Unpublished Disposition, 899 F.2d 20 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 20 (9th Cir. 1987)

No. 88-5120.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Southern District of California; Earl B. Gilliam, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before ALARCON and DAVID R. NELSON, Circuit Judges, and PAUL G. ROSENBLATT* , District Judge.

MEMORANDUM** 

Juan Verduzco-Contreras appeals his conviction for possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (1982); importation of a controlled substance, in violation of 21 U.S.C. §§ 952, and 960 (1982).

Appellant Juan Verduzco-Contreras alleges that the trial court erred in giving the Jewell instruction to the jury regarding conscious avoidance and deliberate ignorance. Appellant further alleges that the trial court erred in denying the Motion for Judgment of Acquittal on the false statement count and alternatively that the conviction as to that count should be reversed on grounds of materiality.

Factual and Procedural Background

On June 29, 1987, at approximately 11:30 a.m., appellant entered the United States from Mexico at the San Ysidro, California Port of Entry in a black Volkswagen bearing Baja California plates. (RT 116) He testified at trial that he borrowed the vehicle from a friend to get to work. The vehicle was registered in Mexico in the name of Mr. Norberto Garcia. Appellant's own truck was being repaired by a mechanic in Tijuana on the same day.

Appellant further testified that his friend offered to give him $1,300.00 (one thousand three hundred dollars) to drive the car to the United States and leave it in the parking lot of a Jack-in-the-Box restaurant. (RT 189) Appellant partially inspected the vehicle because he suspected that it contained contraband. (RT 189)

The government contends that appellant inspected the vehicle to insure that he could safely drive across the border in the vehicle containing the marijuana, without being caught.

According to the Customs Inspector, appellant appeared nervous and apprehensive at primary inspection. (RT 133-34) When asked who owned the car that he was driving, appellant responded that it was his car. (RT 119) Verduzco-Contreras was referred to the secondary inspection station where he stated that he was driving his friend's car which he had borrowed for the day. (RT 145) The secondary inspector smelled marijuana when she opened the vehicle's hatchback. (RT 147)

A Customs Canine Enforcement Officer was on the premises with a trained narcotics dog who was alerted to the driver's door and the frame of the Volkswagen. Further inspection revealed false compartments beneath the front seats and in the ceiling of the vehicle, containing 67 (sixty seven), one-kilogram packages of marijuana. (RT 139-40, 149-51)

Upon the government's request and over appellant's objection, the trial court gave the Jewell instruction to the jury.

Standard of Review

The standard of review of a trial court's decision to submit jury instructions is for abuse of discretion. United States v. Feldman, 788 F.2d 544, 555 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987), reh'g denied, 480 U.S. 912 (1987). This court must review the instructions as a whole to determine whether they misled or inadequately guided the jury's determination. United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983). The Court of Appeals reverses for nonconstitutional error only if it was more probable than not that the error affected the verdict. United States v. McAllister, 747 F.2d 1273, 1277 (9th Cir. 1984), cert. denied, 474 U.S. 829 (1985).

In reviewing verdicts for sufficiency of the evidence, this court views the evidence in the light most favorable to the government. United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). In Goode, this court instructed:

The reviewing court must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.

Id. (citations omitted).

This court will overturn a conviction only if "no rational trier of fact could have found beyond a reasonable doubt the defendant committed the offense in question." United States v. Vaughn, 797 F.2d 1485, 1489 (9th Cir. 1986). (citation omitted)

Analysis

Jewell Instruction

The statute under which appellant was convicted in Count 1 of the indictment prohibits the possession of a controlled substance and is violated only if possession is accompanied both by knowledge of the nature of the act and also by intent to manufacture, distribute or dispense. Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841(a) (1) (1982); United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976), cert. denied, 426 U.S. 951 (1976). In Jewell, this circuit concluded that "knowingly" included deliberate ignorance contrived "with a conscious purpose to avoid learning the truth." Id. at 700. Knowledge of illegality can be proven where the facts indicate a high probability of illegality and the defendant is aware of these facts, but purposefully fails to investigate on account of his desire to remain ignorant. Id. at 700-701.

