United States v. 2005-10-24 | 03-10585 | USA VHEREDIA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-10585
Plaintiff-Appellee, D.C. No.
v. CR-02-00773-JMR-  JJMCARMEN DENISE HEREDIA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
December 7, 2004—San Francisco, California
Filed October 24, 2005
Before: Alex Kozinski, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge Kozinski
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COUNSEL
Wanda K. Kay, Tucson, Arizona, for the appellant.
Nathan D. Leonardo (argued) and Jeffrey H. Jacobson, Assis-
tant U.S. Attorneys, Tucson, Arizona, for the appellee.
OPINION
BYBEE, Circuit Judge:
Carmen Heredia (“Heredia”) was convicted of knowingly
possessing contraband with intent to distribute in violation of
21 U.S.C. § 841(a) (2000), after the district court instructed
the jury that the “knowingly” element is satisfied if she was
deliberately ignorant of the truth. The issue on appeal is
whether the evidence was sufficient to warrant the “deliberate
ignorance” or “Jewell” jury instruction. See United States v.
Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). After the jury
returned the guilty verdict, Heredia moved for a new trial on
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the grounds that the evidence did not warrant the Jewell
instruction. The district court denied the motion, and Heredia
now appeals.
We find that the government did not provide sufficient evi-
dence to warrant the deliberate ignorance instruction. We
therefore reverse the district court’s denial of Heredia’s
motion for a new trial, and remand.
I. BACKGROUND
Heredia was driving from Nogales, Arizona, to Tucson
when she was stopped at a Border Patrol checkpoint. In the
car with her was her mother, Raquel Moreno; her aunt,
Beatriz Moreno; and two of Heredia’s young children. The
Border Patrol agent noticed a perfume scent emanating from
the car, and referred the car to the secondary inspection area.
There, Heredia was asked to open the trunk. When neither the
ignition key nor the interior trunk release button worked, an
agent removed the back seat and saw two suspicious bundles.
A complete search of the car produced twelve bundles, yield-
ing 349.2 pounds of marijuana. The bundles were covered
with dryer sheets, a method for concealing the odor of mari-
juana, that produces a strong detergent scent in the car. Here-
dia was arrested and charged with knowingly possessing
contraband with intent to distribute, in violation of 21 U.S.C.
§ 841(a).
The facts leading up to Heredia driving the car to Tucson
are subject to much dispute by the witnesses. Heredia testified
at trial that she had visited Nogales, Arizona to attend a
funeral and had stayed at the home of an aunt, Belia Alva-
rado. She left her aunt’s home early in the morning and
returned to Tucson with her husband and children. After her
husband went to work, and her oldest child went to school,
Heredia’s mother called and asked if Heredia would accom-
pany her back to Nogales for a dentist’s appointment. Heredia
gathered her two youngest children and, along with her
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mother, rode a public shuttle to Nogales. Belia picked up the
group at the shuttle stop in Nogales and took them back to her
house. From there, Heredia’s mother borrowed an automobile
owned by Belia, drove it to the dentist’s office, and returned
from the office with her sister, Heredia’s aunt, Beatriz
Moreno. While Heredia, her children, her mother, and Beatriz
waited at the house, Belia took the car on an errand, and
returned a couple hours later.
Heredia told a DEA agent that as she prepared to take
Belia’s car to Tucson, Heredia noticed a strong detergent odor
in the car. When she asked Belia about it, Belia claimed that
she had spilled “Downey” in the car a few days earlier. The
DEA agent further testified that Heredia admitted to finding
the explanation implausible, but nonetheless elected to drive
the car to Tucson. Heredia later denied ever smelling the
Downey or discussing it with her aunt.
Heredia further testified that as they drove along the inter-
state, she noticed that her aunt and mother were acting
strangely: they both appeared nervous, her aunt was drinking
alcohol, and her mother was smoking more than usual. When
Heredia asked her mother to stop smoking because one of her
children had bronchitis, her mother put out the cigarette,
immediately sprayed air freshener in the car, and opened the
window. Heredia admitted at trial that at that point, she began
to suspect that something was wrong. She further admitted
that this suspicion was informed by the fact that her mother
and aunt seemed to have undue amounts of cash on hand, and
that her mother’s boyfriend abused drugs. Heredia testified
that the thought occurred to her that there might be drugs in
the car, and that she considered turning around. By the time
that her suspicion rose to that level, however, she had passed
the last interstate exit before the checkpoint.
Heredia’s mother and aunts also testified at trial, likewise
denying knowledge of the marijuana. Their testimony not
only contradicted Heredia’s, but contradicted each other’s
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and, often times, was internally inconsistent. Belia claimed
that Heredia had left Belia’s house with her husband, and that
at that point the trunk of the car was empty, thus implying that
Heredia and/or her husband might have placed the marijuana
in the car. Belia denied spilling detergent in the car. Beatriz
gave testimony that directly contradicted her earlier state-
ments to a Drug Enforcement Administration agent concern-
ing whether Heredia’s husband was present and the sequence
in which Beatriz and Heredia had each arrived at Belia’s
house. Heredia’s mother likewise gave multiple statements
concerning the persons present and the sequence in which
they arrived that directly contradicted previous interviews.
