FEINBERG, Circuit Judge:
Carlos Joly appeals from a conviction after a jury trial in the United States District Court for the Eastern District of New York of three counts of importing cocaine and possessing it illegally. Judge Jack B. Weinstein sentenced Joly as a youth offender, 18 U.S.C. § 1510(b), to an indefinite term of four years on each count, to run concurrently.
There is no need to relate the facts of the case in great detail since Joly does not claim that the evidence was insufficient or that the cocaine was found on his person as the result of an improper search. Briefly, Joly was caught in a customs search at John F. Kennedy International Airport after he left a plane, which had just arrived from Panama City, Panama. As Joly approached the inspection belt, his furtive actions and a "bulge" in his waistline aroused the suspicions of an inspector. A search revealed a brown paper bag, containing about 330 grams of cocaine. Appellant's story at trial was that a man on the plane named Miguel had given him the package and promised him $100 if he took it through customs and returned it "outside the airport." Joly maintained that he did not know the package contained cocaine and that when he had asked "Miguel" what was in the package, Miguel had told him it was nothing to be concerned about.
The extent of Joly's knowledge was the only significant factual issue at trial. There was no direct evidence that Joly knew he was carrying cocaine concealed under his belt, although an agent testified that Joly admitted that "he thought he was doing something wrong but he really didn't know what it was." "Miguel" did not appear,
In his charge to the jury, Judge Weinstein correctly emphasized the issue of appellant's "guilty knowledge." The judge said:
Appellant concedes that "studied ignorance" of a fact may, under decisions of the Supreme Court and of this court, constitute an awareness of so high a probability of the existence of the fact as to justify the inference of knowledge of it. See, e. g., Turner v. United States, 396 U.S. 398, 416 & n. 29, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Jacobs, 475 F.2d 270, 287-288 (2d Cir. 1973), cert. denied, sub. nom., Thaler v. United States, 414 U.S. 821, 94 S.Ct. 131, 38 L.Ed.2d 53 and Lavelle v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53; United States v. Squires, 440 F.2d 859, 863-864 (2d Cir. 1971). But appellant distinguishes these cases because in each there were only two alternative possibilities, whereas in his there are many. Thus, in both Leary and Turner, where an issue was defendant's knowledge of importation of the drug, the substance which defendant admittedly possessed was either imported or it was not. The Court in Turner reasoned that — given the fact that little or no heroin is made in the United States — one dealing in it is aware of the high probability of its foreign origin. 396 U.S. at 415-416, 90 S.Ct. 642. In this context, says appellant, a reckless ignoring of the source does not undermine the validity of an inference of knowledge of importation because a "studied ignorance," id. at 417, 90 S.Ct. 642, of the illegal (and only other) alternative does not preclude awareness of the great likelihood that the drug was imported. Appellant applies the same analysis to possession of stolen goods (the goods are either stolen or not), United States v. Jacobs, supra, and to making false statements (the assertions are either true or false). United States v. Squires, supra. But, contends appellant, the inference of knowledge of the crucial fact disappears when the alternatives multiply, as in this case, where appellant could well, in his ignorance, have been carrying gold, watches, jewelry or myriad other items.
Before we examine appellant's argument, we must consider the Government's first response to it: that two prior decisions of ours, on all fours with this one, foreclose the issue. The cases relied upon were both affirmances from the bench by different panels of this court.
We believe that appellant is wholly correct on this point. Although the rule refers to "statements" rather than decisions, its clear intent — contrary to the interpretation urged upon us by the Government — is that the decisions themselves shall also have no effect as stare decisis. The reasons for this new local rule are obvious. Affirmances from the bench occur only when the panel is agreed that the result is clear and that a written opinion would have no real value to the parties, or to others, as a clarification of law or as a precedent. Consequently, use of an oral affirmance as a precedent is inconsistent with the assumption upon which the affirmance was rendered. Moreover, in many instances, it is impossible to be sure of the basis of an affirmance; e. g., was a charge unobjected to below correct or was the error merely not "plain"? Even more important, any rule that accorded precedential value to the actual decisions, although not to any accompanying statements, would create severe problems of "secret law." While the Government and, to a lesser extent, Legal Aid would know of these decisions, many other attorneys and their clients would not.
Turning now to the merits of appellant's argument regarding the inference of knowledge, we think it ingenious but incorrect. If a person has cocaine in his possession, a legitimate inference arises that he knows what he possesses is cocaine. The reason is that it is more probable than not that a person knows what he has in his pocket or, as here, hidden under his belt. Of course, other evidence may weaken the inference. A denial of knowledge, a showing that someone else may have surreptitiously planted the cocaine where it was found, proof of lack of motive for possession — all are examples of mitigating evidence. Another example would be the showing made by Joly here that the cocaine was wrapped in a package small enough to contain jewelry or a watch or some other small, yet valuable item. But the legitimacy of the basic inference of knowledge does not automatically disappear because other evidence arguably points the opposite way. And the inference of knowledge certainly does not become invalid when it is buttressed by such additional evidence as a possibly manufactured story about
Appellant also attacks another portion of the charge, in which the judge stated:
Again, trial counsel voiced no objection. Appellant now contends that this instruction left the jurors with the false impression that they could convict on less than certainty, in the face of the Supreme Court's admonition that "utmost certainty" is required. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969). While the challenged words might better have been omitted, we feel confident that the charge as a whole correctly conveyed the proper standard of proof to the jury. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The instruction on reasonable doubt,