UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2091

United States of America,

Plaintiff-Appellee,

VERSUS

Folonsho Samuel Ojebode,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(March 30, 1992)

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

I.

Folonsho Samuel Ojebode, a Nigerian citizen legally residing

in the United States, was indicted for:

Count One: Conspiracy to impor t in excess of 100 grams of

heroin from Nigeria into the United S tates in

violation of 21 U.S.C. § 952(a), 960(b)(2)(A), and

963;

Count Two: Importati on in excess of 100 grams of heroin, in

violation of 21 U.S.C. § 952(a) and 960(b)(2)(A);

Count Three: Conspiracy to possess with intent to distribute in

excess of 100 grams of heroin, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846;2

Count Four: Possession with intent to distribute in excess of

100 grams of heroin, in viola tion of 21 U.S.C. §

841(a)(1) and 841(b)(1)(B); and

Count Five: Posse ssion of in excess of 100 grams of heroin

aboard an aircraft entering the United States, in

violation of 21 U.S.C. § 955 and 960(b)(2)(A).

The case was tried to a jury. Ojebode called no witnesses.

He moved for acquittal at the close of the government's case-inchief and the motion was denied. The jury convicted him on all

counts.

Ojebode was sentenced to serve concurrent sixty-three month

terms in the custody of the Attorney General to be followed by five

years supervised re lease. On appeal Ojebode raises four grounds

for relief as follows:

1. The trial court abused its discretion in

refusing Ojebode's request for a subpoena

duces tecum.

2. The evidence was insufficient to support

Ojebode's conviction for conspiracy to import,

importation, conspiracy to possess, and

possession with intent to distribute.

3. T he trial court erred when it instructed the

jury on scienter required for conviction for

conspiracy to import heroin.

4. The trial court erred when it charged the jury

on deliberate ignorance.

We AFFIRM in part and REVERSE and REMAND in part.

I.

On July 22, 1990, Folonsho Samuel Ojebode, a Nigerian national

but resident alien of the United States, was a passenger on a

Lufthansa flight from Frankfurt, West Germany to Mexico City, with

a scheduled stop in Houston, Texas. When the plane landed in3

Houston, Ojebode and the other in-transit passengers were ordered

off the plane while the crew cleaned the cabin. The passengers

were directed to a transit lounge where they were to wait under the

supervision of airline representatives until they could reboard the

plane and continue their flight to Mexico City.

The corridor from the plane to the transit lounge was a

"sterile" area with limited access only to passengers arriving from

foreign ports. United States Customs Inspectors Clifford Shaefer

and Frederick Waters were assigned to the corridor and had

stationed themselves at the threshold of the transit lounge in the

international corridor. Their duties included the interdiction of

contraband and the detection of Customs law violations.

When the flight arrived, the inspectors interviewed various

passengers going into the transit lounge. These interviews

involved stopping the passengers and inspecting their tickets and

passports. Inspector Shaefer observed Mr. Ojebode, the only black

person on the Lufthansa flight, walking toward the transit lounge.

Shaefer noticed Ojebode because he was carrying an unusually large

carry-on bag for a transit passenger. When Ojebode approached,

Inspector Shaefer asked to see his passport and ticket. Ojebode

showed the inspector a Nigerian passport. Ojebode stated that he

had left his airline ticket on the plane. Noting that it was

unusual for an intransit passenger to be without a ticket, Shaefer

directed Ojebode to Inspector Waters for an interview. Inspector

Shaefer continued to screen passe ngers leaving the Lufthansa

flight. In response to questioning, Ojebode stated that he had4

arrived from Frankfurt where he had been visiting a sick brother

and that he had travelled to Frankfurt on a round-trip ticket which

he had thrown away. Waters asked Ojebode if he had been anywhere

else, and Ojebode told him he had not. Waters inspected Ojebode's

passport and noted that he had visited Nigeria and the Ivory Coast

in October-November 1989. Waters also noticed that there was no

entry stamp on Ojebode's passport to indicate that he had legally

travelled to West Germany. When questioned further about his trip,

Ojebode stated that he had stayed in the Frankfurt Airport for two

days and was denied entry into Germany becaus e he had no visa.

