FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10585

Plaintiff-Appellee, D.C. No.

v. CR-02-00773-

CARMEN DENISE HEREDIA,  JMR-JJM

Defendant-Appellant. ORDER AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Arizona

John M. Roll, District Judge, Presiding

Argued and Submitted

December 12, 2006—San Francisco, California

Filed April 2, 2007

Amended April 30, 2007

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld,

Michael Daly Hawkins, Sidney R. Thomas,

Barry G. Silverman, Susan P. Graber,

M. Margaret McKeown, Richard A. Paez,

Richard C. Tallman, Richard R. Clifton,

Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

Opinion by Judge Kozinski

Concurrence by Judge Kleinfeld;

Dissent by Judge Graber

4653
COUNSEL

Wanda K. Day, Tucson, Arizona; Jeffrey T. Green, Eric A.

Shumsky, Eamon P. Joyce and Matthew J. Warren, Sidley

Austin, LLP, Washington D.C., for the defendant-appellant. 

Paul K. Charlton, United States Attorney for the District of

Arizona; Christina M. Cabanillas, George Ferko and Bruce

M. Ferg, Assistant United States Attorneys, Tucson, Arizona,

for the plaintiff-appellee. 

Kenneth W. Starr, Michael D. Shumsky and Gregory L. Skidmore, Kirkland & Ellis, LLP, Washington, D.C.; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud,

Seattle, Washington, for the National Association of Criminal

Defense Lawyers as amicus curiae in support of the

defendant-appellant. 

Saji Vettiyil, Vettiyil & Associates, P.C., Nogales, Arizona,

for Arizona Attorneys for Criminal Justice, as amicus curiae

in support of the defendant-appellant. 

ORDER

Footnote 4 of the opinion in this case, filed April 2, 2007,

is amended to read as follows:

As our cases have recognized, deliberate ignorance,

otherwise known as willful blindness, is categorically different from negligence or recklessness. See,

e.g., United States v. Fulbright, 105 F.3d 443, 447

(9th Cir. 1997); United States v. Sanchez-Robles,

927 F.2d 1070, 1073 (9th Cir. 1991). A willfully

blind defendant is one who took deliberate actions to

avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substanUNITED STATES v. HEREDIA 4657
tial and unjustifiable risk that his conduct was

criminal; a negligent defendant is one who should

have had similar suspicions but, in fact, did not. 

OPINION

KOZINSKI, Circuit Judge: 

We revisit United States v. Jewell, 532 F.2d 697 (9th Cir.

1976) (en banc), and the body of caselaw applying it. 

I

Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson,

Arizona. Heredia was at the wheel and her two children,

mother and one of her aunts were passengers. The border

agent at the scene noticed what he described as a “very strong

perfume odor” emanating from the car. A second agent

searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor.

Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C.

§ 841(a)(1). 

At trial, Heredia testified that on the day of her arrest she

had accompanied her mother on a bus trip from Tucson to

Nogales, where her mother had a dentist’s appointment. After

the appointment, she borrowed her Aunt Belia’s car to transport her mother back to Tucson.1

 Heredia told DEA Agent

Travis Birney at the time of her arrest that, while still in

Nogales, she had noticed a “detergent” smell in the car as she

prepared for the trip and asked Belia to explain. Belia told her

1Belia was not the aunt in the car with Heredia at the time she was

stopped at the checkpoint. Belia was traveling on the same interstate at

about the same time, but in a separate car. 

4658 UNITED STATES v. HEREDIA
that she had spilled Downey fabric softener in the car a few

days earlier, but Heredia found this explanation incredible. 

Heredia admitted on the stand that she suspected there

might be drugs in the car, based on the fact that her mother

was visibly nervous during the trip and carried a large amount

of cash, even though she wasn’t working at the time. However, Heredia claimed that her suspicions were not aroused

until she had passed the last freeway exit before the checkpoint, by which time it was too dangerous to pull over and

investigate. 

The government requested a deliberate ignorance instruction, and the judge obliged, overruling Heredia’s objection.

The instruction, cribbed from our circuit’s Model Jury

Instruction 5.7, read as follows:

You may find that the defendant acted knowingly if

you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were

in the vehicle driven by the defendant and deliberately avoided learning the truth. You may not find

such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant, or if you find that the

defendant was simply careless.2

On appeal, defendant asks us to overrule Jewell and hold

that section 841(a)(1) extends liability only to individuals who

act with actual knowledge.3 Should Jewell remain good law,

she asks us to reverse her conviction because the instruction

given to the jury was defective and because there was an

2The model deliberate ignorance instruction was amended to include a

third element, see Part III infra, following the panel’s opinion in this case.

3Amici, the National Association of Criminal Defense Lawyers and the

Arizona Attorneys for Criminal Justice, also advocate this position. 

UNITED STATES v. HEREDIA 4659
insufficient factual basis for issuing the instruction in the first

place.

II

[1] While Jewell has spawned a great deal of commentary

and a somewhat perplexing body of caselaw, its core holding

was a rather straightforward matter of statutory interpretation:

“ ‘[K]nowingly’ in criminal statutes is not limited to positive

knowledge, but includes the state of mind of one who does

not possess positive knowledge only because he consciously

avoided it.” 532 F.2d at 702. In other words, when Congress

made it a crime to “knowingly . . . possess with intent to manufacture, distribute, or dispense, a controlled substance,” 21

U.S.C. § 841(a)(1), it meant to punish not only those who

know they possess a controlled substance, but also those who

don’t know because they don’t want to know.4

Overturning a long-standing precedent is never to be done

lightly, and particularly not “in the area of statutory construction, where Congress is free to change [an] interpretation of

its legislation.” Ill. Brick Co. v. Illinois, 431 U.S. 720, 736

(1977). Even in the criminal context, where private reliance

interests are less compelling,5 stare decisis concerns still carry

4As our cases have recognized, deliberate ignorance, otherwise known

as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.

