USA v. Sylvia Ana Guerra

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10921
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVIA ANA GUERRA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00021-KD-MU-2
____________________
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2 Opinion of the Court 21-10921
Before J ILL PRYOR , GRANT, and BRASHER , Circuit Judges.
PER CURIAM:
Appellant Sylvia Ana Guerra appeals her convictions for
conspiring to possess with intent to distribute cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and possessing cocaine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2(a). She argues that the district court plainly erred by
instructing the jury on deliberate ignorance because the instruc-
tion was incompatible with the requirement that the government
prove that she willfully joined the conspiracy and was not war-
ranted by the evidence. After careful review, we affirm.
I.
A.
The charges in this case arise from a traffic stop of a tractor-
trailer in Baldwin County, Alabama. At the time of the stop, Fred
Turner was driving the tractor-trailer, and Guerra was riding as a
passenger.
Turner and Guerra were romantic partners who had been
involved in an on-again, off-again relationship for approximately
three years. Turner traveled from South Carolina to Laredo, Tex-
as in his Chevrolet Avalanche, a pick-up truck, to see Guerra.
From Laredo, Turner and Guerra drove in the Avalanche to Hou-
ston, where Turner’s tractor-trailer was parked.
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21-10921 Opinion of the Court 3
In Houston, they retrieved Turner’s tractor-trailer, which
had a nine-car hauler attached. Turner was supposed to pick up a
load of cars and transport them on his tractor-trailer to South
Carolina. After they retrieved the tractor-trailer, Turner told
Guerra that he had lost the load, but they would still travel to
South Carolina. Turner then loaded the Avalanche, which was
having transmission problems, onto the car hauler and began to
drive from Houston to South Carolina.
During the trip back to South Carolina, Turner was driving
on the interstate through Baldwin County, Alabama, when he
was pulled over by law enforcement. Officer Jason Kolbe with the
Baldwin County Sherriff’s Office stopped Turner after observing
him violate state laws by driving for too long in the left-hand lane
and failing to maintain his lane.
Kolbe claimed that when he approached the truck, he wit-
nessed both Turner and Guerra behaving suspiciously. According
to Kolbe, Turner displayed “overly nervous behavior.” Doc. 141-1
at 18.1 He was “extremely talkative” and had labored breathing.
Id. Turner’s hands were shaking when he gave Kolbe his license.
Guerra appeared to be “very frozen” and “zoned out.”
Id. at 42–
43.
Kolbe spoke with Turner about his travel plans and what
he was transporting. With his suspicious aroused, Kolbe asked
Turner for permission to search the tractor-trailer. Turner re-
1 “Doc.” numbers are the district court's docket entries.
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4 Opinion of the Court 21-10921
fused. Kolbe, who had a drug sniffing dog with him, had the dog
walk around the outside of the tractor-trailer. The dog alerted at
the passenger side of the cab, and Kolbe and his partner conduct-
ed a warrantless search.
Inside the truck cab, Kolbe found a pistol in a backpack.
According to Kolbe, he had earlier seen Guerra retrieve her driv-
er’s license from the backpack. Kolbe asked Guerra about the pis-
tol, and she answered that it belonged to Turner.
The officers continued to search the cab. In the sleeper ar-
ea, Kolbe noticed a black duffel bag partially covered by a blanket.
When Kolbe removed the blanket and opened the bag, he found
wrapped packages inside the bag that appeared to be cocaine.2
According to Kolbe, the drugs “likely came from across the bor-
der” because “the packing [was] consistent with cartel-type nar-
cotics.”
Id. at 45. The duffel bag was found about three feet from
where Guerra had been sitting in the passenger seat. In the same
area, the officers found a second, empty duffle bag, which another
officer on the scene claimed had a “very strong odor of cocaine.”
Id. at 85.
The officers handcuffed Turner and Guerra and placed
them under arrest. Kolbe then approached Guerra, asking, “You
want to deliver it? . . . Do you want to get back in that truck and
take that shit where it’s going? Simple question.” GX 13 at 0:01–
2 Later testing confirmed that Kolbe found 31.9 kilograms of powder cocaine.
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21-10921 Opinion of the Court 5
0:12.3 Kolbe then remembered that Guerra had not received a
Mi-
randa warning and said, “Don’t answer that. . . . Don’t say any-
thing yet.”
Id. at 0:15–0:20.
After Guerra was informed of her
Miranda rights, Kolbe re-
sumed questioning her about the drugs. When he asked, “[w]here
is it going?”, Guerra responded, “I seriously don’t know, sir.”
Id.
at 1:03–1:10. He then asked, “[h]ow much is it?”, and Guerra indi-
cated that she was unable to answer, saying “they just meet me
on the side.”
