United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 10, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-40978
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ARTURO MENDOZA-MEDINA,
Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Texas
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Juan Arturo Mendoza-Medina appeals his convictions for
conspiracy to possess and possession with intent to distribute more
than fifty kilograms of marijuana.1 We affirm the judgment of
conviction, finding that any error in the district court’s charge
to the jury on deliberate indifference was harmless and that the
court’s admission of hearsay evidence was not plain error. We also
conclude that although the trial court erred in admitting the
opinion testimony of a government agent, on the facts of this case
1 See 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1). this abuse of the use of a “background” witness was not reversible
error. We pause to caution that it is time for our able trial
judges to rein in this practice. The offering of this “expert” was
not background for the jury – a jury is ordinarily blessed with a
common sense well tuned by life in this age. Rather, excessive use
of this “expert” testimony comes unacceptably close to the use of
evidentiary profiles.
I
A grand jury indicted Mendoza-Medina on January 8, 2002, on
two counts: conspiracy to possess with intent to distribute more
than fifty kilograms of marijuana, a violation of 21 U.S.C. § 846;
and possession with intent to distribute more than fifty kilograms
of marijuana in violation of 21 U.S.C. § 841(a)(1). Mendoza-
Medina’s first trial ended in a mistrial – eleven jurors finding
him guilty, one juror when polled answered “not sure.” The case
was retried.
At the second trial, Senior Border Patrol Agent Mario
Rebolledo testified that he and his drug detecting dog, “Rudy,”
were working in the Laredo Border Patrol checkpoint on December 21,
2001, when Rudy alerted to a tractor-trailer driven by Mendoza-
Medina. Agents directed the truck to a secondary inspection point.
After obtaining the keys from Mendoza-Medina, agents placed Rudy in
the trailer, where he alerted to a group of boxes. Agents found
marijuana in the boxes. They arrested Mendoza-Medina and escorted
2 him to the checkpoint trailer. Mendoza-Medina’s wife and children
remained in the cab.
Agents advised Mendoza-Medina of his rights and placed him in
a holding cell in the trailer. He waived his right to remain
silent and agreed to an interview. He told Rebolledo that neither
he nor his wife had anything to do with the substance found in the
boxes. He also declared he was willing to talk about the people
who hired him.
Two agents with the DEA task force were called, and arrived at
the Laredo North Station, which is roughly twenty minutes from the
checkpoint, between 1:30 and 2:00 a.m. the next day. Mendoza-
Medina, his wife, and his two children were in the processing room.
Initially, the agents planned to interview Mendoza-Medina with his
wife and children in the room, but the children interrupted the
interview. The agents conducted the interview in a separate room
with the door open. The children still had access to Mendoza-
Medina, and were in and out of the room several times during the
interview.
Mendoza-Medina told the agents that he knew nothing about the
contraband. He asked the agents what was going to happen, and they
responded that he and his wife would be detained and taken before
a magistrate judge. He then asked what would happen to his
children, and the agents said they would be taken care of by Child
Protective Services. Mendoza-Medina reacted to this disclosure by
stating to the agents that he would tell them “anything [they]
3 wanted to hear and he would take the blame.” The agents said they
wanted him to tell the truth. Mendoza-Medina told them that is
what he would do.
Mendoza-Medina told the agents that his employer, Julian
Ramirez, asked him to haul marijuana with his legitimate load. The
legitimate load was en route to New York, while the marijuana was
to be dropped off in Dallas. Ramirez had instructed Mendoza-Medina
to pick up the trailer at a gas station in Laredo. They planned to
rendevous at the Pilot Station Truck Stop in Dallas where the drugs
would be unloaded. Ramirez was to pay Mendoza-Medina $3000.
Mendoza-Medina stated that this was his first time smuggling drugs.
He told agents that his wife did not know anything about the drugs,
which the agents confirmed. After a short interview, Mendoza-
Medina’s wife left with the children, and Mendoza-Medina was
processed.
The agents checked Mendoza-Medina’s story. They found phone
calls to and from Ramirez on Mendoza-Medina’s cell phone. A bill
of lading found in Mendoza-Medina’s truck reflected that Ramirez
had picked up the trailer on December 20. Agents learned that
Mendoza-Medina had begun working for Ramirez only two months
earlier, and that Ramirez had a drug trafficking conviction.
