Opinion by Judge KOZINSKI; Concurrence by Judge KLIENFELD; Dissent by Judge GRABER.
ORDER AND AMENDED OPINION
KOZINSKI, Circuit Judge.
Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows:
We revisit United States v. Jewell, 532 F.2d 697(9th Cir.1976) (en banc), and the body of caselaw applying it.
Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a "very strong perfume odor" emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).
At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to Nogales, where her mother had a dentist's appointment. After the appointment, she borrowed her Aunt Belia's car to transport her mother back to Tucson.
Heredia admitted on the stand that she suspected there might be drugs in the car, based on the fact that her mother was visibly nervous during the trip and carried a large amount of cash, even though she wasn't working at the time. However, Heredia claimed that her suspicions were not aroused until she had passed the last freeway exit before the checkpoint, by which time it was too dangerous to pull over and investigate.
The government requested a deliberate ignorance instruction, and the judge obliged, overruling Heredia's objection. The instruction, cribbed from our circuit's Model Jury Instruction 5.7, read as follows:
While Jewell has spawned a great deal of commentary and a somewhat perplexing body of caselaw, its core holding was a rather straightforward matter of statutory interpretation: "`[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it." 532 F.2d at 702. In other words, when Congress made it a crime to "knowingly . . . possess with intent to manufacture, distribute, or dispense, a controlled substance," 21 U.S.C. § 841(a)(1), it meant to punish not only those who know they possess a controlled substance, but also those who don't know because they don't want to know.
Overturning a long-standing precedent is never to be done lightly, and particularly not "in the area of statutory construction, where Congress is free to change [an] interpretation of its legislation." Ill. Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Even in the criminal context, where private reliance interests are less compelling,
That said, there are circumstances when a precedent becomes so unworkable that keeping it on the books actually undermines the values of evenhandedness and predictability that the doctrine of stare decisis aims to advance. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Here, we recognize that many of our post-Jewell cases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts — and ourselves — to apply with consistency.
The parties have pointed out one area where our cases have not been consistent: Whether the jury must be instructed that defendant's motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime.
The first mention of the motive prong came in a dissent by then-Judge Kennedy, who also authored the dissent in Jewell. See United States v. Murrieta-Bejarano, 552 F.2d 1323, 1326 (9th Cir.1977) (Kennedy, J., dissenting). Judge Kennedy's chief
Heredia argues that the motive prong is necessary to avoid punishing individuals who fail to investigate because circumstances render it unsafe or impractical to do so. She claims that she is within this group, because her suspicions did not arise until she was driving on an open highway where it would have been too dangerous to pull over. She thus claims that she had a motive other than avoiding criminal culpability for failing to discover the contraband concealed in the trunk.
We believe, however, that the second prong of the instruction, the requirement that defendant have deliberately avoided learning the truth, provides sufficient protections for defendants in these situations. A deliberate action is one that is "[i]ntentional; premeditated; fully considered." Black's Law Dictionary 459 (8th ed. 2004). A decision influenced by coercion, exigent circumstances or lack of meaningful choice is, perforce, not deliberate. A defendant who fails to investigate for these reasons has not deliberately chosen to avoid learning the truth.
We conclude, therefore, that the two-pronged instruction given at defendant's trial met the requirements of Jewell and, to the extent some of our cases have suggested more is required, see page 4663 supra, they are overruled. A district judge, in the exercise of his discretion, may say more to tailor the instruction to the particular facts of the case. Here, for example, the judge might have instructed the jury that it could find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns. Heredia did not ask for such an instruction and the district judge had no obligation to give it sua sponte. Even when defendant asks for such a supplemental instruction, it is within the district
Defendant also claims there was insufficient foundation to give the Jewell instruction. In order to address this claim, we must first identify the standard by which we review a district court's decision to issue a Jewell instruction.
Jewell cases have been an exception to this general order of things, as we have long reviewed a district court's decision to give a deliberate ignorance instruction de novo. See Shannon, 137 F.3d at 1117; United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.1997); United States v. Asuncion, 973 F.2d 769, 772 (9th Cir.1992). This rule derives, not from Jewell itself, but from a later case, Asuncion. Asuncion summarily adopted the de novo standard in Jewell cases, purportedly relying on another of our cases, United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). Sanchez-Robles provides no support for this proposition. It mentions de novo review, but only in conjunction with the legal question of whether the jury instruction "misstated elements of a statutory crime." Id. The rule adopted in Asuncion has been followed by no other federal court of appeals.