Collectively, the testimony offered by Beatriz, Belia, and
Heredia’s mother, Raquel, suggested that Heredia or her hus-
band could have been responsible for the marijuana in the
vehicle.
The district court instructed the jury on the government’s
alternative theories: that Heredia either knew the marijuana
was in the car from the outset, or that she was deliberately
ignorant. The court gave the following deliberate ignorance or
Jewell instruction:
You may find that the defendant acted knowingly if
you find beyond a reasonable doubt that the defen-
dant was aware of a high probability that drugs were
in the vehicle driven by the defendant and deliber-
ately avoided learning the truth. You may not find
such knowledge, however, if you find that the defen-
dant actually believed that no drugs were in the vehi-
cle driven by the defendant, or if you find that the
defendant was simply careless.
See NINTH CIR. MODEL JURY INSTRUCTIONS 5.7. Heredia timely
objected to the instruction. After the jury returned a guilty
verdict, Heredia filed a motion for a new trial on the grounds
that the evidence did not warrant the deliberate ignorance
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instruction. The district court denied the motion in a minute
order, and Heredia appealed.
II. STANDARD OF REVIEW
The court reviews a district court’s decision to give a delib-
erate ignorance instruction de novo. United States v. Shannon,
137 F.3d 1112, 1117 (9th Cir. 1998).
III. ANALYSIS
In Jewell, we first considered whether one can “knowingly”
possess contraband without having actual knowledge of it.
Jewell was approached by a stranger in Tijuana and offered
money to drive across the border in a vehicle that Jewell knew
contained a secret compartment. Jewell, 532 F.2d at 699 n.1.
Although the government presented only circumstantial evi-
dence that Jewell knew that the compartment contained mari-
juana, it argued that Jewell deliberately avoided obtaining
actual knowledge in order to avoid responsibility. Id. at 699.
Noting that “the rule that wilful blindness is equivalent to
knowledge is essential, and is found throughout the criminal
law,” we held that evidence of deliberate ignorance is suffi-
cient to meet the knowledge requirement of 21 U.S.C.
§ 841(a). Id. at 700 n.7 (citing G. WILLIAMS, CRIMINAL LAW:
THE GENERAL PART, § 57 at 159 (2d ed. 1961)). We observed
that interpreting § 841(a) to require actual knowledge would
make deliberate ignorance a defense, and that “[i]t cannot be
doubted that those who traffic in drugs would make the most
of it.” Id. at 703. We observed that deliberate ignorance or
willful blindness differ from positive knowledge “only so far
as necessary to encompass a calculated effort to avoid the
sanctions of the statute while violating its substance.” Id. at
704. Accordingly, we held that the government’s evidence of
deliberate ignorance was sufficient to meet the knowledge
requirement of § 841(a), and affirmed the conviction. Id. at
704.
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[1] In the years since we decided Jewell, we have restricted
the circumstances under which we will permit the instruction
to be issued. We have warned that the instruction is “rarely
appropriate,” and should be given only when the government
presents “specific evidence” that the defendant “(1) actually
suspected that he or she might be involved in criminal activ-
ity, (2) deliberately avoided taking steps to confirm or deny
those suspicions, and (3) did so in order to provide himself or
herself with a defense in the event of prosecution.” United
States v. Baron, 94 F.3d 1312, 1318 n.3 (9th Cir. 1996). It is
not enough that the defendant “was mistaken, recklessly dis-
regarded the truth or negligently failed to inquire.” United
States v. Kelm, 827 F.2d 1319, 1324 (9th Cir. 1987) (citing
United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d
1096, 1098 (9th Cir. 1985)). The instruction should therefore
“be rarely given because of the risk that the jury will convict
on a standard of negligence: that the defendant should have
known the conduct was illegal.” United States v. Alvarado,
838 F.2d 311, 314 (9th Cir. 1988) (citing United States v.
Garzon, 688 F.2d 607 (9th Cir. 1982)). The purpose of the
Jewell instruction is to correct for those cases of “willful
blindness,” where the defendant “suspects a fact, realizes its
probability, but refrains from obtaining final confirmation in
order to be able to deny knowledge if apprehended.” United
States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992). See also
Kelm, 827 F.2d at 1324.
The government may not request a Jewell instruction to
close the gaps in its case. “[A] Jewell instruction is not appro-
priate where the only evidence alerting a defendant to the high
probability of criminal activity is direct evidence of the ille-
gality itself.” United States v. Sanchez-Robles, 927 F.2d 1070,
1074 (9th Cir. 1991). In Sanchez-Robles, the odor of mari-
juana was so strong in the van that the inspectors had to take
fresh air breaks, yet the defendant denied that she knew what
marijuana smelled like. We held that it was error to issue a
Jewell instruction because either the defendant knew what the
odor was, or she did not. If she did, the government had direct
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evidence that she was knowingly in possession of the mari-
juana; if not, then she had no reason to be suspicious. Id. at
1076. Thus, the government must identify its theory or theo-
ries of the case: if the government’s evidence supports only
actual knowledge and not deliberate ignorance, then it may
not obtain a Jewell instruction. Id. at 1074-75; United States
v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988). The
Jewell instruction is proper only when the government pro-
vides “specific evidence” that the defendant was deliberately
ignorant of the criminal nature of the activity in which he was
involved. Mapelli, 971 F.2d at 286.