1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.

1991). A willfully blind defendant is one who took deliberate actions to

avoid confirming suspicions of criminality. A reckless defendant is one

who merely knew of a substantial and unjustifiable risk that his conduct

was criminal; a negligent defendant is one who should have had similar

suspicions but, in fact, did not. 

5

See Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Considerations in

favor of stare decisis are at their acme in cases involving property and

contract rights, where reliance interests are involved.”). But see Busic v.

United States, 446 U.S. 398, 404 (1980) (invoking stare decisis in the

interpretation of a sentencing enhancement provision); United States v.

Aguon, 851 F.2d 1158, 1177 (9th Cir. 1988) (Wallace, J., dissenting)

(“The doctrine of stare decisis is equally applicable to settled interpretations of a criminal statute.”), overruled on other grounds by Evans v.

United States, 504 U.S. 255, 265 (1992). 

4660 UNITED STATES v. HEREDIA
great weight, particularly when a precedent is as deeply

entrenched as Jewell. See Evans v. United States, 504 U.S.

255, 268-69 (1992) (noting that stare decisis carries considerable weight when “many other courts . . . have interpreted the

statute in the same way”). Since Jewell was decided in 1976,

every regional circuit—with the exception of the D.C. Circuit

—has adopted its central holding. See n.11 infra. Indeed,

many colloquially refer to the deliberate ignorance instruction

as the “Jewell instruction.” See, e.g., United States v. Bussey,

942 F.2d 1241, 1246 (8th Cir. 1991); United States v. LaraVelasquez, 919 F.2d 946, 951 n.5 (5th Cir. 1990). Congress

has amended section 841 many times since Jewell was handed

down, but not in a way that would cast doubt on our ruling.

Given the widespread acceptance of Jewell across the federal

judiciary, of which Congress must surely have been aware,

we construe Congress’s inaction as acquiescence.6

That said, there are circumstances when a precedent

becomes so unworkable that keeping it on the books actually

undermines the values of evenhandedness and predictability

that the doctrine of stare decisis aims to advance. See Payne

6Our dissenting colleague seeks support for her position from the fact

that Congress has, on occasion, defined the scienter requirement in some

criminal statutes as “knows, or has reasonable grounds to believe.” Dissent

at 4684. But “has reasonable grounds to believe” defines a mental state

that is less than actual knowledge. By contrast, Jewell defines willful

blindness as knowledge—and sets a much higher standard for satisfying

it. Thus, under Jewell, the prosecution must prove that defendant was

aware of a “high probability” that he is in the possession of contraband,

and that he “deliberately avoided learning the truth.” This standard focuses

on defendant’s actual beliefs and actions, whereas “has reasonable

grounds to believe” is an objective standard that could be satisfied by

showing what a reasonable person would believe, regardless of defendant’s actual beliefs. That Congress chose to set a lower scienter requirement in some criminal statutes tells us nothing about our interpretation of

“knowledge” in Jewell. It certainly provides an insufficient basis for

rejecting an interpretation that Congress has left undisturbed for three decades and that has since been adopted by ten of our sister circuits. See n.11

infra. 

UNITED STATES v. HEREDIA 4661
v. Tennessee, 501 U.S. 808, 827 (1991). Here, we recognize

that many of our post-Jewell cases have created a vexing

thicket of precedent that has been difficult for litigants to follow and for district courts—and ourselves—to apply with consistency.7

 But, rather than overturn Jewell, we conclude that

the better course is to clear away the underbrush that surrounds it. 

III

[2] The parties have pointed out one area where our cases

have not been consistent: Whether the jury must be instructed

that defendant’s motive in deliberately failing to learn the

truth was to give himself a defense in case he should be

charged with the crime.8Jewell itself speculated that defendant’s motive for failing to learn the truth in that case was to

“avoid responsibility in the event of discovery.” 532 F.2d at

699.9 Yet the opinion did not define motive as a separate

prong of the deliberate ignorance instruction. And, we

affirmed, even though the instruction given at Jewell’s trial

made no mention of motive. Id. at 700. Since then, we’ve

upheld two-pronged instructions, similar to the one given

here, in at least four other published opinions. See United

States v. Shannon, 137 F.3d 1112, 1117 n.1 (9th Cir. 1998)

(per curiam); United States v. McAllister, 747 F.2d 1273,

1275 (9th Cir. 1984); United States v. Henderson, 721 F.2d

7The panel opinion and the dissent in this case, United States v. Heredia, 429 F.3d 820 (9th Cir. 2005), illustrate some of the difficulties. 

8The motive prong usually requires the jury to find that defendant was

deliberately ignorant “in order to provide himself with a defense in the

event of prosecution.” United States v. Baron, 94 F.3d 1312, 1317 (9th

Cir. 1996). 

9The concurrence makes much out of this phrase, concurrence at 4673,

but it cuts entirely the other way because (as noted in the text) Jewell

approved an instruction that did not contain the motive prong. Even

though the Jewell court believed this was defendant’s likely motive, it did

not chose to make it an independent element of deliberate indifference. 

4662 UNITED STATES v. HEREDIA
276, 278 (9th Cir. 1983); United States v. Suttiswad, 696 F.2d

645, 650 (9th Cir. 1982). 

