United States v. Jesus Dario Murrieta-Bejarano

Murrieta appeals from a judgment of conviction of importation and of possession of marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841 (a)(1), 952(a), and 960(a)(1). We affirm.

FACTS

At the Sasabe, Arizona, port of entry, Murrieta, the driver and sole occupant of a pickup truck, attempted to cross the border. He was nervous and was unable to present any vehicle registration. A search revealed a compartment under the bed of the truck containing 138 pounds of marijuana.

Murrieta told the customs inspector that the truck belonged to his employer, a rancher named Caraveo, and that he had been instructed to drive it to the first gas station in Tucson to meet a cousin of his employer. The cousin was to take Murrieta to visit his uncle and then to take charge of the truck and to return it and a refrigerator to Murrieta later that evening. Murrieta was then to deliver the truck and refrigerator to his employer in Mexico. Murrieta first said that he did, and then that he did not, know or suspect that the truck contained marijuana.

The trial court denied Murrieta’s motion for a directed verdict of acquittal. Over Murrieta’s objection, the trial court gave…

concurring in part and dissenting in part:

While concurring in Part I of the opinion, I would hold that it was error to give the Jewell instruction on these facts.

The majority makes a commendable attempt to limit use of the instruction by confining it to the rare case. But this case should not be so characterized. The prosecution offered no proof, either in its case in chief or on rebuttal, that would show that the defendant, in order to concoct a defense to potential criminal charges, deliberately chose to avoid learning about the contraband. The willful blindness theory was injected into the case only during the prosecution’s closing argument. The facts cited by the majority to justify the instruction are consistent with a finding that the defendant was fully aware of the nature of *1326 his cargo; indeed, the case was tried on that theory.

The Jewell instruction should not be given unless the evidence can sustain a finding, beyond a reasonable doubt, that the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of being arrested and charged. To permit the Jewell instruction here is to permit it in any number of smuggling…

552 F.2d 1323 UNITED STATES of America, Plaintiff-Appellee, v. Jesus Dario MURRIETA-BEJARANO, Defendant-Appellant. No. 76-2855. United States Court of Appeals, Ninth Circuit. March 21, 1977. Rehearing and Rehearing En Banc Denied April 29, 1977. Tom O'Toole, Federal Public Defender, Bernardo P. Velasco, Asst. Federal Public Defender, Tucson, Ariz., argued, for defendant-appellant. Ron Jennings, Asst. U.S. Atty., Tucson, Ariz., argued, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before DUNIWAY, CHOY and KENNEDY, Circuit Judges. OPINION DUNIWAY, Circuit Judge: 1 Murrieta appeals from a judgment of conviction of importation and of possession of marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841 (a)(1), 952(a), and 960(a)(1). We affirm. FACTS 2 At the Sasabe, Arizona, port of entry, Murrieta, the driver and sole occupant of a pickup truck, attempted to cross the border. He was nervous and was unable to present any vehicle registration. A search revealed a compartment under the bed of the truck containing 138 pounds of marijuana. 3 Murrieta told the customs inspector that the truck belonged to his…