Appeal from the United States District Court For the District of Arizona. USDC NO. CR-91-00357-RMB, USDC NO. CR-91-00357-02-RMB. Jack E. Tanner, District Judge, Presiding, Richard M. Bilby, District Judge, Presiding
Before: Wallace, Chief Judge; D.w. Nelson, O'scannlain, Circuit Judges.
Hector Moreno ("Moreno") and Rolando Zazueta ("Zazueta") appeal their convictions for possessing and transferring a machine gun in violation of 18 U.S.C.§§ 922(o) and 924(a)(2). After a joint trial in which the jury could not reach a verdict, they were tried separately and convicted. We affirm Moreno's conviction, but we reverse Zazueta's conviction because there was not sufficient evidence to justify a jury instruction on deliberate ignorance.
1. Jewell Instruction Claim
Both Moreno and Zazueta claim that the district court erred in giving a deliberate ignorance instruction to the jury. United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976). "The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable." Id. at 700. We review de novo whether or not a so-called Jewell instruction should have been given. United States v. Asuncion, 973 F.2d 769, 772 (9th Cir. 1992).
The crime charged requires the government to prove that the defendants "knowingly and intentionally" possessed the machine gun. A government witness testified in both trials that the weapon, an Uzi 9mm caliber rifle, had been modified internally to operate as a machine gun (i.e., as an automatic weapon). Both Moreno and Zazueta testified that they did not know that the weapon they possessed and eventually sold to undercover Bureau of Alcohol, Tobacco and Firearms agents was an automatic weapon. In each case, the district court gave the jury a Jewell instruction.*fn1
A Jewell instruction should be given
only when the defendant purposely contrives to avoid learning all the facts, as when a drug courier avoids looking in a secret compartment he sees in the trunk of a car, because he knows full well that he is likely to find drugs there. . . . The instruction enables the jury to deal with willful blindness, where a person suspects a fact, realizes its probability, but refrains from obtaining final confirmation in order to be able to deny knowledge if apprehended.
United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992) (citations omitted) (emphasis added). Such an instruction, however, is inappropriate
where the facts point to actual knowledge rather than deliberate ignorance. . . . It is not a routine instruction for cases in which knowledge is at issue. The instruction is inappropriate where the evidence could justify one of two Conclusions, either that the defendant had knowledge, or that the defendant did not, but not a third Conclusion, that the defendant deliberately shut her eyes to avoid confirming the existence of a fact she all but knew.
Id. at 286 (citations omitted) (emphasis added).
In Moreno's case, when he and Zazueta found the gun, which was in a box, neither person touched it. Moreno took the box and put it into his truck. He then stored the gun for several months, again never touching or examining it and never asking anyone to explain what type of gun it was.
Moreno's prolonged storage of the gun, which he and Zazueta believed might have been used in a crime, and his clear effort to avoid associating himself with or learning about the gun indicate that he was suspicious that there was something illegal about the gun. His conscious efforts to avoid the gun thus merit a Jewell ...