3.4.1 – United States v. Jewell

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532 F.2d 697
United States Court of Appeals,
Ninth Circuit
(sitting en banc)
UNITED STATES of America, Plaintiff-Appellee,
Charles Demore JEWELL, Defendant-Appellant.

Feb. 27, 1976.

BROWNING, Circuit Judge:
. . . [A]ppellant argues that it was reversible error to instruct the jury that the defendant could be convicted upon proof beyond a reasonable doubt that if he did not have positive knowledge that a controlled substance was concealed in the automobile he drove over the border, it was solely and entirely because of the conscious purpose on his part to avoid learning the truth. The majority concludes that this contention is wrong in principle, and has no support in authority or in the language or legislative history of the statute.

. . . [A]ppellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. [Appellant was arrested and charged with knowingly bringing marihuana into the United States in violation of 21 U.S.C. § 952(a), and “knowingly” possessing marihuana in violation of 21 U.S.C. § 841(a)(1).]

Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was false.1 On the other hand there was evidence from which the jury could conclude that appellant spoke the truth that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery.2 If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

1 Appellant testified that a week before the incident in question he sold his car for $100 to obtain funds “to have a good time.” He then rented a car for about $100, and he and a friend drove the rented car to Mexico. Appellant and his friend were unable to adequately explain their whereabouts during the period of about 11 hours between the time they left Los Angeles and the time they admitted arriving in Mexico.

Their testimony regarding acquisition of the load car follows a pattern common in these cases: they were approached in a Tijuana bar by a stranger who identified himself only by his first name “Ray.” He asked them if they wanted to buy marihuana, and offered to pay them $100 for driving a car north across the border. Appellant accepted the offer and drove the load car back, alone. Appellant’s friend drove appellant’s rented car back to Los Angeles.

Appellant testified that the stranger instructed him to leave the load car at the address on the car registration slip with the keys in the ashtray. The person living at that address testified that he had sold the car a year earlier and had not seen it since. When the Customs agent asked appellant about the secret compartment in the car, appellant did not deny knowledge of its existence, but stated that it was in the car when he got it.

2 Both appellant and his companion testified that the stranger identified as “Ray” offered to sell them marihuana and, when they declined, asked if they wanted to drive a car back to Los Angeles for $100. Appellant’s companion “wanted no part of driving the vehicle.” He testified, “It didn’t sound right to me.” Appellant accepted the offer. The Drug Enforcement Administration agent testified that appellant stated “he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn’t find anything, and, therefore, he assumed that the people at the border wouldn’t find anything either ” (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, “Well, you know, I saw a void there, but I didn’t know what it was.” He testified that he did not investigate further. The Customs agent testified that when he opened the trunk and saw the partition he asked appellant “when he had that put in.” Appellant told the agent “that it was in the car when he got it.”

The jury would have been justified in accepting all of the testimony as true and concluding that although appellant was aware of facts making it virtually certain that the secret compartment concealed marihuana, he deliberately refrained from acquiring positive knowledge of the fact.

Appellant [proposed that the court instruct the jury] that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that “absolutely, positively, he has to know that it’s there.” The court said, “I think, in this case, it’s not too sound an instruction because we have evidence that if the jury believes it, they’d be justified in finding he actually didn’t know what it was he didn’t because he didn’t want to find it.”

The court instructed the jury that “knowingly” meant voluntarily and intentionally and not by accident or mistake. The court told the jury that the government must prove beyond a reasonable doubt that the defendant “knowingly” brought the marihuana into the United States, and that he “knowingly” possessed the marihuana. The court continued:

“The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.”

[The jury convicted Jewell, and this appeal followed.]

The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, “One with a deliberate antisocial purpose in mind . . . may deliberately ‘shut his eyes’ to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having ‘knowledge’ of the facts as they are ultimately discovered to be.” J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, “For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . ‘knowingly.’ ” Professor Glanville Williams states, on the basis both English and American authorities, “To the requirement of actual knowledge there is one strictly limited exception. . . . (T)he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.” . . .

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one “knows” facts of which he is less than absolutely certain. To act “knowingly,” therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, “positive” knowledge is not required.

This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” As the Comment to this provision explains, “Paragraph (7) deals with the situation British commentators have denominated ‘wilful blindness’ or ‘connivance,’ the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist.”

The Supreme Court, in Leary v. United States, 395 U.S. 6, 46 n.93, (1969), applied the Model Penal Code definition of knowledge in determining the meaning of “knowing” in former 21 U.S.C. s 176a. In Turner v. United States, 396 U.S. 398, 416 & n.29 (1970), the Court adopted the Model Penal Code definition in defining “knowingly” in 21 U.S.C. s 174. . . . “ Deliberate ignorance” instructions have been approved in prosecutions under criminal statutes prohibiting “knowing” conduct by the Courts of Appeals of the Second, Sixth, Seventh, and Tenth Circuits. . .. These lines of authority appear unbroken. . . .

There is no reason to reach a different result under the statute involved in this case. . . . Appellant’s narrow interpretation of “knowingly” is inconsistent with the Drug Control Act’s general purpose to deal more effectively “with the growing menace of drug abuse in the United States.” Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing.

It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant’s interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law. . . .

It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.” In the language of the instruction in this case, the government must prove, “beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth.” . . .

The conviction is affirmed.

ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

. . . [W]e would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.

The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place. The doctrine is commonly said to apply in deciding whether one who acquires property under suspicious circumstances should be charged with knowledge that it was stolen. . . .

[One] problem is that the English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, “actual” knowledge. When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy. . . .[T]he wilful blindness doctrine is [also] uncertain in scope. . .

[S]ection 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts, the English doctrine:

“When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”

This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it. . . .

In light of the Model Penal Code’s definition, the “conscious purpose” jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form “a conscious purpose to avoid learning the truth” unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.

The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he “actually believed” there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge that a reasonable man should have inspected the car and would have discovered what was hidden inside. . . .

Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or “not actually aware” that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge. A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it. . .

[W]e remain convinced that the instructions given in this case were erroneous; they could have permitted the jury to convict Jewell without being certain beyond a reasonable doubt that he possessed the mens rea required for knowing possession or importation. . . .

Accordingly, we would reverse the judgment. . .

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