[3] The first mention of the motive prong came in a dissent

by then-Judge Kennedy, who also authored the dissent in Jewell. See United States v. Murrieta-Bejarano, 552 F.2d 1323,

1326 (9th Cir. 1977) (Kennedy, J., dissenting). Judge Kennedy’s chief concern was with what he viewed as the absence

of deliberate avoidance on the part of the defendant in that

case. See id. at 1325. At any rate, he was not writing for the

court. Yet some of our opinions seem to have adopted the

motive prong, providing little justification for doing so other

than citation to Judge Kennedy’s dissent. See, e.g., United

States v. Baron, 94 F.3d 1312, 1318 n.3 (9th Cir. 1996);

United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir. 1987);

United States v. Pac. Hide & Fur Depot, Inc., 768 F.2d 1096,

1098 (9th Cir. 1985); United States v. Garzon, 688 F.2d 607,

609 (9th Cir. 1982). Three other federal circuits have followed suit. See United States v. Puche, 350 F.3d 1137, 1149

(11th Cir. 2003); United States v. Willis, 277 F.3d 1026, 1032

(8th Cir. 2002); United States v. Delreal-Ordones, 213 F.3d

1263, 1268-69 (10th Cir. 2000). 

Heredia argues that the motive prong is necessary to avoid

punishing individuals who fail to investigate because circumstances render it unsafe or impractical to do so. She claims

that she is within this group, because her suspicions did not

arise until she was driving on an open highway where it

would have been too dangerous to pull over. She thus claims

that she had a motive other than avoiding criminal culpability

for failing to discover the contraband concealed in the trunk.

[4] We believe, however, that the second prong of the

instruction, the requirement that defendant have deliberately

avoided learning the truth, provides sufficient protections for

defendants in these situations. A deliberate action is one that

is “[i]ntentional; premeditated; fully considered.” Black’s Law

Dictionary 459 (8th ed. 2004). A decision influenced by coerUNITED STATES v. HEREDIA 4663
cion, exigent circumstances or lack of meaningful choice is,

perforce, not deliberate. A defendant who fails to investigate

for these reasons has not deliberately chosen to avoid learning

the truth.10

[5] We conclude, therefore, that the two-pronged instruction given at defendant’s trial met the requirements of Jewell

and, to the extent some of our cases have suggested more is

required, see page 4663 supra, they are overruled. A district

judge, in the exercise of his discretion, may say more to tailor

the instruction to the particular facts of the case. Here, for

example, the judge might have instructed the jury that it could

find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns. Heredia

did not ask for such an instruction and the district judge had

no obligation to give it sua sponte. Even when defendant asks

for such a supplemental instruction, it is within the district

court’s broad discretion whether to comply.

10The concurrence would add the third prong to the Jewell instruction

in order to protect defendants who have “innocent” motives for deliberately avoiding the truth. But the deliberate ignorance instruction defines

when an individual has sufficient information so that he can be deemed to

“know” something, even though he does not take the final step to confirm

that knowledge. See Dissent at 4685. The reason the individual fails to

take that final step has no bearing on whether he has sufficient information

so he can properly be deemed to “know” the fact. An innocent motive for

being deliberately ignorant no more vitiates the knowledge element of a

crime than does an innocent motive vitiate any other element. 

Equally misplaced is the concurrence’s concern about FedEx and similar package carriers. Concurrence at 4678. The fact that a tiny percentage

of the tens of thousands of packages FedEx transports every day may contain contraband hardly establishes a high probability that any particular

package contains contraband. Of course, if a particular package leaks a

white powder or gives any other particularized and unmistakable indication that it contains contraband, and the carrier fails to investigate, it may

be held liable—and properly so. 

4664 UNITED STATES v. HEREDIA
IV

Defendant also claims there was insufficient foundation to

give the Jewell instruction. In order to address this claim, we

must first identify the standard by which we review a district

court’s decision to issue a Jewell instruction. 

A. The differing standards of review we apply reflect the

relative competencies and functions of the appellate and district courts. Miller v. Fenton, 474 U.S. 104, 114-15 (1985).

Whether a jury instruction was properly given presents two

questions, one primarily factual, the other purely legal.

Whether the substance of the instruction itself is correct—i.e.,

whether it accurately describes the elements of the charged

crime—is a legal question of the sort we review de novo.

United States v. Feingold, 454 F.3d 1001, 1007 (9th Cir.

2006). But whether an instruction should be given in the first

place depends on the theories and evidence presented at trial.

This is mostly a factual inquiry, but not entirely. It also

requires judgment as to whether the proposed instruction is

relevant to the issues presented or would unduly confuse the

jury. The district judge’s proximity to the trial and intimate

knowledge of the record justify considerable deference to his

judgment in these situations. Accordingly, we typically

review such decisions for abuse of discretion. See, e.g.,

United States v. Johnson, 459 F.3d 990, 992 n.3 (9th Cir.

2006). 

Jewell cases have been an exception to this general order

of things, as we have long reviewed a district court’s decision

to give a deliberate ignorance instruction de novo. See Shannon, 137 F.3d at 1117; United States v. Fulbright, 105 F.3d

443, 447 (9th Cir. 1997); United States v. Asuncion, 973 F.2d

769, 772 (9th Cir. 1992). This rule derives, not from Jewell

itself, but from a later case, Asuncion. Asuncion summarily

adopted the de novo standard in Jewell cases, purportedly

relying on another of our cases, United States v. SanchezRobles, 927 F.2d 1070, 1073 (9th Cir. 1991). Sanchez-Robles

UNITED STATES v. HEREDIA 4665
provides no support for this proposition. It mentions de novo

review, but only in conjunction with the legal question of

whether the jury instruction “misstated elements of a statutory

crime.” Id. The rule adopted in Asuncion has been followed

by no other federal court of appeals.11

[6] On reflection, we find no reason to treat Jewell instructions differently from other jury instructions. Still, we might

have been willing to leave well enough alone had Asuncion’s

progeny shown promise. But, in the years since, we’ve seen

a proliferation of narrow, heavily fact-dependent and at times

contradictory opinions that have been difficult for both judges

and litigants to navigate.12 It should not be surprising that our

11Six of our sister circuits have explicitly adopted the abuse of discretion standard for reviewing a district judge’s decision to give a deliberate

ignorance instruction. United States v. Flores, 454 F.3d 149, 156 (3d Cir.

