sufficient evidence at trial that she actually knew or took action to avoid learning that the package she was hired to find and pick up at the post office by a man named poncho contained cocaine now the government has correctly conceded under this court's a key and iraq precedence that they had to prove miss colston's specific knowledge that the package contained cocaine as opposed to some other drug or contraband the indictment in this case in the indictment in this case the generic drug element was modified by the phrase to which which this court has previously held narrows the crime to a subset of the statutory drug crime our nd argument in the case is that the jury could not reasonably logically and legally infer from the evidence that the that the government presented at trial that miss causton knew the package she picked up contained cocaine notably the jury deadlocked in this case and had to be allen charged the government's key cooperating witness a guy named mario rayas said at trial that colton told him to tell the truth so that she could go home he did not know that cole says he did not know mrs colston to be involved in his in ponchos drug business he said poncho did not trust miss colton to pick up the package she was hired to pick up he heard he overheard poncho when miss colston discussing the package before their trip to move and they always referred to it as the package not cocaine and he testified that ponch and he had used dupes in their drug business in the past now from his colston she at all times used her real name in her interactions with the post office she was actually translating for poncho when they were in the post office together she never admit it knowing that the package contained cocaine or even that the package was suspicious to her she never mentioned cocaine in any of her communications with poncho or her boyfriend or monda who worked as an auto mechanic for poncho and she was not previously involved in cooking trafficking and the government has relied on the so called prudent smuggler doctrine in this case to try to fill th void on the issue of knowledge but the prudence smuggler doctrine does not apply in this case precisely because reyes testified that poncho did not trust miss colton to pick up this package also there was no reason to know in this case what was inside the package given that she had only been hired to pick it up and carry it outside the post office and hand it off to someone else it was reasonable in this case for poncho to use a degree because he needed someone who spoke fluent english to handle the interactions with the post office for him and he ensured that ms coast and would never be alone with this package he either personally accompanied her to the post offices in pensacola or he sent his trusted confidant mario rhea's with her now this court has reversed convictions in the past that had more evidence of and trust him and then was present in this case some examples that i cited were the martinez case the charles case the reed case the hernandez case i also cited a case called torres out of the nd circuit because the the fact pattern in that case was very similar in this case it involved a se s package of a controlled delivery and the government has relied on two cases primarily that are easily distinguished from this case the quokka carpio case and the cruise valdez case those cases are distinguish e because in contrast to the defendants in those cases miss causton was never alone with this package so she had no obvious opportunity to learn what was inside it in fact she never saw what was inside this package until trial our nd issue in that case involves the court's decision to give the jury a deliberate ignorance ignorance or willful blindness instruction and the government presented no evidence that mrs colston took some action to avoid learning or had an obvious opportunity to learn that there was cocaine inside ponchos package as a result there was no factual basis for giving the deliberate ignorance instruction in this case and there was a that juries follow the instructions that they're given i think we do have to assume that they follow the instructions that they're given but there must be evidence to support the jury's finding and in this case there was there were simply none is a two part standard st the defendant must have a suspicion a subjective suspicion that effect exists and nd that the defendant must take deliberate actions or contrive to avoid learning that fact a lack of curiosity is not enough and that's all that was present in this case the government of evidence what about own being in stone even if we accept stone's characterization of the evidence and assume that there was no evidence of deliberate ignorance reversal was not required because in the air and given instructions harmless beyond reasonable doubt right there the assumption underlying stone though is that there is sufficient evidence to sustain the conviction on the alternative theory of actual knowledge and of course of course there has to be if if there's no evidence to support deliberate instruction deliberate ignorance and if there's insufficient evidence to support intent then be asleep you have insufficient evidence because neither theory fits correct westra saw you were addressing was you couldn't use a deliberate ignorance instruction even if there was some evidence of deliberate ignorance because the evidence indicated intent that that's the usual situation you give deliberate ignorance in the defendant argues you should have given deliberate ignorance comes all the evidence if you believe that it supports anything supports knowledge and intent that's not your argument your argument is nothing supports anything right my argument is the government presented no evidence that mrs colston took an action to avoid learning what was inside that package and that's what is required to support a deliberate ignorance instruction  also that there was in so it's not harmless because there was insufficient evidence to support the alternative theory of actual knowledge well yes interesting that's no i've read your argument a bit differently but understand what you're saying there's insufficient evidence on either theory correct that's your position ok but the government the evidence that the government has cited in support of the court giving the deliberate ignorance instruction did did not support and for at that she took some action to avoid learning what was inside the package if you take what they have argued as true then it on that evidence only supports the theory of either actual knowledge or no knowledge so there was no factual basis to give the instruction if i could i would like to draw the court's attention to what the government's attorney said in closing arguments in this case and this is in their not the rebuttal argument but there are their opening closing arguments they said now two ways for the united states to prove defendants knowledge the st way is through what's called a deliberate ignorance or willful blindness charge it basically means you can't choose to know