The Ninth Circuit Court of Appeals today released an amended order in USA v. HEREDIA, No. 03-10585, a criminal appeal. The panel consisted of Mary M. Schroeder, Chief Judge, Harry Pregerson, Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Richard A. Paez, Richard C. Tallman, Richard R. Clifton, Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.
KOZINSKI, Circuit Judge:
We revisit United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), and the body of caselaw applying it. I Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a “very strong perfume odor” emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. Â§ 841(a)(1). At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to Nogales, where her mother had a dentist’s appointment. After the appointment, she borrowed her Aunt Belia’s car to transport her mother back to Tucson. Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a “detergent” smell in the car as she prepared for the trip and asked Belia to explain. Belia told her. . .
Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows: As our cases have recognized, deliberate ignorance, otherwise known as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir. 1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir. 1991). A willfully blind defendant is one who took deliberate actions to avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substan. . .
KLEINFELD, Circuit Judge, concurring in the result:
Because the evidence in this case justified a wilful blindness instruction, and the instruction’s form (to which no objection was made below) was not plainly erroneous, I would affirm Heredia’s conviction. But the majority errs in 817 F.2d 580, 584 (9th Cir. 1987) (”The cases in which the facts point to deliberate ignorance are relatively rare.”); United States v. Garzon, 688 F.2d 607, 609 (9th Cir. 1982) (”The instruction should be given rarely because of the risk that the jury will convict on a standard of negligence.”); Murrieta-Bejarano, 552 F.2d at 1325 (”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.”). This kind of speculation is misguided and should not be read to imply additional limitations on a district court’s discretion to issue a Jewell instruction beyond what we’ve indicated above. Whether the instruction is given depends solely on the state of the evidence in the case, analyzed as we have explained above. Cases suggesting the contrary are, to that extent, overruled. . . .
GRABER, Circuit Judge, with whom PREGERSON, THOMAS, and PAEZ, Circuit Judges, join, dissenting:
Assuming the Jewell instruction to be proper, I agree with the majority that the standard by which to review a district court’s decision to give one is “abuse of discretion” in the light of the evidence presented at trial. But as a matter of statutory construction, I believe that the Jewell instruction is not proper because it misconstrues, and misleads the jury about, the mens rea required by 21 U.S.C. Â§ 841(a)(1). Because the legal error of giving a Jewell instruction in this case was not harmless beyond a reasonable doubt, I respectfully dissent. Under 21 U.S.C. Â§ 841(a)(1), it is a crime to “knowingly or intentionally . . . manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (Emphasis added.) The plain text of the statute does not make it a crime to have a high probability of awareness of possession–knowledge or intention is required. The majority recognizes that willful blindness is a mens rea separate and distinct from knowledge. See Majority op. at . . .