USA v. Harry Richard

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14414
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20074-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY RICHARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 29, 2013)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Harry Richard appeals his convictions for conspiracy to import and to
possess with intent to distribute 500 grams or more of cocaine, and the
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“[i]mport[ation] of and possession with intent to distribute 500 grams or more of
cocaine.” Richard makes two arguments on appeal: (1) that the district court erred
by giving a jury instruction on deliberate ignorance; and (2) that there was
insufficient evidence to support a conviction, because there was no evidence that
he had the requisite knowledge.
I. The Deliberate Ignorance Instruction
We review de novo a challenge to a deliberate ignorance instruction. United
States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). The district court has broad
discretion to formulate the instructions it gives the jury as long as the charge as a
whole accurately reflects the law and the facts. United States v. Williams, 526
F.3d 1312, 1320 (11th Cir. 2008). We will only reverse a conviction based on a
jury instruction error “if we are left with a substantial and eradicable doubt as to
whether the jury was properly guided in its deliberations.” United States v. Puche,
350 F.3d 1137, 1148 (11th Cir. 2003) (quotation marks omitted).
“An instruction on deliberate ignorance is appropriate only if it is shown that
the defendant was aware of a high probability of the fact in question and that the
defendant purposely contrived to avoid learning all of the facts in order to have a
defense in the event of a subsequent prosecution.” Id. at 1149 (quotation marks
omitted). The standard is the same whether the evidence “point[ing] in the
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direction of deliberate ignorance” is direct or circumstantial. United States v.
Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (quotation marks omitted).
District courts give a deliberate ignorance instruction in error when there is
relevant evidence only of actual knowledge rather than deliberate avoidance.
United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008). This error is harmless,
however, if the jury was properly instructed that finding deliberate ignorance
requires proof beyond a reasonable doubt, the jury was also instructed on the
theory of actual knowledge, and there was sufficient evidence to support the actual
knowledge theory. Stone, 9 F.3d at 937–38; see also Steed, 548 F.3d at 977.
The facts here support an inference that Richard was aware of a high
probability that he was transporting contraband and deliberately avoided learning
more. Mr. Vital, a new acquaintance, paid for Richard’s roundtrip ticket to Haiti,
Mr. Vital’s cousin paid for Richard’s hotel in Haiti, and Mr. Vital was going to
give him additional money upon his return from Haiti. Apparently, all Richard had
to do in return was bring clothes to Mr. Vital’s family member in Haiti. When he
was in Haiti, Mr. Vital’s cousin took Richard’s personal suitcase, brought back a
different suitcase, and then packed Richard’s belongings in the new suitcase.
“Not surprisingly, this is not the first time a criminal defendant has obtained
a package under suspicious circumstances, been paid an exorbitant sum to
transport it, and then claimed surprise when the luggage was revealed to be a
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conduit for moving illegal drugs.” United States v. Hristov, 466 F.3d 949, 953
(11th Cir. 2006) (citing cases). “We have upheld a deliberate ignorance instruction
in other cases in which drug couriers have avoided knowledge of the contents of
their parcels.” Arias, 984 F.2d at 1144. Similarly, we conclude that the district
court did not commit error in giving the deliberate ignorance instruction in this
case.1
II. Sufficiency of the Evidence
We review de novo whether the record has sufficient evidence to support a
jury’s verdict in a criminal trial. United States v. Jiminez, 564 F.3d 1280, 1284
(11th Cir. 2009). Evidence is viewed in the light most favorable to the government
with all reasonable factual inferences drawn in favor of the verdict, and will be
sufficient to support a conviction if a reasonable trier of fact could have found that
the evidence established guilt beyond a reasonable doubt. Id. at 1284–85.
Richard only argues that there was insufficient evidence to support the
knowledge element of his offenses. Each of Richard’s convictions required proof
of knowledge. His conspiracy convictions (counts 1 and 3) required proof of a
knowing and voluntary participation in an illegal agreement. United States v.
Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006); United States v. McDowell, 250
1 Also, because the jury was properly instructed that finding deliberate ignorance requires proof
beyond a reasonable doubt and on the theory of actual knowledge, and there was sufficient
evidence for Richard’s convictions under the actual knowledge theory, any purported error in
giving the deliberate ignorance instruction was harmless. See Stone, 9 F.3d at 937–38.
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F.3d 1354, 1365 (11th Cir. 2001). His convictions for importation of and
possession with intent to distribute controlled substances (counts 2 and 4) required
proof that Richard knew that he was importing and knew he possessed controlled
substances, respectively. United States v. Peart, 888 F.2d 101, 104 n.2 (11th Cir.
1989).
The evidence was sufficient for a reasonable fact-finder to conclude beyond
a reasonable doubt that Richard had the requisite knowledge. For example, in
addition to the previously discussed evidence, Richard was entrusted with
approximately three kilograms of cocaine, worth around $75,000. See United
States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997) (“A reasonable jury
could infer from the quantity of drugs seized that a ‘prudent smuggler’ is not likely
to entrust such valuable cargo to an innocent person without that person’s
knowledge.”). Also, Richard initially lied to the customs agent when asked about
his bag, his demeanor was suspicious, and he did not appear surprised at the
discovery of cocaine in his luggage. See United States v. Almanzar, 634 F.3d
1214, 1222 (11th Cir. 2011); United States v. Leonard, 138 F.3d 906, 909 (11th
Cir. 1998). Further, the “unusual weight of the roller-bag” can also support an
inference of knowledge. See Quilca-Carpio, 118 F.3d at 722.
III. Conclusion
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Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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