In this case the government had it both ways. It argued, in
effect, that Heredia knew the marijuana was in the trunk, and
that, even if Heredia did not know, she nevertheless suspected
there was marijuana in the car and deliberately ignored that
fact. The fact that the government argued its case in the alter-
native affects the way that we approach this appeal. We have
no way of knowing whether the jury convicted Heredia on the
basis of actual knowledge or deliberate ignorance; nor do we
know whether the jury even agreed on the facts, or only on
the result. Contrary to the dissent’s argument, Dissent at
14554-55, we cannot assume that Heredia would have been
convicted absent a deliberate ignorance instruction. Accord-
ingly, if the Jewell instruction was not proper, we must
reverse even if we thought there might otherwise be sufficient
evidence to sustain a conviction on the theory that Heredia
actually knew of the marijuana. Since Heredia only chal-
lenges the issuing of the Jewell instruction, we need not con-
cern ourselves with the confusing, contradictory and self-
serving evidence received from Heredia’s mother and aunts
suggesting that Heredia and her husband had access to the car
and must have put the marijuana in the trunk. This evidence
points only to actual knowledge and cannot support a Jewell
instruction.
We thus proceed to consider whether there is specific evi-
dence that Heredia actually suspected that she was involved
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in criminal activity and, if so, that she deliberately avoided
taking steps to confirm her suspicions in order to provide her-
self with a defense.
A
The government emphasizes two moments at which the cir-
cumstances were sufficient to give rise to an actual suspicion
on Heredia’s part that she was involved in criminal activity.
This first occurred when she initially picked up her aunt’s car,
noticed the detergent smell, and after asking her aunt about it,
admitted to not believing the explanation. The second is Here-
dia’s own admission that it dawned on her just before she
reached the checkpoint that something funny was going on
and that she might be driving a car containing illegal drugs.
[2] The second of these points is sufficient to satisfy the
first prong of the Jewell test, that Heredia “actually suspected
that . . . she might be involved in criminal activity.” Baron,
94 F.3d at 1318 n.3. Heredia testified that she “felt something
was wrong” given the behavior of her aunt and mother. Later
in Heredia’s testimony, when repeatedly asked about whether
she suspected that drugs were in the car while driving down
the interstate, she consistently answered in the affirmative.
Her admission to actually suspecting that drugs were in the
car is clearly sufficient to satisfy the first prong of the Jewell
test.
We must nevertheless consider whether Heredia’s noticing
the detergent smell was sufficient to constitute actual suspi-
cion, because the timing of when she suspected she might be
involved in criminal activity bears on our subsequent analysis:
the moment at which the evidence suggests that she may have
actually suspected criminal activity is crucial to determining
whether the reason that she deliberately avoided taking steps
to confirm or deny her suspicion was to provide herself with
a defense.1 The basis of the government’s case on this point
1Although Heredia denied noticing the Downey smell or asking her aunt
about it, we accept for purposes of this appeal those facts that would sup-
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is the testimony of DEA agent Travis Birney. He testified at
trial that after Heredia was detained at the border patrol
checkpoint, he picked her up and brought her to the DEA
office. There, he questioned her about the trip, and she
explained that she smelled the detergent, asked her aunt about
it, and did not believe the explanation.
We have previously held that mere odors are insufficient to
place a defendant on notice that she might be involved in
criminal activity. In Baron, 94 F.3d at 1312, Baron was
approached by an acquaintance named Salgado who tapped
on his window in the middle of the night and asked him to
drive his vehicle from Los Angeles to Phoenix in exchange
for $200 and a return plane ticket. Salgado proffered the inno-
cent explanation that he had to fly to Phoenix unexpectedly
for a job interview. Baron agreed to make the drive, and he
testified that he found nothing out of the ordinary about the
vehicle, except that it emitted a pronounced cherry scent. The
government emphasized Baron’s failure to investigate the
source of the scent as proof of his deliberate ignorance. Id. at
1317-18.
We held that the district court committed plain error in
issuing the Jewell instruction. We found that the government
had not provided sufficient evidence that the defendant sus-
pected that Salgado was involved in drug trafficking; accord-
ingly, there was no specific evidence that Baron “ ‘ha[d] his
suspicion aroused.’ ” Id. at 1318 (quoting United States v.
Aguilar, 80 F.3d 329, 331 (9th Cir. 1996)). The cherry scent,
combined with the circumstances under which Salgado asked
Baron to make the drive, suggested “at most . . . that Baron
was negligent or reckless in disregarding the risk that the car
contained drugs.” Id. Although the circumstances in Baron
port the government’s theory. See, e.g., United States v. Zavala-Mendez,
411 F.3d 1116, 1118 (9th Cir. 2005); United States v. Bahena-Cardenas,
411 F.3d 1067, 1073 (9th Cir. 2005).
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were suspect from the onset, they did not constitute sufficient
evidence that the defendant actually suspected criminal activ-
ity. See also Sanchez-Robles, 927 F.2d at 1075-76.
[3] The testimony at trial suggested that Heredia recognized
the detergent smell. There is no evidence that she knew that
such odors can be used to mask the odor of marijuana.
Although such odors might alert agents, inspectors and police
who have been trained to detect them, ordinary citizens will
not be on alert every time they smell detergent. “[A] strong
odor in a [car], without more, does not normally arouse suspi-
cions of illegality.” Id. at 1075.