The shipping company had loaded the truck with women’s jeans
at a warehouse in Laredo on December 20. Ramirez had brought the
trailer to the warehouse, and left with it some time between 7:30
and 8:00 p.m. The trailer was locked and sealed. An employee of
4 the shipping company testified that he inspected the trailer after
it was seized by the Border Patrol, and he believed someone
tampered with the lock and opened the doors without breaking the
seal.
At trial, the Government had DEA Special Agent Keith Warzecha
qualified as an expert. He testified that the marijuana seized was
worth $77,600 in Laredo, and about $135,000 in Dallas. He
described the cultivation, wrapping, and packaging of the drugs.
He also described how traffickers usually recruited people who
needed the money to transport the drugs, and enticed them with a
quick pay day. He testified that many truck drivers passed through
Laredo, and some were susceptible to the lure of drug trafficking.
In the usual case, contraband owners limited inexperienced drivers
to smaller loads. After successfully moving two or three small
loads and proving he could be trusted, a driver would be given
bigger loads. When the prosecutor asked if traffickers concealed
contraband in a truck without telling the driver it was there, the
district court answered Mendoza-Medina’s objection with the
observation that some times they do, and some times they don’t.
After persisting in the objection, the district court had the
prosecutor move on. The agent then testified that it was possible
to put the drugs in the trailer without disturbing the seal. He
also recalled that he had investigated cases in which children were
involved in smuggling, and suggested smugglers were under the
5 impression that law enforcement personnel were not inclined to
suspect individuals with children of smuggling drugs.
Warzecha then testified that Ramirez had a history of
narcotics trafficking, including a 1993 conviction involving over
1000 pounds of marijuana. Warzecha also explained that agents had
seized $368,000 in cash from Ramirez in October 2001, and opined
that the money was drug related. At the time of that seizure,
Ramirez told agents that he was returning from a three-day trip
hauling goods to and from Ohio with Mendoza-Medina. Hotel records
showed that Ramirez had stopped in Dallas during the time he said
he was on the trip. However, this trip was missing from both
Mendoza-Medina’s and Ramirez’s logbooks, although the logbooks
showed that Mendoza-Medina had been driving with Ramirez since
early October. On cross-examination, Warzecha admitted that
Ramirez had told agents that he had found the money outside the
gate of a forwarding company while Mendoza-Medina was driving the
truck through the gate and that Mendoza-Medina did not know about
the money. Warzecha admitted that nothing tied the money to
Mendoza-Medina. He also opined that Ramirez was lying.
Mendoza-Medina’s wife testified that late in the evening on
December 20 she learned that Mendoza-Medina was going to transport
a load of goods. Because of the late hour, she suggested she take
their two four-year-olds with them, and leave their other children
with her sister. They picked up the tractor-trailer at a gas
station, and Ramirez took their van.
6 She explained that at the Laredo North Station, agents
separated her and the children from Mendoza-Medina. She heard
agents yelling at her husband, and it caused the girls to call out
for their father. An agent told her he did not believe what her
husband was telling them, emphasizing his point by striking the
wall with heavy blows. He reportedly told her that if neither she
nor her husband took responsibility for what was going on, they
would lose their daughters to the state. At the end of his
interrogation, Mendoza-Medina told her that he would have to take
responsibility for the drugs in the trailer so that the agents
would not take the children from her. According to Mendoza-
Medina’s wife, neither agent told her about Child Protective
Services; instead they told her the children would be taken away.
During cross-examination, she admitted that in an earlier
hearing she did not say that the agent threatened to take her
children away. She conceded that she could see everything that
went on in the interrogation room, and that she did not hear her
husband tell agents how he agreed to haul the drugs.
The jury found Mendoza-Medina guilty on both counts. The
district court sentenced him to concurrent fifty-one month prison
terms followed by concurrent three-year terms of supervised
release. Mendoza-Medina timely appealed.