Id. at 1:10–1:15. When questioned about where they
picked up the “dope,” Guerra responded, “I don’t know that. . . .
We’re just getting on the road.”
Id. at 1:20–1:32. Kolbe then pro-
posed that Guerra deliver the cocaine in the tractor-trailer. She
answered, “I’d be dead. . . . They don’t know me.”
Id. at 2:00–
2:05.
Officer Drew Bailey transported Guerra to the Baldwin
County Sheriff’s Office. During the drive, Guerra asked Bailey,
“What is it that you all found in the truck?” GX 15 at 0:03–0:08.
When Bailey answered that they had found drugs, Guerra re-
sponded, “I figured that.”
Id. at 0:08–0:17. Bailey told Guerra that
they suspected the drugs were either cocaine or methampheta-
mine. Upon hearing this, Guerra began to cry and said that if she
had known what Turner was doing, she would have stayed at
home.
3 “GX” numbers are the government’s exhibits at trial.
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6 Opinion of the Court 21-10921
Later in the drive, Guerra told Bailey about Turner’s be-
havior during their trip. She said that Turner had received suspi-
cious phone calls but that she had not pressed him about the calls
because they were not married.
When Guerra arrived at the Baldwin County Sheriff’s Of-
fice, she signed a
Miranda waiver form and was interviewed by
Special Agent Matthew Chakwin. Guerra told Chakwin about her
on-again, off-again relationship with Turner. She described how
in the past she had taken other trips in the tractor-trailer with
Turner and received payment for helping him transport legiti-
mate loads of cargo. She also told Chakwin that she knew Turner
and his brother previously had used the car hauler to transport
narcotics, but she had warned Turner that she would not contin-
ue their relationship if he continued to transport drugs.
Chakwin then talked to Guerra about whether there were
any signals that might have clued her into the fact that something
illegal was happening on this trip. A few weeks before the trip
Guerra overheard Turner on the phone talking about “going to
get white girls,” which she learned meant bricks of cocaine. Doc.
141-1 at 116–17. She also described how she originally believed
they would be transporting a load of cars in the hauler. But when
they arrived in Houston, Turner told her that they had lost the
load and was laughing about it. While they were traveling, she
noticed that Turner was carrying a duffel bag that she did not
recognize. She also saw that he was carrying three different cell-
phones on their trip even though he only used one of the phones
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21-10921 Opinion of the Court 7
for his legitimate business. While on the trip, Turner received
multiple phone calls during which he spoke in a low voice.
Turner also insisted that Guerra wear her seatbelt, which was un-
usual for him. She also noticed that any time she tried to go to the
sleeper section of the cab, Turner would distract her.
B.
Guerra was charged with conspiracy to possess with intent
to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846, and
possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841 and 18 U.S.C. § 2(a). Guerra pleaded not guilty to
both charges and proceeded to trial.4
At trial, the jury heard testimony from the officers who
conducted the traffic stop and interviewed Guerra. The govern-
ment’s evidence also included video footage from the body cam-
eras that Kolbe and Bailey wore.
At the conclusion of the trial, the district court instructed
the jury about the elements for the conspiracy and drug posses-
sion offenses. For the conspiracy count, the court explained, the
government had to prove beyond a reasonable doubt that Guerra
“agreed to try to accomplish a shared and unlawful plan to pos-
sess with intent to distribute a controlled substance” and “knew
4 The grand jury also charged Turner with the same crimes and one count of
possessing a firearm during a drug-trafficking crime. Before trial, the district
court severed their cases. In a separate trial, Turner was convicted of all the
charges against him.
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8 Opinion of the Court 21-10921
the unlawful purpose of the plan and willfully joined in it.” Doc.
141-3 at 7. The court instructed that if Guerra “played only a mi-
nor part in the plan but had a general understanding of the unlaw-
ful purpose of the plan and willfully joined in the plan on at least
one occasion,” she could be found guilty.
Id. But the court cau-
tioned that “simply [being] present at the scene of an event or
merely associating with certain people and discussing common
goals and interests” was insufficient.
Id.
With regard to the drug possession count, the court in-
structed the jury that it had to find beyond a reasonable doubt
that Guerra “knowingly possessed a controlled substance” and
“intended to distribute the controlled substance.”
Id. at 8. The
court explained that Guerra could be held responsible if she “in-
tentionally join[ed] with [another] person to commit a crime.”
Id.
The court’s instructions also addressed deliberate igno-
rance. The court explained that “[i]f a defendant’s knowledge of a
fact is an essential part of the crim[e], it’s enough that [the] de-
fendant was aware of a high probability that the fact existed, un-
less the defendant actually believed the fact didn’t exist.”
