Friday, April 06, 2007

Case o' The Week: Ninth Burns Jewell While "Clearing Underbrush," Heredia en banc

While "clearing the underbrush" around the Ninth Circuit's deliberate ignorance instruction (Jewell), Judge Kozinski's en banc decision also incinerates the few protections that were formerly part of this area of law. United States v. Heredia, __ F.3d __, No. 03-10585, Slip. Op. at 3715 (9th Cir. April 2, 2007) (en banc), decision available here. A disappointing en banc opinion that seems to have split the Right.

Players: Kozinski (right) authors en banc decision that reverses good Bybee decision; Kleinfeld concurs but really dissents; and Graber dissents (?) with Pregerson and others. (These splits alone makes the case worth a read).

Facts: Carmen Heredia got caught at a near-border bust with a car that smelled like dryer sheets, and 349 pounds of pot. Id. at 3719-20. At trial she testified that she borrowed the car, noticed the odd smell, but by the time she suspected that drugs were in the car she was at a spot on a freeway that was too dangerous to stop and check. The district court gave a Jewell deliberate ignorance instruction over defense objection: she was convicted of 21 USC § 841(a)(1). Id. at 3721.

Issue(s): “On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge. Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.” Id. (footnote omitted).

Held: “[W]e recognize that many of our post-Jewell cases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts—and ourselves—to apply with consistency. But, rather than overturn Jewell, we conclude that the better course is to clear away the underbrush that surrounds it.” Id. at 3723. [There is no requirement that] “the jury . . . be instructed that defendant’s motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime.” Id. at 3723-26. “We . . . re-adopt the normal rule applicable to jury instructions by reviewing the decision to give a deliberate ignorance instruction for abuse of discretion. Opinions to the contrary [requiring de novo review]. . . .are overruled.” Id. at 3728. “Some of our opinions have commented on how [infrequently ] Jewell instructions should be given . . . . Whether the instruction is given depends solely on the state of the evidence in the case . . . . Cases suggesting the contrary are, to that extent, overruled.” Id. at 3732 & n. 16.

Of Note: The defense had hoped to eliminate the hated Jewell instruction – instead, this Kozinski opinion makes it worse. The Court still requires the two prongs found in the old Ninth instruction. Id. at 3726. It rejected, though, the “motive to provide a defense” prong that had made its way into some analyses. It also disavowed very useful language that cautioned against the Jewell instruction and urged limited use. Id. at 3723 & n. 16. Worst of all – and this is really the most dangerous aspect of the decision – it scrapped de novo review of whether the instruction was appropriate, and adopted the (more-deferential) “abuse of discretion” standard. Put bluntly, the district court now has greater deference on whether to give the government a Jewell instruction. (“We will second guess [the district court’s] decision only in those rare cases where we find an abuse of discretion.”) Id. at 3732. That greater deference is bad news for the defense.

How to Use: Lemonade is a challenge from this lemon of an opinion. Here’s a stab: Kozinski emphasizes that a district court retains the power to tailor the Jewell instruction to fit the facts of the case. Here, for example, the judge could have instructed the jury that it could find Heredia did not act deliberately if the jury believed that her failure to investigate was motivated by safety concerns. Id. at 3726. Jewell will now be largely fought in the trenches, with trial court litigation over the breadth of the deliberate ignorance instruction. (As a corollary, the quirks of the particular district court judge involved are now far more important than the Circuit law on deliberate ignorance).

For Further Reading: It’s not just (alleged) drug mules that hate Jewell – the deliberate ignorance instruction played a prominent role in the Enron trials as well. See article here. White collar folks, take note: Heredia just clobbered your C.E.O.’s defense.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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