberate ignorance instruction appropriate when odor of marijuana emanating from car trunk was very strong and driver failed to obtain trunk key); Manriquez Arbizo, 833 F.2d at 249 (deliberate ignorance instruction appropriate when defendant cooperated in use of the code word "tires" to mask communications about trash bags full of marijuana, combined with evidence of defendant’s direct handling of the trash bags); Glick, 710 F.2d at 642 (deliberate ignorance instruction appropriate when defendant, who was an accountant, recognized and ignored blatant violations of accounting principles and auditing standards, acknowledged recognition of improper fees and financing statements and evaluations by his principal and these activities were combined with general knowledge of the corporation's financial activities).

4 . Because we hold that there was insufficient evidence, direct or circumstantial, to warrant tendering the deliberate ignorance instruction to the jury, we do not reach the question of whether the jury instruction given in this case was correct as to form.

5 . Note that criminal behavior is not excused by being part of a cultural minority or by possessing a mere rudimentary understanding of the English language. However, when the prosecution's case rests on inferring actual knowledge beyond a reasonable doubt from circumstantial evidence, the defendant’s subjective knowledge and experience are important aspects for the jury to consider.