something that you absolutely should know and the best way i know to explain it is by example so say you're in new york you're walking down the sidewalk and there's some guy on the corner in the shade and he's flashing something shiny to you and he gets your attention and he tells you to come over and look around to make sure nobody sees you and then he flashes you a beautiful gold rolex watch and he says i'll sell you this rolex for five dollars now this thing or roll that rolex in a box and he doesn't have a receipt so if you decide that you're going to buy that real x from him you know two things you know because of your life experience with him because of the circumstances that that rolex has to be stolen or counterfeit and if you buy it you can't pretend that you didn't know these things when you absolutely should have known them well there are multiple things wrong with what the government said in closing argument st they twice use the civil standard should have known they told the jury two times that they could convict my client because she should have known what was in that box and secondly there rolex example the problem with that is a person a buyer of a rolex watch under those circumstances would never be charged with a conspiracy to distribute conspiracy to sell or manufacture counterfeit or still a religious they'd be charged with a must much less serious for that reason but i do believe it's strong evidence that the jury in this case was likely confused by the deliberate ignorance instruction because there was no evidence to support it and because they were wrongly told by their government that they could convict her on a civil standard i don't know yet i don't understand how that fits into the issues you did either there was sufficient evidence to support the deliberate ignorance instruction are there was but let me let me turn to stone in stone you know we are in agreement that the jury you know follows instructions we have to make that assumption but i don't think it's fair to assume that just that that the jury is going to ignore the instruction every time it's wrongly given in a case without any evidence to support it and i think the prosecutor is closing argument goes to that point oh y may think it's not fair but that's what our bar and president stone says but we can't we can't reasonably expect a jury to understand that deliberate ignorance instruction when the lawyers in the case obviously don't understand the deliberate ignorance united states good morning my name is please the court my name is all over macdonald for the united states on the date of her arrest the defendant in this case entered the post office and row beale alone she presented the employee with her own phone which had a track number for the package had to it had contained two hundred thousand dollars pain she then accepted that package and walked out of the post office alone but that was only the beginning of the evidence of her guilty knowledge shortly after her arrest gave a statement to who still inspector he claimed that she had driven to mobile that day with a man named carlos lopez  z had paid her to translate for him and that no one else was involved course the jury came to learn that the man who had driven with her that day was not named carlos rose lopez who testified at trial he testified that he didn't have he didn't have course and translate for her that day he didn't pay colston for any service that day ray has travelled to mobile that day to pick up a package full of cocaine the jury also learned that contrary to what colston claimed immediately after her arrest there was someone else involved that was poncho with whom she had had extensive contact in the preceding days both be a text message in which they discussed picking up the package going separately to a post office in myrtle grove where colston appeared anxious about picking up the package and the morning of her arrest when cof then re s and poncho met together to discuss picking up the package and that evidence was enough for the jury to infer that colston was not a mere instrument of the conspiracy who was translating and just walking into the post op so pick up the package she was a knowing and our brief didn't specifically address that issue but the evidence in this case would satisfy that standard based in part on his testimony re saying he did have knowledge that he was there to pick up cocaine he had met with colston that morning he testified about how he had been involved in ponchos cocaine related activities in the past and so based on all that testimony the jury could have been heard that colston not only knew that there was a valuable contraband inside of the package but knew that it was cocaine so but let me be clear do you think that you have to prove that she knew it was cocaine the indictment charged her with cocaine possession yes you are yes so poncho and poncho had previously been involved in cocaine distribution so that was all evidence that the jury could have used to infer that colston also was aware of of ponchos cocaine related activity and that the reason she was there that morning was to pick up cocaine was me go ahead here's what i don't understand how does requirement of knowledge of a specific dr pointed out to give the instruction the facts have to support and friends that the defendant was aware of a high probability of the fact that is that it was cocaine and also that she contrived to avoid learning know and the testimony from ray as was that the three discussed picking up the package it was cocaine mentioned cocaine was not specifically mentioned in re as the testimony you have do you have any evidence that someone ever specifically told her it was cocaine i think the answer is now but the answer is no ok so with that the problem i'm having is it seems it seems that there is to me at least as people have for myself pretty clear evidence that she knew that something fishy was involved in the package but that's a lot different than necessarily knowing or deliberately avoiding knowledge that the package and raises prior participation in that andrea says testimony that he at least knew after his meeting with poncho on his way to move below that their purpose was to retrieve cocaine not some other controlled substance viewing all of that evidence in the light most favorable to the jury's verdict then it would have been fair if it were in the conscious avoidance or a conscious indifference world that would be enough on that theory for the other reasons i've stated the evidence was sufficient to show that's right your honor armando colston's boyfriend had worked for poncho from time to time coast and had had extensive text message contact with coke with poncho and had visited and at least one other post office with poncho for the purpose of receiving the same package so so that extensive contact leading up to her arrest and move below when she was attempting to retrieve the package would be sufficient for the jury to infer that she knew through ponchos cocaine related evidence that armando knew of that that's the boyfriend who had