Id. The
court further instructed that “[d]eliberate avoidance o[f] positive
knowledge” was the “equivalent of knowledge.”
Id. The court
explained that “if a defendant possesses a package and believes it
contains a controlled substance but deliberately avoids learning
that it contains the controlled substance so . . . she may deny
knowledge of the package’s contents,” the jury could conclude
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21-10921 Opinion of the Court 9
that she knew about the contraband.
Id. at 8–9. Guerra did not
object to the charge.
The jury found Guerra guilty of both counts. Guerra sub-
sequently filed a motion for a new trial, arguing that the district
court erred in giving a deliberate ignorance instruction. The dis-
trict court denied the motion. The district court ultimately sen-
tenced Guerra to a total term of 120 months’ imprisonment. This
appeal followed.
II.
We generally review the legal accuracy of jury instructions
de novo and the phrasing of an instruction for an abuse of discre-
tion.
United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.
2000). District courts have broad substantial discretion when for-
mulating jury instructions so long as “the charge as a whole accu-
rately reflects the law and the facts.”
Id. (internal quotation marks
omitted). We will not reverse a conviction on the basis of a jury
charge unless “the issues of law were presented inaccurately, or
the charge improperly guided the jury in such a substantial way as
to violate due process.”
Id. (internal quotation marks omitted).
When a defendant does not specifically object to a jury in-
struction “before the jury retires,” we review a challenge to the
instruction for plain error.
United States v. Starke, 62 F.3d 1374,
1380–81 (11th Cir. 1995). “To prevail under plain error review,
[the defendant] must show that the district court made an error,
that the error was plain, and that it affected his substantial rights.”
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10 Opinion of the Court 21-10921
United States v. Iriele, 977 F.3d 1155, 1177 (11th Cir. 2020). We
may reverse based on plain error only when the error also “seri-
ously affect[ed] the fairness, integrity, or public reputation of judi-
cial proceedings.”
Id. There is no plain error absent precedent—
our own, or Supreme Court precedent—that directly resolves the
issue.
United States v. Sammour, 816 F.3d 1328, 1337 (11th Cir.
2016).
III.
Guerra argues that the district court erred in giving the de-
liberate ignorance instruction. She argues that the instruction was
improper because (1) it allowed the jury to conclude—based on a
deliberate ignorance theory—that she willfully joined the conspir-
acy and (2) it was not warranted under the facts of this case. After
carefully considering these arguments, we cannot say that the dis-
trict court erred, let alone plainly erred, in giving the deliberate
ignorance instruction.5
To convict a defendant of a conspiracy to distribute co-
caine, a jury must find that: (1) a conspiracy existed; (2) the de-
fendant “knew of the essential objectives of the conspiracy”; and
(3) the defendant “knowingly and voluntarily participated in the
conspiracy.”
United States v. Calderon, 127 F.3d 1314, 1326 (11th
Cir. 1997) (internal quotation marks omitted).
5 Because Guerra failed to challenge the jury instructions before the jury re-
tired, we review for plain error only.
See Starke, 62 F.3d at 1380–81.
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21-10921 Opinion of the Court 11
Guerra first argues that the district court’s deliberate igno-
rance instruction was improper because it allowed the jury to
convict her without finding that she willfully joined the conspira-
cy. We disagree.
A deliberate ignorance jury instruction “is premised on the
belief that acts conducted under the guise of deliberate ignorance
and acts committed with positive knowledge are equally culpa-
ble.”
United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991).
The instruction “is appropriate only if it is shown that the defend-
ant 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 pros-
ecution.”
United States v. Puche, 350 F.3d 1137, 1149 (11th Cir.
2003) (internal quotation marks omitted).
We previously have approved of the use of a deliberate ig-
norance instruction in a conspiracy case.
See United States v.
Willner, 795 F.3d 1297, 1315 (11th Cir. 2015). In
Willner, a con-
spiracy to commit health care fraud case, the district court gave a
deliberate-ignorance instruction.
Id. at 1315. The court instructed
the jury that to convict one or both defendants of conspiracy, it
had to find that the “defendant knew the unlawful purpose of the
plan and willfully joined in it.”
Id. (internal quotation marks omit-
ted). The court then explained in the deliberate ignorance instruc-
tion that the jury could find the defendant “knew” about the
fraudulent scheme if “it determine[d] beyond a reasonable doubt
that the defendant had every reason to know, but deliberately
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12 Opinion of the Court 21-10921
closed his eyes.”
Id. (alterations adopted) (internal quotation
marks omitted).
On appeal, the defendants challenged the deliberate igno-
rance instruction.
Id. We held that the instruction was proper be-
cause the district court’s instruction applied only to the “issue of
whether the defendants knew of the unlawful purpose of the con-
spiracy” and the court “did not give a deliberate ignorance in-
struction on the issue of whether the defendants willfully joined
in the conspiracy.”