In deciding whether to give a particular instruction, the district court must view the evidence in the light most favorable to the party requesting it. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Turner v. United States, 396 U.S. 398, 417-18, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). When a party requests instructions on alternative theories, the district judge must consider the instructions separately and determine if the evidence could support a verdict on either ground. See Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (noting that a general verdict cannot stand if the jury could have convicted on a legally flawed theory). When knowledge is at issue in a criminal case, the court must first determine whether the evidence of defendant's mental state, if viewed in the light most favorable to the government, will support a finding of actual knowledge.
The analysis in the foregoing paragraph presupposes that the jury believed the government's case in its entirety, and disbelieved all of Heredia's exculpatory statements. While this would have been a rational course for the jury to take, it was not the only one. For example, a rational jury might have bought Heredia's basic claim that she didn't know about the drugs in the trunk, yet disbelieved other aspects of her story.
All of these are scenarios the jury could rationally have drawn from the evidence presented, depending on how credible they deemed Heredia's testimony in relation to the other evidence presented. The government has no way of knowing which version of the facts the jury will believe, and it is entitled (like any other litigant) to have the jury instructed in conformity with each of these rational possibilities. That these possibilities are mutually exclusive is of no consequence. A party may present alternative factual theories, and is entitled to instructions supporting all rational inferences the jury might draw from the evidence.
We do not share the worry, expressed in some of our cases, that giving both an actual knowledge and a deliberate ignorance instruction is likely to confuse the jury. See, e.g., Sanchez-Robles, 927 F.2d at 1073-74. A jury is presumed to follow the instructions given to it, Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir.2006), and we see no reason to fear that juries will be less able to do so when trying to sort out a criminal defendant's state of mind than any other issue. Nor do we
Even if the factual predicates of the instruction are present, the district judge has discretion to refuse it. In cases where the government does not present a deliberate ignorance theory, the judge might conclude that the instruction will confuse the jury. The same may be true where a defendant disputes only identity. Concerns of this nature are best dealt with by the district judge, whose familiarity with the evidence and the events at trial is necessarily superior to our own. We will second guess his decision only in those rare cases where we find an abuse of discretion. For the reasons explained, see pages 922-23 supra, the district court did not abuse its discretion by giving the Jewell instruction here.
We decline the invitation to overrule Jewell, and further hold that district judges are owed the usual degree of deference in deciding when a deliberate ignorance instruction is warranted. While the particular form of the instruction can vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance. The district judge may say more, if he deems it advisable to do so, or deny the instruction altogether. We review such decisions for abuse of discretion. The instruction given at defendant's trial met these requirements, and the district judge did not abuse his discretion in issuing it.
KLEINFELD, Circuit Judge, concurring in the result:
Because the evidence in this case justified a wilful blindness instruction, and the instruction's form (to which no objection was made below) was not plainly erroneous, I would affirm Heredia's conviction. But the majority errs in concluding that motivation to avoid criminal responsibility need not be an element of a wilful blindness instruction.
Suppose Heredia were a witness rather than defendant, perhaps because the government
In our en banc decision in United States v. Jewell, a man offered to sell marijuana to the defendant and his friend in a Tijuana bar, and then to pay defendant $100 to drive a car across the border.
We held that, in these circumstances, the knowledge element in the applicable drug statutes
We described such blindness as "wilful" and not merely negligence, foolishness or recklessness,
Then-judge Kennedy, joined by Judges Ely, Hufstedler and Wallace, vigorously dissented. They presciently warned that the majority opened the door too wide to suspicion as a substitute for scienter.
"Wilfulness" requires a "purpose of violating a known legal duty,"
Our cases subsequent to Jewell have generally hewed closely to its restrictiveness (though, as the majority notes, some appear to deviate on the wilfulness requirement
We have repeatedly emphasized this wilfulness requirement, as in United States v. Alvarado, United States v. Baron, United States v. Beckett, United States v. Garzon, United States v. Kelm, and United States v. Mapelli.
The majority deviates from this long line of precedent by discarding the requirement of a motive to avoid criminal responsibility. I concede that our precedents have not been clear on whether motive must be an element of the instruction, or just an element for the judge to consider in determining whether to give a Jewell instruction.
The majority converts the statutory element that the possession be "knowing" into something much less — a requirement that the defendant be suspicious and deliberately avoid investigating. The imposition on people who intend no crime of a duty to investigate has no statutory basis. The majority says that its requirement is enough to protect defendants who cannot investigate because of "coercion, exigent circumstances or lack of meaningful choice."