In addition, our cases have looked carefully to the defen-
dant’s relationship to the offeror. In what we have referred to
as “a pattern common in these cases,” the defendant is
approached by a stranger or mere acquaintance under circum-
stances that warrant being cautious and suspicious. See Jew-
ell, 532 F.2d at 699 n.1; Sanchez-Robles, 927 F.2d at 1074
(“Cases following Jewell show a similar pattern of suspicious
circumstances . . . .” ). See also United States v. Asuncion,
973 F.2d 769 (9th Cir. 1992) (acquaintance offers defendant
cash and a plane ticket in exchange for transporting two boxes
between Hawaii and the Philippines); Perez-Padilla, 846 F.2d
at 1182 (a stranger offers defendant cash to carry plastic bag-
gie filled with an unidentified substance in his jacket to
Tijuana); United States v. McAllister, 747 F.2d 1273 (9th Cir.
1984) (stranger known to defendant only by first name offers
small amount of cash to drive truck through closed scales to
avoid border control checkpoint); United States v. Suttiswad,
696 F.2d 645 (9th Cir. 1982) (stranger gives defendant air-
plane ticket and substantial gifts to transport suitcase across
border); Pacific Hide & Depot, Inc., 768 F.2d at 1098 (citing
additional cases). Even more obviously, though less com-
monly, the defendant is approached by an individual whom
the defendant knows to be a drug dealer. See, e.g., United
States v. Nicholson, 677 F.2d 706, 707-08 (9th Cir. 1982).
Such circumstances “put any reasonable person on notice that
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there [is] a ‘high probability’ that the undisclosed venture [is]
illegal.” Id. at 710-11.
[4] Heredia’s relationship with her putative offeror(s)
makes it even less likely that her suspicion would be aroused
by a common household smell, a smell notable only because
she allegedly detected it in the car, not in the house. Heredia
allegedly noticed the detergent odor in a car owned by her
own aunt. When she commented on it, her aunt answered that
she had spilled Downey in the car. Although the testimony
suggests that Heredia did not believe the explanation, we
think the detergent smell in a vehicle owned by her aunt was
insufficient to put Heredia on notice that there was a “high
probability” that her trip was illegal. Id. at 711. Furthermore,
although Heredia admitted to worrying that her mother and
aunt had undue cash on hand, and that her mother’s boyfriend
abused drugs, there was no evidence that Heredia knew her
aunt, mother, or mother’s boyfriend were involved in drug
trafficking or that the detergent could be used to mask the
odor of marijuana.2
[5] If a cherry scent in a vehicle was insufficient to put
Baron on notice that he was ferrying drugs for an acquaint-
ance, it was certainly insufficient when Heredia allegedly
noticed a perfume scent in her aunt’s car that her aunt attri-
2The dissent offers conjecture upon conjecture about what the jury
might or might not have believed. See, e.g., Dissent at 14550-51. But the
government built its case for a Jewell instruction entirely on the credibility
of Heredia’s statements. The reason the district court erred in giving the
Jewell instruction is not that the facts offered by the government in sup-
port of the instruction were not credible, but that they were insufficient.
The exercise the dissent engages in is not designed to tell us whether
Heredia was, in fact, ignorant of her cargo, but avoided acting on her sus-
picions to provide herself with a defense. Rather, the dissent’s conjecture
leads to one overriding point — that Heredia “actually knew” she was fer-
rying marijuana. See, e.g., Dissent at 14550, 14551, 14554-55. If the dis-
sent is correct on that point, the government was not entitled to a Jewell
instruction. See Sanchez-Robles, 927 F.2d at 1074-76.
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buted to spilled detergent. In such circumstances, something
more than a detergent smell is required to prove that Heredia
actually suspected that she was involved in criminal activity.
On this record, Heredia’s alleged “suspicion” was hardly
more than a fleeting concern, something more than a random
thought but less than a hunch.
B
By her own admission, Heredia actually suspected she
might be involved in criminal activity, but the record does not
show that she deliberately avoided confirming her suspicion
in order to provide herself with a defense. Heredia testified
that she began worrying that she might be involved in crimi-
nal activity only after she had passed the last interstate exit
prior to the checkpoint, and that it was therefore too late to
turn back. This is the only evidence in the record on this ques-
tion; the government failed to provide specific evidence that
she actually suspected criminal activity prior to this point.
Instead, the government builds its case upon Heredia’s testi-
mony: it suggests that she should have pulled off onto the
shoulder of the interstate or informed the guards at the check
point of her suspicions, and that her failure to take these steps
constitutes deliberate ignorance.
In the most literal sense it is true that Heredia could have
confirmed or denied her suspicions by pulling off on the side
of the interstate and inspecting the car. It is literally true, for
example, that Heredia intentionally did not pull over on the
shoulder of the interstate. The government has not provided
“specific evidence,” however, that she failed to stop on the
shoulder in order to provide herself with a defense, as
opposed to not stopping because it was not safe.3 We doubt
3We note that district court did not instruct the jury that Heredia must
have deliberately avoided learning the truth “in order to provide . . . her-
self with a defense in the event of prosecution.” Baron, 94 F.3d at 1318
n.3. The district court relied on the NINTH CIR. MODEL JURY INSTRUCTION
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that Jewell demands an unsafe act in order to avoid the impli-
cation that Heredia deliberately avoided learning the truth.
