YOLANDA CANDELAS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6179 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. B1-B11) is unreported, but the judgment is noted at 911 F.2d 728. JURISDICTION The judgment of the court of appeals was entered on August 7, 1990. The petition for a writ of certiorari was filed on November 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly gave a "deliberate ignorance" instruction on the issue of petitioner's knowledge with respect to her participation in a drug conspiracy and her possession of marijuana. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of conspiring to possess approximately 112 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. 846, and possessing approximately 112 kilograms of marijuana with intent to distribute, in violation of 21 U.S. 841(a)(1) and (b)(1)(B)(vii). She was sentenced to concurrent terms of 66 months' imprisonment, to be followed by five years of supervised release. The court of appeals affirmed. Pet. App. B1-B11. 1. a. The evidence at trial showed that petitioner drove Reynaldo Quiroz /1/ and her baby to a checkpoint on the Texas/Mexico border, arriving at about 3 a.m. on November 15, 1988. A border patrol agent detected a strong odor of perfume coming from the car and suspected that it might be disguising the odor of marijuana. The agent asked petitioner if he could look into the trunk, and she opened it. It contained several bundles wrapped in plastic, which the agent determined to be marijuana. The agent took petitioner, Quiroz, and the child into the checkpoint building. Quiroz pointed to another car that had pulled into the checkpoint and said, "That stuff belongs to those people." The two occupants of that car were taken into the building. All four were advised of their Miranda rights and placed in separate rooms. Gov't C.A. Br. 3-5; Pet. App. B2-B3. Quiroz explained that the car in which he had been riding belonged to Danny Gonzalez, one of the occupants of the other car. Quiroz also said that on several occasions, Gonzalez had talked to him about hauling marijuana past the checkpoint. Quiroz added that he had been asked to drive a car up north. When asked by an agent if he thought that this was an odd request, Quiroz replied "that he suspected that something was wrong but he did not know what and he didn't care, he was being paid to drive the car." Gov't C.A. Br. 6; Pet. App. B3-B4. b. Petitioner and Quiroz testified in their own defense. Quiroz denied telling the agent that "that stuff is theirs," and claimed that petitioner had made that statement. He denied that he and Gonzalez had discussed hauling marijuana across the border. He also denied telling the police officer that he had suspected something was wrong about Gonzalez' request that he drive the car. He claimed that Gonzalez had asked him to drive the car to Gonzalez' mother's house in Corpus Christi, and that he had told Gonzalez he would not be able to do so until he got off work at eight o'clock Monday morning. He also testified that he and petitioner had attended a party on the night of their arrest, and that afterwards petitioner returned home and he went to his mother's house, where petitioner later called him to say that Gonzalez wanted to speak with him. He said that Gonzalez again asked him to drive the car to Corpus Christi. Gov't C.A. Br. 6-7; Pet. App. B3-B5. Petitioner testified that she had telephoned Quiroz at Gonzalez' request, that Quiroz and Gonzalez talked for fifteen or twenty minutes, and that from Gonzalez' part of the conversation, she learned that Quiroz was to drive a car to Corpus Christi. She claimed that she then volunteered to drive Quiroz because he had become drunk at the party. She said that she made arrangements with Quiroz' mother to watch her children, that she drove to Gonzalez' apartment to pick up the car, and that she and Quiroz set out for Corpus Christi at 1:30 a.m. She claimed never to have asked exactly where they were going, or why they had to leave in the middle of the night. Gov't C.A. Br. 5-6; Pet. App. B4. On rebuttal, the agent testified that Quiroz did not appear to be under the influence of alcohol when he was arrested. Gov't C.A. Br. 7; Pet. App. B4. 2. The court of appeals affirmed as to both petitioner and Quiroz in an unpublished opinion. Pet. App. B1-B11. The court rejected their claims that there had been insufficient evidence to support their convictions. Pet. App. B2, B5-B10. The court also rejected petitioner's claim that the following jury instruction was reversible error: You may find that a defendant had knowledge of a fact if you find that he deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of a defendant cannot be established merely by demonstrating that he or she was negligent, careless, or foolish, knowledge can be inferred if a defendant deliberately blinded himself or herself to the existence of a fact. Pet. App. B10-B11; 3 R. 132. The court determined that the evidence in the case "provide(d) a proper basis for the deliberate ignorance instruction" and that, moreover, the substance of the instruction was correct. Pet. App. B11. The court noted that petitioner had incorrectly cited as a Fifth Circuit case United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976), which held that a deliberate ignorance instruction should state "that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question" (id. at 704 n.21). Pet. App. B10-B11. The court explained that it had rejected such a requirement in United States v. DeVeau, 734 F.2d 1023, 1028 (5th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). Pet. App. B11. ARGUMENT Petitioner renews (Pet. 3-4) her challenge to the district court's deliberate ignorance instruction. While conceding that such an instruction is appropriate in some cases, she argues that the facts in this case did not warrant the instruction, and that the form of the instruction given by the district court was improper. Neither contention warrants this Court's review. 