MANSFIELD, Circuit Judge:
Celedonia Morales appeals from her conviction, after a jury trial in the Eastern District of New York before Judge Thomas C. Platt, of one count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She was sentenced, pursuant to 18 U.S.C. § 4205(b)(2), to a term of 12 years imprisonment
On February 25, 1977, appellant, using the assumed name of Carmen Ortiz, purchased a one-way plane ticket from O'Hare Airport, Chicago, to LaGuardia Airport, New York. By chance, the tag for her suitcase was lost before the luggage was placed on the airplane and, in the course of searching for information as to its destination, an airlines baggage agent opened it and found inside two small packages, both of which were wrapped completely in silver electrician's tape and buried beneath some dirty clothes. One of the packages had acquired a small tear about a quarter of an inch long in it by the time it was discovered and was giving off a vinegar-like odor. As a result, the baggage agent became suspicious and reported the matter to the authorities. A field test of the contents of the packages performed by an agent of the Drug Enforcement Administration (DEA) revealed that they contained heroin.
After removing small samples of the narcotics, the DEA agent determined the airline's flight number and the destination of the suitcase, alerted the DEA office in New York of its expected arrival, and had the luggage forwarded to LaGuardia Airport. Meanwhile, appellant arrived in New York and again used the assumed name of Carmen Ortiz on a lost baggage report informing the airline that her suitcase was missing. Shortly thereafter the bag arrived, and she picked it up. After appellant made several phone calls, she was arrested by DEA agents who had been keeping her under surveillance.
As appellant spoke English somewhat haltingly, an officer of the Customs Service advised her in Spanish of her constitutional rights. Although she admitted that she had opened the suitcase to put in a blouse, appellant denied knowing that it contained drugs. She explained that a man named "Juan," whom she had seen occasionally in her neighborhood, had promised her $1,000 if she would deliver a suitcase to a man named "Shorty" in New York; she indicated that she had simply followed instructions.
Immediately after her arrest, appellant agreed to cooperate with the federal agents and, as arranged, delivered the suitcase to one Anna Mendez in Brooklyn, New York, who, it was understood, was to turn the narcotics over to "Shorty," the buyer. Although "Shorty" and Mendez were both arrested for their participation in the transaction, appellant was either unwilling or unable to furnish the DEA agents with the name and address of her heroin source.
Appellant and Mendez were jointly indicted for possession of heroin with intent to distribute it, but their cases were severed before trial. Appellant was tried on April 6 and 7, 1977. As much of the intended trial testimony had either been the subject of a lengthy suppression hearing on April 5 or concerned facts not in dispute, the attorneys entered into stipulations which obviated the need for producing several Government witnesses. The Government, therefore, called only Special DEA Agent Gerard Whitmore, who was in charge of the investigation, and Philip Lawry, the officer of the United States Customs Service, who had been called in because of his fluency in Spanish to assist in advising appellant of her rights and in questioning her at the airport. Appellant did not testify or call any witnesses on her behalf.
The only disputed issue at trial was whether appellant had known that her suitcase contained drugs despite her insistence to the contrary in questioning following her arrest. The Government introduced no direct evidence, such as admissions or testimony by others involved in the transportation
Absent direct evidence, the fairness of appellant's trial depended heavily on the jury's being accurately informed of the relevance of circumstantial proof bearing on her state of mind. Not only was all of the evidence consistent with her having been an innocent carrier, a not unusual state of affairs in this kind of case, but also some of the Government's own evidence — the testimony reciting appellant's denials and her swift decision to cooperate — tended to support her claim of ignorance. Under these circumstances, an error in instructions regarding the relevance of the proof was far more significant than it might otherwise have been. Unfortunately the record reveals several errors with respect to the issue of appellant's guilty knowledge. Taken in combination, they were serious enough to deprive appellant of a fair trial.
