*4 SCHROEDER, Before MARY M. Chief PREGERSON, Judge, HARRY ALEX KOZINSKI, RYMER, PAMELA ANN KLEINFELD, ANDREW J. MICHAEL HAWKINS, DALY R. SIDNEY THOMAS, SILVERMAN, BARRY G. GRABER, P. M. SUSAN MARGARET McKEOWN, PAEZ, A. RICHARD TALLMAN, RICHARD C. RICHARD R. CLIFTON, M. CONSUELO CALLAHAN BEA, Judges. and CARLOS T. Circuit KOZINSKI; Opinion by Judge KLIENFELD; by Judge Concurrence by Judge Dissent GRABER. trial, At AND AMENDED OPINION ORDER testified that on the day of her arrest she had accompanied her KOZINSKI, Judge. Circuit trip mother on a bus from Tucson to No- gales, where her mother had a dentist’s ORDER appointment. appointment, After the she case, opinion 4 of the Footnote this borrowed her Aunt Belia’s car to transport April filed is amended to read as her mother back to Tucson.1 Heredia told follows: DEA Agent Birney Travis at the time of recognized, As our cases have deliberate that, her arrest while still in Nogales, she ignorance, otherwise known as willful had “detergent” noticed a smell in the car blindness, categorically different from prepared as she for the trip and asked negligence e.g., or recklessness. explain. Belia to Belia told her that she v. Fulbright, spilled Downey had fabric softener in Cir.1997); earlier, Sanchez-Robles, days car a few but Heredia found explanation willfully incredible. blind defen dant is one who took deliberate actions Heredia admitted on the stand that she suspicions to avoid confirming of crimi suspected might car, there drugs be *5 nality. A defendant is one who reckless based on fact that her mother was merely unjust knew of a substantial and visibly during nervous the trip and carried ifiable risk that his conduct was crimi cash, a large amount of though even she n nal; a negligent defendant is one who working However, wasn’t at the time. but, suspicions should have had similar Heredia claimed that suspicions her were fact, in did not. not aroused until passed she had the last freeway exit checkpoint, by before the OPINION which time it was too dangerous pull We revisit United States v. investigate. over and (9th Cir.1976) (en banc), F.2d 697 and the government The requested a deliberate body of caselaw it. applying ignorance instruction, judge and the obliged, overruling objection. Heredia’s I cribbed from our circuit’s Defendant stopped Carmen Heredia was 5.7, Jury Model Instruction read as fol- at an inland Border checkpoint Patrol lows: driving Tucson, while Nogales Ari- may You find that the defendant acted zona. Heredia was at the wheel and her knowingly you beyond find a reason- children, two mother and one of her aunts able doubt the defendant was aware passengers. were agent The border at the high probability of a drugs in were scene “very noticed what he described as a by vehicle driven the defendant and strong perfume odor” emanating from the deliberately avoided learning the truth. car. A agent second searched the trunk You may knowledge, not find such how- marijuana and found pounds 349.2 sur- ever, if you find that the by dryer sheets, defendant actu- apparently rounded used ally drugs believed that no in to mask the odor. were Heredia was arrested defendant, charged vehicle driven possessing with or if controlled you substance with intent to distribute under find that the simply defendant was 841(a)(1). § 21 U.S.C. careless.2
1. Belia was ignorance the aunt in the car with 2. The model deliberate instruction stopped Heredia at the time she was at the element, was amended to include a third see checkpoint. traveling Belia was on the same infra, following panel’s opinion Part III in time, interstate at about the same but in a this case. separate car. statutory area of “in the particularly not us to overrule asks appeal,
On
841(a)(1)
construction,
free to
Congress is
where
ex-
that section
and hold
legislation.”
its
interpretation of
change
who act
liability only
[an]
to individuals
tends
Illinois, 431 U.S.
Co. v.
knowledge.3 Should Jewell re-
Il
l. Brick
actual
with
52 L.Ed.2d
law,
us to reverse her
she
good
main
asks
context,
given to
Even
because the
conviction
there
less
defective
because
reliance interests are
private
was
where
issuing
still
basis
decisis concerns
an insufficient factual
stare
compelling,5
place.
particularly
in the first
when
carry great weight,
the instruction
as
deeply entrenched
Jew
is as
precedent
II
States, 504 U.S.
Evans v. United
ell. See
spawned
has
While Jewell
1881, 119
255, 268-69, 112
L.Ed.2d 57
S.Ct.
commentary and a somewhat
great deal of
carries
(noting that stare decisis
caselaw, its core hold
body of
perplexing
“many other
when
weight
considerable
matter
straightforward
rather
was a
ing
interpreted
...
statute
courts
“ ‘[Kjnowingly’in
interpretation:
statutory
was decided
way”). Since Jewell
the same
positive
limited to
is not
criminal statutes
every regional
circuit—with
the state of mind
knowledge, but includes
adopted
Circuit—has
exception of the D.C.
possess positive
who does not
of one
In
holding. See n.
its central
infra.
consciously
he
deed,
refer to the delib
many colloquially
In other
avoided it.” 532
as the “Jewell
ignorance
erate
words,
made it a crime to
Congress
when
e.g., United States
instruction.”
intent
possess
...
“knowingly
(8th Cir.1991);
1241, 1246
Bussey,
*6
manufacture, distribute,
a
dispense,
F.2d
Lara-Velasquez,
v.
919
States
United
substance,”
21 U.S.C.
controlled
Cir.1990).
