ON PETITION FOR REHEARING
CLARK, Senior Circuit Judge:
The Court grants the petition for rehearing, withdraws the previous opinion published in this case on March 22, 1991 and reported at 926 F.2d 1564, and substitutes the following opinion, which modifies only parts of the penultimate paragraph.
Defendants Elena Vila and Johnny Rivera appeal from their convictions for conspiracy to import, importation of, conspiracy to possess with intent to distribute, and possession with intent to distribute in excess of 500 grams of cocaine. For the following reasons, we affirm these convictions.
On August 17, 1988, Vila, Rivera, and John Stroud arrived at Miami International Airport on a flight from Barranquilla, Colombia. Vila was traveling with her three-year old child. While picking up their baggage at the luggage carousel, this group was observed by Customs Inspector Sy Schor. Inspector Schor's attention was drawn to the group because they were all young, spoke English without an accent, and arrived from Colombia, a source country for cocaine, even though none of them appeared to be Colombian. Schor approached the group after they had retrieved their luggage and requested to see their passports, customs declarations, and airplane tickets.
Schor noticed that the tickets and other travel documents indicated that the group originally had intended to fly from New York City to Miami and on to Barranquilla on August 2, 1988 and to return along the same route on August 28. These travel plans, however, had been revised, and the group actually flew from New York to Barranquilla via Miami on August 5 and returned from Barranquilla on August 17. The tickets for the three adults and the child had been purchased through the same travel agency. The boarding passes indicated that the group sat together throughout the entire trip. The total cost of the tickets was $2,769. In addition, Schor noticed that the passport of Rivera had been issued on August 3, 1988 and that Stroud's passport had been issued on August 4, 1988.
Schor asked the group what the purpose of their trip was, and Stroud responded that they had gone just to visit Barranquilla and not to see family or friends. This heightened Schor's suspicion because he knew that that city was not a common destination for tourists. Upon further questioning, Schor learned that Vila was Rivera's sister-in-law and that Stroud was a very good friend. Vila also claimed that she worked as a sales clerk in a shoe store, that Stroud worked part-time installing window glass, and that Rivera was currently unemployed. Schor testified that during this preliminary questioning, the group was "fairly deadpan" and did not appear to be angry or nervous about being questioned.
Due to the unusual circumstances surrounding the group's travel, Schor decided to examine their luggage and directed them to a table in an inspection area. Prior to this examination, Schor had each of the three persons acknowledge their individual ownership of one of the three suitcases. Schor began by inspecting Stroud's suitcase. Upon opening it, Schor noticed immediately that the bottom portion of the suitcase had been altered and that it was unusually thick. Schor testified that this false bottom was so obvious that "it jumped out at" him. He then punctured this portion of the suitcase with a screwdriver and after withdrawing it, noticed a white powder on it which was tested as being cocaine. Schor testified that the group showed no surprise, agitation, or protest while he was probing Stroud's luggage.
Schor then placed the three into separate rooms along with their suitcases so that they could be individually examined. The suitcases of Rivera and Vila were virtually identical to that of Stroud and also had false bottoms constructed in the same manner which contained cocaine. After examining
While each was being held in custody in a separate room, Schor decided to inspect the contents of each suitcase. Starting with Vila's suitcase, Schor picked up a normal-looking can of aerosol hairspray and noticed that it weighed more than a normal hairspray can and that there was no shift in weight that should occur from the flow of liquid inside the can. Schor then detached the bottom of this can, probed with his screwdriver, and again discovered a white powder later identified to be cocaine. Schor testified that while he was searching the can, Vila had a "deadpan" reaction and did not appear to be interested or upset. A subsequent search of the suitcases of Rivera and Stroud disclosed that each also contained an aerosol can containing cocaine.
Stroud pled guilty prior to trial.
Rivera first contends that the government violated the district court's Standing Discovery Order and Fed.R.Crim.P. 16(a)(1)(A) by not producing his statement to Inspector Schor that one of the suitcases belonged to him. At trial, the government elicited the testimony of Inspector Schor that when Stroud, Rivera, and Villa were in the customs line, he asked whether each of them had a suitcase and that Rivera (along with the other two) identified his suitcase by saying "this is mine". Rivera admits that this discovery violation on the part of the government was unintentional and that the government did disclose this statement on the first day of trial immediately prior to Rivera's opening statement.
In order for this court to reverse a conviction based on the government's violation of a discovery order, a defendant must demonstrate that the violation prejudiced his substantial rights.
We do not believe that Rivera could have been surprised by Schor's testimony that Rivera had verbally claimed ownership of his suitcase. Rivera's statement was made in response to a rather routine question that custom inspectors could ordinarily be expected to ask while questioning a citizen returning from abroad.