According to Ojebode, another brother flew to Germany from Nigeria

and g ave him a ticket for Mexico. Ojebode explained that he was

going to Mexico to meet his wife for a vacation. Inspector Waters

became suspicious by Ojebode's responses. Waters and Shaefer

escorted Ojebode to a jetway where Shaefer conducted a pat-down

search of Ojebode. During the search, Inspector Shaefer noticed

that Ojebode's heart beat rapidly and that his stomach seemed

unusually hard and protruding. The inspectors also examined

Ojebode's carry-on zipper bag and discovered a computer-generated

flight itinerary and a temporary entry permit for Mexico. The

itinerary did not indicate any stopover in Houston, but it did show

that Ojebode had travell ed from Lagos, Nigeria to Frankfurt and

that he was on hi s way from Frankfurt to Mexico City. Ojebode's

identification in his wallet indicated that he was a Houston-area

resident. Ojebode had given no indication to the inspectors that he

lived in Houston, Texas. The Customs inspectors thought it unusual5

for someone living in Houston to be flying directly to Mexico and

bypassing his own city. The inspectors observed that Ojebode had

very little cl othing in his bag and he told them that he had no

other luggage. Ojebode was dressed in a loose-fitting shirt and

short pants.

After the search, the inspectors removed Ojebode f rom his

flight for further investigation. They informed him that they

suspected that he was an internal body carrier of illegal

narcotics, and they reque sted that he consent to be X-rayed at a

local hospital. Ojebode refused to sign the consent form for such

an X-ray, although he had initially consented to being X-rayed.

The inspector transported Ojebode to a local hospital where he was

detained pending a monitored bowel movement. At the hospital,

Ojebode acceded to the inspector's requests that he sign a consent

form to be X-rayed. The X-ray revealed numerous, unusually-shaped

objects inside Ojebode's intestine. Ojebode was then admitted to

the hospital to permit monitored excretion of thes e foreign

objects. Eventually, he excreted 45 pellets containing 299.6 grams

of heroin.

Later, United States Customs Agent Sarah Scott and DEA Agent

Floyd Stanley came to the hospital to interrogate Ojebode. Ojebode

told the agents substantially the following:

In December 1989, he had travelled to Nigeria to attend

a brother's funeral and was introduced to a man named

Chuck who offered him money to smuggle heroin. After he

expressed interest through a third party, Chuck wrote him

a letter in which Chuck instructed him to obtain a visa

from the Mexican consulate, so that he could return with

the heroin from Lagos to Mexico City. Chuck further6

instructed him to meet Chuck in Lagos to discuss the

details of the smuggling operation.

He purchased a plane ticket from Houston to Lagos to meet

Chuck. In Lagos, Chuck told him to deliver the heroine

to a man named Santos in Mexico City. Chuck's brother

furnished the heroin an d the airline ticket to Mexico

City to him.

II.

A. DEFENDANT'S REQUEST FOR A SUBPOENA DUCES TECUM.

Ojebode first claims on appeal that the district court abused

its discretion in denying his request for a subpoena duces tecum

under Fed. R. Crim. P. 17 (b).

Prior to trial Ojebode moved the court, for issuance of a

subpoena duces tecu m at the government's expense, requesting the

Regional Comm issioner of the United States Customs Service,

Southern District of Texas to produce certain documents. The Court

denied the request without stat ing any grounds to support its

action.

Fed. R. Crim. P. Rule 17 (b) provides:

The Court shall order at any time that a

subpoena be issued for service on a named

witness upon an ex parte application of a

defendant upon satisfactorily showing that the

defendant is financially unable to pay the

fees of the witne ss and that the presence of

the witness is necessary to an adequate

defense.

Fed. R. Crim. P. Rule 17 (c) provides that "[a] subpoena may

also command the person to whom it is directed to produce the

books, papers, documents or other objects designated therein."7

This Court has generally given district courts wide discretion

in determining whether a subpoena should issue under Fed. R. Crim.

P. 17(b). U nited States v. Samples

, 897 F.2d 193 (5th Cir. 1990).