worked for poncho the man who drove to move below with him was ray s and ray as testified that that it was cocaine i think viewing just that one piece of evidence that you drove in the car with her to get the cocaine knew it was cocaine that's enough to make a fair inference but as i as i said there were also the extensive contacts with poncho who had a history of importing and cocaine this in similar manner in her prior attempts to retrieve the package with wrist your honor i'm not aware of any evidence in the record that would have shed any light on the court's question but i would point out that i'm not sure the evidence supported that that he necessarily did distrust or other than ray else's assertion to that to that effect that's because when she went into the post office to pick up the package she had the tracking number which authorized her to pick up the package on her own phone and just on that fact the fact that she was exercising agency by arranging for the delivery by calling the post office in the days preceding and then going herself into the post office and talking to the employee and then had the authority to pick up the package on herself the jury could have fairly and heard that at this point with or without poncho with their out without ray as she could have chosen to act on her own to pick up the package now she ch branches with her in the car right that's correct is this is a serious issue theoretically could run away in the parking lot after she picked up a package well i think that slightly more fanciful than it would need to be she could have gone for example the day before when she talked to the postal inspector over the phone to arrange for the pick up she didn't have to say sure tomorrow morning straight she could have arranged for another time on that phone call she didn't check with someone else to say is this time good should be choose another time she could have kept the time secret and gotten herself gone on the other day and that's a fair evident a fair inference that the jury could have made to show that in fact poncho didn't trust her with that information that authorized her to pick up the package and then trusted her to arrange for the logistics of picking it up so even though she chose to go with poncho to the to the florida post office and chose to be accompanied by ray as to the evidence was the postal inspectors testimony about the phone call when she called me he called her back about picking up the package to see if she was interested in driving over to mobile from the pensacola area  time just to touch on the other issues on appeal this court does not need to reach the merits if it finds that the evidence was sufficient to show that colston with actually aware of the cocaine and side of the package and can do so without resorting to relying on the for evidence on either issue the any error would be harmless but for the reasons stated and are brief it could also affirm on the merits  about what specifically was contained in the package no your honor to the extent that the jury was required to find that the controlled substance in the package was cocaine the the instructions should be given if the evidence supported b inference that she was aware of a high probability of being cocaine not just any controlled substance but again that instruction should be given where the evidence supports that  inference i also want to speak to counsel's argument concerning the no evidence of action to avoid learning but the evidence was replete with evidence that they were avoiding talking about cocaine rayas said when they met that morning of her arrest they talked about the package not the cocaine but the package to avoid mentioning the word cocaine in her text messages with poncho they discussed the package not cocaine but the package those were actions taken to avoid learning that the controlled substance was cocaine and that was properly given because before the jury deliberated the jury might have decided that she wasn't specifically aware that this particular package was the one containing cocaine despite having evidence to show that she knew there was a high likelihood likelihood of that fact of course on appeal the standard of review is doing all of that evidence in the light most favorable to the united states of which shows that she was actually aware of the contents of the package and just since i have one minute i do want to note that the issue about the closing argument was not raised in the briefs so any stand alone issue based on that that that portion of the closing argument was waive and unless the court had any other questions i'd ask that affirm and i'll rest on my brief thank you ms rogers you've got three minutes thank you just to address one of the government last point s the government says i think this is my understanding their argument that the fact that mrs colston and poncho never discussed criminal activity in their text messages is somehow evidence of criminal activity  so the absence of criminal activity is evidence of criminal activity that that's not logical also i'd just like to point out that the government relies aware that poncho sole complain in the past absolutely no evidence of that fact there was no evidence at trial that miss colston's boyfriend armando the auto mechanic was a user of cocaine or was aware that poncho so koku cocaine there was no evidence of that fact in this record now the fact that miss colston had power to pick up the package on her own doesn't mean that she knew what was inside the package she never disputed that she was given the tracking number so that she could pick up the package at the post office but that still doesn't prove that she knew what was inside it she never saw what was inside it now the government says that she somehow could have made arrangements to pick up the package on her own the day before she irradiance drove to rubio but the postal inspector who handled the controlled delivery in this case  called her study five pm the night before to make arrangements for her to come to mobile the post office was closed at six thirty five pm she had absolutely no means to pick up that package ri to the day that she traveled to move you with mr radius the text messages between miss causton and poncho establish that they were constantly communicating about the details of her pick up of this package she was taking direction from him on the most minute details he says to her like you know are you going what are we going to be you know they're very short specific questions if you knew exactly where when she was intrusted with the tracking number and was alone they defend earlier and she might have been able to leave then go with the tracking number and get the package or seth that was the force of his argument which i don't think is answered by saying yeah but the postal inspector waited until it was too  government to prove that she intended to engage in some unspecified illegal activity or that she should have known that her contact conduct was only or that she knew what was inside the box she has to the prior cases from the circuit