Schor's testimony concerning Rivera's identification of his suitcase also did not have a substantial influence on the jury. The government introduced other substantial evidence linking the three members of the group to the three suitcases containing cocaine. For instance, the government introduced an airline ticket holder that had
Vila next contends that her right to due process was violated when the government was allowed to comment at trial on her silence after having been arrested and given her warnings as required by Miranda v. Arizona.
The record indicates that Inspector Schor testified about Vila's demeanor as he observed it at three different points during the initial confrontation in the customs line and the subsequent search. First, Schor testified that when he initially encountered the group at the luggage carousel and began to question them, all three members of the group were "fairly deadpan," expressionless, and without any visible signs of agitation or nervousness about being singled out for questioning. Second, Schor stated that the group again expressed no reaction or protest after he began inspecting Stroud's suitcase, pierced its construction with a screwdriver, and discovered the cocaine. After this point in the confrontation, the group was separated into different rooms, arrested, and given their Miranda warnings. Finally, Schor testified that while he inspected the contents of Vila's suitcase and discovered the cocaine in the aerosol can, she did not appear to be physically upset.
We note initially that some of Inspector Schor's testimony, even if construed
Thus, the only government comment on Vila's silence that may be constitutionally problematic are those descriptions of her demeanor after she had been arrested, given her Miranda warnings, and while she observed Schor's examination of her own suitcase. Vila argues that Schor's testimony was a direct comment on her silence and therefore constitutionally impermissible.
It is well-established that "it is not proper ... for the prosecutor to ask the jury to draw a direct inference of guilt from silence — to argue, in effect, that silence is
We may, however, refrain from tackling this thorny issue at this juncture because assuming that it was error for the government to comment on Vila's demeanor after her Miranda warnings, any prejudice would be harmless beyond a reasonable doubt.
Both Rivera and Vila contend that the district court erred in giving the jury a "deliberate ignorance" instruction. Both defendants objected to the instruction at trial, but the trial court held that the evidence was sufficient to warrant the instruction and delivered the deliberate ignorance, "conscious avoidance," or "ostrich" instruction from this Circuit's Pattern Jury Instructions.
The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law 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.'"
Courts which have adopted deliberate ignorance instructions have properly cautioned that such a charge should not be given in every case in which a defendant claims a lack of knowledge, "but only in those comparatively rare cases where ... there are facts that point in the direction of deliberate ignorance."
In determining whether a deliberate ignorance instruction is proper in a particular case, we have held that "it must be based upon facts which would point in the direction of deliberate ignorance."
We find that this standard is more descriptive of the constitutive elements of the concept of "deliberate ignorance" and adopt it in the analysis of this case.
In addition, a necessary corollary to this standard is that a district court should not instruct the jury on "deliberate ignorance" when the relevant evidence points only to actual knowledge, rather than deliberate avoidance.
Although the district court erred in giving a deliberate ignorance instruction, we conclude that the error was harmless beyond a reasonable doubt.
Evaluating the record as a whole, it appears to us that the district court's error in instructing on deliberate ignorance did not affect the jury's verdict because the evidence against the defendants was "so overwhelming
By granting the requested instruction on deliberate ignorance, the district court failed to restrain an overzealous prosecution from putting forth an alternate theory of mens rea that was not supported by the evidence. This, however, does not detract from the government's overwhelming proof that the defendants acted with actual knowledge. For the foregoing reasons, the convictions of Rivera and Vila are AFFIRMED.
We note, however, that other courts have held that evidence of a defendant's nonresponsive demeanor is admissible after he has waived his Miranda rights. See United States v. Shaw, 701 F.2d 367, 384-85 (5th Cir.1983); People v. McReavy, 436 Mich. 197, 210-17, 462 N.W.2d 1, 7-10 (1990).
As Professor Robbins, however, notes in his authoritative article on this subject, the substitution of the deliberate ignorance doctrine for the actual knowledge requirement is not a particularly well-established principle of the criminal law and was only recently revived in the 1970s by the onslaught of federal narcotics prosecutions. See Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea, 81 J.Crim.L. & Criminology 191, 199-203 & n. 72 (1990).
In holding that a deliberate ignorance instruction is incompatible in those cases in which the facts point only to actual knowledge on the part of the defendant, we recognize that we have departed from the substantive justification for such instructions — that deliberate ignorance is an alternative formulation for the requirement of "knowledge" as an element of a criminal offense. See Robbins, supra note 26, at 226-27. That is, under our view, "deliberate ignorance" is treated as an exception to the knowledge requirement, rather than a component part of its definition. See id. at 227. Although such inconsistency is clearly intolerable on theoretical grounds, we believe that this incongruity is necessary for the prudential reason of guarding against overzealous use of such instructions and the attendant prejudice to criminal defendants.