First, the trial judge charged the jury regarding appellant's use of an assumed name on her lost baggage report as follows:
Of course appellant's use of a false name on her lost baggage report was admissible to show consciousness of guilt, i. e., that she knew she was doing something wrong or illegal. Consciousness of wrongdoing, in turn, might be considered along with all other relevant evidence bearing on the issue
In view of the remainder of the record in this case, we need not decide whether the erroneous instruction regarding appellant's falsification of her lost baggage report — which drew no objection from defense counsel — would in and of itself constitute "plain error," see Rule 52(b), F.R.Cr.P., entitling appellant to reversal. We hold only that, when taken with the other errors discussed below, it was under the circumstances of this case serious enough to require a new trial.
A second error was the trial judge's failure to balance his instruction on the subject of "conscious avoidance of knowledge." He stated:
In United States v. Bright, 517 F.2d 584 (2d Cir. 1975), where the issue was whether the defendant had known that certain checks were stolen, and the trial judge had instructed the jury, using language similar to that used here, that it could infer guilty knowledge from the defendant's conscious avoidance of knowledge, we reversed the conviction because the trial court had failed to balance the instruction with the caveat that the jury should acquit if it found that the defendant had believed the checks not
As we indicated in Bright, see 517 F.2d at 587-88, although the balancing language suggested there is not the sine qua non of a proper instruction, the trial judge has a general duty to balance his instructions regarding the significance of conscious avoidance of knowledge where necessary to assure fundamental fairness in the jury's appraisal of the evidence. The necessity for and nature of the balancing language will of necessity depend on the evidence in each case.
In this case, neither side introduced any direct evidence regarding appellant's belief as to the contents of the packages in her suitcase. Accordingly, the court was not required to charge the jury that it could acquit her if it found that she believed that the case contained something other than narcotics. See, e. g., United States v. Lozaw, 427 F.2d 911, 916 (2d Cir. 1970); United States v. Turley, 135 F.2d 867, 869-70 (2d Cir.), cert. denied sub nom. Burns v. United States, 320 U.S. 745, 64 S.Ct. 47, 88 L.Ed. 442 (1943); United States v. Waskow, 519 F.2d 1345, 1347 (8th Cir. 1975). However, the jury did have before it evidence that appellant spoke little or no English and that, upon being arrested, she advised the agents that she had not known there were drugs in the suitcase, following which she furnished some cooperation to the Government. Under these circumstances the trial judge should at least have balanced its instruction by advising the jury that unless it found that appellant had been "aware of a high probability" that her suitcase contained drugs, it should acquit. See United States v. Valle-Valdez, 554 F.2d 911 (9th Cir. 1977).
In Valle-Valdez the circumstances were substantially the same as those here. The defendant was arrested while driving a car whose trunk contained 302 kilo bricks of marijuana and charged with a violation of § 841(a)(1). His only defense was that he had been completely ignorant of the trunk's contents; he explained that a man had offered him $100 to drive the car from Mexico to the United States and that he had accepted without suspecting that he was transporting drugs.
Judge Platt's charge in this case that "[t]he defendant's lack of knowledge is not available to the defendant if the jury finds . . . beyond a reasonable doubt that the defendant had a conscious purpose to avoid enlightenment . . ." suggested to the jury that it could disregard appellant's denial of knowledge if it found conscious avoidance, whether or not she was aware of a high probability that she possessed drugs. Accordingly, as in Valle-Valdez, the instruction could have had the effect, once the jury found conscious avoidance, of precluding it from inferring on the basis of her statements to the agents and her cooperation with the Government that she thought that she was carrying some other contraband or that it never occurred to her that she was transporting narcotics.
Thus the trial judge's failure to balance his conscious avoidance charge not only was independent error but also compounded the prejudice resulting from his erroneous instruction regarding the inference that might be drawn from appellant's falsification of her lost baggage report.
