Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Elizabeth Moore and her co-defendant Mary Ann Houston were convicted of two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841. Moore argues that the district court erred by instructing the jury on deliberate ignorance, as permitted in certain cases under the holding of United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976). She also challenges her sentence on the grounds that the district court failed to find that she was either a minimal or a minor participant in the offense, and thus failed to award her a reduction required by the Sentencing Guidelines. We affirm.

* Moore and Houston are cousins. Moore is a Los Angeles resident and Houston had been living in Texas for several years. In the weeks before the women were arrested on June 12, 1989, Houston had been staying in various Los Angeles hotels under several different names.

Police were conducting a stake-out of the Federal Express office near the Los Angeles airport when they first noticed Houston and Moore. Moore was driving, and Houston rode in the passenger seat. It was hot outside. Houston got out of the car and obtained two airbills from the office. Instead of filling out the names of the sender and addressee in the air-conditioned office, Houston returned to the car. Moore then drove to an unshaded area of a parking lot of a nearby hotel, the Embassy Suites, which is across the Imperial Highway from the Federal Express office. There, a plainclothes officer observed Houston filling out one of the airbills. The women then returned to the Federal Express office. Moore entered and sent a package by the service's fastest, most expensive rate. A police officer then questioned Moore, obtained permission to recover and search the package, and discovered that it contained cocaine. The package was addressed to a fictitious name at a Texas residence maintained by Houston. With Moore's consent, police later found a second package containing cocaine in the trunk of the car, along with a small electronic scale. The women told varying and conflicting stories to the police but both consistently denied knowing that the packages contained a controlled substance.

The women were both charged with two counts of possession of cocaine with the intent to distribute, one count for each package. At trial, the women persisted in denying that they knew anything about the packages' contents. The remainder of their stories conflicted, however, as each attempted to shift primary responsibility to the other.

Houston explained that a man named "Rico" offered to pay $155 for shipping two packages, which supposedly contained jewelry and beauty supplies, to Texas. According to Houston's testimony, the women were on their way to a sporting event when Moore announced that she had to stop to meet Rico. He was waiting at the Embassy Suites parking lot, and he talked to the two women as they sat in the car. Rico claimed that he wanted to send two packages to his sister in Dallas, but could not because his sister's boyfriend was opening her mail. Rico asked Moore if she had inquired yet about sending the packages to the home of her cousin in Texas, who was Houston. When Houston heard that, she agreed, and Rico instructed her to address the packages to Linda Cole. Rico also provided the name of the addressee and the name of the shipper. Rico wanted one package but not the other shipped that day; he asked Moore to put the other in the trunk. Houston saw Rico give Moore some $20 bills but didn't know if he gave her the entire $155. Rico instructed the women to go over to Federal Express, get two airbills, and meet him again. The women followed Rico's instructions, but he disappeared. Afterwards, they returned to the Federal Express office, where Moore mailed the package.

When questioned after her arrest, Moore went along with the "Rico" story for a while. Then she changed her story and told police that when she first picked Houston up on June 12, Houston had the packages with her. At trial, Moore stuck with the latter story and denied that Rico had ever existed. She testified that she shipped the package at Houston's request without any knowledge or suspicion about its contents.

II

Moore contends that the district court erred by instructing the jurors that they may find that she acted knowingly if they find beyond a reasonable doubt that she was aware of a high probability that the packages contained a controlled substance and deliberately avoided learning the truth. We recently discussed the circumstances that warrant a Jewell instruction in United States v. Sanchez-Robles, 923 F.2d 747, No. 90-50018, slip op at 482 (9th Cir. Jan. 17, 1991). We conclude that Houston's testimony warranted the district court's decision to give the Jewell instruction.

Under the circumstances as described by Houston, Rico's story was very suspicious. People do not ordinarily pay $155 to ship beauty supplies. If the contents of the packages were truly innocent, why did Rico need to hide their contents from his sister's boyfriend? The testimony indicated that the women met Rico not far from the Federal Express office. Why couldn't Rico ship the packages himself? Why would Rico want the packages shipped on different days? Why did Rico want the sender's name listed as someone other than him or Moore or Houston? Why did Rico give the packages to the women but ask them to return with the airbills and then disappear before they could meet him? Although Moore denied that the interaction with Rico ever occurred, the jury was free to believe Houston instead of Moore. If the jury believed Houston, it could reasonably conclude that Moore was aware of a high probability that the packages contained contraband.

The jury could also conclude that Moore deliberately avoided learning the truth. She did not ask Rico for any answers to the questions posed in the preceding paragraph. The jury was properly instructed on deliberate ignorance.

III

Moore argues briefly that the district court erred by failing to find that she had a minimal role in the offense or was a minor participant in the offense. She relies solely on her testimony at trial. Both the jury and the district court were free to disbelieve Moore's testimony. A district court's refusal to find that a defendant was a minor or minimal participant will be overturned only on a showing of clear error. See United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990); United States v. Sanchez, 908 F.2d 1443, 1448-49 (1990). Moore has made no such showing here.¹ 

AFFIRMED.