necessary evidentiary predicate to a finding of the liberty ignorance i'd like to begin with tool itself and the requirement in section eight forty one that the defendant have acted knowingly on a plain english understanding of that term statute requires awareness actual awareness not one hundred percent metaphysical certainty but what we commonly understand as knowledge it is critically important in this regard that the government mounts no argument focused on the words of the statute standing repeat of admonitions from this court and from the supreme court that plain meaning is the starting point for analysis the government also fails to respond to the structural argument it's a liberty ignorances at least in this statute the answer to the question is that that would cause serious problems on any view of the appropriate legal stand because whether it is an actual knowledge standard or a deliberate ignorance standard you have to have th you should from she was sacked and calendar and the same thing that most of the cases recognize that in fact any number of cases recognize that what happens when you move from knowledge to deliberate ignorance is th judgment of acquittal correctly is not themselves i have a question for you how would you compare circumstantial evidence that raises deliberate and difference with circumstantial evidence this raises an inference of actual knowledge well the answer to that question your honor is we hypothetical question a little bit suppose the man in mexico says i want you to take this suitcase across the border it contains ten pounds of cocaine i suggest that you not open the suitcase and look because you will then confirm for yourself that i'm not lying that it really does contain ten pounds of cocaine as it is if you get caught you can say i didn't know because i thought the man who gave me the suitcase was very likely a liar and i would say he's right he doesn't really know because you don't know anything to a certainty the man who gave him the suitcase might be a liar but under your theory of the cases i understand that the man who carries the suitcase across is entitle to an acquittal no your honor and now if there is any lack of clarity on that point in our papers i want to be absolutely clear about this that is not our position and that is part of the reason that we think that you will instructions are not n to that what would you say to the jury in the instruction then to deal with the defense while i thought the man might be lying to me and the argument by defense counsel this is somebody who doesn't know from adam he's obviously some kind of criminal good chance he is lying reasonable belief that he might be lying well that's a perfectly reasonable jury argument that this just gets back to the question of circumstantial evidence you need an instruction the jury is going to is going to come suggested it with certain commonly understood terms knowledge being one of them you may cause more problems than you solved by attempting to define it further and further out i would submit that simply defining it as knowledge which is what the statute requires suppose the management told that a certain bill of exchange is a forgery and he believes the statement to be true busy of knowledge no if the question is whether rispoli if i had to take the witness stand and swear that it's a full forgery the question if i understand the question is whether pacific heights specifically held it whether it was necessary to the result and i understand that there is a long running debate on this court about what constitutes a holding and what constitutes dic well i'm not sure that it's necessarily less criminal in that case the danger is this gets to the question again of what happens when you crash it down the awareness requirement once you get what you bring it down from actual knowledge and you say well you just have to be aware of the probability of facts you enter a realm in which the jury is speculating as to what someone might have inquired into you should have known and the motive inquiry becomes critically important for placing some sensible in the taishan on the frame and we would sound so why can't we counsel why can't we solve that problem just by getting a sentence saying negligence or even recklessness and failing to obtain the knowledge does not constitute knowledge i think the entry convict if you think he was merely reckless or negligent in failing to confirm his belief the difficulty with that you're on  without actually seeing what's there ok why wouldn't this defendant have been convicted whether or not it was the jewel charge given the dual instruction given all of the circumstance well i think there are a couple of different ways to get to that and i see that my time maybe you could cover when you're doing that i did have a question how was this jury actually instructed were they given on both actual and deliberate ignoran but the difficulty here of course is that the prosecution said on a number of occasions and absolutely plain terms the prosecutor said i did not put forward an actual knowledge  prosecutor who tried this case said i did not argue actual knowledge to the jury and i think this gets to your question schieffer schroder about what exactly you do here now they're obviously two different ways you can go in and there's a question of whether one or plain error harmless error depending which argument we're talking about but at least as for its own notion that this wasn't a harmless error or it was not a plain error because there was evidence of actual knowledge i think that pretty much i think that pretty much characterizing what exactly she said here because there has been some loose discussion about what she found or what she said or what she figured out she had no points that i figured out a plot of steam that the drugs were there she said she had some suspicions based on the fact that her mother and he had were nervous that there might be drugs and harm if that is not a determination that is certainly not knowledge that she was committing a might be some drugs in the coffee because of the suspicious way that some other entity were acting it is not at all uncommon for instance for someone to be driving a car and someone else to have a small amount of marijuana we need to hear from the government verdict or here i'm sorry that the government asked for a special verdict you mean whether or not the jury made a conviction based on either deliberate ignorance for actual knowledge there was not a special verdict requested now that would have been better well your honor we would we would respectfully submit that number one joule shouldn't be overruled just want to make sure i say that certainly you know that's a that's an argument that's been advocated of course for the judicial gloss placed on the statute once it's been interpreted that way that that knowing doesn't include deliberate ignorance and of course we we would your honor this court should not overrule joel because the defendant hasn't met his heavy burden of overcoming stare decisis and yes in this instance and also that even if the issue was debatable