the government to even get this instruction there has to be specific evidence presented that basically three things occurred and the first is that that the defendant actually suspected that she might be involved in criminal activity that she states from things about the fact well she did definitely what she did say was that she suspected that there might be marijuana in the car sounds pretty supportive of jones marshall but i think this is this is very it's very important here to look at the facts because she was driving along interstate and we presume i guess we could get there were people driving along the interstate it that whatever speed they drive there fifty sixty seventy miles an hour and it would been dangerous for her to pull over she had two children in the car she had her and her mother in the car in addition by the time to the level that she was really concerned about this she had already passed the last exit before the checkpoint i want to make sure i'm very clear on this earlier in that when she had been at the funeral that w mexico when when she took which one with her mother down to go to the dentist that was nogales arizona so we're on the american side of the borders am i correct on that that's correct ok when she leaves nogales arizona to drive to tucson she gets stopped at a border driven on the interstate before she got to that that stop you know i'm not sure exactly i don't think that's in the record and i just may not be on the record and i'm not and you may or may not know the answer sometimes there are these sort of border checkpoints that are actually some distance removed from the border to kind of pick up people might have walked across the border gotten a van or whatever some of those checkpoints are permanent and some of them are established just because we're going to do it here today was this checkpoint permanent check point according to the information that i had was it was permanent or semi permanent was it always me it was always if i can use the word manned it was i wouldn't say that it was always manned and i'm not sure this is on the record i mean i have thought there was marijuana in the car the only thing that that would lead to that would be the fact that she kind of suspected that her mother and aunt were involved in something illegal and marijuana is what people do drinking and drug use so she didn't associate with them tucson that she got her daughter off her oldest daughter off to school she had the kids who were sick and she does have a good relationship with her mother and yet what her mother calls and says let's take a shuttle and go back to nogales i've got to go to the dentist she picks up and goes and goes back at the drop of a hat well i think that basically what happened is you know they didn't have a good relationship but they had some kind of a relationship their mother called up and said i need to go to the dentist we go with me the evidence the warning taking steps to pry it out because that's the second prong of that text cast the chief deliberately avoid taking steps to find out whether there was marijuana in here and nast why the timing is important what could she have done is that the government has to present a specific evidence showing that she deliberately avoided something and by the time her thought process got to the point of really realizing that something was suspicious there was something going on you know some criminal in other words in a lot of the cases somebody was given money to take a car across the border and then he purposely didn't look to check to sell the prior distinction between the testimony developed during the course of the car ride and that's why i think the timing is crucial because what did she have time to do really nothing because she was became suspicious over that of course that's according to her the beginning because she knows her mom has the spending money that's on accounted for and her mom's have kind of a screwy figure here this doesn't really come in on her even according to the government's view of the evidence until she's been driving for a and you can't have it you can't have it both ways i don't think well i think i think you can have evidence that supports either of those theories and that's what i think we had in this case you can have evidence that she had actual  knowledge so by actual knowledge did you mean that when she got in the car in nogales to drive back to tucson she knew exactly what she was carrying she knew what she was doing and she was either she placed it there she was somebody else the place they were she knew she knew all about th  the circumstance of the circumstantial evidence was testimony from her and we talked about the fact that when she dropped off the car to lend it to the defendant she saw the defendant's husband or boyfriend open the trunk which was empty at the time and put a baby seat and diaper bag in the trunk and at that time the only thing that was in the trunk was a spare tire and this was about three or four in the afternoon and then her other aunt a despite the defendant then picked her up at four or five to take her directly to sound so there was no time in between and between the moment when the boyfriend opened the trunk it was empty  of the car and if we don't have a chance yesterday it's just in conflicting evidence here because as i recall from carmen's testimony she testified that that that angel was was in tucson because she dropped off at seven thirty in the morning he'd gone to work me i believe the mother was dropped off at the house by somebody else before they left and ellie is a friend and her mother leave the house together then they go pick up the other and as far as i recall yes and then of course the just the fact that there's three hundred fifty pounds of marijuana in the trunk of the car the defendant's driving the fact that when she gets stopped at the checkpoint she does get a different stor him howls that she's coming from a gas because she had a sick child in the car implying that she had to go to the doctor some something to that effect then she tells the agent garcia you i'm not sure how to pronounce that but at secondary inspection she says that she had been in nogales because of a funeral and it got in the family understand her aunts and that her mother had just called her for a ride to tucson and so that's why she was going to tucson the funeral strip was actually was coming back with her mother to tucson and there's a little bit there's garbled there but you know we're really not too far off from her own testimony that's correct but i think it's enough that a jury could find that that they did with it is of course hearsay that that is what did i mean we have an officer