United States v. Miguel Garzon

Appellant Miguel Garzón appeals from a conviction for possession of cocaine with intent to distribute and conspiracy to distribute cocaine. He claims prejudicial error from a “conscious avoidance” jury instruction. We agree and reverse.

I

The evidence at trial may be summarized as follows. In March of 1981, appellant’s co-defendant, Moreno, met Weaver, who, unknown to Moreno, was a Drug Enforcement Agency (DEA) informant. Moreno and Weaver discussed the possibility of future drug deals. On March 25, 1981, Moreno told Weaver that he had located a seller of drugs. Late that night, Moreno took Weaver to a location in Inglewood, California where appellant and his father had adjacent homes on the same lot: appellant lived in the home in the front; the father lived in the home in the rear. According to Weaver’s testimony at trial, Moreno, the father, and appellant negotiated to sell four kilograms of cocaine. The discussions took place first at the front home, where the father showed Weaver a small amount of cocaine, and then at the rear home, where the father showed Weaver all four kilos of cocaine. Weaver testified that appellant was present during both displays.

Weaver then left,…