that's just not sufficient thirty years number one your honor the government's statement about that consideration was a statement of how it appears the court has treated it not that it's been required in the instruction and not that the government's ever had to prove motive beyond a reasonable doubt that was that kind of a statement it's the instruction i'd like to talk about the instructions just sufficient here the model jury instruction that this court had and has employed for twenty four years old back and looked up when did the court have this you instruction created it was created in one thousand nine hundred two when the court first adopted models your instruction model jury instructions i know judge schroeder was on that back when the circuit had its own member sitting on the jury instruction committee and the jewel instruction then used for twenty four years again there's a theme here the defendant is asking this court to chalk a decision that's used for thirty and instruction that it's used for twenty four years and the court should respectfully decline the defendant's invitation we know this instruction was deficient under jule because you not require it number two we have garzon citing that case but then not applying it to the question of whether there's conscience avoidance so we don't have that in pacific height infer where judge kennedy then sat as a majority judge and was able t court even if you look at all the decisions including baron including pacific id for including garzon and all the other decisions where the court mentions motive it's never something that's required to be proven beyond a reasonable doubt or in the instruction and that's why th drugs in the car but it arose too late in the game for her to do anything about it and the jury needs to be told that if the defendant is found to have this high probability of awareness of the facts in question and on deliberately avoided learning the truth that blindness to be a method of demonstrating that the defendant has knowledge because this court said it thirty years ago that a person can have knowledge of things of which he or she is not absolutely certain and deliberate knowledge and positive knowledge to deliberate ignorance in positive knowledge are equally culpable and i think help me a little with so little deliberate ignorance sometimes the way prosecutors argue it and sometimes the way the cases talk about it it means being suspicious and failing to check worried about that because my guess is that most of the transportation of drugs in this country wide and almost but a whole lot is probably by the us postal service and federal express  my guess is that they know it they know that some people among all the millions of packages they ship are shipping drugs and they probably even have some suspicions one raunchy looking character just walk in there with a hand address package and they can easily if they wanted to have trained dogs to sniff packages there if there depots so it can't be enough that they or he deliberately avoided that stop gap additionally the jury is told that they cannot keep convict the defendant for being simply careless and if the defendant has a belief that there are drugs in the car they have to acquit so that's already in the deliberate least from what i could tell from what you were saying that they deliberately avoided unless i missed it you know it would not surprise me a bit to know that the post office and fed ex both have internal studies that say probably one percent of the it stands right now well not right now it's going to and it's so many but it's so simply careless and also that high probability language already takes care of that so the instruction just does not need to be messed with and i'd like to actually in his reply please page eight that you can have an inference of knowledge and that's sufficient under the statute so we just wanted to point that out but the way that the jury instruction reads that and this this last bit or the i guess the key thing here is that we need to ensure that defendants who commit knowing possession crimes are held accountable for what they did and we need to be able to tell the jury that's literally avoiding learning the truth is a state of knowledge and  that also plays into that and if you're not usually this is your opposition's yes counsel i i'm still having trouble with what knowledge as it sounds real straightforward to just say knowledge but i don't know and and cheaper if you pay with cash instead of a credit card well if they mean it sure they figure they're trying to avoid pieces of the on the transaction but if they say no no i mean currency i immediately become suspicious that they're skimming they're not going to pay taxes if i pay in currency does that mean that because i'm suspicious unless i ask them whether they're paying their taxes honestly i'm eating in a betting tax evasion well the question of whether inquiry needs to be made is something that this court said is a proper consideration in determining whether somebody acted deliberately i think that was nichols and and a couple of other cases well so there is to the extent that we have a defendant who has a suspicion that there are drugs in the vehicle the jury needs to be told that this person cannot deliberately avoid learning t asking questions for checking things are a reasonable inference is for a jury or checking things i want you to tell me and then you're telling me that if the restaurant says currency only or if the say already a check and he says no no i mean kid currency at that point i have a suspicion that he's not going to pay income taxes on the two hundred fifty dollars and i think you're telling me that because i have a suspicion i have to inquire about whether he's going to pay taxes on the two hundred fifty dollars or else i'm guilty of aiding and abetting tax evasion because i have a suspicion and i didn't inquire further i'm trying to think you know usually in these cases we have a defendant who is making a statement of some sort which sort of pops up this notion that there's a suspicion or not he didn't do  other extreme somebody could say i want you to carry this marijuana across the border for me look it's marijuana and he shows me the plastic bag i would know plastic bag of marijuana from a plastic bag of chemo in a long sheet and he may be lying i don't really know what's marijuana i don't know what knowledge means well again i think i guess maybe all i can say is that the instructions in good teams you know would if we have evidence that you deliberately avoided learning the truth it seems to be more one of the sending a plastic bag into a scientific laboratory i mean force with the cases that the court has found there to be sufficient evidence of deliberate ignorance but suffice it to say that if the defendant is trying to float a story like we have in this particular well that's important because if the jury finds that she is lying about when this occurred they could find she's lying about this down story because she backs off without a trial but also she didn't ask her occupants i guess  point i can see your time