(5th
946,
has
Congress
n. 5
951
841(a)(1),
punish
it meant
§
many times since
841
amended section
they possess a controlled
who know
those
down,
way
a
was
handed
substance,
don’t
but also those
know
who
Giv
ruling.
that
cast doubt on our
would
they don’t want to know.4
widespread acceptance of Jewell
en the
judiciary,
of which Con
across
federal
long-standing
a
Overturning
aware, we
gress
surely
must
have been
lightly,
be done
and
is never to
precedent
Tennessee,
808, 828,
Amici,
Payne
U.S.
v.
501
of Criminal
5.See
the National Association
2597,
Attorneys
Lawyers and the Arizona
115 L.Ed.2d
111 S.Ct.
720
Defense
Justice,
posi-
advocate this
("Considerations
Criminal
also
for
decisis are
in favor of stare
tion.
involving property and
at their acme in cases
rights,
are
where reliance interests
contract
recognized,
have
deliberate
4. As our cases
States,
involved.”). But see Busic v. United
ignorance,
as willful blind-
otherwise known
398, 404,
1747,
S.Ct.
64 L.Ed.2d
446 U.S.
100
ness,
negli-
categorically
different
is
(1980) (invoking
in the inter-
stare decisis
381
See, e.g.,
or recklessness.
United States
gence
sentencing
provi-
pretation
enhancement
443,
(9th Cir.1997);
Fulbright,
F.3d
447
105
v.
1158,
sion);
Aguon,
v.
851 F.2d
United States
Sanchez-Robles,
F.2d
v.
927
States
United
J.,
(9th Cir.1988) (Wallace,
dissenting)
1177
willfully
A
blind
("The
equally appli-
decisis is
doctrine
stare
who took deliberate
is one
actions
defendant
interpretations of a criminal
cable to settled
confirming suspicions
criminality.
to avoid
statute.”),
by
grounds Evans
on other
overruled
merely
one
knew
reckless defendant
who
States,
255, 265,
S.Ct.
v.
504 U.S.
unjustifiable
that
risk
his
substantial
(1992).
criminal;
area where our cases have not been consis by came a dissent then-Judge Kennedy, tent: Whether the must be instructed who also authored the dissent in Jewell. that defendant’s in deliberately fail See United v. Murrieta-Bejarano, motive ing (9th Cir.1977) (Kenne to learn the truth was to himself a defense in charged J., case he should be dy, dissenting). Judge Kennedy’s chief dissenting colleague support 6.Our Congress seeks has left undisturbed for three has, position Congress her from the fact that adopted decades and that has since been occasion, on defined the requirement scienter ten of our sister circuits. See n. 11 infra. *7 "knows, in some criminal statutes as or has grounds reasonable to believe.” Dissent at panel opinion 7. The and the dissent in this case, Heredia, grounds 931. But "has reasonable to be- United v. States F.3d 820 429 (9th Cir.2005), lieve” defines a mental state that is than less illustrate some of the difficul- contrast, knowledge. By actual Jewell defines ties. willful blindness as sets —and Thus, higher satisfying much standard for it. prong usually requires 8. The motive prosecution prove under must deliberately igno to find that defendant was "high probability” defendant was aware of a provide rant "in order to himself with a de contraband, possession that he prosecution.” is in the fense in the event of United Baron, "deliberately (9th learning that he avoided v. States 1317 1996). truth.” This standard focuses on defendant’s actions, actual beliefs and whereas "has rea- grounds objective sonable to believe” is an 9. The concurrence makes much out of this by showing phrase, standard that could be satisfied concurrence at but it cuts entire- believe, person (as what a ly way text) reasonable would re- the other because noted in the gardless approved of defendant's actual beliefs. That an did instruction that not Congress chose to prong. set a lower scienter re- though contain the motive Even quirement in some criminal statutes tells us Jewell court believed this was defendant's motive, nothing interpretation likely about our of "knowl- it did not to make choose it an edge” certainly provides independent in Jewell. It an in- element of deliberate indiffer- rejecting interpretation sufficient basis for an ence. 920 however, believe, the second the We viewed as what he was
concern instruction, requirement of the part prong on the avoidance of deliberate absence deliberately avoided id. at that defendant have in that case. See defendant truth, rate, writing pro- for sufficient provides was not learning he anyAt opinions seem in these situations. of our for defendants Yet some tections the court. “[ijnten- provid prong, the motive that is adopted action is one to have A deliberate other doing for so justification tional; fully considered.” ing little premeditated; (8th 2004). Judge Kennedy’s dissent. to than citation ed. Dictionary Law Black’s Baron, 94 F.3d v. e.g., coercion, States exigent United A decision influenced (9th Cir.1996); United n. 3 meaningful choice or lack of circumstances (9th Kelm, F.2d States is, deliberate. perforce, Cir.1987); v. Pac. Hide & United these reasons investigate for who fails (9th Inc., 1096, 1098 Depot, Fur deliberately chosen to avoid learn- has not Garzon, 688 Cir.1985); United States truth.10 ing the Cir.1982). (9th Three other F.2d followed suit. See circuits have federal therefore, conclude, We Puche, at defen two-pronged (11th Cir.2003); States v. Wil requirements trial met the dant’s Cir.2002); lis, 277 F.3d and, cases have the extent some of our Delreal-Ordones, 213 required, page see suggested more is Cir.2000). 