2006); United States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999); United

States v. Fuchs, 467 F.3d 889, 902 (5th Cir. 2006); United States v. Beaty,

245 F.3d 617, 621 (6th Cir. 2001); United States v. McClellan, 165 F.3d

535, 549 (7th Cir. 1999); United States v. King, 351 F.3d 859, 866 (8th

Cir. 2003). The Eleventh Circuit follows what it describes as a “deferential” standard. United States v. Puche, 350 F.3d 1137, 1148 (11th Cir.

2003). The Second Circuit has suggested that a highly deferential standard

of review is appropriate because a claim that the factual predicates for giving the instruction are unmet “is little more than a challenge to the sufficiency of the evidence to support a conscious avoidance conviction. A

defendant challenging a conviction based on insufficient evidence bears a

heavy burden.” United States v. Aina-Marshall, 336 F.3d 167, 171 (2d

Cir. 2003). Two other circuits have recognized conflicts in their caselaw

regarding the appropriate standard of review, but have declined, thus far,

to resolve them. See United States v. Lizardo, 445 F.3d 73, 85 (1st Cir.

2006); United States v. McConnel, 464 F.3d 1152, 1158 n.3 (10th Cir.

2006). And, as previously mentioned, the D.C. Circuit has yet to fully

endorse the deliberate ignorance instruction. See United States v. AlstonGraves, 435 F.3d 331, 339-41 (D.C. Cir. 2006). 

12Whether the evidence is sufficient to warrant giving a Jewell instruction is an issue that has divided several panels. See, e.g., Heredia, 429

F.3d at 820; United States v. McAllister, 747 F.2d 1273 (9th Cir. 1984);

United States v. Murrieta-Bejarano, 552 F.2d 1323 (9th Cir. 1977). In

cases where we’ve held that the evidence was insufficient, we’ve often

4666 UNITED STATES v. HEREDIA
attempt to micromanage the district courts by cataloguing the

various situations in which an instruction is justified has

yielded such poor results. We therefore abandon the Asuncion

enterprise and re-adopt the normal rule applicable to jury

instructions by reviewing the decision to give a deliberate

ignorance instruction for abuse of discretion. Opinions to the

contrary, see page 4665-66 supra, are overruled. 

B. A district court should approach the government’s

request to give a Jewell instruction in the same way it deals

with any other proposed jury instruction. In general, a party

is entitled to an instruction to help it prove its theory of the

case, if the instruction is “supported by law and has foundation in the evidence.” Jones v. Williams, 297 F.3d 930, 934

(9th Cir. 2002). 

[7] In deciding whether to give a particular instruction, the

district court must view the evidence in the light most favorable to the party requesting it. See Mathews v. United States,

485 U.S. 58, 63 (1988); Turner v. United States, 396 U.S.

398, 417-18 (1970). When a party requests instructions on

alternative theories, the district judge must consider the

instructions separately and determine if the evidence could

support a verdict on either ground. See Griffin v. United

States, 502 U.S. 46, 59 (1991) (noting that a general verdict

cannot stand if the jury could have convicted on a legally

flawed theory). When knowledge is at issue in a criminal

case, the court must first determine whether the evidence of

defendant’s mental state, if viewed in the light most favorable

distinguished the facts from those in Jewell itself on exceedingly narrow

grounds. See, e.g., Heredia, 429 F.3d at 827 (distinguishing Jewell

because defendant’s close relationship with the purported principals mitigated evidence of suspicion); Baron, 94 F.3d at 1318 (distinguishing Jewell on the basis that defendant was not aware of a secret compartment in

the car). The result has been a patchwork of rules that apply only in particular factual situations, such as the rule regarding suspicious scents. See

n.15 infra. 

UNITED STATES v. HEREDIA 4667
to the government, will support a finding of actual knowledge.13

If so, the court must instruct the jury on this theory. Actual

knowledge, of course, is inconsistent with willful blindness.

The deliberate ignorance instruction only comes into play,

therefore, if the jury rejects the government’s case as to actual

knowledge. In deciding whether to give a willful blindness

instruction, in addition to an actual knowledge instruction, the

district court must determine whether the jury could rationally

find willful blindness even though it has rejected the government’s evidence of actual knowledge. If so, the court may

also give a Jewell instruction. 

[8] This case well illustrates the point. Taking the evidence

in the light most favorable to the government, a reasonable

jury could certainly have found that Heredia actually knew

about the drugs. Not only was she driving a car with several

hundred pounds of marijuana in the trunk, but everyone else

who might have put the drugs there—her mother, her aunt,

her husband—had a close personal relationship with Heredia.

Moreover, there was evidence that Heredia and her husband

had sole possession of the car for about an hour prior to setting out on the trip to Tucson. Based on this evidence, a jury

could easily have inferred that Heredia actually knew about

the drugs in the car because she was involved in putting them

there. 

The analysis in the foregoing paragraph presupposes that

the jury believed the government’s case in its entirety, and

disbelieved all of Heredia’s exculpatory statements. While

this would have been a rational course for the jury to take, it

was not the only one. For example, a rational jury might have

bought Heredia’s basic claim that she didn’t know about the

drugs in the trunk, yet disbelieved other aspects of her story.14

13As previously noted, willful blindness is tantamount to knowledge.