1. In prosecutions under criminal statutes prohibiting "knowing" conduct, a deliberate ignorance instruction is appropriate "'where it can almost be said that the defendant actually knew,' as when a person 'has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance.'" 1 W. LaFave and A. Scott, Jr., Substantive Criminal Law, Section 3.5 at 307 (1986), quoting G. Williams, Criminal Law: The General Part, 157, 159 (2d ed. 1961). See, e.g., United States v. Burns, 683 F.2d 1056, 1059 (7th Cir. 1982) (upholding instruction that "(n)o person can intentionally avoid knowledge by closing his eyes to facts which should prompt him to investigate"), cert. denied, 459 U.S. 1173 (1983); United States v. Herrero, 893 F.2d 1512, 1537-1538 (7th Cir.) (upholding instruction that permitted inference of knowledge "from a combination of suspicion and indifference to the truth"), cert. denied, 110 S. Ct. 2623 (1990); United States v. Picciandra, 788 F.2d 39, 46-47 (1st Cir.) (upholding instruction that permitted inference of knowledge from "deliberate refus(al) to enlighten or to take notice of a certain fact"), cert. denied, 479 U.S. 847 (1986); United States v. Graham, 739 F.2d 351, 352-353 (8th Cir. 1984) (upholding instruction that "knowledge of a fact may be inferred from willful blindness to the existence of the fact"). Under these principles, the district court properly gave a deliberate ignorance instruction in this case. Petitioner denied knowing anything about the marijuana in the car trunk. According to petitioner's own testimony, however, Gonzalez came to her house on the night in question, and she called Quiroz at Gonzalez' request; she heard Gonzalez speak with Quiroz on the telephone about a trip to Corpus Christi for fifteen to twenty minutes; she voluntarily agreed to accompany Quiroz on the trip; she made special plans for her children's care so that she might leave with Quiroz in the middle of the night; she knew her destination was "not going to be where there's a lot of traffic" (Pet. App. B8); and she was the driver of a car that had a heavy odor of perfume which was obviously serving a masking purpose. In those circumstances, the jury was properly instructed to consider whether petitioner had "deliberately closed (her) eyes to what would have otherwise been obvious" (3 R. 132) -- that she was embarking on a clandestine journey as the driver of a load car in a smuggling operation. /2/ 2. Nor is there any merit to petitioner's contention (Pet. 3) that the jury's finding of the knowledge element in both offenses was "clouded" by the deliberate ignorance instruction given in this case. The instruction itself specifically cautioned the jury that knowledge cannot be established "merely by demonstrating that (petitioner) was negligent, careless, or foolish." The instruction also warned that the fact to which the defendant "blinded" herself must "otherwise have been obvious" to the defendant, and that her ignorance of it must have been "deliberate()." Just before giving the instruction, the district court correctly defined the term "knowingly" as "mean(ing) that the act was done voluntarily and intentionally, not because of mistake or accident." 3 R. 132. /3/ Reasonable jurors would have understood this charge as a whole as requiring a stringent showing that petitioner deliberately avoided knowledge of what she otherwise would have learned by opening her eyes. See Cage v. Louisiana, 111 S. Ct. 328 (1990) (in construing instruction, "we consider how reasonable jurors could have understood the charge as a whole"; citing Francis v. Franklin, 471 U.S. 307, 316 (1985)). Petitioner contends (Pet. 4) that this Court's review is required to establish specific, uniform language to govern the deliberate ignorance instructions given in the district courts. In particular, petitioner points to the fact that the Ninth Circuit's instruction requires the accused to have been aware of a "high probability" of the existence of the fact in question, see United States v. Jewell, 532 F.2d at 704 n.21, while the Fifth Circuit's instruction includes no such requirement. That variation in language does not necessitate this Court's intervention to promulgate a pattern jury instruction in this area of the law. The courts of appeals are in agreement on the basic theory underlying the deliberate ignorance instruction: that the "knowledge" element of an offense is established when a defendant has deliberately refused to learn facts of which he has formed a strong suspicion, simply in order to evade criminal liability. See United States