1263, 1268-69 A district supra, they are overruled. discretion, in the exercise of his judge, prong that the motive argues say to tailor the instruction may more individuals necessary punishing to avoid Here, for facts of the case. particular circum- investigate fail to who instructed example, judge might impractical it render unsafe stances jury that it could find Heredia did claims that she is within so. She do deliberately if it that her fail act believed not arise suspicions her did group, because by safety investigate ure to was motivated open highway an driving until on she for an Heredia did not ask such concerns. dangerous too where it would have been judge and the had no district claims that she had pull over. She thus Even obligation sponte. sua avoiding culpa- than motive other supple for such a when defendant asks the contraband bility failing to discover the district mental it is within trunk. concealed in the than innocent motive vitiate add the third crime does an concurrence would 10. The *8 any other element. prong in order to to the Jewell instruction mo- protect defendants who have ''innocent” Equally misplaced con- concurrence's deliberately avoiding the truth. But package tives for similar carri- cern about FedEx and ignorance tiny defines the deliberate that a ers. Concurrence at 928. The fact pack- individual has sufficient information when an thousands of percentage of tens of ages transports every day may he can be deemed to "know” some- so that FedEx contain though high proba- thing, hardly even he does not take final a contraband establishes knowledge. bility any particular package Dissent step to confirm that See contains course, particular pack- to take if a at The reason the individual fails contraband. Of 932. powder gives any step bearing age whether he leaks a white other that final has no on properly particularized indication he can and unmistakable has sufficient information so contraband, and the carrier An innocent that it contains be deemed to "know” the fact. investigate, may held liable—and being deliberately ignorant fails to be no motive for properly a so. element of more vitiates
921 jury. court’s broad discretion whether to com- judge’s district proximity to ply- the trial and intimate knowledge of the justify record considerable deference to his
IV judgment in these situations. Accordingly, Defendant also claims there was insuffi- typically we review such decisions for give cient foundation to the Jewell instruc- abuse of discretion. e.g., United claim, In tion. order to address we Johnson, 990, States v. 459 F.3d 992 n. 3 identify by must first the standard which (9th Cir.2006). we review a district court’s decision to
issue Jewell instruction. Jewell cases have been an excep general tion to this order of things, as we
A. The differing standards of long have reviewed a district court’s deci apply review we reflect the compe relative give sion to ignorance deliberate instruc appellate tencies and functions of the Shannon, tion de novo. See 137 Fenton, F.3d at district courts. Miller v. 1117; United 104, 114-15, Fulbright, States v. 445, 105 F.3d (9th 443, Cir.1997); 447 United States v. Whether a instruction was Asuncion, (9th Cir.1992). 769, 973 F.2d 772 properly given presents questions, two one derives, This rule factual, itself, not from primarily purely legal. other case, but from a later Whether the substance of Asuncion. Asun the instruction i.e., summarily cion adopted itself is accurately whether it the de novo stan correct — cases, dard in describes the charged purportedly relying elements of the cases, on legal question crime—is a another of our the sort we United States Sanchez-Robles, (9th 1070, review de novo. United States v. Fein 927 F.2d 1073 Cir.1991). Cir.2006). gold, 1001, 454 F.3d 1007 provides Sanchez-Robles no But support whether an instruction proposition. should be for this It mentions place review, the first depends on the de novo conjunction theories but and evidence presented trial. This is legal question with the of whether the mostly a inquiry, factual but not entirely. instruction “misstated elements of a statu It requires judgment also as to tory whether crime.” Id. The rule adopted in proposed instruction is relevant to the Asuncion has been followed no other presented unduly issues or would confuse appeals.11 federal court of explicitly Six of our sister giving circuits have the instruction are unmet "is little adopted the abuse of challenge discretion standard for more than a sufficiency to the reviewing judge’s district support decision to evidence to a conscious avoidance ignorance deliberate instruction. United challenging conviction. a con Flores, (3d States v. 454 F.3d Cir. viction based on insufficient evidence bears a 2006); Ruhe, United States v. heavy 191 F.3d burden.” United States v. Aina-Mar (4th Cir.1999); Fuchs, shall, (2d Cir.2003). United States v. 336 F.3d Two (5th Cir.2006); 467 F.3d recognized other circuits have conflicts Beaty, 245 F.3d regarding appropriate their caselaw stan 2001); McClellan, review, far, declined, dard of thus (7th Cir.1999); Lizardo, King, States resolve them. See United (1st Cir.2006); The Elev *9 McConnel, (10th enth Circuit follows what it describes as a v. 464 F.3d 1158 n. 3 Cir.2006). And, mentioned, "deferential” standard. United v. previously as the Puche, yet fully D.C. Circuit has to endorse the delib suggested high The Second Circuit ignorance has that a erate See instruction. Alston-Graves, ly appropri deferential standard of review is v. 339-41 (D.C.Cir.2006). ate predicates because a claim that the factual it. See party requesting the favorable to to reflection, find no reason treat we
On
58, 63,
States, 485 U.S.
v. United
other Mathews
differently from
instructions
Jewell
(1988);
Tur-
Still,
99 L.Ed.2d
might
we
108 S.Ct.
jury instructions.
417-18,
States,
had
396 U.S.
enough alone
well
ner United
willing to leave
been
Asuncion’s,
But,
promise.
