Unpublished Disposition, 855 F.2d 863 (9th Cir. 1986)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 855 F.2d 863 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,v.Debra Ann MITCHELL, Defendant-Appellant.

No. 86-5105.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1988.Decided Aug. 11, 1988.

Before BROWNING, NELSON and CANBY, Circuit Judges.


MEMORANDUM* 

Debra Ann Mitchell appeals her conviction on one count of conspiracy to possess heroin with the intent to distribute, and five counts of possession of heroin with intent to distribute. Mitchell contends that the district court erred in giving two jury instructions, and improperly responded to a jury request for instructions during deliberations without notifying counsel. Mitchell also challenges the sufficiency of the evidence on four of the counts against her. We affirm in part and reverse in part.

The first issue on appeal is whether the district court erred in giving the following jury instruction:

One may become a member of a conspiracy without full knowledge of all the details of the conspiracy. On the other hand, a person who has no knowledge of a conspiracy but happens to act in a way which furthers some object or purpose of the conspiracy does thereby become a conspirator.

The word "not" has obviously been left out of the last line of the instruction. Because Mitchell did not object to the jury instruction as required by Fed. R. Crim. P. 30, we review the instruction for plain error--error that probably affected the verdict materially. United States v. Hamilton, 792 F.2d 837, 840 (9th Cir. 1986). Mitchell argues that the absence of the word "not" compelled the jury to conclude that Mitchell's actions served the purposes of the conspiracy, regardless of her actual intent. We disagree. Several jury instructions correctly explained the elements of conspiracy, and explicitly required the jury to find willfulness or knowledge before concluding that Mitchell was a member of a conspiracy. The erroneous instruction, taken in the context of the jury charge as a whole, was not so prejudicial to Mitchell's substantive rights as to constitute plain error. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

Mitchell next contends that the district court improperly denied the jury's request for a copy of the conspiracy instructions without first notifying counsel. Mitchell correctly asserts that questions as to the meaning of terms which arise during jury deliberations should generally be settled by the court after consulting with counsel. Fed. R. Crim. P. 43; United States v. Birges, 723 F.2d 666, 671 (9th Cir.), cert. denied, 466 U.S. 943 (1984). Unlike situations where the district court improperly responded to a jury request by providing inappropriate or extraneous materials, Birges, 723 F.2d at 670, or by rereading the original instructions, United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.), cert. denied, 441 U.S. 936 (1979), the court here simply told the jurors to rely on their recollections of the instructions. While the error in the conspiracy instruction might have been detected had the district court conferred with counsel before responding to the jury request, it also might not. In that case, compliance with the jury request might well have placed undue emphasis on the erroneous form of the instruction. We hold that the district court's communication with the jury without first consulting counsel was not so prejudicial as to require reversal. United States v. Kupau, 781 F.2d 740, 743-44 (9th Cir.), cert. denied, 107 S. Ct. 93 (1986).

The next issue is whether the district court erred in giving the jury the following deliberate avoidance instruction over Mitchell's objection:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of a fact.

It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge.

A deliberate avoidance instruction may be given where there is evidence that a defendant avoided what would be obvious to view in a calculated effort to avoid the sanctions of a statute while violating its substance. United States v. Jewell, 532 F.2d 697, 704 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976). "The Jewell instruction should not be given in every case where a defendant claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance." United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir. 1977). Here, Mitchell claimed that she was unaware of the contents of the bag she was to deliver to an unknown contact. Yet Mitchell also testified that she barely knew the person for whom she made the delivery, and that she received elaborate instructions for handling the exchange. These facts, taken together with Mitchell's comments to undercover DEA agents,1  provided sufficient evidence from which a jury could find conscious avoidance. The district court did not err in giving a Jewell instruction.

Finally, Mitchell challenges her conviction on four counts of possession of heroin with intent to distribute. The four counts are based on Farmafarmaie's attempted sale of heroin to undercover agents in December 1985. Although the government presented no evidence directly linking Mitchell to those acts, the jury was instructed that Mitchell could be held liable for the illegal acts of her co-conspirator under Pinkerton v. United States, 328 U.S. 640 (1946). Mitchell contends that there was insufficient evidence that she was a member of the conspiracy at the time of the sales underlying Counts Two, Three, Four, and Five, and that the district court erred in giving a Pinkerton instruction to the jury.