Permitting a Jewell instruction in this case would ignore an
essential characteristic of the cases in which we have permit-
ted such instructions. The alleged suspicion in Jewell itself
arose almost immediately. The defendant was approached by
a complete stranger who first offered him marijuana and then
offered to pay the defendant to drive the car across the border.
Jewell, 532 F.2d at 699 n.1. The defendant’s friend testified
that “it didn’t sound right” from the beginning. Id. at 699 n.2.
Before driving the vehicle, the defendant checked the car
over; although he located the secret compartment, he did not
try to determine its contents, assuming that the border patrol
would not find it. Id. The defendant was therefore aware of
all the suspect facts before commencing the journey. At the
time that his suspicion arose, the defendant had the reasonable
opportunity to abstain from the activity that he suspected was
criminal. He declined that opportunity not because he was
constrained by circumstance, but because he freely and con-
sciously chose to take the risk of liability, believing that his
failure to confirm or deny his suspicion would insulate him
from liability.
[6] Subsequent cases in which we affirmed the use of the
Jewell instruction have similarly included a reasonable oppor-
tunity on the part of the defendants to reverse or abandon their
course of conduct once the suspicion had formed. Whether the
5.7, which omits this element in the instruction, although it notes Baron’s
three-pronged test in the commentary. The element is well-established in
our cases, see Kelm, 827 F.2d at 1324; Garzon, 688 F.2d at 609; Pacific
Hide & Fur, 768 F.2d at 1098; Jewell, 532 F.2d at 699, although it has
never been well-developed. It may well be that in the typical case meriting
a Jewell instruction, it is obvious that the defendant deliberately avoided
confirming his suspicions in order to create plausible deniability. This case
demonstrates why the element is important and why our model instruc-
tions should reflect the three elements described in Baron.
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drug couriers traveled by air, see, e.g., Asuncion, 973 F.2d
769; Suttiswad, 696 F.2d 645; automobile, see, e.g., United
States v. McAllister, 747 F.2d 1273; United States v.
Murrieta-Bejarano, 552 F.2d 1323 (9th Cir. 1977); or by foot,
see, e.g., Perez-Padilla, 846 F.2d 1182; United States v.
Lopez-Martinez, 725 F.2d 471 (9th Cir. 1984), the circum-
stances that gave rise to the suspicion emerged sufficiently
early in the episode that the defendant had the opportunity to
change his course of conduct.
[7] According to the record, Heredia only became suspi-
cious of criminal activity quite late in her return to Tucson,
and shortly before she arrived at the checkpoint. She did not
have the opportunity to reverse her course of conduct or to
decline to take the trip altogether in the face of her suspicion.
By the government’s own theory of the case, Heredia had two
courses of conduct available to her: abandon her aunt’s vehi-
cle on the side of the interstate with another aunt, her mother,
and her two infant children either stranded inside or walking
with her along the interstate shoulder; or voluntarily report to
the Border Patrol agent that although she could now know for
sure, she might have just unwittingly participated in a crimi-
nal act, and that if she had done so, she had been framed by
her own mother and aunt, who presently sat beside her. Nei-
ther course of conduct suggested by the government consti-
tutes a reasonable opportunity to abstain from or discontinue
the suspected criminal activity such as to warrant a Jewell
instruction. That is, evidence that Heredia deliberately
declined to take either of the above actions does not suggest
that she declined to do so for the purpose of providing herself
with a defense in the event of prosecution.
[8] We have consistently disapproved of issuing the Jewell
instruction where the government failed to provide specific
evidence of deliberate ignorance. See, e.g., Aguilar, 80 F.3d
at 332 (Jewell instruction inappropriate where government
concedes that it provided no evidence of willful blindness);
Pacific Hide & Fur Depot, Inc., 768 F.2d at 1098 (noting that
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government had failed to provide specific evidence of deliber-
ate ignorance, and absent such knowledge, “the jury might
impermissibly infer guilty knowledge on the basis of mere
negligence without proof of deliberate avoidance.”). We do
not here hold that the government’s evidence was unbeliev-
able, but instead, that it was insufficient to merit a Jewell
instruction. It is possible that Heredia lied in her testimony,
and that the jury could be so persuaded, but arguing that a
defendant’s testimony is not credible is not the same as pro-
viding “specific evidence” to support a Jewell instruction. See
Mapelli, 971 F.2d at 286.
In sum, we decline to impose upon a defendant in these cir-
cumstances the legal duty either to place her family in great
physical danger or to voluntarily report her suspicions in
order to avoid a Jewell instruction. We thus hold what our
cases have long suggested, that a defendant has not deliber-
ately avoided the truth in order to create a defense unless, at
the time the actual suspicion arises, the defendant has the rea-
sonable opportunity to abstain from, or discontinue, the sus-
pected criminal activity. Short of imposing strict liability on
persons inadvertently carrying drugs, there is nothing “ab-
surd,” Dissent at 14554, in such a requirement. The jury
should not be permitted to find a defendant guilty of knowing
possession of contraband where the defendant lacked the rea-
sonable opportunity to confirm or deny her suspicion. Indeed,
under these circumstances, it is not clear that Heredia’s failure
to verify her suspicions was even negligence or a reckless dis-
regard for the facts, neither of which is sufficient to warrant
a Jewell instruction. Kelm, 827 F.2d at 1324. Accordingly, we
conclude that the government failed to provide specific evi-
dence that Heredia deliberately avoided taking steps to con-
firm or deny her suspicion in order to provide herself with a
defense in the event of prosecution. The district court should
not have issued the Jewell instruction, and the error is not
harmless. See Sanchez-Robles, 927 F.2d at 1075.