See n.6 supra. We use the phrase “actual knowledge” to describe the state

of mind when defendant, in fact, knows of the existence of the contraband

rather than being willfully blind to its existence. 

14We have long held that juries are not bound to believe or disbelieve

all of a witness’s testimony. “The jury may conclude a witness is not tell4668 UNITED STATES v. HEREDIA
The jury could, for example, have disbelieved Heredia’s story

about when she first began to suspect she was transporting

drugs. The jury could have found that her suspicions were

aroused when Belia gave her the unsatisfactory explanation

for the “detergent” scent,15 see pages 4658-59 supra, or while

she drove to Tucson but before the last exit preceding the

checkpoint. Or, the jury might have believed Heredia that she

became suspicious only after she had passed the last exit

before the checkpoint but disbelieved that concerns about

safety motivated her failure to stop. 

[9] All of these are scenarios the jury could rationally have

drawn from the evidence presented, depending on how credible they deemed Heredia’s testimony in relation to the other

evidence presented. The government has no way of knowing

which version of the facts the jury will believe, and it is entitled (like any other litigant) to have the jury instructed in conformity with each of these rational possibilities. That these

possibilities are mutually exclusive is of no consequence. A

party may present alternative factual theories, and is entitled

to instructions supporting all rational inferences the jury

might draw from the evidence. 

We do not share the worry, expressed in some of our cases,

that giving both an actual knowledge and a deliberate ignoing the truth as to one point, is mistaken as to another, but is truthful and

accurate as to a third.” Elwert v. United States, 231 F.2d 928, 934 (9th Cir.

1956). 

15Some of our cases have suggested that irregular or strong scents are

not enough to support the inference that defendant suspected he might be

transporting drugs. See Sanchez-Robles, 927 F.2d at 1075; Baron, 94 F.3d

at 1318. This rule is a byproduct of the hands-on approach to reviewing

Jewell cases we eschew today and does not survive our opinion. Whether

an irregular scent provides a sufficient foundation for the first prong of the

Jewell instruction depends on the evidence in each case. It is a matter

committed to the sound discretion of the district court. Contrary statements in our opinions are disapproved. 

UNITED STATES v. HEREDIA 4669
rance instruction is likely to confuse the jury. See, e.g.,

Sanchez-Robles, 927 F.2d at 1073-74. A jury is presumed to

follow the instructions given to it, Hovey v. Ayers, 458 F.3d

892, 913 (9th Cir. 2006), and we see no reason to fear that

juries will be less able to do so when trying to sort out a criminal defendant’s state of mind than any other issue. Nor do we

agree that the Jewell instruction risks lessening the state of

mind that a jury must find to something akin to recklessness

or negligence. See, e.g., United States v. Alvarado, 817 F.2d

580, 584 (9th Cir. 1987); Garzon, 688 F.2d at 609. The

instruction requires the jury to find beyond a reasonable doubt

that defendant “was aware of a high probability” of criminality and “deliberately avoided learning the truth.” Indeed, the

instruction actually given in this case told the jurors to acquit

if they believed defendant was “simply careless.” Recklessness or negligence never comes into play, and there is little

reason to suspect that juries will import these concepts, as to

which they are not instructed, into their deliberations. See n.4

supra. 

[10] Even if the factual predicates of the instruction are

present, the district judge has discretion to refuse it. In cases

where the government does not present a deliberate ignorance

theory, the judge might conclude that the instruction will confuse the jury. The same may be true where a defendant disputes only identity. Concerns of this nature are best dealt with

by the district judge, whose familiarity with the evidence and

the events at trial is necessarily superior to our own. We will

second guess his decision only in those rare cases where we

find an abuse of discretion. For the reasons explained, see

pages 4668-69 supra, the district court did not abuse its discretion by giving the Jewell instruction here.16

16Some of our opinions have commented on how often Jewell instructions should be given. See, e.g., Baron, 94 F.3d at 1318 n.3 (“We emphasize again today, as we have in the past, that a Jewell instruction is rarely

appropriate.”); Sanchez-Robles, 927 F.2d at 1073 (“[W]e have recognized

that the instruction should be used sparingly.”); United States v. Alvarado,

4670 UNITED STATES v. HEREDIA
V

We decline the invitation to overrule Jewell, and further

hold that district judges are owed the usual degree of deference in deciding when a deliberate ignorance instruction is

warranted. While the particular form of the instruction can

vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance. The district judge may say

more, if he deems it advisable to do so, or deny the instruction

altogether. We review such decisions for abuse of discretion.

The instruction given at defendant’s trial met these requirements, and the district judge did not abuse his discretion in

issuing it. 

AFFIRMED.

KLEINFELD, Circuit Judge, concurring in the result: 

Because the evidence in this case justified a wilful blindness instruction, and the instruction’s form (to which no

objection was made below) was not plainly erroneous, I

would affirm Heredia’s conviction. But the majority errs in

817 F.2d 580, 584 (9th Cir. 1987) (“The cases in which the facts point to

deliberate ignorance are relatively rare.”); United States v. Garzon, 688

F.2d 607, 609 (9th Cir. 1982) (“The instruction should be given rarely

because of the risk that the jury will convict on a standard of negligence.”); Murrieta-Bejarano, 552 F.2d at 1325 (“The Jewell instruction

should not be given in every case where a defendant claims a lack of

knowledge, but only in those comparatively rare cases where, in addition,

there are facts that point in the direction of deliberate ignorance.”). This

kind of speculation is misguided and should not be read to imply additional limitations on a district court’s discretion to issue a Jewell instruction beyond what we’ve indicated above. Whether the instruction is given

depends solely on the state of the evidence in the case, analyzed as we

have explained above. Cases suggesting the contrary are, to that extent,

overruled. 

