United States v. Juan Rubio-Villareal

Juan Rubio-Villareal appeals his convictions on several charges relating to the importation and possession of cocaine. On March 13, 1991, a panel of this court reversed his conviction on several grounds. United States v. Rubio-Villareal, 927 F.2d 1495 (9th Cir.1991). We accepted the government’s suggestion to rehear the case en banc for the purpose of considering the propriety of an instruction that permitted the jury to infer that the defendant knew contraband was contained in the vehicle from two facts alone: (1) that the defendant was the driver, and (2) that contraband was concealed in the body of the vehicle. We hold that this instruction is deficient and remand the case to the panel for consideration of whether the error was harmless. The facts and Parts I, III, and IV of the panel opinion are unchanged by this opinion. Part II of the panel opinion is vacated and replaced by this opinion.

I

The district court gave the following permissive inference instruction:

We approved the use of a substantially similar instruction in United States v. Castillo-Burgos, 501 F.2d 217, 218-19 (9th Cir.), cert, denied, 419 U.S. 1010 , 95 S.Ct. 330 , 42 L.Ed.2d 284 (1974). 1 In doing so,…

with whom Circuit Judges Alarcon and T.G. Nelson, join, concurring in the result:

I concur in the result reached by the majority opinion. I agree that the district court erred by giving this jury instruction and that we have the authority to say so. However, I write separately to discuss the basis of our authority and its limits.

The majority opinion claims that the basis for our authority to hold the jury instruction error is our “supervisory power.” Majority Opinion at 298. The majority acknowledges that there is “some uncertainty over the source of that power,” and suggests that it may be based on 28 U.S.C. § 2106 or Article Three of the Constitution. Id. at 298 n. 6. I doubt that section 2106 provides either a basis for our supervisory power or is itself authority to overturn the jury instruction. It appears only to explain what it means to have appellate jurisdiction. I also doubt that Article Three alone provides a basis for our supervisory power. Indeed, the majority opinion fails to cite a single case in support of this proposition. See id. I am unable to discover any basis for our “supervisory power,” and therefore question its validity. However, the Supreme Court has…

967 F.2d 294 UNITED STATES of America, Plaintiff-Appellee, v. Juan RUBIO-VILLAREAL, Defendant-Appellant. No. 89-50655. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Oct. 17, 1991. Decided June 11, 1992. Martha M. Hall, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Nancy L. Worthington, and David Curnow, Asst. U.S. Attys. San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: WALLACE, Chief Judge, BROWNING, HUG, SCHROEDER, PREGERSON, ALARCON, CANBY, NORRIS, REINHARDT, LEAVY and T.G. NELSON, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: 1 Juan Rubio-Villareal appeals his convictions on several charges relating to the importation and possession of cocaine. On March 13, 1991, a panel of this court reversed his conviction on several grounds. United States v. Rubio-Villareal, 927 F.2d 1495 (9th Cir.1991). We accepted the government's suggestion to rehear the case en banc for the purpose of considering the propriety of an instruction that permitted the jury to infer that the defendant knew contraband was contained in the vehicle from two…