When
shown
L.Ed.2d
progeny
S.Ct.
since,
prolifera-
a
on alterna-
requests
we’ve seen
instructions
years
party
a
in the
and
narrow, heavily fact-dependent
theories,
judge must con-
the district
tion
tive
that have
contradictory opinions
de-
separately
at times
the
sider
instructions
litigants
judges and
support
for both
difficult
if
could
a
been
the evidence
termine
surprising
not be
It
navigate.12
should
to
either
See
ground.
verdict on
Griffin
micromanage the dis-
attempt
States,
that our
to
cataloguing the various situ-
by
trict courts
(noting
a
justified
in which an
ations
if the jury
stand
verdict cannot
general
results. We there-
poor
such
yielded
has
legally
on a
flawed
have convicted
could
enterprise
the Asuncion
abandon
fore
at issue
a
knowledge is
theory). When
jury
to
applicable
rule
re-adopt the normal
case,
must first deter-
the court
to
reviewing the decision
by
instructions
the evidence
defendant’s
mine whether
ignorance instruction
give a deliberate
state,
light most
in the
mental
viewed
Opinions to the con-
discretion.
abuse of
support
will
a
government,
to the
favorable
supra, are overruled.
trary,
page 921
see
so,
knowledge.13 If
the
finding of actual
theory.
jury on this
the
court must instruct
ap
court should
B.
district
course,
is inconsis-
knowledge,
Actual
give
to
request
government’s
proach
willful blindness.
deliberate
tent with
way it deals
in the same
Jewell
into
only
play,
comes
ignorance instruction
proposed
instruction.
any
with
other
therefore,
jury rejects
govern-
if the
to an in
party
is entitled
general,
In
knowledge.
In
case as to actual
ment’s
theory of the
help
prove
its
struction
a willful
deciding
give
whether
blindness
case,
“supported
if the instruction
instruction, in
to an actual knowl-
addition
in the evidence.”
has
law and
foundation
instruction,
district court must
edge
(9th
Williams, 297 F.3d
Jones
could rational-
determine whether
Cir.2002).
though it has
willful blindness even
ly find
evidence of ac-
rejected
government’s
deciding
In
whether
so,
may
knowledge.
the court
also
tual
If
court
the district
particular
give a Jewell instruction.
light
in the
must
the evidence
most
view
guishing Jewell
the basis
on
the evidence is sufficient war
12. Whether
compartment in
aware of a secret
was not
giving a
instruction is an issue that
rant
See,
Heredia,
car).
patchwork
The result
been
panels.
e.g.,
has
has divided several
McAllister,
particular
820;
apply
factual situ-
rules that
United States v.
429 F.3d at
ations,
suspicious
regarding
Cir.1984);
such as the rule
agree here.16 ell instruction must a mind that of ening the state or recklessness something akin to find to V Al See, e.g., United negligence. to overrule the invitation We decline (9th Cir.1987); varado, 584 F.2d 817 that district further and hold Garzon, at 609. The instruction F.2d of defer- degree judges are owed usual a reason beyond find jury to requires the igno- when deliberate deciding a ence in aware of “was defendant able doubt that While the is warranted. rance instruction criminality “delib of high probability” vary, can the instruction form of particular In the truth.” learning erately avoided minimum, must, contain the two at a in this actually given deed, the instruction avoid- and deliberate suspicion of prongs they acquit if be jurors told the case more, if may say judge ance. The district careless.” “simply lieved defendant so, deny the or it advisable do he deems comes negligence never Recklessness review such altogether. We instruction reason to there is little play, into The in- for abuse discretion. decisions these con juries import will suspect met trial given at defendant’s struction instructed, they are not cepts, as to which judge and the district requirements, these supra. See n. deliberations. into their it. issuing in abuse his discretion did not predicates of factual Even AFFIRMED. judge present, the district are instruction it. In where to refuse cases has discretion KLEINFELD, Judge, Circuit a deliber- present does government result: concurring might con- theory, judge ignorance ate justi- in this case Because the evidence confuse the instruction will clude that the instruction, and the blindness fied a wilful where may be true jury. The same (to objection no form which instruction’s identity. Con- only disputes defendant below) errone- plainly was not was made nature are best dealt of this cerns ous, conviction. affirm Heredia’s I would familiarity with judge, whose the district concluding that majority errs in But the at trial is and the events the evidence responsibility avoid criminal motivation will necessarily superior to our own. We of a wilful blind- be an element need not only in those his decision guess second ness instruction. find an abuse we rare cases where were a witness rather Suppose see explained, the reasons discretion. For defendant, gov- because the perhaps than court did supra, the district pages 922-23 ("The Jewell instruc jarano, F.2d at 1325 opinions on have 16. Some of commented our every given case where given. tion should not be be often Jewell instructions should how Baron, (“We knowledge, a lack of claims at 1318 n. 3 e.g., where, comparatively rare cases in those again today, we in the emphasize as have addition, point are facts that rarely appropriate.”);in there past, that a instruction bles, ignorance.”). This deliberate at 1073 direction F.2d z—Ro Sanche misguided and should ("[W]e speculation is recognized kind of that the instruction imply limitations on read to additional sparingly.”); not be should be used Cir.1987) Alvarado, issue a Jewell court’s discretion district beyond we've indicated ("The what point delib in which the facts cases rare.”); de Whether the relatively above. ignorance erate are Garzon, solely the evidence in pends on the state of case, explained analyzed ("The as we have 1982) given rarely be instruction should are, contrary suggesting above. Cases convict risk that the will extent, overruled. negligence.”); on a Murrieta-Be standard *12 charged ernment had her aunt who owned wouldn’t anything find either.”7 He admit- If seeing the car instead of her. Heredia were ted to a secret compartment in the (where car,” marijuana in trunk 110 pounds marijuana asked “was there of found), objected have for lack later but did not attempt open counsel would of it.8 foundation, objection and the would have suspicion been sustained.1 Heredia’s that, circumstances, We held in these testify enough
