An Interesting 9th Circuit Criminal Case With Judge Susan Graber Dissenting
Fifteen 9th Circuit judges sitting en banc reheard arguments in U.S. v. Heredia, 483 F3d 913, AZ, 2007. Judge Kozinski wrote the majority opinion, and Judge Susan Graber, joined by Judges Pregerson, Thomas and Paez dissented.
This was a drug possession case where the issue was whether "knowingly" possessing a controlled substance with intent to distribute the controlled substance can be proven by the prosecution showing beyond a reasonable doubt that the defendant was aware of a high probability of criminality yet deliberately avoided learning the truth. In short, the question is whether deliberately avoiding learning the truth can substitute for the statutory element of "knowingly" possessing the controlled substance.
One might think that to "knowingly" possess something one must have knowledge that one does possess something (in this case, a controlled substance). One might also think that if the prosecution's proof falls short of proving knowledge beyond a reasonable doubt that the defendant is entitled to be acquited. One might also think that if this is an unsatisfactory state of affairs then one should urge Congress to amend the statute so that "wilful blindness" serves as a substitute for "knowingly" possessing.
An activist judge, however, might believe that the "intent" of Congress can be determined and that if this intent was to make "wilful blindness" the equivalent of "knowingly" then the court should save Congress the necessity of amending the statute and simply so hold.
Judge Kozinski's judicial reputation is more on the conservative side than on the liberal side, so his opinion that "wilful blindness" should serve as a substitute for "knowingly" in this statute, is seemingly a more activist opinion than what one would expect from a conservative judge.
But, the Court in Heredia was deciding whether to overrule or to reaffirm, or to reaffirm in part, a decision the Court had made in 1976 in the case of U.S. v. Jewell, 532 F2d 697 (1976). A more conservative judge may be more inclined to follow precedent than to avoid it or to overturn it, so perhaps Judge Kozinski in this case believed that it was more important to sustain the opinion in Jewell (and do some clearing of accumlated underbrush that had grown up around the original decision) than it was to challenge the idea that a court can or should even attempt to ascertain the intent of Congress in passing legislation where the legislation contains no expresssion of Congressional intent. After all, individual persons have mental states; the "intent" of Congress could only, at best, be an accumulation of the individual mental states of its individual members who voted on the legislation. And, the intent of individual members could only be ascertained by their own declaration of intent, and then it would have validity for only the time at which the declaration has been made and accurately recorded, because we know that members of Congress, like the rest of us, are often changing our minds about this or about that. Anti-activist judges don't like the idea of courts determining the intent of Congress for the foregoing and other good reasons.
However, that is what the 9th Circuit Court did in the U.S. v. Jewell decision in 1976. The majority of the Court there decided that "Appellant's narrow interpretation of 'knowingly' is inconsistent with the Drug Control Act's general purpose to deal more effectively 'with the growing menace of drug abuse in the United States.' Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it."
In U.S. v. Heredia Carmen Heredia was stopped driving a car in Arizona with her two children, her mother and her aunt as passengers. Another aunt was traveling in another car on the freeway. There were 349.2 lbs. of marijuana in the trunk and a strong "perfume" odor permeated the car. Heredia admitted on the stand that she suspected there were drugs in the car. Her aunt had explained that the smell came from a bottle of fabric softener that had been spilled in the car, but Heredia didn't really believe her. Also her mother was nervous, did not have a job, but had a lot of cash. As Heredia's suspicions grew she passed the last freeway exit and it would have been dangerous to pull over.
The judge gave the prosecution's requested instruction, the so-called "deliberate ignorance" instruction.
The given instruction wasn't really correct, but the Court held that it did imply the necessary elements even if it did not clearly state them and, in any event, the defendant did not object to the one given.
The proper instruction is that "the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, unless he actually believes it does not exist."
The alternative to all of this is to simply hold that "knowingly" in the statute means that the person has positive knowledge of the fact in question. Since we can only judge what other people know by what they say or do or have done a jury can only find that a person "knowingly" possesses a controlled substance by making inferences from what a person says, does, or has done. The point here is that "positive knowing" can be proven only by inferences from observable statements or actions. So, why introduce this judge-made concept of "deliberate ignorance" or "wilful blindness?" It only puts a label on another "state of mind" that itself can only be proven by inferences from the accused's statements or actions in circumstances. Are we developing the criminal law by postulating yet another "state of mind" that can only be experienced, if at all, by the person who is having it, and can only be proven in a court of law by a confession or by inferences from statements or actions of the accused under circumstances? Perhaps not, but we can make it easier for the prosecution to prove its case. Because, surely it is easier for a jury to infer that there was a high probability that Heredia was aware of the marijuana in the trunk than it is for a jury to infer that she had positive knowledge that there was marijuana in the trunk.
So, maybe for some judges, whether conservative or liberal, it's ok to be a judicial activist and look for the intent of Congress when it results in more guilty verdicts for possession of controlled substances. And is affirming a thirty year old precedent more or less activist, where your opinion seeks to clear out a lot of the judicial underbrush that has built up, and where that opinion affirms a case where the court believed that it could and it did ascertain the intent of Congress?
Whatever, your conclusion, I recommend to you the dissent of Judge Susan Graber. She makes these points:
1) Congressional inaction over the 30 years since the Jewell decision is not a justification for affirming Jewell.
2) Congress before and after the Jewell decision defined the mens rea of crimes in terms of a high probability of awareness, but not by using the term "knowlingly."
3) Congress didn't make the decision that "deliberate ignorance" (based on high probability) is equivalent to "knowingly", the Jewell court did.
4) The majority here directly contravenes the principle that "it is the legislature, not the court, which is to define a crime, and ordain its punishment."
Judge Graber then writes:
"The mens rea-reducing Jewell instruction not only is wrong, it is also unnecessary in the face of the kind of proof that a prosecutor is likely to produce. For example, if your husband comes home at 1:00AM every Friday...never reveals where he has been, won't look you in the eye on Fridays and puts...shirts in the hamper bearing lipstick stains, your friends will agree that you "know" he is having an affair even if you refuse to seek confirmation. The role of a jury is to apply common sense to the facts of a given case. A sensible jury will be persuaded that a drug mule 'knows' what she is carrying when confronted with evidence of how mules typically operate and how this mule acted - all without reference to a Jewell instruction.
Thus, I would overrule Jewell and interpret 21 USCA sec. 841(a) to require exactly what its text requires - a knowing or intentional mens rea. If Congress wants to criminalize willful ignorance, it is free to amend the statute to say so and, in view of the several examples quoted above, it clearly knows how."
To me, Judge Graber's dissent is neither conservative nor is it liberal - it is solid.
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