II
A
7 We turn first to Mendoza-Medina’s objection to the admission
of the expert testimony of Special Agent Warzecha. “We review a
district court’s decision to admit or exclude evidence for abuse of
discretion. Review of evidentiary rulings is heightened in a
criminal case.”2 Any error in admitting the evidence is subject to
harmless error review.3 “[U]nless there is a reasonable
possibility that the improperly admitted evidence contributed to
the conviction, reversal is not required.”4
Mendoza-Medina argues that Warzecha’s testimony crossed the
line from permissible expert testimony to impermissible opinion
testimony regarding whether Mendoza-Medina was aware that the drugs
were in the truck. Mendoza-Medina points to the following
testimony to support his claim: (1) managers in charge of
transportation recruit people to transport drugs; (2) the amount of
drugs in a load depends on the person’s narcotics transporting
experience, for example, new recruits carry 200 to 300 pounds of
marijuana;5 (3) trust between the distributor and driver is an
essential component; and (4) narcotics traffickers bring their
wives and children along to mask the drug trafficking offense.
2 United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002) (citation omitted). 3 United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992). 4 Id. (internal quotation marks omitted). 5 203.5 pounds of marijuana were found in Mendoza-Medina’s trailer.
8 Mendoza-Medina also argues that the Government impermissibly used
this testimony as substantive evidence in its opening and closing
arguments. For example, the prosecution stated, “Special Agent
Keith Warzecha’s experience of five years and hundreds of cases
here in Laredo, Texas tells us the defendant knew ...,” and “we
also know that it’s true, based on DEA intelligence, that narcotics
trafficking organizations don’t just stick marijuana on tractors of
drivers that don’t know where it’s going.”
The Government argues that Warzecha’s testimony was
permissible expert background testimony which never specifically
identified Mendoza-Medina’s conduct as consistent with a drug
courier profile or broached the issue of Mendoza-Medina’s knowledge
of the drugs in the trailer. It also contends that the court’s
instruction that the expert’s opinions could be accepted or
rejected by the jury was sufficient, and that any abuse of
discretion was harmless because of the other evidence of Mendoza-
Medina’s guilt.
In United States v. Williams, we noted that drug courier
profiles “have long been recognized as inherently prejudicial
because of the potential they have for including innocent citizens
as profiled drug couriers,” and therefore are not admissible as
substantive evidence of the defendant’s guilt.6 In addition, drug
6 Id. at 1241-42 (internal quotation marks omitted).
9 courier profiles can violate Federal Rule of Evidence 704(b)7 when
they are used to prove that the defendant was a courier and
therefore knew that he was transporting drugs.8
In United States v. Gutierrez-Farias9 and United States v.
Ramirez-Velasquez,10 we held that admission of similar expert
testimony was an abuse of discretion. In Gutierrez-Farias, a DEA
agent testified as an expert on the business of transporting
illegal narcotics through South Texas.11 He explained:
The way it usually works in that respect is that I don’t think they would target somebody just off the street that, you know, has no knowledge. Usually, it’s somebody that is a friend of a friend. It could start that way. Usually they want to use people that ... have a certain amount of trust and responsibility because you have to realize as we showed before here, the amount of money that the narcotics communicates too. It’s a lot of money and ... this is ... a business.... [J]ust as in any other business, the people need a certain amount of
7 Federal Rule of Evidence 704(b) reads:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 8 See United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th Cir. 2003); United States v. Gutierrez-Farias, 294 F.3d 657, 661-63 (5th Cir. 2002). 9 Gutierrez-Farias, 294 F.3d at 661-63. 10 Ramirez-Velasquez, 322 F.3d at 879. 11 Gutierrez-Farias, 294 F.3d at 661-62.
10 credentials, if you will, to be employed or to be sought out by a narcotics trafficking organization.12
We expressed doubts as to whether the agent’s testimony about what
a drug courier would have known could be characterized as
“expert.”13 We then concluded:
Agent Afanasewicz’s testimony crosses the borderline long recognized by this court between a mere explanation of the expert’s analysis of the facts and a forbidden opinion on the ultimate legal issue in the case. The clear suggestion of Agent Afanasewicz’s testimony is that, because most drivers know there are drugs in their vehicles, Gutierrez must have known too. Although admittedly Agent Afanasewicz did not say the magic words – “In my expert opinion, Gutierrez knew the marijuana was in the tires.” – we believe his testimony amounted to the functional equivalent of such a statement.14
In Ramirez-Velasquez we reached the same conclusion.15 The
prosecutor at first sought an explicit opinion from the agent,
asking, “And based on your experience, do those drivers know what
they are carrying?”16 On defense counsel’s objection, the
prosecutor rephrased her question to ask how drug conspiracy
organizations choose their drivers.17 The agent then testified,
with no objection from defense counsel, that “drivers are paid
12 Id. at 662. 13 Id. at 663. 14 Id. at 663 (internal quotation marks and citations omitted). 15 Ramirez-Velasquez, 322 F.3d at 879. 16 Id. at 878. 17 Id.