would not be to let her to the knowledge element in applicable can un- knowledge.2 Yet she be convicted drug statutes9 could be satisfied without a that requires der statute her to have positive, personal confirmed knowledge knowledge. impossible, This is not but it marijuana that the was in the trunk.10 We troubling paradox a is knowl- particular took note of the motive in such edge require than evidentiary less deliberate avoidance of knowledge cases knowledge. injustice, To avoid “to avoid responsibility the event of they needs to be instructed that must find discovery”: a motivation to avoid criminal responsibili- jury could [T]he conclude that ... al- ty to knowledge.3 be the reason for lack of though appellant presence knew of the of the secret compartment
In our and had en banc decision United States Jewell, knowledge of facts indicating man that it con- marijuana offered to sell marijuana, tained deliberately he avoid- Tijua- to the defendant and his in a friend positive ed knowledge presence of the bar, na and then to pay defendant $100 the contraband to avoid responsibility drive a car across the border.4 The friend in the event discovery. posi- If ... refused, saying that “it didn’t right,” sound knowledge convict, tive required and he “wanted no part driving would have no choice consistent vehicle.”5 But accepted the defendant with its oath but appellant to find offer, though “thought even he there was guilty though even he deliberately con- probably something illegal in the vehicle.”6 trived lack positive knowledge.11 his The defendant determined that there was no glove compartment, contraband We described such blindness as “wilful” seat, trunk, under the front or in the merely so he and not negligence, foolishness or people recklessness,12 concluded “the at the differing border positive ("A 1. may testify See F.R.E. 602 witness 4. Id. at 699 n. 1. to a matter unless evidence is introduced suf- support finding ficient to that the witness Id. 5. matter.”). personal knowledge has 6. Id. id., (“The Advisory
2. See Committee Note rule requiring that a witness who testifies to fact Id. 7. perceived by which can be the senses must observe, opportunity have had an and must actually observed the fact is a most Id. pervasive manifestation of the common law upon insistence information.") the most reliable sources of 841(a)(1), 952(a). § 9. 21 U.S.C. omitted). (quotation Jewell, 10. See United States v. 3. See United States v. (9th Cir.1976) (en banc). 1976) (en banc) (“The substan justification tive for the rule wilful blind [that added). (emphasis 11. Id. at 699 equivalent knowledge] ness is is that delib ignorance positive knowledge erate are omitted). equally culpable.”) (quotation 12. Id. at 700 & n. 7. of vio- requires “purpose necessary to “Wilfulness” far as “only so or, very at the legal lating a known to avoid the effort a calculated encompass duty,”15 least, why That is wil- “a bad purpose.”16 violating its the statute while
sanctions
to, and
culpable”
“equally
ful
blindness
substance.”13
for,
knowl-
may
positive
be substituted
find wilful blind-
properly
can
A court
allow conviction without
But to
*13
edge.17
avoidance of
knowledge
said
or wilful
positive
it can almost be
only where
ness
the scienter
knowledge is to erase
such
actually knew. He
that the defendant
we do
from the statute. And
requirement
fact;
prob-
its
he realized
suspected the
authority to do this: “The
have the
obtaining
from
he refrained
ability; but
of a criminal
of the elements
definition
because he wanted
final confirmation
the
legislature, par-
is entrusted to the
offense
deny knowl-
to be able to
the event
crimes,
ticularly in the case of federal
This,
alone, is
and this
edge.
wilful
solely creatures of statute.”18
which are
requires
It
blindness.
effect
find-
it a crime for Heredia to
The statute made
to cheat
the
intended
ing that
intentionally”
possess
or
“knowingly
Any
justice.
administration
car
marijuana in the trunk of her aunt’s
of
(that
the doc-
is,
would make
wider
distribute it
with an intent to
definition
to her aunt or to someone
the car back
indistinguish-
blindness
trine
wilful
“knowingly
act
If she did not
negligence
else).19
the civil doctrine
able
from
intentionally,” then she did not commit
obtaining knowledge.14
in not
crime.
Kennedy,
joined by Judges
Then-judge
subsequent
to Jewell
Our cases
Wallace, vigorously
Hufstedler and
Ely,
closely
hewed
to its restrictive-
generally
that
They presciently warned
dissented.
notes,
majority
(though, as the
some
ness
too wide to
majority opened the door
re-
appear to deviate on the wilfulness
In
en
decision in
quirement20).
our
banc
for scienter..
suspicion as
substitute
1420,
Sehnal,
majority justifies
States v.
930 F.2d
its own
United
15.
13. Id. at 704. The
(9th Cir.1991) (citing Cheek v. United
1427
language by not-
deliberate avoidance of this
192, 199,
604,
States,
S.Ct.
112
498 U.S.
111
explicitly say
ing
did
that Jewell
(1991)).
L.Ed.2d 617
contain a
blindness instruction must
wilful
responsibility el-
motivation to avoid criminal
Murdock,
389,
v.
290 U.S.
16. United States
appel-
Majority
But the
at 919 n. 9.
ement.
223,
394,
(1933), over-
54 S.Ct.
guilty knowledge and the
proof
trial ment of a
respon-
motive to avoid criminal
supports an inference of
igno-
deliberate
sibility.
I
precedents
concede that our
enough
rance.
