United States v. Ramos-Atondo et al., No. 12-50208 (Gould, J, with Rawlinson, J, and Huck, DJ (SD Fla.)) --- The Ninth Circuit affirmed convictions for marijuana smuggling, holding that (1) the district court properly instructed the jury on deliberate indifference as an alternative theory of mens rea; (2) the evidence was sufficient to support the conviction of one defendant, who was more than merely present, and (3) the district court properly admitted another defendant's prior alien-smuggling conviction under Rule 404(b).

Early in the morning of April 4, 2011, a border patrol agent noticed a panga boat approaching the shore of Calafia State Beach in San Clemente, California, a place known for maritime drug smuggling. The agent saw two people on the boat along with what appeared to be several packages. The boat approached at a high rate of speed, then stopped for about ten minutes about 200 feet offshore. It was later abandoned at another nearby beach, where agents recovered 740 pounds of marijuana. The four defendants were apprehended, along with two others; one of the defendants had a key to a room at the San Clemente Inn, a nearby motel, where their identity documents were found. One of the participants testified against the defendants, explaining that he was recruited by one of the defendants to help unload a shipment of marijuana from a boat, and that he should go to the San Clemente Inn on April 3 and await further instructions.

Part of the defense at trial was that the defendants thought that this would be an alien-smuggling operation, not a drug-smuggling operation. The prosecution requested and received a deliberate-indifference instruction as an alternative to their theory that the defendants actually knew it was a drug-smuggling operation. The court held that, under long-standing Ninth Circuit law, see United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), the instruction was proper. There was ample evidence to show that the defendants were aware that there was a high probability that drugs would be on the boat; indeed, many of the defendants had smoked marijuana in the hours preceding the abortive delivery. There was also ample evidence to show that the defendants deliberately avoided learning the truth by failing to inquire whether the cargo was in fact marijuana. While a district court has discretion to decline a deliberate-indifference instruction if the jury may become confused or the only defense is lack of identity, see United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc), this was not one of those situations.

The evidence was sufficient to convict defendant Ramos despite the fact that one of the participant-witnesses did not identify him in court, because one of the agents did identify him in court. To the extent that Ramos's challenge attacks the agent's credibility, the court deferred to the jury verdict in this context. See United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en banc).

The district court properly admitted defendant Ramos-Atondo's prior alien-smuggling conviction. Following the four-part test of United States v. Bailey, 696 F.3d 794 (9th Cir. 2012), the court held that the conviction showed his experience with cross-border smuggling operations and the use of a panga boat; that it was unlikely he was merely present on the boat; his knowledge, intent, and plan to smuggle drugs; and the modus operandi of using panga boats in the early morning hours on a dark beach. Nor was the conviction meant to show that he was a bad person. Finally, the conviction was not overly prejudicial under Rule 403 because it was highly probative of his knowledge of smuggling techniques.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/11/12-50208.pdf