Unpublished Disposition, 912 F.2d 471 (9th Cir. 1989)

MEMORANDUM^** 

Rodolfo Yescas Quijada appeals his conviction of importation of marijuana in violation of 21 U.S.C. § 952. We affirm the conviction.

FACTS

On February 8, 1989, Customs Inspector Jeff Kubiak was inspecting vehicles coming from Mexico into the United States at the Port of Entry at San Luis, Arizona. Rodolfo Yescas-Quijada approached the primary inspection station in a paneled cargo truck with an open end. Speaking in Spanish, Kubiak asked Yescas for his border crossing card. He also asked if Yescas was bringing in anything from Mexico. Yescas displayed his card and replied that the truck was empty. When asked where he was going, Yescas answered that he was going to Yuma to pick up second-hand cargo.

Kubiak inspected Yescas' truck and became suspicious of the cargo area's back wall, which was behind the driver's seat. The truck's exterior had six panels of sheet metal along each side while the interior had only five. Kubiak noticed a gap of about two feet between the truck's outside length and its inside length. He asked if Yescas was the owner of the truck. Yescas replied that he was not. Kubiak asked again for his border crossing card and for the registration to the truck. He instructed Yescas to move the truck to the secondary inspection area.

At the secondary inspection area, Customs Inspector Paul Belt briefly questioned Yescas in Spanish. Yescas stated that he was going to Yuma to buy second-hand merchandise and that the truck did not belong to him. Kubiak, who was standing several feet away, noticed that Yescas' legs were shaking during the interview.

A search of the paneled truck revealed a hidden compartment at the back of the cargo area with an entrance on the roof of the truck. Customs inspectors found 680 pounds of marijuana wrapped in 36 packages of cellophane plastic in the hidden compartment. Attempts to fingerprint the packages and the hidden compartment proved unsuccessful.

As soon as the marijuana was discovered, Yescas was interviewed again. Customs Area Director Rudy Cole placed Yescas under arrest and advised him of his rights. When told that he was under arrest for transporting marijuana, Yescas responded, "no," as if surprised. He then agreed to answer Cole's questions. He stated that he had been directed to drive the truck to a location in Yuma where he would leave the truck with the keys in it and call a taxi to return to Mexico. He said that the owner would subsequently pick up the truck. He was to be paid $50 for this service. He identified a Mr. Pineda as the truck's owner and stated that he had made this same trip four or five times previously.

The government presented other evidence against Yescas at trial. Papers taken from the truck showed that Yescas was the only insured driver for the truck in the United States, that he had twice paid an annual commercial use fee of $100 for the truck, and that he had recently entered the United States in the truck nine times. Photographs of the truck and the witnesses' testimony revealed that the hidden compartment was not new and that the truck was not being used to haul cargo.

After his arrest, Yescas agreed to cooperate in a controlled delivery attempt with the customs inspectors and to drive the car to Yuma. Customs Special Agent Cliff Erickson testified as to Yescas' unusual hand gestures as Yescas approached the location where he was supposed to drop off the truck and as to his explanation that he was trying to shake down his sleeve.

Yescas was not directly asked by government agents if he knew there was marijuana in the truck. He did not directly admit or deny knowledge of marijuana in the truck.

PROCEEDINGS

Yescas was charged with possession with intent to distribute marijuana and importation of marijuana. The jury returned a verdict of not guilty on Count I and but was unable to reach a verdict on Count II. The district court declared a mistrial as to Count II. After a retrial on Count II, the jury found Yescas guilty of importing marijuana.

Yescas appeals his conviction on two grounds: that the district court erred by giving a jury instruction on deliberate avoidance of knowledge, and that the district court's jury instruction defining reasonable doubt unconstitutionally lowered the government's burden of proof. Yescas did not object to either instruction at the time of trial.

ANALYSIS

Because there was no objection to the instructions at trial, we review the instructions under the plain error standard. "Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

We hold that it was not a miscarriage of justice for the district court to give the deliberate avoidance instruction. The government produced sufficient evidence that Yescas was aware of a high probability that the truck contained a controlled substance and that he deliberately avoided learning the truth in order to have a defense in the event of a subsequent prosecution. See United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 487 U.S. 1222 (1988); United States v. Jewell, 532 U.S. 697 (9th Cir.), cert. denied, 426 U.S. 951 (1976). Yescas was the only insured driver for the truck in the United States and had driven from Mexico to the United States several times. The truck had six panels on each side on the outside, but five panels on each side on the inside. He made a post-arrest statement that he had been directed to drive the truck to Yuma, leave it there with the keys in it, and return to Mexico by taxi. Although he stated at the primary inspection point that the truck was empty and responded "no" when accused of importing marijuana, the jury could properly infer that he deliberately closed his eyes to the true nature of the transaction. See United States v. Suttiswad, 696 F.2d 645, 651 (9th Cir. 1982) (conscious avoidance instruction proper where defendant was given plane ticket, clothing, cash, and gifts to deliver suitcase to stranger upon arrival in United States); United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir. 1977) (instruction proper where defendant was told to drive to gas station to meet employer's cousin and to return with refrigerator); Jewell, 532 F.2d at 688-89 (instruction proper where defendant was offered money to drive car across national border).

Yescas argues that the evidence presented by the government might point to actual knowledge but not to conscious ignorance. He claims that his nervousness at the inspection stations, his similar trips in the past, and his conflicting statements to the custom agents are consistent with evidence of actual knowledge so that the deliberate avoidance instruction led the jury to avoid questions of scienter and to convict him under a negligence standard.

Yescas' contention would have merit if the government presented only evidence that would support an inference of actual knowledge of marijuana in the truck. See United States v. Beckett, 724 F.2d 855, 856 (9th Cir. 1984) (no evidence presented that defendant purposely contrived to avoid learning facts in order to have defense in event he was arrested and charged); United States v. Garzon, 688 F.2d 607, 609 (9th Cir. 1982) (no evidence suggested "middle ground of conscious avoidance"). However, the government presented evidence that could support an inference of either actual knowledge or deliberate avoidance of the facts. While nervousness by itself could support either theory, see Alvarado, 838 F.2d at 315 (nervousness and turning pale could support finding that defendant either knew or was afraid to find out), the special construction of the truck and the fact that Yescas was to be paid to drive a truck across the border and leave it on the other side support the inference that Yescas willfully closed his eyes to what otherwise would have been obvious to him. When there is evidence that could support either a finding of actual knowledge or deliberate ignorance, a deliberate avoidance instruction is appropriate. United States v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988).

Yescas also argues that the district court's jury instruction defining reasonable doubt unconstitutionally lowered the government's burden of proof. The district court judge instructed the jurors that they must find Yescas guilty if they were "firmly convinced" of his guilt. The instruction was based on section 3.03 of the Manual of Model Criminal Jury Instructions for the Ninth Circuit (1989). We hold that the instruction did not constitute plain error. See Bustillo, 789 F.2d at 1368 ("firmly convinced of guilt" language employed by trial court did not constitute plan error).

The district court decision is AFFIRMED.