11 based on past performance, and that organizations tend to seek
trustworthy drivers because their cargo is valuable and
uninsurable.”18 The agent stated:
With a legitimate product you have – you don’t have to conceal it. And you have insurance in case the product is lost or damaged. In the case of an illegal product, of course you have to conceal it and try to get it where it’s going without being detected. There is no insurance if it’s lost or stolen. The only real assurance you have is the trust you have in the people that are working for you.19
Relying on Gutierrez-Farias, we concluded that admission of this
testimony was plain error because, “[a]s did the agent in
Gutierrez-Farias, Agent Hacking made the generalization, albeit not
quite directly, that drivers know they are carrying drugs.”20
In the same vein we find that the district court abused its
discretion in admitting Agent Warzecha’s testimony. Warzecha made
the same generalized statements regarding distributors having to
trust their couriers and included the profile that couriers often
bring their wives and children along. In addition, the prosecutor
argued that this testimony proved that Mendoza-Medina knew the
drugs were present, using the testimony as substantive evidence.
We must next decide whether the error was harmless. The
evidence against Mendoza-Medina is substantial. Mendoza-Medina
18 Id. 19 Id. at 878 n.12. 20 Id. at 879.
12 confessed, although he challenges that confession as coerced. His
confession is supported by the evidence that Ramirez was a
convicted drug trafficker and was found with $368,000 in cash
following a trip with Mendoza-Medina that involved a stop in
Dallas. Given the strength of this evidence we conclude that
admission of this testimony, although error, was harmless.
B
Mendoza-Medina also argues that the district court abused its
discretion in admitting Warzecha’s testimony regarding Ramirez’s
statements to other officers at the time of Ramirez’s arrest in
October 2001. Mendoza-Medina objected in a pretrial motion and
renewed that objection at the start of Warzecha’s testimony at
trial, arguing that the testimony was hearsay or prior bad acts
that did not qualify for admission under Rule 801(d)(2)(E)21 or Rule
404(b).22
The prosecutor asked Agent Warzecha if he had any information
with regard to Ramirez being involved in narcotics trafficking.
Warzecha testified that Ramirez had a 1993 conviction for
21 Under this rule statements offered against a party that were made by a coconspirator of the party during the course and in furtherance of the conspiracy are not hearsay. Fed. R. Evid. 801(d)(2)(E). 22 Rule 404(b) provides that evidence of other crimes, wrongs, or acts is admissible for purposes other than to “prove the character of a person in order to show action in conformity therewith,” such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).
13 transporting 1100 pounds of marijuana. The prosecutor then asked
if Warzecha was aware of any other arrest or detention that
“associate[s] him, in your opinion, with narcotic trafficking.”
Warzecha stated that agents seized $368,000 in cash from Ramirez in
Laredo in late October, 2001. The prosecutor then asked if that
seizure, which Warzecha viewed as drug related, was “in any way
associated with the defendant.” Over Mendoza-Medina’s renewed
objection, Warzecha testified as to what Ramirez told other
officers in his post-arrest statement after the cash seizure.
Warzecha stated that Ramirez told officers that Mendoza-Medina
accompanied him on a trip hauling freight to and from Ohio from
October 23 through October 26, 2001. Ramirez claimed that when
they arrived at the freight forwarding company on the return trip,
he got out of the cab to open the gate while Mendoza-Medina drove
the truck in and unhitched the trailer. After Mendoza-Medina left
in the truck, Ramirez went to close the gate and found $368,000
cash in boxes by the road. Ramirez stated that he took the boxes
and left in his car, and that Mendoza-Medina was not aware that he
found the cash. Warzecha testified that the trip was not in either
Mendoza-Medina’s or Ramirez’s logbooks, but the logbooks showed
that the two had been driving together since early October.
Warzecha further explained that agents released Ramirez after the
seizure, and that Ramirez was challenging the forfeiture of the
cash. He also stated that in his opinion, the money was drug
related, and that Ramirez was lying about finding the cash.
