United States v. Carmen Denise Heredia

429 F.3d 820 UNITED STATES of America, Plaintiff-Appellee, v. Carmen Denise HEREDIA, Defendant-Appellant. No. 03-10585. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2004. Filed October 24, 2005. COPYRIGHT MATERIAL OMITTED Wanda K. Kay, Tucson, AZ, for the appellant. Nathan D. Leonardo (argued) and Jeffrey H. Jacobson, Assistant U.S. Attorneys, Tucson, AZ, for the appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-02-00773-JMR-JJM. Before ALEX KOZINSKI, WILLIAM A. FLETCHER, and JAY S. BYBEE, Circuit Judges. BYBEE, Circuit Judge. 1 Carmen Heredia ("Heredia") was convicted of knowingly possessing contraband with intent to distribute in violation of 21 U.S.C. § 841 (a) (2000), after the district court instructed the jury that the "knowingly" element is satisfied if she was deliberately ignorant of the truth. The issue on appeal is whether the evidence was sufficient to warrant the "deliberate ignorance" or " Jewell " jury instruction. See United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc). After the jury returned the guilty verdict, Heredia moved…

Carmen Heredia (“Heredia”) was convicted of knowingly possessing contraband with intent to distribute in violation of 21 U.S.C. § 841 (a) (2000), after the district court instructed the jury that the “knowingly” element is satisfied if she was deliberately ignorant of the truth. The issue on appeal is whether the evidence was sufficient to warrant the “deliberate ignorance” or “Jewell ” jury instruction. See United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc). After the jury returned the guilty verdict, Heredia moved for a new trial on the grounds that the evidence did not warrant the Jewell instruction. The district court denied the motion, and Heredia now appeals.

We find that the government did not provide sufficient evidence to warrant the deliberate ignorance instruction. We therefore reverse the district court’s denial of Heredia’s motion for a new trial, and remand.

I. BACKGROUND

Heredia was driving from Nogales, Arizona, to Tucson when she was stopped at a Border Patrol checkpoint. In the car with her was her mother, Raquel Moreno; her aunt, Beatriz Moreno; and two of Here-dia’s young children. The Border Patrol agent noticed a perfume scent emanating from…

dissenting:

If ever there was a case where a Jewell instruction was proper, this is surely it. This is a much stronger case than Jewell itself, or any of our other deliberate ignorance cases, because we have here what *831 we almost never get — defendant’s admission that her suspicions were aroused and eventually matured into a belief that there may be drugs in the car. The jury could easily have found that defendant suspected the drugs were there and should have discovered them before trying to run the law enforcement checkpoint.

There are three ways the jury could have done this:

First, defendant was aware of a suspicious circumstance — the strong smell of fabric softener or detergent in the car— before she even commenced her trip, yet she failed to check where the odor was coming from. It is true, as the majority points out, that an odor without more is not sufficient to support a Jewell instruction. See maj. at 826 (citing United States v. Baron, 94 F.3d 1312, 1316-18 (9th Cir. 1996), and United States v. Sanchez-Robles, 927 F.2d 1070, 1075 (9th Cir.1991)). The reason for this is simple and well explained by the majority: Not everyone knows that a strong scent is a clue to…