Giving the Jewell instruction is proper where there is evidence of both actual knowledge and of deliberate ignorance. United States v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988). Perez-Padilla expressly agreed to the giving of the Jewell instruction, then contended on appeal that the instruction was plain error. Id. at 1183. Customs agents testified at trial that appellant Verduzco-Contreras stated at the time of his arrest that he knew he was carrying cocaine. Id. At trial, however, appellant testified that he knew he was carrying something illegal into Mexico, but believed it was a weapon or jewelry and not cocaine. Id.

In exchange for a substantial sum of money, appellant agreed to drive a vehicle containing over 100 pounds of marijuana across the border. Appellant admitted he became suspicious enough to inspect the car himself. However, nothing in the record indicates that appellant looked under the front seats, which was where the marijuana was discovered at secondary inspection.

The facts in the case at bar more closely resemble those in Jewell. In the Jewell case, the appellant entered the United States in a vehicle containing 110 pounds of marijuana concealed in a secret compartment between the trunk and the rear seat. While appellant claimed a lack of knowledge, he did inspect the vehicle, discovered the secret compartment, but failed to look further. False Statement to a Federal Officer

The appellant argues that the trial court erred in denying his Motion for Judgment of Acquittal on the false statement count.

Beyond a Reasonable Doubt

Appellant argues that his conviction should be overturned because the government failed to meet its burden of proving specific intent beyond a reasonable doubt. Verduzco-Contreras was charged in the indictment with knowingly and willfully making a false, fictitious and fraudulent statement. This court has determined that the government need not prove intent to deceive under 18 U.S.C. § 1001. United States v. Vaughn, 797 F.2d 1485, 1490 (9th Cir. 1986).

Materiality

Appellant also contends that his conviction for giving a false statement to a federal officer should be reversed on grounds of materiality. Materiality is an essential element of the offense of making false statements to the United States, prohibited by 18 U.S.C. § 1001. United States v. Valdez, 594 F.2d 725, 728 (9th Cir. 1979).

The test for determining the materiality of the false statement is:

"... whether the falsification is calculated to induce action or reliance by an agency of the United States, --is it one that could affect or influence the exercise of governmental functions, --does it have a natural tendency to influence or is it capable of influencing agency decision?" Id. (quoting United States v. East, 416 F.2d 351, 353 (9th Cir. 1969)).

The question about a vehicle's ownership is part of a profile used by U.S. Customs. The question is asked because, if the driver of the vehicle is also the owner, he more likely than not will know the contents of the vehicle for inspection purposes. (RT 122)

The law is clear that the statement need only have the propensity to influence an agency's decision and that the government is not required to show reliance in fact. United States v. Rodriguez-Rodriguez, 840 F2d 697, 700 (9th Cir. 1988) (citations omitted. Under the circumstances, the government has met its burden.

Recantation

The last argument proffered by the appellant involves an opportunity by a defendant to recant a false statement to a grand jury and thereby avoid prosecution for the initial false statement under that statute. 18 U.S.C. § 1623(d). The statutory recantation provision is available to perjurers only if their previous false testimony "has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed." United States v. Moore, 613 F.2d 1029, 1039 (D.C. Cir. 1979), cert. denied, 446 U.S. 954 (1980). Verduzco-Contreras argues that the policy considerations underlying Sec. 1623(d) should apply to Sec. 1001, the statute under which he was charged in the indictment. The obvious purpose of the recantation provision is to encourage truthful testimony before the court and grand jury.

Appellant's position is not supported by any case law. In any event, the recantation provision does not apply here because appellant denies making the false statement to begin with. The Moore court denied appellant the benefits of Sec. 1623(d) because appellant in that case decided to recant only upon discovering that a recording had been made previously indicating that he was lying at the grand jury proceeding. Id. at 1039. The Moore court further held that Sec. 1623(d) required both a showing that the falsity must not have substantially affected the proceeding and that exposure of the falsity must not have become manifest. Id. at 1039-40. In the case at bar, appellant's false statement arguably became manifest upon a showing of the vehicle's registration indicating that the vehicle belonged to Norberto.

Conclusion

In reviewing the trial court's decision to submit the Jewell instruction to the jury, this court finds that the instruction adequately guided the jury's determination and that the trial court did not abuse its discretion. It is not the role of this court to review the credibility of the witnesses at trial and the jury is not required to believe appellant.

The court further finds that the evidence is sufficient to support a conviction as to all counts of the indictment.

* * *

* * *

AFFIRMED.

 *

Honorable Paul G. Rosenblatt, United States District Judge for the District of Arizona, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3