14 Mendoza-Medina argues that the Government did not prove by a
preponderance of the evidence that a conspiracy existed and that
Ramirez’s statement was made in furtherance of the conspiracy.
“The proponent of admittance under Rule 801(d)(2)(E) must prove by
a preponderance of the evidence (1) the existence of a conspiracy,
(2) the statement was made by a co-conspirator of the party, (3)
the statement was made during the course of the conspiracy, and (4)
the statement was made in furtherance of the conspiracy.”23 As the
Government notes, the court may admit the evidence subject to the
prosecution’s subsequent establishment of an adequate foundation.24
Although we consider the contents of the statement, they alone
are insufficient “to establish the existence of the conspiracy and
the participation therein of the declarant and the party against
whom the statement is offered.”25 Aside from the challenged
statement, other evidence of a conspiracy included Ramirez’s 1993
conviction for transporting marijuana; the seizure of $368,000 in
cash from Ramirez; the testimony that the logbooks showed Mendoza-
Medina had been driving with Ramirez since early October; Mendoza-
Medina’s confession that Ramirez asked him to transport the drugs
23 United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999). 24 United States v. Kimble, 719 F.2d 1253, 1257 (5th Cir. 1983); Bourjaily v. United States, 483 U.S. 171 (1987). These “subject to” admissions have been constrained by insisting upon a preliminary (pretrial) showing by the government of its proof of a conspiracy independent of the proffered statement. 25 Fed. R. Evid. 801(d)(2).
15 seized on December 21; and the evidence concerning Ramirez’s
involvement in the loading of the freight on December 20.
This evidence, when combined with the proffered statement that
Mendoza-Medina was along on the October trip when the money was
“found,” is sufficient to conclude by a preponderance of the
evidence that a conspiracy existed between Mendoza-Medina and
Ramirez in October when Ramirez made the challenged statements. A
preponderance of the evidence also supports that Ramirez made the
statements during and in furtherance of the conspiracy, as he
likely made them to conceal the source of the $368,000 and assure
that the conspiracy could continue.26 Given this evidence, we
cannot conclude that the district court’s admission of the
statements under Rule 801(d)(2)(E) was an abuse of discretion.
Neither was it an abuse of discretion to admit the evidence
under Rule 404(b).27 The key issue in Mendoza-Medina’s trial was
his knowledge of the drugs seized from the truck he was driving.
At the time of the seizure, Mendoza-Medina testified that Ramirez
asked him to transport the drugs to Dallas in exchange for $3000.
That Ramirez had been found with $368,000 in cash immediately
26 See United States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000) (“Efforts to conceal an ongoing conspiracy obviously can further the conspiracy by assuring that the conspirators will not be revealed and the conspiracy brought to an end.”). 27 See United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir. 1998) (stating that evidence is admissible under Rule 404(b) if it is “relevant to an issue other than the defendant’s character .... [and] possess[es] probative value that is not substantially outweighed by its undue prejudice”).
16 following a trip with Mendoza-Medina that involved a stop in Dallas
suggests that Mendoza-Medina had been involved in drug trafficking
before, and therefore probably knew of the drugs on December 21.
Because this evidence went towards his knowledge of the drugs, it
was admissible under Rule 404(b).
On appeal, Mendoza-Medina raises a further objection to
Warzecha’s testimony regarding Ramirez’s statement to agents at the
time of the cash seizure. Mendoza-Medina argues that even if
Ramirez’s statements are admissible under Rule 801(d)(2)(E), they
are still inadmissible hearsay because Ramirez did not make the
statements to Warzecha, but rather to other officers. Because
Mendoza-Medina did not raise this objection at trial, we review the
admission of the evidence for plain error.28
Warzecha’s testimony regarding statements Ramirez made to
other officers does appear to be double hearsay even if the
statements themselves are admissible as those of a coconspirator
under Rule 801(d)(2)(E). That Warzecha was presented as an expert
did not automatically permit him to testify about Ramirez’s
statements to other officers and avoid the hearsay rule.29 However,
in reviewing admission of this evidence only for plain error, it is
28 See United States v. Greenwood, 974 F.2d 1449, 1463 (5th Cir. 1992). 29 See United States v. Cantu, 167 F.3d 198, 205-06 (5th Cir. 1999) (discussing how allowing law enforcement officers to testify as experts because of their involvement in an investigation would circumvent the hearsay rule and raise serious concerns).
