United States v. Julio C. Valle-Valdez

Valle-Valdez appeals his conviction of possession with intent to distribute 677 pounds of marijuana in violation of 21 U.S.C. § 841 (a)(1). He contends that a jury instruction pertaining to conscious purpose to avoid learning the truth about the presence of the contraband was erroneous in light of United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 , 96 S.Ct. 3173 , 50 L.Ed.2d 1188 (1976), and that the error requires reversal. We agree and reverse.

*913 I

Immediately prior to Valle-Valdez’ arrest, a Border Patrol agent observed him driving an automobile westbound on Highway 98 approximately 25 miles west of Calexico. The car was traveling at 75 miles per hour, swerving and riding low in the rear. The agent stopped Valle-Valdez, who immediately exited from the automobile and walked to its rear. His demeanor was normal until he was asked to open the trunk, at which time he became noticeably nervous. 1 Valle-Valdez opened the trunk, revealing 302 kilo bricks of marijuana in plain view. He was then arrested. A customs agent drove the automobile to Calexico; while doing so, he noticed that the odor of marijuana permeated the passenger compartment…

concurring and dissenting:

I agree that the instruction given in this case some years prior to the decision of United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) did not measure up to the requirements of that decision. However, I dissent from that portion of the majority opinion which holds that the error was prejudicial. The defendant demonstrated the harmlessness of the error by jumping bail and remaining a fugitive until after the law was changed.

I would affirm.

554 F.2d 911 UNITED STATES of America, Plaintiff-Appellee, v. Julio C. VALLE-VALDEZ, Defendant-Appellant. No. 76-1953. United States Court of Appeals, Ninth Circuit. March 8, 1977. John L. Cleary, argued, Lewis A. Wenzell, Federal Public Defender, San Diego, Cal., for defendant-appellant. Terry J. Knoepp, U.S. Atty., Douglas G. Hendricks, Asst. U.S. Atty., argued, San Diego, Cal., for plaintiff-appellee; Douglas G. Hendricks, Asst. U.S. Atty., San Diego, Cal., on the brief. Appeal from the United States District Court for the Southern District of California. Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, * District Judge. WALLACE, Circuit Judge: 1 Valle-Valdez appeals his conviction of possession with intent to distribute 677 pounds of marijuana in violation of 21 U.S.C. § 841 (a)(1). He contends that a jury instruction pertaining to conscious purpose to avoid learning the truth about the presence of the contraband was erroneous in light of United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 , 96 S.Ct. 3173 , 50 L.Ed.2d 1188 (1976), and that the error requires reversal. We agree and reverse.I 2 Immediately prior to Valle-Valdez'…