Metropolitan News-Enterprise


Tuesday, October 25, 2005


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Ninth Circuit Limits Use of ‘Deliberate Ignorance’ Instruction


By KENNETH OFGANG, Staff Writer/Appellate Courts


A driver who smelled a strong detergent scent in her car, which turned out to be emanating from a substance used to mask the odor of marijuana, could not be convicted of drug possession on a theory of “deliberate ignorance,” the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Saying U.S. District Judge John M. Roll erred in giving the instruction, and that the error was prejudicial, a divided panel reversed Carmen D. Heredia’s conviction of knowingly possessing contraband with intent to distribute.

Prosecutors said there was sufficient evidence to convict Heredia of possessing more than 350 pounds of the drug, which was discovered at a Border Patrol checkpoint. Heredia testified that the car belonged to her aunt, and that she was driving from Nogales to her home in Tucson with her mother, another aunt, and her two children.

Agent’s Testimony

A DEA agent testified that after the marijuana was discovered, Heredia explained that as she prepared to take the car to Tucson, she noticed the strong detergent odor and asked her aunt, the vehicle’s owner, about it. Her aunt, she said, explained that she had spilled some detergent in the car a few days earlier, a story Heredia said she did not particularly believe, according to the agent’s testimony.

Heredia denied having any such discussion. She did, however, testify that her mother and aunt were very nervous during the trip, that her mother was smoking, and that when she asked her mother to stop because one of the children had bronchitis, her mother put out the cigarette, sprayed air freshener, and opened the window.

At that point, Heredia admitted, she began to suspect that something was wrong, in part because her mother and aunt seemed to have undue amounts of cash on hand and because her mother had a drug-abusing boyfriend. Though she then suspected that there might be drugs in the car, she said, she had passed the last interstate exit before the checkpoint, so she continued on.

The defendant’s aunt and mother testified that they had no knowledge of how the drugs got in the car, the aunt suggesting that the defendant or her husband might have placed the drugs in the car.

Roll gave a deliberate ignorance instruction based on United States v. Jewell, 532 F.2d 697 (9th Cir. 1976), informing jurors that they could convict Heredia if she “was aware of a high probability that drugs were in the vehicle driven by the defendant and deliberately avoided learning the truth,” but that she could not be convicted if she “actually believed that no drugs were in the vehicle driven by the defendant, or...was simply careless.”

Heredia was convicted, but Judge Jay Bybee, writing for the Ninth Circuit, said the evidence was insufficient to support the instruction.

“The testimony at trial suggested that Heredia recognized the detergent smell,” the judge explained. “There is no evidence that she knew that such odors can be used to mask the odor of marijuana.”

Whatever suspicions Heredia may have had about the detergent smell, the judge said, it did not put her on notice of a “high probability” that her trip was illegal.

“[S]omething more than a detergent smell is required to prove that Heredia actually suspected that she was involved in criminal activity,” the judge wrote. “On this record, Heredia’s alleged ‘suspicion’ was hardly more than a fleeting concern, something more than a random thought but less than a hunch.”

Judge William Fletcher concurred, but Judge Alex Kozinski dissented.

Dissenter’s Argument

The evidence suggesting that Heredia was deliberately ignorant of the presence of the drugs, the dissenting jurist argued, consisted of “much more than the odor.” He pointed to the agent’s testimony that Heredia did not believe her aunt’s explanation of the odor, the defendant’s testimony that she suspected her relatives of being involved with drugs, and her awareness of the fact that people sometimes open car windows or spray air freshener in order to mask the scent of drugs.

“The jury could have inferred from this testimony that Heredia did have the specialized knowledge that heavy scents are used to cover up drug odors,” the judge wrote. “And, the jury could have reasoned, someone who has that knowledge would infer that the strong odor was put there in order to conceal contraband. This would explain why Heredia didn’t accept at face value the aunt’s ‘spilled detergent’ story and why it caused her to suspect that ‘something was wrong.’”

The case is United States v. Heredia, 03-10585.  


Copyright 2005, Metropolitan News Company