To prove Mitchell's guilt under a Pinkerton theory, the government was required to prove that the substantive offenses were committed by Farmafarmaie in furtherance of the conspiracy, and that Mitchell was a member of the conspiracy at the time the illegal acts occurred. Id. United States v. Roselli, 432 F.2d 879, 894 (9th Cir. 1970), cert. denied, 401 U.S. 924 (1971). Although evidence of a slight connection to a conspiracy is sufficient to convict a defendant of knowing participation in it, the government must first establish that a conspiracy exists. United States v. Arbelaez, 719 F.2d 1453, 1458 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984). At trial, the government asserted that Farmafarmaie told a confidential DEA source that he wanted to find an American couple to smuggle heroin from Europe into the United States in the fall of 1985. Sometime later, the DEA source reported that Farmafarmaie had successfully recruited a couple for his purposes. The government argued that this evidence, taken together with the fact that Mitchell married an Englishman in the fall of 1985 and had previously taken several trips to Europe, proved that she was a member of the conspiracy by the fall of 1985.

While proximity to the scene of illicit activity may support an inference of involvement in a conspiracy when viewed in context with other evidence, United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987), the government has an obligation to establish not only the opportunity, but also the actual meeting of minds. Mere association with a conspirator does not meet the test. See United States v. Lopez, 625 F.2d 889, 896 (9th Cir. 1980), quoting, United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974). The government did not present any evidence that Mitchell agreed to enter into the conspiracy, to permit an inference of complicity to be raised by her marriage to a European and her various trips to Europe in 1985.

Nor do the statements made by Mitchell during the January 21, 1986 heroin transaction2  permit a logical inference that Mitchell was a co-conspirator at the time of Farmafarmaie's December heroin sales. Mere suspicion or speculation cannot be the basis for the creation of a logical inference. United States v. Thomas, 453 F.2d 141, 143 (9th Cir. 1971) (per curiam), cert. denied, 405 U.S. 1069 (1972). In light of Mitchell's testimony that she had dealings with Farmafarmaie and Ali a few weeks before the January 21, 1986 meeting, her statements to the DEA agent are entirely consistent with her testimony that she did not meet anyone involved in the conspiracy prior to January 1986. Even if Mitchell's statements support an inference that she was a member of the conspiracy, they simply do not link Mitchell to the conspiracy prior to January 1986. Thus, while we do not think the district court erred in giving the Pinkerton instruction, we agree with Mitchell that there was not sufficient evidence to permit a reasonable trier of fact to conclude that she was a member of the conspiracy when the acts underlying Counts Two, Three, Four, and Five occurred.

The convictions on Counts One and Six are AFFIRMED. The convictions on Counts Two, Three, Four, and Five are REVERSED, and the sentences imposed pursuant to those counts are VACATED. Because there is no evidence that the sentences on Counts One and Six were enhanced by the convictions on Counts Two, Three, Four and Five, the sentences on Counts One and Six are AFFIRMED. See United States v. Soto, 779 F.2d 558, as amended, 793 F.2d 217 (9th Cir. 1986), cert. denied, 108 S. Ct. 110 (1987); United States v. Ray, 731 F.2d 1361, 1368 (9th Cir. 1984).

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

When asked by the DEA agent she met at Norm's Restaurant where she was parked, Mitchell responded: "Well, I don't want you to know what car I'm driving." After the same agent mentioned that he would give Mitchell's old clothes to Farmafarmaie, she replied: "I don't know. I don't know him. I don't want to get involved with anything."

 2

During her conversation with an undercover DEA agent at Norm's Restaurant immediately prior to her arrest, Mitchell expressed surprise that the DEA agent was not Iranian like everyone else she had dealt with in the past. Second, Mitchell told the agent that the deal they were transacting would establish his credibility for larger sales in the future

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.