Rule 17(b), Fed. R. Crim. P., governs an indigent's right

to have witnesses subpoenaed at government expense. Of

course, the issue is not entirely procedural; it

implicates both the sixth amendment right to compulsory

process and the Fifth Amendment protection against

unreasonable discrimination based upon the ability to

pay. We have long held, however, that, within the limits

imposed by the Constitution, "[t]he decision to grant or

deny a Rule 17(b) motion i s vested in the sound

discretion of the trial court." As a threshold matter,

an indigent seeking a Rule 17(b) subpoena must allege

facts that, i f true, demonstrate "the necessity of the

requested witness' testimony." The trial court may then

exercise its disc retion to deny the subpoenas if the

Government demonstrates that the indigent's averments are

untrue, or if the requested tes timony would be merely

cumulative or irrelevant. U nited States v. Webster , 750

F.2d 307, 329-30 (5th Cir . 1984) (citations omitted).

United States v. Ramir ez , 765 F.2d 438, 441 (5th Cir.

1985), cert. denied sub. nom. Per pignand v. United

States , 474 U.S. 1063, 106 S. Ct. 812 (1986).

Ojebode contends that he was the only black on the airplane

and the only passenger who was stopped. The subpoenaed records, he

claims, would produce information tha t the government targets

Nigerians that come through the airport and stops them solely

because they are Nigerian. Ojebode indicated in his request that

he would use the information to demonstrate that his detention by

the Customs' inspectors was motivated by his race and nationality

and was therefore "non-routine". Such a detention, he argues, is

illegal under the Fourth Amendment unless supported by reasonable

suspicion. U nited States v. Montoya de Hernandez

, 473 U.S. 531,

541, 105 S. Ct. 3304, 3310, 87 L. Ed. 2d 381 (1985).8

We do not agree. Ojebode's contention that a border search is

not routine if motivated by ethnicity of a person searched is

groundless. He offers no evidence to support his contention. "

Border searches are considered to be reasonable by the single fact

that the person or item in question enters into our country from

outside. There has never been any additional requirement that the

reasonableness of a border search depended on the existence of

probable cause". U nited States v. Ramsey

, 431 U.S. 606, 619, 97 S.

Ct. 1972, 1980, 52 L. Ed. 2d 617 (1977). And even if such stops

are made largely on the basis of ethnicity, there is no

constitutional violation. U nited States v. Martinez-Fuerte , 428

U.S. 543, 563 (1976), 96 S. Ct. 3074, 3085 49 L. Ed. 2d 1116.

B. SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTIONS

Ojebode next challenges the sufficiency of the evidence

supporting his convictions for conspiracy to import, importation,

conspiracy to possess with intent to distribute and possession with

intent to distribute heroin.

In reviewing a challenge to the sufficiency of the evidence,

this court "must examine the evidence and all reasonable inferences

that may be drawn from it in the light most favorable to the jury

verdict." U nited States v. Lechuga

, 888 F.2d 1472, 1476 (5th Cir.

1989).

The evidence of a drug co nspiracy must demonstrate the

existence of an agreement to import or to possess wit h intent to

distribute; knowledge of the agreement and voluntary participation

in the agreement. U nited States v. Lewis

, 902 F.2d 1176, 1180-11819

(5th Cir. 1990). The government must prove at least the same

degree of criminal intent necessary for the underlying substantive

o ffense. U nited States v. Osgood

, 794 F.2d 1087, 1094 (5th Cir.

1986) . In order to convict a defendant of possession of a

contraband with intent to distribute under 21 U.S.C. § 841 (a) (1),

the government must prove beyond a reasonable doubt the defendant's

possession of the illegal substance, knowledge, and intent to

distribute. United States v. Freeze , 707 F.2d 132, 135 (5th Cir.

1983). The same elements, along with proof that the defendant

played a role in bringing the controlled substance from a foreign

country into the United States, will prove importation. United

States v. Diaz-Carreon

, 915 F.2d 951 953 (5th Cir. 1990). The

necessary knowledge and intent can be proved by circumstantial

evidence. U nited States v. Mitchell

, 876 F.2d 1178, 1181 (5th Cir.

1989). Additionally, "intent to distribute a controlled substance

may generally be inferred solely from the possession of a large

amount of the substance." U nited States v. Prieto-Tejas

, 779 F.2d

1098, 1101 (5th Cir. 1986).

1. Importation and Conspiracy to Import

Ojebode contends that the government failed to prove that he

had the specific intent to bring the heroin into the United States.

