U.S. v. HEREDIA

Opinion by Judge KOZINSKI; Concurrence by Judge KLIENFELD; Dissent by Judge GRABER.

ORDER AND AMENDED OPINION

KOZINSKI, Circuit Judge.

ORDER

Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows:

OPINION

We revisit United States v. Jewell, 532 F.2d 697(9th Cir.1976) (en banc), and the body of caselaw applying it.

I

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.1 Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a "detergent" smell in the car as she prepared for the trip and asked Belia to explain. Belia told her that she had spilled Downey fabric softener in the car a few days earlier, but Heredia found this explanation incredible.

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:

On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge.3 Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.

II

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.4

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,5 stare decisis concerns still carry great weight, particularly when a precedent is as deeply entrenched as Jewell. See Evans v. United States, 504 U.S. 255, 268-69, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (noting that stare decisis carries considerable weight when "many other courts . . . have interpreted the statute in the same way"). Since Jewell was decided in 1976, every regional circuit — with the exception of the D.C. Circuit — has adopted its central holding. See n. 11 infra. Indeed, many colloquially refer to the deliberate ignorance instruction as the "Jewell instruction." See, e.g., United States v. Bussey, 942 F.2d 1241, 1246 (8th Cir.1991); United States v. Lara-Velasquez, 919 F.2d 946, 951 n. 5 (5th Cir.1990). Congress has amended section 841 many times since Jewell was handed down, but not in a way that would cast doubt on our ruling. Given the widespread acceptance of Jewell across the federal judiciary, of which Congress must surely have been aware, we construe Congress's inaction as acquiescence.6

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.7 But, rather than overturn Jewell, we conclude that the better course is to clear away the underbrush that surrounds it.

III

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.8 Jewell itself speculated that defendant's motive for failing to learn the truth in that case was to "avoid responsibility in the event of discovery." 532 F.2d at 699.9 Yet the opinion did not define motive as a separate prong of the deliberate ignorance instruction. And, we affirmed, even though the instruction given at Jewell's trial made no mention of motive. Id. at 700. Since then, we've upheld two-pronged instructions, similar to the one given here, in at least four other published opinions. See United States v. Shannon, 137 F.3d 1112, 1117 n. 1 (9th Cir.1998) (per curiam); United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir. 1984); United States v. Henderson, 721 F.2d 276, 278 (9th Cir.1983); United States v. Suttiswad, 696 F.2d 645, 650 (9th Cir. 1982).

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 concern was with what he viewed as the absence of deliberate avoidance on the part of the defendant in that case. See id. at 1325. At any rate, he was not writing for the court. Yet some of our opinions seem to have adopted the motive prong, providing little justification for doing so other than citation to Judge Kennedy's dissent. See, e.g., United States v. Baron, 94 F.3d 1312, 1318 n. 3 (9th Cir.1996); United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987); United States v. Pac. Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985); United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982). Three other federal circuits have followed suit. See United States v. Puche, 350 F.3d 1137, 1149 (11th Cir.2003); United States v. Willis, 277 F.3d 1026, 1032 (8th Cir.2002); United States v. Delreal-Ordones, 213 F.3d 1263, 1268-69 (10th Cir.2000).

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.10

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 court's broad discretion whether to comply.

IV

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.

A. The differing standards of review we apply reflect the relative competencies and functions of the appellate and district courts. Miller v. Fenton, 474 U.S. 104, 114-15, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Whether a jury instruction was properly given presents two questions, one primarily factual, the other purely legal. Whether the substance of the instruction itself is correct — i.e., whether it accurately describes the elements of the charged crime — is a legal question of the sort we review de novo. United States v. Feingold, 454 F.3d 1001, 1007(9th Cir.2006). But whether an instruction should be given in the first place depends on the theories and evidence presented at trial. This is mostly a factual inquiry, but not entirely. It also requires judgment as to whether the proposed instruction is relevant to the issues presented or would unduly confuse the jury. The district judge's proximity to the trial and intimate knowledge of the record justify considerable deference to his judgment in these situations. Accordingly, we typically review such decisions for abuse of discretion. See, e.g., United States v. Johnson, 459 F.3d 990, 992 n. 3 (9th Cir.2006).

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.11

On reflection, we find no reason to treat Jewell instructions differently from other jury instructions. Still, we might have been willing to leave well enough alone had Asuncion's progeny shown promise. But, in the years since, we've seen a proliferation of narrow, heavily fact-dependent and at times contradictory opinions that have been difficult for both judges and litigants to navigate.12 It should not be surprising that our attempt to micromanage the district courts by cataloguing the various situations in which an instruction is justified has yielded such poor results. We therefore abandon the Asuncion enterprise and re-adopt the normal rule applicable to jury instructions by reviewing the decision to give a deliberate ignorance instruction for abuse of discretion. Opinions to the contrary, see page 921-22 supra, are overruled.