UNITED STATES v. HEREDIA 4671
concluding that motivation to avoid criminal responsibility

need not be an element of a wilful blindness instruction. 

Suppose Heredia were a witness rather than defendant, perhaps because the government had charged her aunt who

owned the car instead of her. If Heredia were asked “was

there marijuana in the car,” counsel would have objected for

lack of foundation, and the objection would have been sustained.1

 Heredia’s suspicion would not be enough to let her

testify to knowledge.2 Yet she can be convicted under a statute that requires her to have knowledge. This is not impossible, but it is a troubling paradox for criminal knowledge to

require less than evidentiary knowledge. To avoid injustice,

the jury needs to be instructed that they must find a motivation to avoid criminal responsibility to be the reason for lack

of knowledge.3

In our en banc decision in United States v. Jewell, a man

offered to sell marijuana to the defendant and his friend in a

Tijuana bar, and then to pay defendant $100 to drive a car

across the border.4 The friend refused, saying that “it didn’t

sound right,” and he “wanted no part of driving the vehicle.”

5

But the defendant accepted the offer, even though he “thought

1

See F.R.E. 602 (“A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that the witness has personal

knowledge of the matter.”). 

2

See id., Advisory Committee Note (“The rule requiring that a witness

who testifies to a fact which can be perceived by the senses must have had

an opportunity to observe, and must have actually observed the fact is a

most pervasive manifestation of the common law insistence upon the most

reliable sources of information.”) (quotation omitted). 

3

See United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en

banc) (“The substantive justification for the rule [that wilful blindness is

equivalent to knowledge] is that deliberate ignorance and positive knowledge are equally culpable.”) (quotation omitted). 

4

Id. at 699 n.1. 

5

Id.

4672 UNITED STATES v. HEREDIA
there was probably something illegal in the vehicle.”

6

 The

defendant determined that there was no contraband in the

glove compartment, under the front seat, or in the trunk, so he

concluded that “the people at the border wouldn’t find anything either.”

7

 He admitted to seeing a secret compartment in

the trunk (where 110 pounds of marijuana was later found),

but did not attempt to open it.8

We held that, in these circumstances, the knowledge element in the applicable drug statutes9

 could be satisfied without positive, confirmed personal knowledge that the

marijuana was in the trunk.10 We took particular note of the

motive in such deliberate avoidance of knowledge cases “to

avoid responsibility in the event of discovery”: 

[T]he jury could conclude that . . . although appellant

knew of the presence of the secret compartment and

had knowledge of facts indicating that it contained

marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid

responsibility in the event of discovery. If . . . positive knowledge is required to convict, the jury would

have no choice consistent with its oath but to find

appellant not guilty even though he deliberately contrived his lack of positive knowledge.11

We described such blindness as “wilful” and not merely negligence, foolishness or recklessness,12 differing from positive

6

Id.

7

Id.

8

Id.

9

21 U.S.C. § 841(a)(1), 952(a). 

10See United States v. Jewell, 532 F.2d 697, 700, 704 (9th Cir. 1976) (en

banc). 

11Id. at 699 (emphasis added). 

12Id. at 700 & n.7. 

UNITED STATES v. HEREDIA 4673
knowledge “only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance.”

13

A court can properly find wilful blindness only

where it can almost be said that the defendant actually knew. He suspected the fact; he realised its

probability; but he refrained from obtaining the final

confirmation because he wanted in the event to be

able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the

defendant intended to cheat the administration of

justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the

civil doctrine of negligence in not obtaining knowledge.14

Then-judge Kennedy, joined by Judges Ely, Hufstedler and

Wallace, vigorously dissented. They presciently warned that

the majority opened the door too wide to suspicion as a substitute for scienter. 

“Wilfulness” requires a “purpose of violating a known legal

duty,”

15 or, at the very least, “a bad purpose.”16 That is why

13Id. at 704. The majority justifies its own deliberate avoidance of this

language by noting that Jewell did not explicitly say that a wilful blindness

instruction must contain a motivation to avoid criminal responsibility element. Majority at 4662 n.9. But the appellant in Jewell did not argue, in

district court or on appeal, that the wilful blindness instruction was erroneous because it lacked the motivation element. Moreover, the Jewell court

did not lay out a specific, inclusive wilful blindness instruction. It simply

concluded that the one given was not plainly erroneous. See id. at 704

n.21. Justice and respect for the statutory language require that we clarify

Jewell to require all three elements, awareness of high probability, deliberate avoidance of confirmation, and motivation to avoid criminal responsibility, both for giving the instruction and for the content of the instruction.

14Id. at 700 n.7 (quoting G. Williams, Criminal Law: The General Part,

§ 57 at 159 (2d ed. 1961)) (emphasis added). 

15United States v. Sehnal, 930 F.2d 1420, 1427 (9th Cir. 1991) (citing

United States v. Cheek, 498 U.S. 192, 199 (1991)). 

16United States v. Murdock, 290 U.S. 389, 394 (1933), overruled on

4674 UNITED STATES v. HEREDIA
wilful blindness is “equally culpable” to, and may be substituted for, positive knowledge.17 But to allow conviction without positive knowledge or wilful avoidance of such

knowledge is to erase the scienter requirement from the statute. And we do not have the authority to do this: “The definition of the elements of a criminal offense is entrusted to the

legislature, particularly in the case of federal crimes, which

are solely creatures of statute.”