(that he knowingly impor ted heroin specifically into the United

States). Even though the Lufthansa Flight made a regularly

scheduled stop in Houston, enroute to Mexico City, he claims, no

evidence was presented at trial to show that he knew of this stop.

The plane ticket to Mexico City, he contends, was purchased for him10

in Nigeria and the stop-over did not appear on either his ticket or

his itinerary. Therefore, the evidence could not support a jury's

finding that he knowingly imported heroin into the United States.

In the alternative, Ojebode argues that in order to convict

for conspiracy to import, the government must prove not just that

he knowingly entered the United States with heroin but also that

the conspiracy to import was directed at the United States and that

the United States was the ultimate intended destination of the

heroin. He contends that the conspiracy could not have been

directed at the United States in this case because he and his coconspirators intended for the heroin to go to Mexico.

Defendant cites United States v. Conroy

, 589 F.2d 1258, 1270-

71 (5th Cir. 1979) cert. denied 444 U.S. 831 (1979), the law in

this circuit, to support his contention that a conspiracy to import

a controlled substance into the United States requires proof that

the defendant knew the controlled substance "was destined for the

United States."

The only evidence in this case that Ojebode intended to import

heroin into the United States is the fact that he was a passenger

on a plane that had a scheduled stop in Houston, Texas. There is

no evidence that he knew that the plane would land in Houston.

Therefore, the only connection between Ojebod e and United States

territory is the fact that he had to leave the plane when it landed

in Houston so that it could be cleaned by the airline crew.

The Fifth Circuit has no t previously determined whether the

jury can infer knowledge by a drug carrier that a drug will enter11

the United States by the mere fact that the carrier is present on

a flight scheduled to stop in the United States.

The First Circuit, however, has addressed the issue in United

States v. Franchi-Forlando

, 838 F.2d 585, 587 (1st Cir. 1988), a

case concerning facts very similar to the facts in this case, and

found that the evidence was ample to show that the defendant knew

the controlled substance was destined for the United States. The

defendant, an Italian citizen living in Colombia, was on a flight

from Colombia to Spain when his airplane made a scheduled stop in

Puerto Rico. While waiting in the "in-transit" lounge at the

airport, a Un ited States Customs Service officer boarded the

aircraft and inspected the luggage. The officer found cocaine in

defend ant's suitcase. The defendant was convicted of importing

cocaine into the United States; possessing cocaine with intent to

distribute it, an d unlawfully possessing cocaine on an aircraft

arriving in the United States. Aside from the flight schedule of

the accused's plane, there was no evi dence that the defendant

intended to enter the United States.

On appeal, the defendant argued that the evidence did not

support the inference that he intended to import cocaine into the

United States because the government failed to prove that he knew

that his plane would stop in the United States. The First Circuit

affirmed the conviction and held that the evidence was sufficient

to show the defendant had specific intent to enter the United

States with drugs. It reasoned: "[R]egardless, we believe that

the jury could conclude from the facts that the trip was long, the12

stops were few, and the stop was scheduled that appellant knew he

would land in the United States." F ranchi-Forlano

, 838 F.2d at

587. S ee also

, United States v. Londona-Villa

, 930 F.2d 994, 1000

(2nd Cir. 1991). ("[W]hen a person carrying drugs voluntarily

traveled on a plane that was scheduled to stop in the United

States, we see no reason why a jury may not i nfer that he or she

knowingly or intentionally entered the United States with drugs").

In this case the jury could have inferred knowledge by Ojebode

that the drug he was carrying would enter the United States because

he chose to be present on a flight that was scheduled to stop in

the United States. It is reasonable that the jury could conclude

from the facts of Ojebode's flight that the trip from Frankfurt to

Mexico was long, the stops were few, and that a stop was scheduled

in Houston, Texas, the defendant's place of residence

, that he knew

he would land in the United States. F ranchi-Forlando

, 838 F.2d 585

at 587.

Ojebode cites no authority for his argument that he must

intend the United States to be the final destination of the heroin

in order to commit an importation offense.

While the evidence in this case that Ojebode intended and

conspired to import drugs into the United States is, at most,

minimal, in view of the First Circuit's holding, this evidence

appears to be adequate to support Ojebode's convi ction for

importation and conspiracy to import. Furthermore, we believe such

a finding is consistent with Congress' interest in the detection,

prosecution and punishment of such drug offenses. A lbernaz v.13

United States

, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144 67 L. Ed.