The third circumstance undermining the fairness of appellant's trial was a serious error committed by defense counsel during his closing argument, which led to a prejudicial instruction by the court. On at least two occasions, appellant's trial attorney suggested that appellant might have thought that the taped packages in her suitcase contained marijuana, despite the complete absence of any evidentiary basis
The significance of defense counsel's remarks did not escape the prosecutor's attention. After the court had completed its instructions, the Government requested that the court dispel any mistaken impression defense counsel may have left. Thereupon, Judge Platt charged the jury that the Government did not have to prove knowledge of a specific narcotic.
In response, the trial judge remarked, "The first two questions apparently arise out of my last instruction," and repeated the substance of that instruction, telling the jury that the Government did not have to prove that appellant knew that her suitcase contained heroin as distinguished from some other drug but without noting the absence of any evidence that she believed it contained some drug other than heroin.
Even though defense counsel's comments — taken alone or in conjunction with other supposed errors committed during his representation of appellant — did not make appellant's trial a "farce and a mockery of justice," United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), the record demonstrates that the trial judge's instructions directed the jury's attention to defense counsel's remarks without correcting the false impression that they may have engendered. This incident alone might not require a reversal. However, it bore directly on the issue of appellant's knowledge, and it augmented the prejudicial effect of the court's two other erroneous instructions.
In conclusion, the jury charge misstated in two important respects the significance of the evidence bearing on the sole contested issue, appellant's knowledge, and defense counsel's remarks about marijuana during his closing argument, combined with the court's instruction on the subject, may well have confused the jury as to that evidence. Under the circumstances we believe that the cumulative effect of these errors was to deprive appellant of a fair trial on the issue of whether she knew that her suitcase contained drugs.
For the above reasons we reverse the conviction and remand the case to the district court for a new trial.
ROBERT P. ANDERSON, Circuit Judge, dissenting:
I dissent. This case was tried before a jury which returned a verdict of guilty against the accused, Morales. There was ample evidence to support that verdict. No point has been raised on appeal that there was an insufficiency of proof. The majority suggests that the evidence for conviction was not "overwhelming" because the Government offered no direct evidence, such as an admission by the accused or testimony by knowledgeable witnesses, that she had been told or was otherwise aware of what the suitcase contained. But a verdict of guilty is not rendered nugatory because of the absence of that kind of proof. The Government is entitled to every reasonable inference that may be drawn from the evidence.
The jury could have inferred that the accused refused to disclose the identity of the person who gave her the suitcase in Chicago because he knew and she knew that it was her job to transport the contraband. It could infer that she knew that she was being paid $1,000, not simply to carry a bag of dirty clothes from Chicago to New York, but for taking the risk of transporting illicit goods. There were, moreover, evidences of her conscious avoidance of
The Government's evidence also showed that the accused opened the suitcase on at least one occasion to place a blouse in it and that the heroin in the pouches gave off a noticeable vinegar-like odor. There was also the testimony that the packages in the suitcase did contain heroin. These are circumstances from which the jury could have reasonably inferred, and did infer, that the appellant knew the suitcase contained narcotics. Cf. United States v. Olivares-Vega, 495 F.2d 827 (2d Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 494, 42 L.Ed.2d 293 (1974); United States v. Joly, 493 F.2d 672 (2d Cir. 1974).
The majority, in testing the reasonableness of an inference drawn by the jury, considered only one relevant fact and concluded that that fact alone was insufficient to support the inference. It ignored, however, all other relevant facts in the case which the jury must have relied upon. For example, the majority said,
But in the context of the other relevant circumstances, above mentioned, the jury had complete justification and adequate grounds to draw the reasonable inference of guilt.
With respect to the legal issues raised on appeal, the majority correctly points out that, at trial, defense counsel made no objection to the district court's charge to the jury and that none of the allegedly erroneous instructions, in itself constituted plain error. See Rule 52(b), F.R.Cr.P.; United States v. Pelose, 538 F.2d 41 (2d Cir. 1976). Yet, the majority concludes that "the cumulative effect of these errors was to deprive appellant of a fair trial on the issue of whether she knew that her suitcase contained drugs." It has been the practice of this court to invoke the plain error rule sparingly, see United States v. Moore, 571 F.2d 76 (2d Cir. 1978); United States v. Indiviglio 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). This case does not present a situation where the charge as a whole had either the effect of removing an essential element of the offense from the jury's consideration, United States v. Singleton, 532 F.2d 199 (2d Cir. 1976); or was so defective and deficient that the guidance given the jury did not enable it to fulfill its function properly, United States v. Clark, 475 F.2d 240 (2d Cir. 1973).
