Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1988)

MEMORANDUM^** 

Ramon Carrillo-Espinola appeals his conviction for importation of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(a) (1). He argues that it was error for the district court to give a Jewell instruction after defendant's closing argument, the court having previously said the instruction would not be given. We affirm.

On April 5, 1988, Carrillo traveled from Mexico City to Los Angeles International Airport. While going through customs, the computer registered a "hit" when Carrillo's name was entered. This indicated that there was a warrant outstanding for Carrillo's arrest. The warrant was confirmed as still active and the defendant was taken to a search room where a pat-down search was conducted.

The search produced three large "lumps" wrapped in ace bandages and taped to Carrillo's undershirt. A field test indicated that the packages contained an opium derivative and had an odor similar to that of vinegar, a characteristic of heroin. It was determined that the material in the packages had a street value of between $2 million and $4 million.

While in the search room, Carrillo told one of the officials that he had carried the packages as a favor for someone and that he was to receive $2,000 for doing so. He also told the official that he did not know the contents of the packages.

Carrillo did not testify at trial.

Pursuant to Fed. R. Crim. P. 30, the district court informed the parties of "its proposed action upon the [jury instruction] requests prior" to closing arguments. (Emphasis added). The court indicated it would not give a Jewell instruction. The government had withdrawn its request for the instruction.

The Jewell instruction is a "willful blindness" or "deliberate ignorance" instruction. United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976). It clarifies the intent requirement of to act "knowingly."

To act "knowingly" ... is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

Jewell, 532 F.2d at 700.

Defense counsel, taking advantage of the district court's "proposed action" of not giving a Jewell instruction, suggested in argument to the jury that deliberate ignorance on the part of the defendant was insufficient to prove criminal intent.

Mr. Ayala: Now, is Mr. Carrillo a knowing importer of heroin, or was he a person who allowed himself to be used by some third parties, failed to thoroughly examine the situation because of economic necessity?

R.T. III-41. This statement suggested that Carrillo's deliberate avoidance of the truth might constitute a defense.

We have found a Jewell instruction appropriate where the defendant "claims a lack of guilty knowledge and there are facts in evidence that support an inference of deliberate ignorance." United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir. 1984), cert. denied, 474 U.S. 829 (1985). Here, the facts (as implied by Mr. Ayala's argument) suggest deliberate ignorance, at best. The packages were concealed by taping them to his undershirt, weighed over three pounds, and had the distinctive vinegar smell of heroin. It was also undisputed that Carrillo was to receive $2,000 for smuggling the packages into the United States.

These facts in conjunction with Mr. Ayala's argument could prompt the jury to believe that Carrillo knew exactly what he was doing or that he deliberately chose to remain ignorant, which made the Jewell instruction appropriate. Furthermore, the legal implication of Mr. Ayala's argument made it appropriate for the court to instruct the jury on the relevant law.

Carrillo's argument that the district court violated Fed. R. Crim. P. 30 by giving the Jewell instruction after his counsel's closing argument is unpersuasive. The plain words of Rule 30 indicate that the decision regarding jury instructions made prior to argument are "proposed." The Rule explicitly allows for instruction to occur before or after argument, the purpose of which is suggested by the Advisory Committee Notes to the 1987 Amendment:

Finally, the amendment plainly indicates that the court may instruct both before and after arguments, which assures that the court retains power to remedy omissions in pre-argument instructions or to add instructions necessitated by the arguments.

(Emphasis added). The circumstances of this case are well anticipated by this comment. Further, the record reflects that Ramon Carrillo-Espinola made no objection to the giving of the Jewell instruction.

That the Rule anticipates changes to instructions after argument suggests a legislative judgment that appropriate changes are not viewed as prejudicial. The timing of giving the instruction was not error. The district court admonished the jury to consider the instructions as a whole and not focus on any one.

AFFIRMED.