2nd 275 (1981). The United States has a valid "federal interest"

in prohibiting importation of drugs into our country where a drug

car rier actually enters this country with drugs. ( C ompare with

Conroy supra where this court found there is "no federal interest"

in prohibiting importation into another country by a drug carrier

who is discovered with drugs outside United States' territory.)

The fact that the carrier does not intend the United States to be

the final destination is not important. The reasoning behind this

holding is that the United States be free from drug trafficking and

the crime and violence that accompany it. Id

.

This court finds that the evidence in this case is sufficient

to support defendant's conviction for Conspiracy to Import and to

Import heroin.

2. Possession and Conspiracy with Intent to Distribute

Ojebode also contends that he cannot be convicted of

conspiracy to possess with intent to distribute under 21 U.S.C. §

846 unless the government proves the existence of an agreement to

commit such underlying offenses and that each conspirator knew of,

intended to join, and participat ed in the conspiracy. U nited

States v. Basey , 816 F.2d 980, 1002 (5th Cir. 1987). Further, he

claims, to sustain a conviction under 21 U.S.C. § 841 (a) (1) for

possession of heroin with intent to distribute it, the government

must show knowing, possession of heroin, with intent to distribute

it, Unite d States v. Palella , 846 F.2d 977, 982 (5th Cir 1988),

cert denied

, 488 U.S. 863, 109 S. Ct. 162, 102 L. Ed. 2d 133. The14

int ent required by § 841(a)(1), he claims, must be an intent to

distribute narcotics within the United States. I d.

, United States

v. Pentapati

, 484 F.2d 450, 451 (5th Cir. 1973). There must be, he

claims, some nexus between the United States' terri tory and the

defenda nt's acts or intentions in order to convict him of

possession with intent to distribute. Id

.

Ojebode argues that he cannot be convicted under the facts of

this case, therefore, because the evidence was that he was

travelling to Mexico City and had no intent to distribute the

heroin he possessed in the United States. He argues that when he

landed at Houston Intercontinental Airport he had no contact with

the general public because he was required to remain in the

"sterile" area of the lounge until the plane was ready for

reboarding. Thus, it would have been impossible for him to have

distributed the contraband in the United States because he was

carrying it inside his body. Accordingly, the evidence does not

support the intent to distribute the heroin.

This circuit has not yet resolved the issue of wheth er a

conviction under 21 U.S.C. 841 (a) requires proof of an intent to

distribute the illegal drug inside the United States. The question

was left open in United States v. Sindin

, 620 F.2d 87, 90 (5th Cir.

1980) and United States v. Pentapali , 484 F.2d 400. However, the

First, Second, Ninth and Eleventh Circuits have each addressed the

issue and have held that mere possession of the drug in the United

States is sufficient to supply the territori al nexus with the

United States regardless of where distribution may have been15

intended. U nited States v. McKenzie

, 818 F.2d 115 (1st Cir. 1987);

United States v. Muensch , 694 F.2d 28, 33-34 (2nd Cir. 1982) cert

denied

, sub. nom. Lewis v. United States

, 461 U.S. 908, 1038 S. Ct.

1881, 75 L. Ed. 2d 811; United States v. Gomez-Tostado , 597 F.2d

170 (9th Cir. 1979); United States v. Montoya

, 782 F.2d 1554 (11th

Cir. 1986).

T h is position, we believe, is consistent with Congress's

interest in prohibiting possession of drugs in the Un ited States

with intent to distribute outside the Uni ted States. Drug

transport and drug couriers may be accompanied by crime and

violence, even if the drug ends up abroad. The United States also

has treaty obligations to prevent drug trafficking into other

countries. Allowing United States airports to become drug conduits

and trading c enters for distribution throughout the world is not

consistent with those obligations. United States v. Muensch , 694

F.2d 28.

Further, there is nothing in the legislative his tory to

indicate that Congress intended to limit the application of § 841

(a) (1) to only those persons who possess drugs with intent to

distribute within the United States, nor does the plain language of

the statute distinguish between an intent to distr ibute in this

country and an intent to distribute elsewhere. Therefore, we find

that the government was not required to establish that Ojebode

intended to distribute the heroin in the United States but only

that he intended to distribute.16

The quantity of heroin that Ojebode possess ed supported the

inference that the substance was not for his personal consumption;

and, since Ojebode admitted that he intended to turn the heroin

over to his contact in Mexico, the evidence supported a finding

that he possessed the heroin with intent to distribute.