v. Jewell, 532 F.2d at 702 (citing cases from Second, Sixth, Seventh, and Tenth Circuits). It is possible to express this underlying concept in a variety of ways. See United States v. Ramsey, 785 F.2d 184 (7th Cir.) (discussing prior Seventh Circuit deliberate ignorance instructions and proposing a new one for clarity), cert. denied, 476 U.S. 1186 (1986). But the formulations in the circuits have a common core, diverging only on particular refinements to the essential thrust of the instruction. The "high probability" statement reflects one such refinement. The Ninth Circuit has stated that a jury should be told not only that the defendant acted to avoid learning the truth, but also that "the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question." Jewell, 532 F.2d 704 at n.21. /4/ We are aware, however, of only one instance in which the absence of that feature of the instruction resulted in a reversal of a conviction. In United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir. 1977), the court reversed where the defendant had been tried before the Ninth Circuit issued its opinion in Jewell, and the deliberate ignorance instruction given was extremely cursory. See 554 F.2d at 913 (the government can establish knowledge by showing that defendant "acted with a conscious purpose to avoid learning the truth of the contents of the vehicle"). The deliberate ignorance instruction given in this case was far more elaborate; it communicated to the jury the need for strong suspicions on the defendant's part by referring to her "deliberately clos(ing) h(er) eyes"; by cautioning against a conviction for "negligen(ce)"; and by stressing that the fact ignored must have been "otherwise * * * obvious." 3 R. 132. The court's instruction substantially accords with the "guilty knowledge" instruction set forth in 1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, Section 14.09 at 390 (3d ed. 1977). /5/ Although there are semantic differences between the standard Devitt and Blackmar instruction and the Ninth Circuit's preferred formulation, those nuances do not amount to a difference of substance. Nor is there a likelihood that the difference will influence the outcome of any particular case. See, e.g., United States v. Burns, 683 F.2d at 1060 (in context of "knowledge" instruction as a whole, standard deliberate ignorance instruction "merely operates as * * * a rational permissive inference"); United States v. Manriquez Arbizo, 833 F.2d at 249-250; United States v. Knight, 705 F.2d 432, 434 (11th Cir. 1983). In Jewell itself, for example, the Ninth Circuit declined to find that the absence of the "high probability" language constituted plain error, where no objection had been made. 532 F.2d at 704 n.21. See also United States v. Feroz, 848 F.2d 359 (2d Cir. 1988) (same); United States v. Glick, 710 F.2d 639, 642-644 (10th Cir. 1983) (same), cert. denied, 465 U.S. 1005 (1984). In light of the basic agreement of the courts of appeals on the essence of the deliberate ignorance concept, and the latitude within that concept for different manners of expression, there is no need for this Court to formulate rigid "guidelines" (Pet. 3) for the particular language to be used in such instructions. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney MARCH 1991 /1/ Quiroz was indicted and tried with petitioner. Like petitioner, he was convicted on both counts of the indictment. He was sentenced to concurrent terms of 76 months' imprisonment, to be followed by five years of supervised release. Gov't C.A. Br. 3. /2/ Cf. United States v. Herrero, 893 F.2d at 1538 (finding conscious avoidance instruction "most appropriate" where defendant acknowledged association with conspiratorial group but, despite circumstantial evidence to the contrary, denied knowing of group's illegal activity); United States v. McAllister, 747 F.2d 1273, 1275-1276 (9th Cir. 1984) (upholding deliberate ignorance instruction where defendant claimed he thought truck he was driving contained furniture rather than illegal aliens), cert. denied, 474 U.S. 829 (1985). /3/ Previously, the court had advised the jury (3 R. 128-129) that: Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but * * * who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator." The court had also informed the jury (3 R. 131) that: (B)efore any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself or herself in some way with the crime and participate in it with the intent to bring about the crime. Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator. In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the laws. /4/ The Second Circuit also includes the "high probability" language in its deliberate ignorance instruction. See United States v. Feroz, 848 F.2d 359 (1988). The Tenth Circuit has characterized the "high probability" language as "the preferable form of the instruction." United States v. Glick, 710 F.2d 639, 643 (1983), cert. denied, 465 U.S. 1005 (1984). /5/ The Devitt and Blackmar instruction states: The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge. The instruction has been characterized as "standard," United States v. Graham, 739 F.2d at 352-353, and has been upheld by many courts. See, e.g., United States v. Cogdell, 844 F.2d 179, 181 (4th Cir. 1988).