The majority's "coercion, exigent circumstances or lack of meaningful choice" justifications for failure to investigate are too few. The government has not conscripted the citizenry as investigators, and the statute does not impose that unpleasant and sometimes risky obligation on people. Shall someone who thinks his mother is carrying a stash of marijuana in her suitcase be obligated, when he helps her with it, to rummage through her things? Should Heredia have carried tools with her, so that (if her story was true) she could open the trunk for which she had no key? Shall all of us who give a ride to child's friend search her purse or his backpack?
No "coercion, exigent circumstances, or lack of meaningful choice" prevents FedEx from opening packages before accepting them, or prevents bus companies from going through the luggage of suspicious looking passengers. But these businesses are not "knowingly" transporting drugs in any particular package, even though they know that in a volume business in all likelihood they sometimes must be. They forego inspection to save time, or money, or offense to customers, not to avoid criminal responsibility. But these reasons for not inspecting are not the ones acceptable to the majority ("coercion, exigent circumstances, or lack of meaningful choice"). The majority opinion apparently makes these businesses felons despite the fact that Congress did not. For that matter, someone driving his mother, a child of the sixties, to Thanksgiving weekend, and putting her suitcase in the trunk, should not have to open it and go through her clothes.
A Jewell instruction ought to incorporate what our case law has developed, that the wilful blindness doctrine is meant to punish a defendant who "all but knew"
The reason that I concur instead of dissenting is that defendant did not object to these deficiencies in the instruction, and the deficiencies were not "plain."
Our previous cases did not make clear that the instruction had to say these things (they only made clear that the judge must decide there was some evidence of wilfulness before giving the instruction).
Defendant's argument was that the evidence showed that Heredia could not have discovered the marijuana because the key she had been given would not open the trunk (it seems to have been a valet key — the DEA had to break the trunk lock with a screwdriver), and that by the time she began suspecting the presence of drugs, there was no freeway exit before the checkpoint. As we held in Mapelli, a wilful blindness instruction is "inappropriate where the evidence could justify one of two conclusions, either that the defendant had knowledge, or that the defendant did not, but not a third conclusion, that the defendant deliberately shut her eyes to avoid confirming the existence of a fact she all but knew."
I agree with the majority that our review of whether the instruction was justified is for abuse of discretion, not de novo.
GRABER, Circuit Judge, with whom PREGERSON, THOMAS, and PAEZ, Circuit Judges, join, dissenting:
Assuming the Jewell instruction to be proper, I agree with the majority that the standard by which to review a district court's decision to give one is "abuse of discretion" in the light of the evidence presented at trial. But as a matter of statutory construction, I believe that the Jewell instruction is not proper because it misconstrues, and misleads the jury about, the mens rea required by 21 U.S.C. § 841(a)(1). Because the legal error of giving a Jewell instruction in this case was not harmless beyond a reasonable doubt, I respectfully dissent.
The majority recognizes that willful blindness is a mens rea separate and distinct from knowledge. See Majority op. at 922-23 ("Actual knowledge, of course, is inconsistent with willful blindness."); see also United States v. Jewell, 532 F.2d 697, 705-06 (9th Cir.1976) (en banc) (Kennedy, J., dissenting) ("The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. . . . [T]he English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, `actual' knowledge." (emphasis added)). Similarly, if not even more obviously, willful blindness is at least one step removed from intention.
Instead of justifying its sleight-of-hand directly, the majority points to the fact that Jewell has been on the books for 30 years and that Congress has not amended the statute in a way that repudiates Jewell expressly. Majority op. at 918-19. I find this reasoning unpersuasive. "[C]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction. . . ." United States v. Craft, 535 U.S. 274, 287, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (internal quotation marks omitted). "It is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of the [courts'] statutory interpretation." Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 186, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (alteration in original) (internal quotation marks omitted); see also Jones v. Liberty Glass Co., 332 U.S. 524, 533-34, 68 S.Ct. 229, 92 L.Ed. 142 (1947) (rejecting the doctrine of legislative acquiescence as, at best, "an auxiliary tool for use in interpreting ambiguous statutory provisions").