18 The statute made it a crime

for Heredia to “knowingly or intentionally” possess the marijuana in the trunk of her aunt’s car with an intent to distribute

it (that is, give the car back to her aunt or to someone else).19

If she did not act “knowingly or intentionally,” then she did

not commit the crime. 

Our cases subsequent to Jewell have generally hewed

closely to its restrictiveness (though, as the majority notes,

some appear to deviate on the wilfulness requirement20 ). In

our en banc decision in United States v. Aguilar,

21 we held

that a “high probability of awareness of [a] circumstance” is

not equivalent to knowledge in absence of “wilful blindness.”

22

We adopted Judge Kennedy’s language from United States v.

Pacific Hide & Fur Depot, Inc.,

23 that mistake, negligent failother grounds by Murphy v. Waterfront Commission of New York Harbor,

378 U.S. 52, 70 (1964). 

17United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc).

18Liparota v. United States, 471 U.S. 419, 424 (1985). 

1921 U.S.C. § 841(a)(1). 

20Majority at 4662-63 (citing United States v. Shannon, 137 F.3d 1112,

1117 & n.1 (9th Cir. 1998) (per curiam), United States v. McAllister, 747

F.2d 1273, 1275 (9th Cir. 1984), United States v. Henderson, 721 F.2d

276, 278 (9th Cir. 1983), and United States v. Suttiswald, 696 F.2d 645,

650 (9th Cir. 1982)). 

21United States v. Aguilar, 80 F.3d 329, 332 (9th Cir. 1996) (en banc).

22Id.

23United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096 (9th

Cir. 1985). 

UNITED STATES v. HEREDIA 4675
ure to inquire, and even reckless disregard of the truth, did not

amount to knowledge.24 Instead, the government had to prove

that the defendant “purposely contrived” to avoid positive

knowledge “in order to have a defense:” 

A Jewell instruction is properly given only when

defendant claims a lack of guilty knowledge and the

proof at trial supports an inference of deliberate

ignorance. It is not enough that defendant was mistaken, recklessly disregarded the truth, or negligently

failed to inquire. Instead, the government must present evidence indicating that defendant purposely

contrived to avoid learning all of the facts in order

to have a defense in the event of subsequent prosecution. Absent such evidence, the jury might impermissibly infer guilty knowledge on the basis of mere

negligence without proof of deliberate avoidance.25

We have repeatedly emphasized this wilfulness requirement,

as in United States v. Alvarado, United States v. Baron,

United States v. Beckett, United States v. Garzon, United

States v. Kelm, and United States v. Mapelli.

26

24United States v. Aguilar, 80 F.3d 329, 332 (9th Cir. 1996) (en banc)

(quoting United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096,

1098-99 (9th Cir. 1985)). 

25United States v. Aguilar, 80 F.3d 329, 332 (9th Cir. 1996) (en banc)

(quoting United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096,

1098-99 (9th Cir. 1985)); see also United States v. Murrieta-Bejarano,

552 F.3d 1323, 1326 (9th Cir. 1977) (Kennedy, J., dissenting) (“The Jewell instruction should not be given unless the evidence can sustain a finding, beyond a reasonable doubt, that the defendant purposely contrived to

avoid learning all of the facts in order to have a defense in the event of

being arrested and charged.”). 

26See United States v. Baron, 94 F.3d 1312, 1317 (9th Cir. 1996) (collecting cases); United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992)

(“The instruction enables the jury to deal with wilful 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 apprehend4676 UNITED STATES v. HEREDIA
The majority deviates from this long line of precedent by

discarding the requirement of a motive to avoid criminal

responsibility. I concede that our precedents have not been

clear on whether motive must be an element of the instruction, or just an element for the judge to consider in determining whether to give a Jewell instruction.27 The cure for this,

however, is not to bless the Jewell instruction given in this

case, but to make clear that a Jewell instruction should

include a motive to avoid criminal responsibility element. 

The majority converts the statutory element that the possession be “knowing” into something much less — a requirement

that the defendant be suspicious and deliberately avoid investigating. The imposition on people who intend no crime of a

duty to investigate has no statutory basis. The majority says

that its requirement is enough to protect defendants who cannot investigate because of “coercion, exigent circumstances or

lack of meaningful choice.”

28 I am not sure what the latter two

novelties mean (especially the term “meaningful” choice) or

ed.”); United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1988)

(“[T]he facts must support the inference that the defendant . . . purposely

contrived to avoid learning all of the facts in order to have a defense in

the event of subsequent prosecution.”); United States v. Kelm, 827 F.2d

1319, 1324 (9th Cir. 1987) (“There must be evidence that the defendant

purposely avoided learning all of the facts in order to have a defense in

the event of being arrested and charged); United States v. Beckett, 724

F.2d 855 856 (9th Cir. 1984) (similar); United States v. Garzon, 688 F.2d

607, 609 (9th Cir. 1982) (similar). 

27See e.g., United States v. Shannon, 137 F.3d 1112, 1117 & n.1 (9th

Cir. 1998) (per curiam) (implying approval of a Jewell instruction without

a motive element); United States v. Baron, 94 F.3d 1312, 1317 (9th Cir.

1996) (“In this case, Baron argues that the government presented insufficient evidence establishing that he (1) suspected that the car contained

drugs, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself with a defense in the

event of prosecution. We agree. . . . Accordingly, . . . the district court

erred by giving the Jewell instruction.”). 

28Majority at 4663-64. 

UNITED STATES v. HEREDIA 4677
how a jury would be instructed to give them concrete meaning. The majority’s statement that “[a]n innocent motive for

being deliberately ignorant” does not bar conviction under its

rule”

29 seems to contradict its proposition that coercion or exigent circumstances excuse failure to investigate. The majority

seems to mean that if someone can investigate, they must. A

criminal duty to investigate the wrongdoing of others to avoid

wrongdoing of one’s own is a novelty in the criminal law. 