The majority, however, accepts appellant's contention that the trial judge's charge was deficient in two respects: first, that he erroneously instructed the jury that, if it found that appellant had fabricated a false document, it could consider this as probative of her guilt instead of her "consciousness of guilt;" and, second, that he failed to balance his instruction on the inferences that could be drawn from her "conscious avoidance of knowledge" of the contents of the suitcase, with an instruction that, unless it found that she had been "aware of a high probability" that her suitcase contained drugs, it should acquit her.
It is important to note that appellant's fabrication of a false document and her use of a false name were not extrajudicial exculpatory statements, made after the perpetration of the offense charged, in the hope of extricating herself from suspicious circumstances. United States v. Johnson, 513 F.2d 819 (2d Cir. 1975). The facts of this case are, therefore, readily distinguishable from those of United States v. DiStefano, 555 F.2d 1094 (2d Cir. 1977), relied upon by appellant. In DiStefano, the court held that, in view of the otherwise weak evidence against the defendant, who was charged with conspiracy and aiding and abetting a bank robbery, it was plain error
In the present case, however, unlike the defendant in either DiStefano or Johnson, the appellant purposefully fabricated a false document and used a false name in the actual course of committing the crime itself in order to confuse any law enforcement agents who might be investigating drug traffic and to avoid subsequent identification. While these acts are evidence that the appellant was conscious of her guilty purpose, they also have independent probative force, United States v. Johnson, supra; United States v. Parness, 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975); from which, with the other evidence in the case, the jury could properly infer appellant's guilt. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Alberty v. United States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051 (1896); United States v. Montalvo, 271 F.2d 922 (2d Cir. 1959), cert. denied, 361 U.S. 961, 80 S.Ct. 589, 4 L.Ed.2d 543 (1960); cf. United States v. Lacey, 459 F.2d 86 (2d Cir. 1972); United States v. McConney, 329 F.2d 467 (2d Cir. 1964). But they are not conclusive and cannot, alone, furnish a foundation for a verdict of guilty.
As the Supreme Court stated in Hickory v. United States, 160 U.S. 408, 416-417, 16 S.Ct. 327, 330, 40 L.Ed. 474 (1896):
See also United States v. Ratcliffe, 550 F.2d 431 (9th Cir. 1976). The majority's discussion of this issue passes too quickly over the point that evidence which shows a defendant's consciousness of guilt is also relevant as a circumstance from which the jury can infer guilt. See United States v. Heitner, 149 F.2d 105 (2d Cir. 1945). Proof of the use of a false name or of the fabrication of a false report is itself some affirmative evidence of guilt (although not alone sufficient to support a conviction), see United States v. Ford, 237 F.2d 57, at 63 n. 10 (2d Cir. 1956), vacated as moot, 355 U.S. 38, 78 S.Ct. 114, 2 L.Ed.2d 71 (1957). To the extent that it is some affirmative evidence of guilt, it has independent probative force. The weight to be given to such actions depends on the motives which prompted them. In this regard, it is important to reiterate that appellant's use of a false name and her fabrication of a false baggage report were purposeful attempts at concealment during the commission of a crime and not false exculpatory statements made in the hope of extricating herself from suspicious circumstances, as in Johnson and DiStefano.