It is not
that defendant
have not been clear on whether motive
mistaken,
recklessly disregarded
was
be an
must
element of the
or
truth,
negligently
or
in-
failed to
just an element for the judge to consider
Instead,
quire.
government
must
in determining whether
a to
present
indicating
this,
evidence
that defen-
however,
instruction.27 The cure for
329,
Aguilar,
21.
obtaining
United States v.
80 F.3d
332
refrains from
final confirmation in
(9th Cir.1996) (en banc).
deny knowledge
order to be able
appre
to
hended.”);
Alvarado,
United States v.
838
Id.
311,
(9th Cir.1987) (“[T]he
F.2d
314
facts
support
must
the inference that the defendant
Depot,
23. United
Hide
Fur
&
Pacific
purposely
...
learning
contrived to avoid
all
Inc.,
into circumstances, “coercion, or exigent No suspicious and delib- be that the defendant prevents FedEx meaningful choice” lack of imposi- investigating. The erately avoid accepting packages before opening from crime of intend no people who tion on them, go- companies bus prevents or statutory has no basis. investigate duty look- suspicious ing through luggage says requirement its majority are But these businesses ing passengers. cannot who enough protect defendants any transporting drugs “knowingly” “coercion, exigent investigate because they know though even particular package, meaningful or lack circumstances in all likelihood that in a volume business the latter not sure what I am choice.”28 They forego they must be. sometimes the term (especially mean two novelties time, money, of- or inspection save choice) or how would “meaningful” customers, avoid not to fense *15 mean- give them concrete instructed to be these reasons for responsibility. But majority’s “[a]n that The statement ing. acceptable to are not the ones inspecting deliberately ig- being motive for innocent (“coercion, exigent majority circum- under its not bar conviction norant does choice”). stances, meaningful lack proposition to its rule”29 seems contradict majority apparently makes opinion The ex- exigent circumstances that coercion or fact despite felons these businesses The investigate. majority to cuse failure matter, not. For that Congress that did can investi- to mean that if someone seems mother, a child driving his someone duty A criminal to inves- they must. gate, weekend, sixties, put- Thanksgiving to and to wrongdoing of others avoid tigate the trunk, in the should not ting her suitcase novelty in of one’s own is wrongdoing open go through her clothes. have to and criminal law. ought incorpo- “coercion, cir- majority’s exigent The developed, that rate what our law has case meaningful lack choice” cumstances or is the wilful blindness doctrine meant are justifications investigate for failure “all knew”30 a defendant who but punish has not con- government too few. The “suspects who the truth —a defendant citizenry investigators, and scripted the as fact, re- [high] probability, realizes its unpleas- that impose the statute does not in obtaining final confirmation frains risky obligation peo- on ant and sometimes knowledge if deny order to be able thinks his mother ple. someone Shall who “This, alone, and apprehended.”31 in marijuana her carrying a stash of in wilful blindness.”32 helps her obligated, when he suitcase be jury that had it, this case told the rummage through things? her Id. 31. Majority 28. 920-21. F.2d Majority at n. 10. 32. Cir.1976) banc), (en (quoting G. n. 7 Part, Williams, Law: The General Mapelli, Criminal 30. United 1961)). (2d § 57 at 157 ed.
“knowing” possession marijuana not do so “knowingly,” are what we tradi- high the trunk if she “was aware of a tionally refer to as “innocent.” probability” drugs that were in car and The reason that I concur instead of dis- “deliberately learning avoided the truth.”33 senting is that defendant object did not That mental state would fit FedEx and the these deficiencies in the aging hippy, child of an as well a drug as the deficiencies “plain.”38 were not To mule. A ought instruction' to re- (1) error, plain constitute error quire drugs “[a]n a belief that ... must present,34 are (2) be ... readily avoidance of confirmation of the obvious or apparent.”39 be- “At lief,35and in that minimum, wilfulness avoidance— a court of appeals cannot cor- is, choosing that not to confirm the belief 52(b) rect an pursuant error to Rule unless deny order to “be able to if the error is clear under current torn”40 apprehended.”36 The instruction should previous Our cases did not make clear recklessness, expressly exclude negligence that the instruction say had to these things (the given only mistake one excluded (they only made clear that judge must “simpl[e] and an careless[ness]” “aetual[] decide there was some evidence of wilful- drugs that no belie[f] were the vehi- instruction).41 ness cle”).37 giving before For Anything supports less convictions reason, that it is persons Congress surprising whom excluded from statutory coverage instruction given with the word “know- tracked the language of ingly.” People possess who drugs, but do our own form.42 may 33. The instruction reads: “You find that 39. United Young, n. knowingly you defendant acted find beyond a reasonable doubt the defendant high probability was aware of a drugs *16 Olano, 725, 734, 40. United States v. 507 U.S. by were in the vehicle driven the defendant 1770, (1993) (em- 113 S.Ct. deliberately learning and avoided the truth. added). phasis however, may knowledge, You not find such if you actually find that the defendant believed supra 41. See note drugs that there were no in the vehicle driven defendant, by you or if find that the defen- 42. See Jury Ninth Circuit Model Criminal In simply dant was careless.” (2003) (“You may struction 5.7 find that the 34. See United States 532 F.2d knowingly you beyond defendant acted if find (9th 1976) (en banc); Cir. United States v. a reasonable doubt that the defendant was Baron, 94 F.3d 1318 n. 3 high probability [e.g., drugs aware of a were in the defendant's automobile] and de 35. See id. liberately learning avoided the truth. You however, may knowledge, you not find such if Mapelli,