B. A district court should approach the government's request to give a Jewell instruction in the same way it deals with any other proposed jury instruction. In general, a party is entitled to an instruction to help it prove its theory of the case, if the instruction is "supported by law and has foundation in the evidence." Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002).

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.13 If so, the court must instruct the jury on this theory. Actual knowledge, of course, is inconsistent with willful blindness. The deliberate ignorance instruction only comes into play, therefore, if the jury rejects the government's case as to actual knowledge. In deciding whether to give a willful blindness instruction, in addition to an actual knowledge instruction, the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government's evidence of actual knowledge. If so, the court may also give a Jewell instruction.

This case well illustrates the point. Taking the evidence in the light most favorable to the government, a reasonable jury could certainly have found that Heredia actually knew about the drugs. Not only was she driving a car with several hundred pounds of marijuana in the trunk, but everyone else who might have put the drugs there — her mother, her aunt, her husband — had a close personal relationship with Heredia. Moreover, there was evidence that Heredia and her husband had sole possession of the car for about an hour prior to setting out on the trip to Tucson. Based on this evidence, a jury could easily have inferred that Heredia actually knew about the drugs in the car because she was involved in putting them there.

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.14 The jury could, for example, have disbelieved Heredia's story about when she first began to suspect she was transporting drugs. The jury could have found that her suspicions were aroused when Belia gave her the unsatisfactory explanation for the "detergent" scent,15 see pages 917-18 supra, or while she drove to Tucson but before the last exit preceding the checkpoint. Or, the jury might have believed Heredia that she became suspicious only after she had passed the last exit before the checkpoint but disbelieved that concerns about safety motivated her failure to stop.

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 agree that the Jewell instruction risks lessening the state of mind that a jury must find to something akin to recklessness or negligence. See, e.g., United States v. Alvarado, 817 F.2d 580, 584 (9th Cir.1987); Garzon, 688 F.2d at 609. The instruction requires the jury to find beyond a reasonable doubt that defendant "was aware of a high probability" of criminality and "deliberately avoided learning the truth." Indeed, the instruction actually given in this case told the jurors to acquit if they believed defendant was "simply careless." Recklessness or negligence never comes into play, and there is little reason to suspect that juries will import these concepts, as to which they are not instructed, into their deliberations. See n. 4 supra.

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.16

V

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.

AFFIRMED.

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 had charged her aunt who owned the car instead of her. If Heredia were asked "was there marijuana in the car," counsel would have objected for lack of foundation, and the objection would have been sustained.1 Heredia's suspicion would not be enough to let her testify to knowledge.2 Yet she can be convicted under a statute that requires her to have knowledge. This is not impossible, but it is a troubling paradox for criminal knowledge to require less than evidentiary knowledge. To avoid injustice, the jury needs to be instructed that they must find a motivation to avoid criminal responsibility to be the reason for lack of knowledge.3

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.4 The friend refused, saying that "it didn't sound right," and he "wanted no part of driving the vehicle."5 But the defendant accepted the offer, even though he "thought there was probably something illegal in the vehicle."6 The defendant determined that there was no contraband in the glove compartment, under the front seat, or in the trunk, so he concluded that "the people at the border wouldn't find anything either."7 He admitted to seeing a secret compartment in the trunk (where 110 pounds of marijuana was later found), but did not attempt to open it.8

We held that, in these circumstances, the knowledge element in the applicable drug statutes9 could be satisfied without positive, confirmed personal knowledge that the marijuana was in the trunk.10 We took particular note of the motive in such deliberate avoidance of knowledge cases "to avoid responsibility in the event of discovery":

We described such blindness as "wilful" and not merely negligence, foolishness or recklessness,12 differing from positive knowledge "only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance."13

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,"15 or, at the very least, "a bad purpose."16 That is why wilful blindness is "equally culpable" to, and may be substituted for, positive knowledge.17 But to allow conviction without positive knowledge or wilful avoidance of such knowledge is to erase the scienter requirement from the statute. And we do not have the authority to do this: "The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute."18 The statute made it a crime for Heredia to "knowingly or intentionally" possess the marijuana in the trunk of her aunt's car with an intent to distribute it (that is, give the car back to her aunt or to someone else).19 If she did not act "knowingly or intentionally," then she did not commit the crime.