17 within our discretion to correct an error if we conclude that,
“when examined in the context of the entire case, it is so obvious
and substantial that failure to notice and correct it would affect
the fairness, integrity, or public reputation of judicial
proceedings.”30 Because the Government could have elicited the same
testimony from the interviewing agent, and defense counsel likely
preferred Agent Warzecha instead, the admission of Warzecha’s
testimony recounting Ramirez’s statements did not affect the
fairness, integrity, or public reputation of this proceeding and we
decline to find plain error.
C
We turn next to Mendoza-Medina’s challenge to the district
court’s deliberate ignorance instruction. Mendoza-Medina objected
to the instruction at trial and argues that it was reversible error
because the evidence did not raise the issue of deliberate
ignorance. “The standard of review of a defendant’s claim that a
jury instruction was inappropriate is whether the court’s charge,
as a whole, is a correct statement of the law and whether it
clearly instructs jurors as to the principles of law applicable to
the factual issues confronting them.”31 The trial court’s charge
must not only be “legally accurate, but also factually
30 Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 275 (5th Cir. 1998) (internal quotation marks and brackets omitted). 31 United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990) (italics and internal quotation marks omitted).
18 supportable”; “the court may not instruct the jury on a charge that
is not supported by evidence.”32 In assessing whether the evidence
sufficiently supports the district court’s charge, we “view the
evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the Government.”33 Any
error is subject to harmless error review.34
We have often cautioned against the use of the deliberate
ignorance instruction.35 “Because the instruction permits a jury
to convict a defendant without a finding that the defendant was
actually aware of the existence of illegal conduct, the deliberate
ignorance instruction poses the risk that a jury might convict the
defendant on a lesser negligence standard – the defendant should
have been aware of the illegal conduct.”36 We have established a
two-pronged test for determining when the evidence supports a
deliberate ignorance instruction:
The circumstances which will support the deliberate ignorance instruction are rare. The evidence at trial must raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence
32 Id. (internal quotation marks omitted). 33 Id. 34 See United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993). 35 See, e.g., United States v. Bieganowski, 313 F.3d 264, 289 (5th Cir. 2002); United States v. Peterson, 244 F.3d 385, 395 (5th Cir. 2001). 36 Lara-Velasquez, 919 F.2d at 951.
19 of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct.37
The sine qua non of deliberate ignorance “is the conscious action
of the defendant – the defendant consciously attempted to escape
confirmation of conditions or events he strongly suspected to
exist.”38 Where “the choice is simply between a version of the
facts in which the defendant had actual knowledge, and one in which
he was no more than negligent or stupid, the deliberate ignorance
instruction is inappropriate.”39
Neither the Government nor the defense requested a deliberate
ignorance instruction, but the district court sua sponte gave one
over the objection of Mendoza-Medina. The trial court overruled
the objection, concluding that the evidence supported the charge.
It explained that according to its reading of United States v.
Wells the instruction is appropriate whenever the evidence shows
both “a subjective awareness of a high probability of the existence
of illegal conduct” and “some attempt by the defendant, whether it
is direct or indirect, to deny the knowledge of the illegal
activity or conduct.”40
37 Id. 38 Id. 39 Id. 40 The district court cited United States v. Wells, 262 F.3d 455, 465-66 (5th Cir. 2001), although it incorrectly referred to the case as United States v. Scott.
20 The district court misstated the test; the second prong is not
that the defendant denied knowledge of the illegal activity, but
rather “purposeful contrivance to avoid learning of the illegal
conduct.”41
The Government argues that there was evidence of actual
knowledge, specifically Mendoza-Medina’s admission that Ramirez
offered him an opportunity to transport contraband with a
legitimate load. The Government also asserts that the
circumstances surrounding the seizure raised an inference that
Mendoza-Medina had a subjective awareness of a high probability of
the existence of illegal conduct. It notes that Mendoza-Medina was
on the Ohio trip during which Ramirez “found” the large stash of
cash outside a freight forwarding company, and points to the fact
that Mendoza-Medina picked up his load at a gas station well away
from the freight forwarding warehouse, more than two hours after it
was loaded.