Ojebode's position is not suppo rted by authority. We find

that the evidence was more than sufficient to support the jury's

verdict.

C. SCIENTER CHARGE FOR IMPORTATION OF HEROIN.

Ojebode further contends that the district court erred when it

improperly failed to instruct the jury on the s pecific intent

necessary to sustain his convictions for conspiracy to import

heroin and for importation of heroin.

Defendant argues that the charge failed to include an

essential element of the offense, that is, that he intended or knew

that the heroin he possessed was to be imported into t he United

States. Further, he complains, the error was compounded by the

prosecutor's closing argument over defendant's objection that:

"You must only import or intend to import a substance and be in the

customs territory of the United States, and you're guilty."

Title 21, U.S.C. § 952 (a) and 960 (a) (1 ) provides in

pertinent part that:

[I]t shall be unlawful for any person knowingly

or intentionally . . . to . . . import into the

customs territory of the United States from any

place outside thereof any controlled substance

in Schedule I.17

According to Ojebode, Ojebode and the government init ially

agreed to the following instruction:

I instruct you that the government need not prove

that the defendant intended or attempted to bring

the contraband through Customs, but only that the

defendant intended to bring the contraband into any

territory of the United States.

The prosecutor, however, changed the instructions when he had

them typed for court. The jury instruction Nos. 21 and 22 then

read:

I instruct you that the government need not prove

that the defendant intended or attempted to bring

the heroin through customs, but only that the

defendant brought the heroin into any territory of

the United States.

Ojebode objected to the inst ructions because it did not

require the jury to find that he "intended to bring the heroin into

any territory of the United States." The court overruled the

objection.

Ojebo de was relying upon the law in this circuit, U nited

States v. Conroy

, 589 F.2d 1 258, when he agreed on the original

charge with the prosecutor. This court held in C onroy that a

conviction for importation of a controlled substance requires proof

that the defendant knew that the drug would enter United States

territory.

The Government on the other hand cited United States v.

Muench

, 694 F.2d 28 at 32 as its authority when it changed the

agreed-upon instruction to the final version of the charge that the

Court read to the jury.18

The defendants in Muench complained of the ir conviction of

possession of narcotics with intent to distribute because they were

on an internat ional flight and did not go through Customs. The

court there held upon defendant's appeal:

[A]s we accept the appellant's implicit assumption that

cases decided under §952 (a) are to some degree

instructive in prosecutions under §841 (a) (1), we must

also take note of cases such as United States v.Catano

, 553 U.S. 865, 98 S.Ct. 199 (1977), and Palermo v.United

States , 112 F.2d 922, 924 (1st Cir. 1942). These cases

held that the crime of importation is complete when

contraband is brought into the United States territory,

regardless of whether an attempt is made to br ing the

contraband through customs

.

Muench , 694 F.2d at 32. (emphasis added)

The government claims that in view of the holding in Muench

,

the charge was sufficient. Conceding that there is a mens rea

requirement for the act of importation. U nited States v. DiazCarreon

, 915 F.2d 951, 953 (5th Cir. 1990); United States v. LaraVelasquez

, 919 F.2d 946, 950 (5th Cir. 1990 ), the government

argues, however, that the required mens rea extends only to the act

of importation and does not extend to the j urisdictional

requirement that the importation take place into the United States.

The court, it contends, does not have to reach the issue of whether

the statute requires knowledge or intent that the area entered into

was, in fact, the United States. United States v. Londono-Villa

,

930 F.2d 994.

This argument has no merit. It is true that courts are given

wide latitude in framing jury instructions, United States v.

Kimmel

, 777 F.2d 290, 293 (5th Cir. 1985) c ert. denied

, 476 U.S.

1104, 106 S. Ct. 1947 , 90 L. Ed. 2d 357 (1986). However it is19

reversible error if the court refuses to submit an instruction

that:

(1) is substantially correct; (2) was not substantially

covered in the charge actually delivered to the jury; and

(3) concerns an important point in the trial so that the

failure to give it s eriously impaired the defendant's

ability to present a given defense.