36. United 971 F.2d (9th 1992). actually find that the Cir. believed that [e.g., drugs no were in the defendant's auto Aguilar, 37. See United States v. mobile], you or if find that the defendant was (9th Cir.1996) (en banc) (quoting United careless.”). simply But see McDowell v. Cal Inc., Depot, States v. Hide & Fur Pacific Cir.1997) deron, (9th (m ode 1985)) ("It 1098-99 is not jury l instructions are not a substitute for mistaken, enough that the defendant was drafting); individual research and truth, recklessly disregarded negligent Hegwood, ly inquire.”). failed Cir.1992) (“Had merely [giv the district court instruction, the model 52(b); en] it would have 38. See Fed. R. Crim. P. Olano, error.”). plain committed L.Ed.2d 508 testimony and the all, her or none of part, a giving was to objection Defendant’s all, testimony than to the The district court rather others. Jewell give She reasonably instruction. exercised its discretion in the language (1) instruction, appro- is not there was that “the instruction a argued case” because opened particular in this husband priate testimony Heredia’s anything did that she no evidence house while “there is at Heredia’s aunt’s the trunk [learning the avoid deliberately ... if she and could look present Heredia ” in the argue dis- (2) She did to, truth].... the car smelled of fabric wanted appeal, that court, now does on as she trict (3) softener, thought her mother Heredia if given, the wilful blindness boyfriend were involved her mother’s and that a defen- a requirement include should (4) suspicious Heredia was be- drugs, with aby be motivated wilful blindness dant’s visibly and aunt were her mother cause responsibility.43 to avoid criminal desire (5) “nervous,” would be Heredia knew she patrol check- through a border driving that the evi- argument was Defendant’s her despite suspi- have point, could not and that Heredia showed dence and marijuana key asking because the her mother aunt cions avoided discovered open Together, car. had would drugs she been if there were (it key— a valet justified to have been inference of trunk seems evidence this lock the trunk with DEA had to positive break wilful avoidance screwdriver), by the time she appre- responsibility avoid drugs, presence began suspecting the hended. before the freeway no exit
there was Mapelli, held wil- checkpoint. As we GRABER, whom Judge, with Circuit “inappropriate ful blindness THOMAS, PAEZ, PREGERSON, justify one of two evidence could where the Judges, join, dissenting: Circuit conclusions, that the defendant had either not, instruction to be Assuming the Jewell the defendant did knowledge, or that majority that the conclusion, I proper, agree that the defen- but not a third eyes her to review district deliberately dant shut avoid standard which a fact she all confirming one is “abuse existence court’s decision to case, though, In light but knew.”44 of the evidence discretion” *17 that the correctly concluded district court But as a matter of presented at trial. jury properly to con- allowed construction, evidence I that the statutory believe avoidance of clude that there wilful was it proper is not instruction knowledge. positive about, misconstrues, jury and misleads by 21 U.S.C. required mens rea majority that our re- agree I with the 841(a)(1). legal error of § Because justi- view of whether instruction in this case was instruction discretion, giving Jewell fied is for abuse of de doubt, I beyond a reasonable harmless not have to jury novo.45 The believe did respectfully dissent. It could everything said. believe Heredia arbitrariness, defendants, argue be- invites 43.Similarly, did not below knowledge in this meaning con- law, cause the as a matter that the Jewell important non-obvious. text is Omitting given. a Jewell should never be would, altogether, the dissent as Mapelli, 44. United States judge to instruct it means that if a asks Cir.1992). "knowing,” meaning of further on the Majority protecting at 921-22. than will decline. Rather court 841(a)(1), Denver, § it Under U.S.C. is a 511 U.S. 114 S.Ct. (1994) (alteration ... “knowingly intentionally crime to or manufacture, distribute, (internal dispense, or or in original) quotation marks manufacture, intent possess omitted); dis- see also Liberty Jones v. Glass tribute, dispense, a Co., or controlled sub- 524, 533-34, added.) (Emphasis plain stance.” The L.Ed. 142 (rejecting the doctrine does text the statute not make a crime as, of legislative acquiescence best, at “an high probability to have a of awareness of auxiliary tool for use in interpreting am- possession knowledge or intention is re- biguous statutory provisions”). — quired. Whatever congressional relevance inac majority recognizes that willful tion holds in this outweighed by case is separate blindness is a mens rea and dis- congressional actual action. Under 21 knowledge. tinct from Majority op. See 841(a)(1), § person U.S.C. guilty of a (“Actual course, 922-23 knowledge, of only requisite crime performed act is blindness.”); with willful inconsistent see “knowingly contrast, or intentionally.” By Jewell, also United States v. both before and after Congress has (9th Cir.1976) (en banc) 705-06 (Kennedy, defined several other crimes in which the (“The J., dissenting) majority justi- opinion mens rea high involves a probability of fies the purpose jury conscious awareness —but it has phrases done so in an application as of the wilful blindness dramatically here, different than the one recognized primarily by doctrine English which lists knowledge and intent. authorities.... English [T]he authorities See, 175b(b)(l)(“knows e.g., §§ 18 U.S.C. seem to consider wilful blindness a state of or believe”), has reasonable cause to mind from, equally culpable distinct 175b(b)(2) (same), (“knows, or has rea as, added)). ‘actual’ knowledge.” (emphasis grounds sonable suspect”), to believe or Similarly, if not even obviously, more will- 842(h) (“knowing having reasonable ful step blindness is at least one removed 2332d(a) believe”), cause to (“knowing or from intention. 2339(a) having know”), reasonable cause to (“knows, or has grounds reasonable to be justifying
Instead of sleight-of-hand its 2424(a) lieve”), (“knowing or in reckless directly, majority points' to the fact fact”). disregard of the importantly, Most that Jewell has been on the books for 30 Congress adjacent has done so in sections years Congress and that has not amend- statute, of the same the Controlled Sub ed the statute in way repudiates Act, 801-971, §§ stances 21 U.S.C. expressly. Majority op. Jeioell at 918-19. even within the same section of the same
I find reasoning unpersuasive. 841(c)(2)(“know- §§ statute. See U.S.C. “[Congressional persuasive inaction lacks ing, or having reasonable cause to be significance equally because several tena- *18 lieve”), 843(a)(6)(“knowing, intending, or may ble inferences drawn be from such believe”), having reasonable cause to inaction....” Craft, 535 (same). 843(a)(7) 274, 287, “It is that 122 axiomatic U.S. S.Ct. 152 (2002) (internal Congress ‘adja when different text in L.Ed.2d 437 uses quotation omitted). cent’ statutes it intends that the different impossible marks “It is to as- carry terms any degree meaning.” sert of different White assurance that Lambert, 1011(9th congressional failure act v. 370 represents to af- 2004). Thus, congressional job firmative approval reading we do our of “[i]f statutory whole, interpretation.” [courts’] Cent. the statute we have to effect to Bank command, Denver v. First plain doing Interstate Bank even if that will [its] of
932
closely
more
mens rea
knowledge into a
under
practice
longstanding
the
reverse
or recklessness.
