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United States v. Jewell
532 F.2d 697 (9^th Cir. 1976)

BROWNING, Circuit Judge:

It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana . . . had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was false. On the other hand there was evidence from which the jury could conclude that appellant spoke the truth that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery. If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was he didn't because he didn't want to find it."

The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake. The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States and that he "knowingly" possessed the marihuana. The court continued:

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

The legal premise of these instructions is firmly supported by leading commentators here and in England. . . . "One with a deliberate antisocial purpose in mind . . . may deliberately 'shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having 'knowledge' of the facts as they are ultimately discovered to be." . . . "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . 'knowingly.' ". . . "To the requirement of actual knowledge there is one strictly limited exception. . . . (T)he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge." . . . "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

There is no reason to reach a different result under the statute involved in this case. . . . Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term "knowingly" in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the "cluster of ideas" attached to such a familiar term of art. Morissette.. . .

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. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing.

It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant's interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.

It begs the question to assert that a "deliberate ignorance" instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term "knowingly" in the statute. If it means positive knowledge, then, of course, nothing less will do. But if "knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.

It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew." In the language of the instruction in this case, the government must prove, "beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth."

No legitimate interest of an accused is prejudiced by such a standard, and society's interest in a system of criminal law that is enforceable and that imposes sanctions upon all who are equally culpable requires it.

The conviction is affirmed.

ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place. The doctrine is commonly said to apply in deciding whether one who acquires property under suspicious circumstances should be charged with knowledge that it was stolen.

One problem with the wilful blindness doctrine is its bias towards visual means of acquiring knowledge. We may know facts from direct impressions of the other senses or by deduction from circumstantial evidence, and such knowledge is nonetheless "actual." Moreover, visual sense impressions do not consistently provide complete certainty.

Another problem is that the English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, "actual" knowledge. When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy.

Finally, the wilful blindness doctrine is uncertain in scope. There is disagreement as to whether reckless disregard for the existence of a fact constitutes wilful blindness or some lesser degree of culpability. Some cases have held that a statute's scienter requirement is satisfied by the constructive knowledge imputed to one who simply fails to discharge a duty to inform himself. There is also the question of whether to use an "objective" test based on the reasonable man, or to consider the defendant's subjective belief as dispositive.

The approach adopted [by]. . . the Model Penal Code clarifies, and, in important ways restricts, the English doctrine . . . . [It] requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that [wilfull blindness under the MPC] is a definition of knowledge, not a substitute for it . . . .

. . . [T]he "conscious purpose" jury instruction [in this case] is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form "a conscious purpose to avoid learning the truth" unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.

The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he "actually believed" there was no controlled substance in the car. The failure to emphasize, . . . that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge that a reasonable man should have inspected the car and would have discovered what was hidden inside. One recent decision reversed a jury instruction for this very deficiency failure to balance a conscious purpose instruction with a warning that the defendant could not be convicted if he actually believed to the contrary.

Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or "not actually aware" that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge.

. . . [T]he instructions given in this case were erroneous; they could have permitted the jury to convict Jewell without being certain beyond a reasonable doubt that he possessed the mens rea required for knowing possession or importation . . . .

We do not question the sufficiency of the evidence in this case to support conviction by a properly-instructed jury. As with all states of mind, knowledge must normally be proven by circumstantial evidence. There is evidence which could support a conclusion that Jewell was aware of a high probability that the car contained a controlled substance and that he had no belief to the contrary. However, we cannot say that the evidence was so overwhelming that the erroneous jury instruction was harmless. Accordingly, we would reverse the judgment on this appeal.