As for the second element, that the defendant purposely
contrived to avoid learning of the illegal conduct, the Government
cites Mendoza-Medina’s testimony that it was not unusual for a
driver to pick up a load at a location away from the loading dock
some hours later and that it was not unusual for drivers to neglect
to fill out their logbooks. The Government further points to the
testimony of Mendoza-Medina’s wife, who testified that Mendoza-
41 Id. at 465 (internal quotation marks omitted).
21 Medina told her he was surprised to be arrested at the checkpoint
and that he was unaware of why he was being held. The Government
suggests this was a “purposeful contrivance to avoid learning of
the illegal conduct,” or, at a minimum, “an attempt to create a
charade of innocence.”
We conclude that the district court erred in giving the
deliberate ignorance instruction. Mendoza-Medina correctly argues
that the evidence either indicates that he knew about the drugs or
that he did not, and does not suggest that he was deliberately
ignorant to the scheme. We have explained that “the district court
should not instruct the jury on deliberate ignorance when the
evidence raises only the inferences that the defendant had actual
knowledge or no knowledge at all of the facts in question.”42
Although in some cases evidence of actual knowledge can be
interpreted as evidence of a subjective awareness of a high
probability of the existence of illegal conduct,43 in this case,
that does not hold true. Here, the evidence of actual knowledge
was Mendoza-Medina’s admission that he knew he was carrying drugs
and the inference that he had done it before on the trip to Ohio
with Ramirez. Unlike the case where the evidence supports an
inference of either actual knowledge or a subjective awareness,
42 Lara-Velasquez, 919 F.2d at 951. 43 Id. at 952.
22 such as nervousness upon being stopped by authorities,44 an
admission indicates either that Mendoza-Medina had actual knowledge
or no knowledge at all, if the statement was coerced. The other
evidence cited by the Government, such as the fact that the truck
was not picked up at the loading dock, is not sufficient to give
rise to an inference that the defendant was subjectively aware of
a high probability of the existence of the illegal conduct.
Neither does the evidence support an inference that Mendoza-
Medina purposely contrived to avoid learning of the illegal
conduct. The only evidence supporting that inference is that
Mendoza-Medina picked up the truck away from the loading dock a
couple of hours after it was loaded. As there are numerous
innocent explanations for this, it can hardly support an inference
that he “purposely contrived to avoid learning” of the drugs. As
for his claims to his wife that he was surprised to be arrested and
did not know what was going on, that also does not support such an
inference. It merely indicates that he was either truly unaware of
the drugs or was pretending that he was innocent.
Relying on United States v. Boutte,45 the Government argues
that even if we conclude no evidence supported the instruction, it
was harmless error. In Boutte we reasoned that “where there is no
evidence of conscious ignorance, a deliberate ignorance instruction
44 See id. at 952-53. 45 13 F.3d 855 (5th Cir. 1994).
23 is surplusage and thus does not create the risk of prejudice.”46
We decline to adopt the Government’s reading of Boutte to establish
a bright-line rule that whenever the evidence does not support the
deliberate ignorance instruction there can be no harm. If the only
time it is error to give the instruction is when the evidence does
not support it, but when there is no evidence to support giving the
instruction it is always harmless to do so, then giving the
instruction can never be reversible error. We cannot assume that
in every instance in which the evidence does not support the
deliberate ignorance instruction the jury will disregard it. We
have repeatedly stated that the instruction should rarely be given
because it possesses a danger of confusing the jury.47
However, we have also stated that “an error in giving the
deliberate ignorance instruction is ‘harmless where there is
substantial evidence of actual knowledge.’”48 Mendoza-Medina
confessed and his confession is corroborated by the evidence
surrounding the Ohio trip. The record contains substantial
evidence of Mendoza-Medina’s actual knowledge, rendering the
deliberate ignorance instruction harmless error.
46 Id. at 859 (internal quotation marks omitted). 47 See United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993). 48 United States v. Saucedo-Munoz, 307 F.3d 344, 349 n.5 (5th Cir. 2002) (quoting United States v. Wells, 262 F.3d 455, 466 (5th Cir. 2001)).
24 III
The district court erred in admitting Agent Warzecha’s
testimony and in giving a deliberate ignorance instruction where it
was not supported by the evidence. However, given the substantial
evidence of Mendoza-Medina’s guilt, we conclude that these errors
were harmless, and AFFIRM the judgment of conviction.