Id.
The same is true here. The district court instructed the jury
that to convict, it had to find both that Guerra “knew the unlaw-
ful purpose of the plan and willfully joined in it.” Doc. 141-3 at 7.
The court then explained in the deliberate ignorance instruction
that the jury could find that Guerra had the requisite knowledge
of a fact if it determined that she “had every reason to know but
deliberately closed her eyes.”
Id. at 9. Just like in
Willner, the
court’s deliberate ignorance instruction applied only to the “issue
of whether [Guerra] knew of the unlawful purpose of the conspir-
acy” and not to the separate “issue of whether [she] willfully
joined in the conspiracy.” 795 F.3d at 1315.
Guerra contends that it is never appropriate for a district
court to give a deliberate ignorance instruction in a conspiracy
case.
See Appellant’s Br. at 13 (arguing that “[d]eliberate avoid-
ance and specific intent are mutually exclusive” (internal quota-
tion marks omitted)). She relies on the Second Circuit’s decision
in
United States v. Mankani, in which that court concluded that a
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21-10921 Opinion of the Court 13
deliberate ignorance instruction was inappropriate in a conspiracy
case.
See 738 F.2d 538, 547 n.1 (2d Cir. 1984) (stating “if the per-
son can consciously avoid learning about a secret agreement, how
then can she manifest an intent to join that agreement?”). But in
Willner, we carefully considered
Mankani and distinguished that
case, concluding that “a deliberate ignorance instruction is per-
missible to establish that a defendant knew of the unlawful pur-
pose of the conspiracy, but not to establish that he willfully joined
in the conspiracy.”6
See 795 F.3d at 1315.
Guerra also argues that the district court erred in finding
that the evidence at trial warranted a deliberate ignorance instruc-
tion. She argues that the instruction should not have been given
because the evidence reflected that she “had no reason to know
or suspect the trip was to transport drugs.” Appellant’s Br. at 23.
The instruction was appropriate here because the govern-
ment introduced evidence that Guerra was aware of the high
probability that Turner was transporting drugs and purposely
avoided learning all of the facts. The government’s evidence in-
cluded that shortly before the trip, she overheard Turner on the
phone talking about “going to get white girls,” which she under-
stood was a code for cocaine. Doc. 141-1 at 116–17. After telling
6 We also noted in
Willner that the Second Circuit has retreated from this
apparent holding in
Mankani because it has recognized that a deliberate ig-
norance charge is appropriate when knowledge of the fraudulent goal of the
conspiracy is at issue.
See Willner, 795 F.3d at 1316 (citing
United States v.
Fletcher, 928 F.2d 495, 502 (2d Cir. 1991)).
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14 Opinion of the Court 21-10921
Guerra that they would be hauling a load of cars from Houston to
South Carolina, Turner later said, while laughing, that the load
had been canceled and they would travel to South Caroline with-
out any cargo. While they were traveling, Guerra noticed that
Turner was transporting a duffel bag that she did not recognize,
carrying two additional cellphones, and tried to distract her
whenever she attempted to go into the sleeping area of the cab. In
addition, she observed Turner engage in other behavior that was
unusual for him: he took multiple phone calls in which he talked
in low tones and required her to wear a seat belt. On top of all
this, Guerra knew that Turner previously had used his car hauler
to transport drugs. Even though she noticed all these red flags,
Guerra chose to ask Turner no questions.
Guerra points to other evidence in the record that she says
suggests that she was not aware of a high probability that they
were transporting drugs. In particular, she points out that upon
departing Laredo, she rode with Turner when he drove his pickup
truck through a drug checkpoint and a K-9 did not alert to the ve-
hicle. But this evidence, at most, indicates that Guerra would
have understood that there were not drugs in the pick-up truck
when they travelled from Laredo to Houston. It does not change
that the government introduced evidence that there was a “high
probability” Guerra was aware the duffel bag in the tractor-trailer
contained drugs and purposefully avoided learning this fact.
See
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21-10921 Opinion of the Court 15
Puche, 350 F.3d at 1149. We thus cannot say that the district court
plainly erred in giving a deliberate ignorance instruction.7
IV.
For the reasons set forth above, we affirm the district
court’s judgment.
AFFIRMED.
7 Guerra also argues that the district court abused its discretion when it de-
nied her motion for a new trial because without the deliberate ignorance in-
struction, she says, her conviction was not supported by the weight of the
evidence. Guerra explicitly conditions this argument on the success of her
challenge to the deliberate ignorance instruction.
See Appellant’s Br. at 25–
26. Because the district court did not plainly err in giving the deliberate igno-
rance instruction, this challenge also fails.
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