[9] The dissent argues that any error in offering the Jewell
instruction was “entirely harmless.” because “[t]he evidence
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that Heredia actually knew about the drugs in the car was
overwhelming.” Dissent at 14554. There is the rub. We quite
disagree that the evidence was “overwhelming” that Heredia
“actually knew” about the marijuana. That is precisely why
the government requested a Jewell instruction: because the
government had insufficient evidence to prove “overwhelm-
ing[ly]” who put the marijuana in the trunk or who else knew
about it. If, as the dissent postulates, this was “a family busi-
ness” and “[i]t defies credibility to suggest Heredia was
entrusted with 350 pounds of marijuana by a close relative,
without being told what she was transporting,” Dissent at
14555, then the government should have tried this case
straight up. The dissent’s theory will surely get the govern-
ment to the jury; but it will not get the government a Jewell
instruction. The error was far from harmless.
As we previously observed, there is a great danger in per-
mitting a jury to convict on the basis of deliberate ignorance
in the absence of specific evidence: “The effect of a Jewell
instruction in a case in which no facts point to deliberate igno-
rance may be to create a presumption of guilt.” Murrieta-
Bejarano, 552 F.2d at 1325. Where the government fails to
provide specific evidence of each prong, but the district court
nonetheless issues the instruction, a jury “might infer that the
defendant possessed ‘knowledge’ when it would not other-
wise have done so.” Id. If we were to permit the issuance of
the Jewell instruction absent specific evidence that the defen-
dant ignored the truth in order to provide herself with a
defense, the deliberate ignorance doctrine in this circuit would
slide perilously close to negligence or even strict liability.
IV. CONCLUSION
We conclude that the government failed to provide specific
evidence that meets the requirements for a deliberate igno-
rance jury instruction, and that the district court therefore
erred in giving the instruction. Heredia’s conviction is accord-
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ingly reversed and this case is remanded to the district court
for proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
KOZINSKI, Circuit Judge, dissenting:
If ever there was a case where a Jewell instruction was
proper, this is surely it. This is a much stronger case than Jew-
ell itself, or any of our other deliberate ignorance cases,
because we have here what we almost never get—defendant’s
admission that her suspicions were aroused and eventually
matured into a belief that there may be drugs in the car. The
jury could easily have found that defendant suspected the
drugs were there and should have discovered them before try-
ing to run the law enforcement checkpoint.
There are three ways the jury could have done this:
First, defendant was aware of a suspicious circumstance—
the strong smell of fabric softener or detergent in the car—
before she even commenced her trip, yet she failed to check
where the odor was coming from. It is true, as the majority
points out, that an odor without more is not sufficient to sup-
port a Jewell instruction. See maj. at 14540-41 (citing United
States v. Baron, 94 F.3d 1312, 1316-18 (9th Cir. 1996), and
United States v. Sanchez-Robles, 927 F.2d 1070, 1075 (9th
Cir. 1991)). The reason for this is simple and well explained
by the majority: Not everyone knows that a strong scent is a
clue to possible drug smuggling; to make that connection,
defendant would have to know that smugglers sometimes use
scents to mask drug odors.
Here we have much more than the odor. According to the
testimony of the DEA agent who interviewed Heredia, she
found the presence of the strong odor—an “overwhelming
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scent” according to the Border Patrol agent, Tr. of Trial at 90
(No. CR-02-777-TUC-JMR) (March 11, 2003) [hereinafter
March 11 Tr.]—suspicious: “She said she got in the vehicle
and the odor was so strong that something seemed wrong, so
she asked her Aunt Belia about it.” Tr. of Trial at 45 (No. CR-
02-777-TUC-JMR) (March 12, 2003) [hereinafter March 12
Tr.] (testimony of DEA Agent Birney) (emphasis added). The
aunt explained that she had “spilled some detergent in the
vehicle a couple of days prior and that was the reason for the
smell,” but Heredia “didn’t believe her aunt . . . . She said that
she [Heredia] had spilled detergent in her own vehicle in the
past and the smell dissipated within a couple of days and it
shouldn’t have smelled that strong.” Id. Despite her suspicion,
despite her feeling that “something was wrong,” Heredia
didn’t bother to pop the trunk to check where the odor was
coming from.
So far, this is pretty much on all fours with Jewell, where
the defendant had noted a secret compartment in the vehicle,
but failed to look in it, even though his companion stated that
“[i]t didn’t sound right” from the beginning. United States v.
Jewell, 532 F.2d 697, 699 nn.1 & 2 (9th Cir. 1976) (en banc).
Here, Heredia knew of the strong detergent smell, didn’t
believe her aunt’s explanation for it and thought that “some-
thing seemed wrong.” Why would a strong smell of detergent
cause Heredia to suspect that there was something “wrong”?
