United States v. Carmen Denise Heredia

Opinion by Judge KOZINSKI; Concurrence by Judge KLIENFELD; Dissent by Judge GRABER.

*917 ORDER AND AMENDED OPINION

ORDER

Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows:

OPINION

We revisit United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc), and the body of caselaw applying it.

I

Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a “very strong perfume odor” emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841 (a)(1).

At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to No-gales, where her mother had a dentist’s appointment. After the appointment, she borrowed her Aunt Belia’s car to transport her mother back to Tucson.…

concurring in the result:

Because the evidence in this case justified a wilful blindness instruction, and the instruction’s form (to which no objection was made below) was not plainly erroneous, I would affirm Heredia’s conviction. But the majority errs in concluding that motivation to avoid criminal responsibility need not be an element of a wilful blindness instruction.

Suppose Heredia were a witness rather than defendant, perhaps because the gov *925 ernment had charged her aunt who owned the car instead of her. If Heredia were asked “was there marijuana in the car,” counsel would have objected for lack of foundation, and the objection would have been sustained. 1 Heredia’s suspicion would not be enough to let her testify to knowledge. 2 Yet she can be convicted under a statute that requires her to have knowledge. This is not impossible, but it is a troubling paradox for criminal knowledge to require less than evidentiary knowledge. To avoid injustice, the jury needs to be instructed that they must find a motivation to avoid criminal responsibility to be the reason for lack of knowledge.

In our en banc decision in United States v. Jewell, a man offered to sell marijuana to…

with whom PREGERSON, THOMAS, and PAEZ, Circuit Judges, join, dissenting:

Assuming the Jewell instruction to be proper, I agree with the majority that the standard by which to review a district court’s decision to give one is “abuse of discretion” in the light of the evidence presented at trial. But as a matter of statutory construction, I believe that the Jewell instruction is not proper because it misconstrues, and misleads the jury about, the mens rea required by 21 U.S.C. § 841 (a)(1). Because the legal error of giving a Jewell instruction in this case was not harmless beyond a reasonable doubt, I respectfully dissent.

*931 Under 21 U.S.C. § 841 (a)(1), it is a crime to “knowingly or intentionally ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (Emphasis added.) The plain text of the statute does not make it a crime to have a high probability of awareness of possession — knowledge or intention is required.

The majority recognizes that willful blindness is a mens rea separate and distinct from knowledge. See Majority op. at 922-23 (“Actual knowledge, of course, is inconsistent with willful…

483 F.3d 913 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 12, 2006. Filed April 2, 2007. Amended April 30, 2007. Wanda K. Day, Tucson, AZ; Jeffrey T. Green, Eric A. Shumsky, Eamon P. Joyce and Matthew J. Warren, Sidley Austin, LLP, Washington D.C., for the defendant-appellant. Paul K. Charlton, United States Attorney for the District of Arizona; Christina M. Cabanillas, George Ferko and Bruce M. Ferg, Assistant United States Attorneys, Tucson, AZ, for the plaintiff-appellee. Kenneth W. Starr, Michael D. Shumsky and Gregory L. Skidmore, Kirkland & Ellis, LLP, Washington, D.C.; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for the National Association of Criminal Defense Lawyers as amicus curiae in support of the defendant-appellant. Saji Vettiyil, Vettiyil & Associates, P.C., Nogales, AZ, for Arizona Attorneys for Criminal Justice, as amicus curiae in support of the defendant-appellant. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No.…