United States v. Chambers, 922 F.2d 228, 241 (5th Cir. 1991),

quoting United States v. Mollier

, 853 F.2d 1169, 1174 (5th Cir

1988).

"[A] jury's verdict cannot stand if the instructions provided

the jury do not require it to find each element of the crime under

the proper standard of proof". Cabana v. Bullock , 474 U.S. 376,

384, 106 S. Ct. 689, 696 88 L. Ed. 2d 704 (1986). S ee United

States v. Musgrave , 444 F.2d 755, 764 (5th Cir. 1971).

Conviction for importation of a controlled substance requires

proof that the defendant knew that the drug would enter United

States territory. Conroy supra. The holding in Muench does not

negate that requirement. The court simply found there that the

government need not prove that the defendant attempted to pass

through the Customs with the drugs but only that he was present

with contraband on United States soil.

The trial court approved a jury charge in Ojebode that failed

to comply with the Fifth Circuit Pattern Instruct ions for the

offense of importation and one that delivered an incorrect

statement of the law. The court omitted to charge the jury on an

essential element of the crime of importation, that of specific

intent, therefore misleading the jury about the elements of an20

importation offense. Thus, the jury was allowed to find that

Ojebode did not intend or know that the heroin he possessed was to

be imported into the United States.

The government also argues that the jury charge, when read as

a whole and in context, sufficiently charged the jury with regard

to the neces sary mens rea for the offense and was a correct

statement of the law.

The jury, the government contends, was instructed by the court

that the statutory scheme makes it "unlawful for any person to

knowingly or intentionally import into the customs territory of the

United States from any place outside the reof any controlled

substance in Schedule I". The term "import" was defined as "with

respect to any article, any bringing in or introduction of such

article into any area". Further, the court instructed the jury

that, to find the de fendant guilty, they had to find that the

defendant brought a controlled substance into the United States and

that he knew the substance he was bringing into the United States

was a controlled substance.

The additional instruction with regard to the jurisdictional

element, it contends, did not negate its burden but instead, when

r ead in context, was a correct statement of the law t hat the

importation need only take place in the United States and that

there was no requirement on the government to prove that the

defendant took the drugs through Customs.

This argument also fails. It is true that this court reviews

claimed deficiencies in a jury charge "by looking to the entire21

charge as well as the arguments made to the jury." United States

v. Chagra , 807 F.2d 398, 402 (5th Cir. 1986).

However, nowhere in the jury instructions is found the proper

scienter requirement for an importation offense. Rather, the

instructions include only the words of the statute (21 U.S.C. §§

952 (a), 960 (a)) and the definition of "willfully."

The recitation of only statutory language is not an adequate

charge to the jury. The danger is that the language of the

importation statute can be construed to allow conviction without

proof of specific intent to import into the United States, an

element of the offense. Given that Ojebode's only defense was that

he did not intend to enter the United States and given that the

evidence was extremely close on precisely this issue, we find that

the district court committed reversible error in its instructions

on the importation charge on this issue.

D. DELIBERATE IGNORANCE JURY CHARGE

Finally Oj ebode claims that the district court improperly

instructed the jury on "deliberate ignorance" as to the conspiracy

to import charge and its companion count, importation. The

instruction, he contends was not supported by the evidence.

In its charge, the district court ins tructed the jury, over

Ojebode's objection, as follows:

You may find that a defendant had knowledge of a fact if

you find that the defendant deliberately closed his eyes

to what would otherwise have been obvious to him. While

knowledge on the part of the defendant cannot be

established merely by demonstrating that the defendant

was negligent, careless, or foolish, knowledge can be

inferred if the defendant deliberately blinded himself to

the existence of a fact.22

The standard of review of a defendant's claim that a jury

instruction was error is "whether the court's charge, as a whole,

is a correct statement of the law and whether it clearly instructs

jurors as to the principles of law applicable to the factual issues

confronting them ." United States v. Stacey , 896 F.2d 75, 77 (5th

Cir. 1990) (quoting United States v. August , 835 F.2d 76, 77 (5th

Cir. 1987). (emphasis added). The Court "may not instruct the jury

on a charge that is not supported by the evidence. United States

v. Ortega 859 F.2d 327, 330 (5th Cir. 1988)

In the instant case, the district court instructed the jury

that it could infer guilty knowledge "if the defendant blinded

himself to the existence of a fact." It based its instruction upon

the government's argument that Ojebode deliberately avoided

learning the details of his flight, including the fact that it was

going to stop in Houston.