In the present case, other strong evidence of guilt, which included her statements that she was to receive $1,000 in return for delivering the suitcase and that she had opened it but remained wholly unconcerned with its contents, furnished sufficient additional proof, together with the inferences which the jury was entitled to draw therefrom, to support its verdict of guilty. Moreover, the appellant did not provide any explanation for her use of a false name. See Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); Wilson v. United States, supra. The district court's instructions, while not couched in language precisely suited to indicate the probative weight which the jury should have accorded
With regard to the need for a balanced instruction on conscious avoidance of knowledge, the majority cites United States v. Bright, 517 F.2d 584 (2d Cir. 1975) and United States v. Esquer-Gamez, 550 F.2d 1231 (9th Cir. 1977), for the proposition that a jury instruction stating that knowledge of a fact can be inferred from reckless disregard of the truth, or from a conscious purpose to avoid learning the truth, must be balanced by a charge that actual belief in the non-existence of a fact negates knowledge. See also, United States v. Valle-Valdez, 554 F.2d 911 (9th Cir. 1977); United States v. Bernstein, 533 F.2d 775, 796 n. 17 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976).
In the Bright case, however, the defendant had testified at trial concerning the basis for her belief that the checks she received from an acquaintance were not stolen. In the light of this testimony and defense counsel's specific objection to the charge, the court held that it was prejudicial to Bright's defense for the trial court not to balance its charge on conscious avoidance of the truth, with an instruction that, if the jury found the defendant actually believed that the checks were not stolen, it should acquit. Cf. United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied sub nom. Lavelle v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973).
Similarly, in the Esquer-Gamez case, defendants Rene Esquer-Gamez and Guillermo Platt-Lopez testified at trial that they believed that the packages of cocaine which they gave to Enrique Platt-Lopez were presents for his girlfriend and did not contain illegal drugs. Guillermo further testified that he asked Enrique what the packages contained, but he refused to explain. The trial judge failed, despite timely objection and a request by defense counsel, to charge the jury that if it found that Esquer-Gamez and Guillermo actually believed that the packages they handled did not contain drugs, then it must acquit them. On appeal, the court reversed their convictions, holding that on these facts, the trial judge's refusal to balance the charge as requested was prejudicial.
Unlike the defendant in the Bright case and the defendants in the Esquer-Gamez case, appellant did not attempt to explain to the jury the reasons for her lack of knowledge of the contents of the suitcase. Her statements to federal authorities at the time of her arrest showed that she was unconcerned about its contents and that she did not ask her friend Juan what was in the suitcase. As the majority points out, she never stated that she believed the suitcase contained some contraband other than heroin, such as jewelry or marijuana. Cf. United States v. Joly, supra, at 676. Therefore, the trial judge properly refrained from instructing the jury that it should acquit her, if it found that she believed the suitcase contained some contraband other than narcotics, and simply prefaced his instructions on conscious avoidance with a reference to appellant's defense. The charge, read as a whole, informed the jury that appellant's defense was that she lacked knowledge that the suitcase contained heroin; that knowledge was an element of the offense charged; and that, if the Government failed to prove each element beyond a reasonable doubt, it must acquit her. Cf. United States v. Gentile, 530 F.2d 461 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976). The charge was, in essence, the same as those approved by this court in United States v. Joly, supra, and United States v. Dozier, 522 F.2d 224 (2d Cir.), cert. denied, 423 U.S. 1021, 96 S.Ct. 461, 46 L.Ed.2d 394 (1975).