Whatever relevance congressional inaction holds in this case is outweighed by actual congressional action. Under 21 U.S.C. § 841(a)(1), a person is guilty of a crime only if the requisite act is performed "knowingly or intentionally." By contrast, both before and after Jewell, Congress has defined several other crimes in which the mens rea involves a high probability of awareness — but it has done so in phrases dramatically different than the one here, which lists only knowledge and intent. See, e.g., 18 U.S.C. §§ 175b(b)(1)("knows or has reasonable cause to believe"), 175b(b)(2) (same), 792 ("knows, or has reasonable grounds to believe or suspect"), 842(h) ("knowing or having reasonable cause to believe"), 2332d(a) ("knowing or having reasonable cause to know"), 2339(a) ("knows, or has reasonable grounds to believe"), 2424(a) ("knowing or in reckless disregard of the fact"). Most importantly, Congress has done so in adjacent sections of the same statute, the Controlled Substances Act, 21 U.S.C. §§ 801-971, and even within the same section of the same statute. See 21 U.S.C. §§ 841(c)(2)("knowing, or having reasonable cause to believe"), 843(a)(6)("knowing, intending, or having reasonable cause to believe"), 843(a)(7) (same). "It is axiomatic that when Congress uses different text in `adjacent' statutes it intends that the different terms carry a different meaning." White v. Lambert, 370 F.3d 1002, 1011(9th Cir. 2004). Thus, "[i]f we do our job of reading the statute whole, we have to give effect to [its] plain command, even if doing that will
The majority recognizes that the Jewell instruction embodies a substantive decision that those who possess a controlled substance and "don't know because they don't want to know" are just as culpable as those who knowingly or intentionally possess a controlled substance. Majority op. at 918; see also Model Penal Code § 2.02 cmt. 9, at 248("Whether such cases [of wilful blindness] should be viewed as instances of acting recklessly or knowingly presents a subtle but important question."). But Congress never made this substantive decision about levels of culpability — the Jewell court did. By "clear[ing] away the underbrush that surrounds" the instruction, majority op. at 919, the majority chooses to reaffirm this judge-made substantive decision. In so doing, the majority directly contravenes the principle that "[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment." United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). "`The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.'" Jewell, 532 F.2d at 706 n. 7 (Kennedy, J., dissenting) (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). The majority creates a duty to investigate for drugs that appears nowhere in the text of the statute, transforming knowledge into a mens rea more closely akin to negligence or recklessness.
I agree with the Jewell court that "one `knows' facts of which he is less than absolutely certain." 532 F.2d at 700. That being so, the mens rea-reducing Jewell instruction not only is wrong, it also is unnecessary in the face of the kind of proof that a prosecutor is likely to produce. For example, if your husband comes home at 1:00 a.m. every Friday (after having left work at 5:00 p.m. the day before as usual), never reveals where he has been, won't look you in the eye on Fridays, and puts Thursday's shirts in the hamper bearing lipstick stains, your friends will agree that you "know" he is having an affair even if you refuse to seek confirmation. The role of a jury is to apply common sense to the facts of a given case. A sensible jury will be persuaded that a drug mule "knows" what she is carrying when confronted with evidence of how mules typically operate and how this mule acted — all without reference to a Jewell instruction.
Thus, I would overrule Jewell and interpret 21 U.S.C. § 841(a) to require exactly what its text requires — a knowing or intentional mens rea. If Congress wants to criminalize willful ignorance, it is free to amend the statute to say so and, in view of the several examples quoted above, it clearly knows how.
Because I believe that the district court's giving of a Jewell instruction in this case was legal error,
Equally misplaced is the concurrence's concern about FedEx and similar package carriers. Concurrence at 928. The fact that a tiny percentage of the tens of thousands of packages FedEx transports every day may contain contraband hardly establishes a high probability that any particular package contains contraband. Of course, if a particular package leaks a white powder or gives any other particularized and unmistakable indication that it contains contraband, and the carrier fails to investigate, it may be held liable — and properly so.
Id. at 59, 112 S.Ct. 466.
Several of our sister circuits have held the giving of a Jewell instruction to be harmless error if sufficient evidence supports a finding of actual knowledge. See, e.g., United States v. Leahy, 445 F.3d 634, 654 n. 15 (3d Cir. 2006); United States v. Hanzlicek, 187 F.3d 1228, 1235-36 (10th Cir.1999); United States v. Mari, 47 F.3d 782, 786-87 (6th Cir.1995); United States v. Adeniji, 31 F.3d 58, 63 (2d Cir.1994); United States v. Stone, 9 F.3d 934, 939-42 (11th Cir.1993). But that is because they presume the Jewell instruction to be a correct statement of the law and, thus, apply the Turner rule.