saying this is what she did this is what she told me that's critical and we have hope that the officer stopped that got the details right because we're we're faulting her for i've been telling one thing at one time one thing at another time that they're pretty small pretty slim details there correct but as far as the evidence of direct knowledge that's about it there's probably more circumstantial evidence of sort of a family venture that the mother and the aunt and the defendant had talked about it and that the defendant was the best one to drive because she had young children in the car so anything in the record to support just a court statement well the sounds like a great theory for a prosecutor put trying to put together a trying to put together a case but at the end of the trial is is there anything that will support the district court's observations there well the fact that all of all three individuals in the car their testimony all conflicted on various points and but it's just of course like there was the family venture then you should have charged the aunt and the and the mother which you did not do no we didn't and there any evidence that they talked about this before and know it so there's no evidence to support the statement that the senate was the best one to drive the car because she had young children in the car i mean this is something that we can imagine our own right but there isn't anything in the in the record however all the other things the district court pointed to were there and that includes strong statements this court has already noted from the defending herself that essentially stated that she knew marijuana or suspected marijuana was in the car could be reading out of any of several cases but i'm reading out of baron number one suspect of the car containing drugs number two deliberately avoided taking steps to confirm or deny those suspicions and three did so in order to provide herself with with the defense in the event of prosecution those last two steps are a little difficult and i'm not quite sure how i come out on this one what we have is her testimony which is to say slowly dawned on me  by the time i actually got stopped i'm now throwing are maybe paraphrasing a little bit by the time i actually got started you know i had some real suspicions but by the time i actually got stopped i'd passed the last  timing as it is as important but i don't think it's a critical factor here because there are numbers that they can be taken there's not just the instruction does not require the defendant not going to complete the crime and stop and turn around just she thought that she could open the trunk for officers by pressing a button near the driver's door and open it and she couldn't and her key wouldn't work so she apparently hadn't checked and she actually testified at one point that she had never checked  in large part the defendant's statements and found that it was based on all those factors it was appropriate in this case counsel is there anything inappropriate in the government presenting inconsistent theories is there anything wrong with you w you coming up before the jury and saying well the defendant here conspired with her mother and her sister they agreed that she would be the driver and that they would put the kids in the car and to quite when they got to  about this she's just an unwilling participant but at some point she she comes to specious she had a duty to investigate she didn't investigate she deliberately avoided this in order to provide a defense for herself and therefore we get a fuel instruction now can you present both judge but not of this big conspiracy with the family and and all the things that you mentioned i mean if if the evidence i think supports the fears i think the government can say well you know there's evidence of actual knowledge and and but halfway between a gallous them and it dawned on her what's happening she doesn't take the steps to confirm her suspicions and she doesn't do so in order to provide himself with the defense well i don't think the evidence supports a conspiracy because she was in seoul conspiracy and the government didn't charge that but what we did charge in the jury was instructed on was not to direct knowledge and deliberate ignorance and i think the jury could  under that is your theory that she's just a mule here well if if she didn't have direct now if the jury didn't believe that she had direct knowledge then they certainly could believe that she was a mule that deliberately ignored the the in the ashtray and leave it in front of a k mart not asking any further questions and you've got somebody who's who got a pretty good idea up to something illegal may not know whether it's doesn't really fit that pattern well it's not that exact pattern however she is getting a car and driving it driving people who she expects of being involved in drugs her mother and her aunt  because as she said they always have money but have no job to support themselves her mother boyfriend parent was a drug user she suspected them of being involved in drugs and this is who she's driving to tucson she knows that they're acting very strangely smoke drinking and smoking more than usual very nervous she notices the strong odor of i think drinking in the car yes i notice a strong odor of air freshener or far is that checkpoint from dallas how long was she and i nineteen and the record doesn't reflect that you know from your own experience how hard is it if we know gallus in tucson well that's about forty five minutes to an hour i would say i mean  didn't put it there mom or somebody else put it there and she's transporting it knowing that she is transporting it how do you get from knowing that she's transporting on behalf of a wicked mother to i'm sensing it with intent to distribute me because i my client told the officers that she suspected that there was marijuana and there is further evidence that i found in the record organic tab seven page twenty six the face the bottom item i'm starting out at twenty one ok ok basically the question is did you ask her her being appellant whether she knew there was marijuana in the vehicle yes we did one of the standard question and my partner was actually asking the questions at the time i believe he asked specifically did you think it was in there but you just didn't want to believe it was there and she said yeah she had a suspicion and in fact she also said she didn't feel right about driving the at the same time right at house through the checkpoint before they did they were and you know that however i think you know what she probably was saying was i was going to get off the interstate go home and get a different car and go to tucson