negligence
to
akin
Inc. v.
rule.” Lexecon
the
and
statute
the
Lerach,
Hynes &
Bershad
Milberg Weiss
that “one
court
agree
I
with the Jewell
956, 140 L.Ed.2d
26, 35, 118 S.Ct.
U.S.
523
he is less than abso-
‘knows’facts which
omitted).
(1998) (citations
That
F.2d at 700.
lutely certain.” 532
rea-reducing Jewell
so,
being
the mens
that the Jewell
majority recognizes
The
is
wrong, it also
not
is
decision
substantive
embodies
the kind of
in the face of
unnecessary
sub-
a controlled
possess
those who
that
likely
pro-
is
to
prosecutor
that a
proof
they don’t
“don’t know
and
stance
your
if
husband
example,
For
duce.
just
culpable
as
as
are
know”
to
want
every Friday
at 1:00 a.m.
comes home
intentionally pos-
knowingly or
who
those
day
(after
p.m.
at 5:00
having left work
the
Majority op.
substance.
a controlled
sess
usual),
he
never reveals where
as
before
§ 2.02
Penal Code
918;
also Model
see
at
been,
you
eye
in the
on
won’t look
has
248(“Whether
cases
[of
such
at
cmt.
Thursday’s
the
puts
shirts in
Fridays, and
in-
viewed as
should be
blindness]
wilful
stains, your
lipstick
hamper bearing
recklessly
knowingly
acting
stances
you “know” he is
agree that
friends will
ques-
important
a subtle but
presents
you
refuse to seek
an affair
having
even
tion.”).
never made this
Congress
But
jury is to
The role of a
confirmation.
culpa-
levels of
decision about
substantive
of a
to the facts
apply common sense
By
did.
court
bility
—the
persuaded
will be
case.
sensible
that sur-
away the underbrush
“elear[ing]
is
“knows” what she
drug
that a
mule
majority op.
the
rounds”
confronted with evidence
carrying when
reaffirm
majority
to
this
chooses
operate and how this
typically
mules
how
In
decision.
so
substantive
judge-made
to a
without reference
mule acted—all
directly
majority
contravenes
doing, the
instruction.
legislature,
is the
that
principle
“[i]t
Thus,
and inter-
I
overrule Jewell
would
crime,
Court,
which is to define
not
841(a)
require exactly
§
pret
U.S.C.
United
punishment.”
its
ordain
knowing or inten-
requires
its text
what
Wheat.)
(5
Wiltberger, 18 U.S.
—a
“
Congress
If
wants
tional mens rea.
spirit
‘The
men knowledge. Heredia based on actual West, Bank of the United f/k/a jury might bought rational have “[A] Here- Bank, California dia’s claim that she basic didn’t know Appellant, trunk, drugs about the yet disbe- v. lieved aspects story,” thereby other of her concluding that she acted with igno- willful Wiersma; Jim Lee Patricia Darlene Majority op. rance. at Accordingly, 923. Wiersma, Appellees. I find that giving cannot the error of a 05-35246, Nos. 05-35248. harmless,
Jewell instruction was and I re- United States Appeals, Court of spectfully dissent.
Ninth Circuit.
Argued 14, and Submitted Nov. 2006. 6, April Filed 2007. WIERSMA; In re Jim Lee In re Wiersma,
Patricia Darlene
Debtors,
Wiersma;
Jim Lee
Patricia Darlene
Wiersma, Appellants,
West,
Bank of the
United
f/k/a
Bank, Appellee,
California
Griffin,
however,
In
Supreme
applied
Court
they
when
op-
been left the
Yates
legal
harmless error test to
errors in
relying upon
factually inadequate
tion of
a
instructing
a
and the
v. United
Turner
theory,
jurors
equipped
since
are well
States,
642,
396 U.S.
90 S.Ct.
24 L.Ed.2d
analyze the evidence.
(1970),
harmless error test to instruction-
Id. at