Finding that the facts of this case do not support the

issuance of a deliberate ignorance instruction, we find t hat the

district court erred.

Deliberate ignorance "denotes a conscio us effort to avoid

positive knowledge of a fact which is an element of a n offense

charged". U nited States v. Restrepo-Granda

, 575 F.2d 524, 528 998

S. Ct. 331, 58 L. Ed. 2d 332 (5th Cir. 1978), cert. denied 439 U.S.

935, 99 S. Ct. 331, 58 L. Ed. 2d 332 (1978) . The evidence will

support a finding of deliberate i gnorance only if there is

"conscious action by the defendant--the defendant consciously23

attempted to escape confirmation of conditi ons or events he

strongly suspected to exist." Lara-Velasquez , 919 F.2d at 951.

A deliberate ignorance instruction allows the jury to convict

without finding that the defendant was aware of the existence of

illegal conduct. It therefore creates a risk that the jury might

convict on a lesser negligence standard. The jury, for example,

might find deliberate ignorance merely because it belie ved the

defendant should have been aware of the illegal conduct. U nited

States v. Alvarado

, 838 F.2d 311, 314 (9th Cir. 1987), c ert.

denied , 487 U.S. 1222, 108 S. Ct. 2880, 101 L. Ed. 2d 915 (1988).

Therefore the instruction should rarely be given. Id.

This court has framed a two part test which must be met before

a deliberate ignorance instruction can properly be given. The

evidence must show that: (1) the defendant was subjectively aware

of a high probability of the existence of the illegal conduct; and

(2) the defendant purposely contrived to avoid learning of the

illegal conduct. U nited States v. Farfan-Carreon

, 935 F. 2d 678,

680 (5th Cir. 1991).

The government argues that both prongs of the test have been

met. The evidence, it contends, supported the inference that

Ojebode was subjectively aware of the high probabi lity that the

airplane he was on would stop in the United States. The government

relies on Ojebode's statements to Customs Agent Scott that he did

not know the last name, telephone number, or address of "Chuck",

the co-conspirator, and that he was ignorant of some of the24

circumstances of his travel, such as why his passport was not

stamped in Lagos.

The Court however does not agree that this evidence supports

the fact that Ojebode purposely contrived to avoid learning of his

illegal c onduct. The government presented evidence that Ojebode

travelled on a flight scheduled to land in Houston. The government

does not suggest that Ojebode tried to avoid learning of the

flight's scheduled landing in Houston. No where do we find that

Ojebode deliberately 'shu t his eyes' to avoid knowing what would

otherwise be obvious to view. R estrepo-Granda 575 F.2d 524. There

is no evidence that Ojebode refused to view the posted flight

schedule or absented himself from places where he would be likely

to learn of his Lufthansa Flight's likely stops. There is no

reason to believe that Ojebode cared one way or other about where

the plane would stop. Ojebode's statements may indicate

deliberate ignorance of something, but not necessarily deliberate

ignorance of the fact that the flight would land in Houston. It is

difficult to see what Chuck's name, address, phone number, or the

Lagos passport stamp have to do with Ojebode's flight schedule.

The only fact that the government lists with any relevance to

Ojebode's "deliberate ignorance" of the circumstances of his travel

is the fact that someone else purchased his ticket. Perhaps there

is a greater likelihood of learning of a plane stop when one goes

to a ticket counter and buys the ticket oneself. However, in this

case, the purchase of the plane ticket by Chuck for Ojebode was

part of the package deal. We therefore find that the government25

has failed to prove that a reasonable person in Ojebode's position

would have been suspicious of the circum stances surrounding his

plane's stop in Texas. Farfan-Carreon , 935 F.2d. 681.

III. CONCLUSION

The convictions for Counts Three, Four and Five are AFFIRMED

and the sentence issued for each count is left in tact. We REVERSE

the convictions f or Counts One and Two because of the defects in

the court's charge relating to intent and deliberate ignorance as

applied to these Counts a nd Remand the case as to Counts One and

Two for retrial, if the government so elects.