Our cases subsequent to Jewell have generally hewed closely to its restrictiveness (though, as the majority notes, some appear to deviate on the wilfulness requirement20). In our en banc decision in United States v. Aguilar,21 we held that a "high probability of awareness of [a] circumstance" is not equivalent to knowledge in absence of "wilful blindness."22 We adopted Judge Kennedy's language from United States v. Pacific Hide & Fur Depot, Inc.,23 that mistake, negligent failure to inquire, and even reckless disregard of the truth, did not amount to knowledge.24 Instead, the government had to prove that the defendant "purposely contrived" to avoid positive knowledge "in order to have a defense:"

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.26

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.27 The cure for this, however, is not to bless the Jewell instruction given in this case, but to make clear that a Jewell instruction should include a motive to avoid criminal responsibility element.

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."28 I am not sure what the latter two novelties mean (especially the term "meaningful" choice) or how a jury would be instructed to give them concrete meaning. The majority's statement that "[a]n innocent motive for being deliberately ignorant does not bar conviction under its rule"29 seems to contradict its proposition that coercion or exigent circumstances excuse failure to investigate. The majority seems to mean that if someone can investigate, they must. A criminal duty to investigate the wrongdoing of others to avoid wrongdoing of one's own is a novelty in the criminal law.

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"30 the truth — a defendant who "suspects a fact, realizes its [high] probability, but refrains from obtaining final confirmation in order to be able to deny knowledge if apprehended."31 "This, and this alone, is wilful blindness."32 The jury instruction in this case told the jury that Heredia had "knowing" possession of the marijuana in the trunk if she "was aware of a high probability" that drugs were in the car and "deliberately avoided learning the truth."33 That mental state would fit FedEx and the child of an aging hippy, as well as a drug mule. A Jewell instruction ought to require (1) a belief that drugs are present,34 (2) avoidance of confirmation of the belief,35 and (3) wilfulness in that avoidance — that is, choosing not to confirm the belief in order to "be able to deny knowledge if apprehended."36 The instruction should expressly exclude recklessness, negligence and mistake (the one given only excluded "simpl[e] careless[ness]" and an "actual[ ] belie[f] that no drugs were in the vehicle").37 Anything less supports convictions of persons whom Congress excluded from statutory coverage with the word "knowingly." People who possess drugs, but do not do so "knowingly," are what we traditionally refer to as "innocent."

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."38 To constitute plain error, "[a]n error . . . must be . . . obvious or readily apparent."39 "At a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law."40

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).41 For that reason, it is not surprising that the instruction given tracked the language of our own form.42

Defendant's objection was to giving a Jewell instruction at all, rather than to the language in the Jewell instruction. She argued that "the instruction is not appropriate in this particular case" because "there is no evidence that she did anything . . . to deliberately avoid [learning the truth]. . . ." She did not argue in the district court, as she now does on appeal, that the wilful blindness instruction, if given, should include a requirement that a defendant's wilful blindness be motivated by a desire to avoid criminal responsibility.43

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."44 In this case, though, the district court correctly concluded that the evidence allowed the jury properly to conclude that there was wilful avoidance of positive knowledge.

I agree with the majority that our review of whether the instruction was justified is for abuse of discretion, not de novo.45 The jury did not have to believe everything Heredia said. It could believe all, part, or none of her testimony and the testimony of others. The district court reasonably exercised its discretion to give a Jewell instruction, because (1) there was testimony that Heredia's husband opened the trunk at Heredia's aunt's house while Heredia was present and could look if she wanted to, (2) the car smelled of fabric softener, (3) Heredia thought her mother and her mother's boyfriend were involved with drugs, (4) Heredia was suspicious because her mother and aunt were visibly "nervous," (5) Heredia knew she would be driving through a border patrol checkpoint, and (6) Heredia despite her suspicions avoided asking her mother and aunt if there were drugs in the car. Together, this evidence justified a jury inference of wilful avoidance of positive knowledge to avoid criminal responsibility if apprehended.

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.

Under 21 U.S.C. § 841(a)(1), it is a crime to "knowingly or intentionally . . . manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." (Emphasis added.) The plain text of the statute does not make it a crime to have a high probability of awareness of possession — knowledge or intention is required.

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 reverse the longstanding practice under the statute and the rule." Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (citations omitted).

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,1 "`the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.'" Griffin v. United States, 502 U.S. 46, 52, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (quoting Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)).2 As the majority acknowledges, it is not possible to tell whether the jury convicted Carmen Heredia based on actual knowledge. "[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," thereby concluding that she acted with willful ignorance. Majority op. at 923. Accordingly, I cannot find that the error of giving a Jewell instruction was harmless, and I respectfully dissent.