The jury could have inferred that it was because Heredia
knew that strong odors are used to mask the smell of con-
cealed drugs.
But we have more than that here. In Jewell there was no
evidence that the defendant associated the presence of the
secret compartment with the concealment of drugs; the Jewell
court was satisfied that a jury could infer such a connection
as a matter of common sense. Here, Heredia disclosed that she
did associate strong scents in the car with an effort to conceal
the smell of contraband. She testified that she eventually fig-
ured out that drugs might be in the car, and that she did so
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based on a number of clues, two of which were the fact that
her mother sprayed the inside of the car with air freshener and
that she opened the window, even though it was a cold night.
March 12 Tr. at 138-39. Neither opening the window nor the
use of air freshener are inherently suspicious; people often
open car windows, when they are smoking, and an entire
automobile air freshener industry caters to people who wish
to mask odors such as cigarette smoke. Certainly, nothing
about opening a window or spraying air freshener suggests
drug transportation, unless one is aware that concealed drugs
emit odors that must be covered up or dissipated. To Heredia,
however, the use of air freshener and the opening of the win-
dow were clues; they told her that there might be drugs in the
car.
The jury could have inferred from this testimony that Here-
dia did have the specialized knowledge that heavy scents are
used to cover up drug odors. And, the jury could have rea-
soned, someone who has that knowledge would infer that the
strong odor was put there in order to conceal contraband. This
would explain why Heredia didn’t accept at face value the
aunt’s “spilled detergent” story and why it caused her to sus-
pect that “something was wrong.”
The inference would be strengthened by the fact that, in her
testimony, Heredia twice denied that she had told the agent
about the “spilled detergent” incident. March 12 Tr. at 143,
164-65. The jury could have believed the DEA agent that
Heredia did tell this highly incriminating story the day after
her arrest but, recognizing how damaging it was to admit that
she suspected something was wrong before she started her
trip, she lied about it on the stand.
Second, the jury could simply have accepted Heredia’s tes-
timony that she came to suspect there were drugs in the car
while she was driving on Interstate 19 toward the checkpoint.
Id. at 138-39, 149-50. Heredia testified that she developed this
suspicion based on the fact that her mother and aunt were ner-
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vous, that they were drinking and smoking heavily, that her
mother sprayed air freshener in the car and opened the win-
dow, and that her mother and aunts had plenty of money, even
though her mother was not working at the time. Id. at 139,
149.
Heredia claims that she did not put these pieces together
until she had passed the last freeway exit prior to the check-
point, but the jury was not bound to believe this. The jury was
entitled to believe all of her story, none of her story or part
of her story. In particular, we have held, in the Jewell context,
that the jury is not required to believe defendant’s self-serving
testimony. See, e.g., United States v. Perez-Padilla, 846 F.2d
1182, 1183 (9th Cir. 1988) (per curiam); United States v.
Nicholson, 677 F.2d 706, 709 (9th Cir. 1982). Perez-Padilla
relied on Nicholson for this self-evident proposition, and
Nicholson relied on our earlier case United States v. Cisneros,
448 F.2d 298 (9th Cir. 1971), where we said:
A trier of fact is not compelled to accept and believe
the self serving stories of vitally interested defen-
dants. Their evidence may not only be disbelieved,
but from the totality of the circumstances, including
the manner in which they testify, a contrary conclu-
sion may be properly drawn.
Id. at 305 (quoted in Nicholson, 677 F.2d at 709).
The jury here was entitled to accept as true the fact of Here-
dia’s epiphany—which was contrary to her interest, and there-
fore likely to be true—but disbelieve her as to the timing of
that realization. Indeed, as Cisneros makes clear, the jury
could properly draw precisely the opposite inference from her
testimony—i.e. that she figured out there were drugs in the
car long before the point of no return.
The majority’s figment that the jury was somehow bound
to believe Heredia on this key point not only conflicts with
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Nicholson, it creates a very dangerous precedent. Jurors are
not Immigration Judges; we have traditionally given them
wide latitude whether to believe or disbelieve evidence: “The
jury may conclude a witness is not telling the truth as to one
point, is mistaken as to another, but is truthful and accurate
as to a third.” Elwert v. United States, 231 F.2d 928, 934 (9th
Cir. 1956). This makes perfect sense: As we are all aware,
witnesses seldom tell an entirely false story; it is very com-
mon for witnesses to try to gain the trier of fact’s trust by
hewing as closely as possible to the truth, but then add a fact
or explanation that casts their conduct in a positive light. This
additional fact or explanation is sometimes true, but often it’s
not. Juries, employing their common sense, as they are
instructed to do, understand this, and thus may reject the
exculpatory or self-serving portion of a witness’s story, even
as they accept the rest.
The jury here could reasonably have rejected the exculpa-
tory part of Heredia’s story. According to the record, the trip
from Nogales to the checkpoint took some 90 minutes. See
March 11 Tr. at 83; March 12 Tr. at 136. Given the evidence
that Heredia was aware that there was “something wrong” as
soon as she took possession of the car, that her suspicions
about her mother’s finances long preceded the trip, March 12
Tr. at 139 (“I would always ask myself where she got the
money.”); id. at 149 (“[M]y mom and my aunts—they always
had money, but my mom wasn’t working at the time.”), and
that the detergent smell in the car was “overwhelming,” the
jury could have found that Heredia developed her suspicions
long before she got to the checkpoint, yet chose not to investi-
gate so she could later claim that she didn’t know there were
drugs in the car.