The majority's reliance on United States v. Valle-Valdez, supra, for the proposition that the trial judge should, at least, have balanced his instruction by advising the jury that unless it found that appellant had been "aware of a high probability" that her suitcase contained drugs, it should acquit her, is misplaced. Again, this case is distinguishable on the grounds that, unlike appellant, the defendant did testify concerning the basis for his lack of knowledge that his automobile contained contraband, and that he timely and specifically objected to the absence of a balanced charge. More importantly, however, the majority cites no cases in this circuit which have expressly adopted the "high probability" test announced by the Ninth Circuit in United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). In fact, several decisions of this court have stressed that a charge to a jury, instructing it that knowledge may be inferred from a defendant's consciously shutting his eyes to avoid knowing whether or not he is committing unlawful acts, may be more useful to a jury than the "high probability" formulation espoused by the majority. United States v. Brawer, 482 F.2d 117, 128-9 (2d Cir. 1973); United States v. Jacobs, supra, at 287; see also, United States v. Lamont, 565 F.2d 212, 228 (2d Cir. 1977); United States v. Olivares-Vega, supra, at 830; United States v. Joly, supra, at 675. The majority concedes that appellant could hardly have believed that she would be paid $1,000 for transporting a suitcase full of dirty clothes. Her "conscious purpose to avoid enlightenment" or her "studied ignorance" of the contents of her suitcase constituted an awareness of so high a probability as to justify the inference of knowledge that it contained narcotics. United States v. Joly, supra, at 675. Therefore, the omission of a jury instruction that the jury must find that appellant was aware of a high probability that the suitcase contained contraband, see United States v. Valle-Valdez, supra, at 914, under the circumstances of this case was, if erroneous, entirely harmless.
The majority's discussion of the trial court's allegedly prejudicial instruction on the issue of knowledge of a specific narcotic stems from appellant's claim that she was afforded ineffective assistance of counsel because of her attorney's ignorance of the elements of an offense under 21 U.S.C. § 841(a)(1) which resulted in his pursuit of an illusory defense, i. e. that if the jury found that she believed the substance in the pouches was marijuana rather than heroin, then it must acquit her. The record does not support this claim. Counsel's summation made it clear to the jury that her defense was that, except for the blouse which she placed in the suitcase herself, she had no knowledge of its contents. She at no time claimed, and her attorney did not suggest, that she actually believed the suitcase contained some other contraband, such as stolen jewelry or marijuana. Instead, in an effort to support by negative inference
Both defense counsel's summation and the court's instructions to the jury made it plain that the theory of the defense was that appellant was a "mule," ignorant of the contents of the suitcase she carried, and one who was simply following instructions. That the trial judge charged the jury that the Government did not have to prove knowledge of a specific narcotic and that the jury requested further instructions from the court on whether appellant would be equally guilty if she possessed any other narcotic than heroin does not show that appellant was prejudiced by her counsel's references to marijuana. See LiPuma v. Commissioner, Department of Corrections, 560 F.2d 84 (2d Cir. 1977); United States v. Matalon, 445 F.2d 1215 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 93 (1971); cf. United States v. Carrigan, 543 F.2d 1053 (2d Cir. 1976).
It is reasonable to assume from the weight of the evidence against appellant, cf. United States v. Bubar, 567 F.2d 192, 202, n. 15 (2d Cir. 1977); including her expectation of receiving $1,000 for delivering the suitcase, her use of a false name, her opening of the suitcase, and the vinegar-like odor it emitted, that the jury had already dismissed her defense of a complete lack of knowledge of the suitcase's contents, but was unsure of what significance to attach to the possibility that she might have believed that it contained another narcotic. Before answering the jury's question concerning marijuana, the trial judge explicitly stated to the jury that it was his recollection that "there was no proof that there was any other narcotic involved in this case other than heroin." He then properly instructed the jury that the Government did not have the burden of proving knowledge of a specific narcotic, that knowledge of possession with intent to distribute any narcotic would be a sufficient basis for a finding of guilt, and that marijuana was a controlled substance within the terms of the statute, 21 U.S.C. § 841(a)(1). This instruction, given in response to questions from the jurors, did not "hopelessly muddle" the single issue of whether appellant knew that the suitcase contained narcotics. Cf. United States v. Christmann, 298 F.2d 651 (2d Cir. 1962).
Under these circumstances, the appellant was not deprived of a fair trial on the issue of whether she knew that her suitcase contained narcotics.
Accordingly, I would affirm the judgment of conviction.
As this passage points out, Judge Platt's charge suggested that the jury could convict on the basis of a finding that appellant was conscious of her guilt. However, this was not "the only issue to be decided"; it was the Government's burden to prove knowledge, not a vague awareness of wrongdoing.