Finally, even if the jurors believed every jot and tittle of
Heredia’s story, they could still have concluded that she failed
to take reasonable steps to disassociate herself from the crimi-
nal conduct before the drugs were discovered by the Border
Patrol. The government suggest two ways she might have
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done this. She might, first of all, have stopped the car and
pulled to the side of the road. The majority rejects this possi-
bility on the theory that this would have been “an unsafe act.”
Maj. at 14544. According to the majority, doing so would
have required Heredia to “abandon her aunt’s vehicle on the
side of the interstate with another aunt, her mother, and her
two infant children either stranded inside or walking with her
along the interstate shoulder . . . .” Id. at 14545. Nothing of
the sort. Cars occasionally have mechanical problems and are
forced to pull over and await help; this is a normal part of
highway driving, and most motorists experience it from time
to time. Motorists also stop on highway shoulders to check
unexplained vehicle noises, batten down loose cargo, water
the tumbleweeds, let the engine cool on a steep uphill grade
and for dozens of similar reasons. Shoulders are built along-
side highways precisely to allow motorists to stop safely in
case of urgent need.
Once Heredia stopped the car on the shoulder, she would
neither have been stranded, nor had to hike. Instead, she could
have checked the trunk and, if there was nothing there, she
could have continued her trip. If, on the other hand, she found
contraband—as she certainly would have—she could have
used her mother’s cell phone, see March 12 Tr. at 140, to
summon her husband to fetch her and her passengers. But
Heredia had an even better alternative: According to her own
testimony, Aunt Belia was traveling in close proximity to
them in a separate car—a maroon Cavalier. Id. When Heredia
realized that she might be carrying drugs, she could have sig-
naled her aunt visually (or instructed her by cell phone) to
pull over, and transferred the occupants of Heredia’s car to
Belia’s. When two cars caravan, as happened here, it seems
perfectly safe and appropriate to switch vehicles when, for
whatever reason, one of the vehicles can no longer be driven
safely—that’s often the very reason cars travel in tandem. My
colleagues’ scenario of three vulnerable women hiking on the
shoulder of a busy interstate while carrying little children is
pure fantasy.
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Alternatively, Heredia could have proceeded to the check-
point and informed the border agents of her suspicions. The
majority rejects this possibility out of hand, maj. at 14545, but
I have no clue why the majority doesn’t consider this a “rea-
sonable opportunity to abstain from, or discontinue, the sus-
pected criminal activity.” Id. at 14546. What better way to
discontinue suspected criminal activity than by reporting it to
the police? By voicing her suspicions, Heredia wouldn’t have
admitted guilt; she would have proclaimed her innocence and
distanced herself from the criminal conduct. And, by spilling
the beans, she would have unequivocally disassociated herself
from the criminal enterprise; indeed, by calling attention to
the possibility that drugs were present, she would have
ensured that the car would be searched and that any criminal
enterprise to which she had unwittingly become a party would
be thwarted.
Instead, Heredia played possum when she was stopped at
the checkpoint. By doing so, she continued to aid the criminal
enterprise even though she suspected she was carrying drugs.
Had the Border Patrol agents been less alert, she might well
have rolled past the checkpoint and delivered her valuable
cargo safely to its unlawful destination. I can’t imagine why
my colleagues believe that Jewell entitles an individual who
suspects she has unwittingly become entangled in criminal
activity to continue abetting the criminal enterprise and help-
ing ensure its success. I find this proposition perfectly absurd.
Finally, even where a Jewell instruction is improperly
given, the court must engage in harmless error analysis, and
a number of our cases have found the erroneous giving of a
Jewell instruction harmless. See, e.g., United States v. Ful-
bright, 105 F.3d 443, 447 (9th Cir. 1997); United States v.
Alvarado, 838 F.2d 311, 316-17 (9th Cir. 1988). The majority
seems to recognize this, maj. at 14546, but concludes the error
is not harmless, citing another case—Sanchez-Robles, 927
F.2d at 1075. But the fact that the error was found prejudicial
in another case tells us nothing about whether the error is
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prejudicial here. This is because harmless error analysis
requires a review of this record, to determine whether this
defendant would nevertheless have been convicted, had this
error not been committed. By purporting to conduct harmless
error analysis in the abstract, without looking at the record or
discussing the evidence, the majority contradicts a long line
of authority, turning a Jewell error into structural error.
It’s clear that if there was Jewell error here—which there
was not—it was entirely harmless. The evidence that Heredia
actually knew about the drugs in the car was overwhelming.
Unlike many other cases involving drug couriers, everyone
here who might have planted the drugs was Heredia’s close
relative—her husband, her mother, her aunts. While a mule
might plausibly claim he was not told what he was carrying,
this was a family business. It defies credulity to suggest that
Heredia was entrusted with 350 pounds of marijuana by a
close relative, without being told what she was transporting.
I can’t imagine that the jury would have been fooled by the
self-contradictory and confused stories told by Heredia and
her various family members. On this record, I have no trouble
concluding that any Jewell error is harmless beyond a reason-
able doubt. I would affirm.
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