The majority’s “coercion, exigent circumstances or lack of

meaningful choice” justifications for failure to investigate are

too few. The government has not conscripted the citizenry as

investigators, and the statute does not impose that unpleasant

and sometimes risky obligation on people. Shall someone

who thinks his mother is carrying a stash of marijuana in her

suitcase be obligated, when he helps her with it, to rummage

through her things? Should Heredia have carried tools with

her, so that (if her story was true) she could open the trunk for

which she had no key? Shall all of us who give a ride to

child’s friend search her purse or his backpack? 

No “coercion, exigent circumstances, or lack of meaningful

choice” prevents FedEx from opening packages before

accepting them, or prevents bus companies from going

through the luggage of suspicious looking passengers. But

these businesses are not “knowingly” transporting drugs in

any particular package, even though they know that in a volume business in all likelihood they sometimes must be. They

forego inspection to save time, or money, or offense to customers, not to avoid criminal responsibility. But these reasons

for not inspecting are not the ones acceptable to the majority

(“coercion, exigent circumstances, or lack of meaningful

choice”). The majority opinion apparently makes these businesses felons despite the fact that Congress did not. For that

matter, someone driving his mother, a child of the sixties, to

29Majority at 4664 n.10. 

4678 UNITED STATES v. HEREDIA
Thanksgiving weekend, and putting her suitcase in the trunk,

should not have to open it and go through her clothes. 

A Jewell instruction ought to incorporate what our case law

has developed, that the wilful blindness doctrine is meant to

punish a defendant who “all but knew”

30 the truth — a defendant who “suspects a fact, realizes its [high] probability, but

refrains from obtaining final confirmation in order to be able

to deny knowledge if apprehended.”

31 “This, and this alone,

is wilful blindness.”

32 The jury instruction in this case told the

jury that Heredia had “knowing” possession of the marijuana

in the trunk if she “was aware of a high probability” that

drugs were in the car and “deliberately avoided learning the

truth.”

33 That mental state would fit FedEx and the child of an

aging hippy, as well as a drug mule. A Jewell instruction

ought to require (1) a belief that drugs are present,34 (2) avoidance of confirmation of the belief,35 and (3) wilfulness in that

avoidance — that is, choosing not to confirm the belief in

order to “be able to deny knowledge if apprehended.”

36 The

instruction should expressly exclude recklessness, negligence

and mistake (the one given only excluded “simpl[e] careless-

[ness]” and an “actual[ ] belie[f] that no drugs were in the vehi30United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992). 

31Id.

32United States v. Jewell, 532 F.2d 697, 700 n.7 (9th Cir. 1976) (en

banc). (quoting G. Williams, Criminal Law: The General Part, § 57 at 157

(2d ed. 1961)). 

33The instruction reads: “You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware

of a high probability that drugs were in the vehicle driven by the defendant

and deliberately avoided learning the truth. You may not find such knowledge, however, if you find that the defendant actually believed that there

were no drugs in the vehicle driven by the defendant, or if you find that

the defendant was simply careless.” 

34See United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en

banc); United States v. Baron, 94 F.3d 1312, 1318 n.3 (9th Cir. 1996). 

35See id.

36United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992). 

UNITED STATES v. HEREDIA 4679
cle”).37 Anything less supports convictions of persons whom

Congress excluded from statutory coverage with the word

“knowingly.” People who possess drugs, but do not do so

“knowingly,” are what we traditionally refer to as “innocent.”

The reason that I concur instead of dissenting is that defendant did not object to these deficiencies in the instruction, and

the deficiencies were not “plain.”

38 To constitute plain error,

“[a]n error . . . must be . . . obvious or readily apparent.”

39 “At

a minimum, court of appeals cannot correct an error pursuant

to Rule 52(b) unless the error is clear under current law.”

40

Our previous cases did not make clear that the instruction

had to say these things (they only made clear that the judge

must decide there was some evidence of wilfulness before

giving the instruction).41 For that reason, it is not surprising

that the instruction given tracked the language of our own form.42

37See United States v. Aguilar, 80 F.3d 329, 332 (9th Cir. 1996) (en

banc) (quoting United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d

1096, 1098-99 (9th Cir. 1985) (“It is not enough that the defendant was

mistaken, recklessly disregarded the truth, or negligently failed to

inquire.”). 

38See FED. R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725, 734

(1993). 

39United States v. Young, 470 U.S. 1, 16, n.14 (1985). 

40United States v. Olano, 507 U.S. 725, 734 (1993) (emphasis added).

41See supra note 27. 

42See Ninth Circuit Model Criminal Jury Instruction 5.7 (2003) (“You

may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that [e.g.,

drugs were in the defendant’s automobile] and deliberately avoided learning the truth. You may not find such knowledge, however, if you find that

the defendant actually believed that [e.g., no drugs were in the defendant’s

automobile], or if you find that the defendant was simply careless.”). But

see McDowell v. Calderon, 130 F.3d 833, 840 (9th Cir. 1997) (model jury

instructions are not a substitute for individual research and drafting);

United States v. Hegwood, 944 F.2d 492, 496 (9th Cir. 1992) (“Had the

district court merely [given] the model jury instruction, it would have

committed plain error.”). 

4680 UNITED STATES v. HEREDIA
Defendant’s objection was to giving a Jewell instruction at all,

rather than to the language in the Jewell instruction. She

argued that “the instruction is not appropriate in this particular

case” because “there is no evidence that she did anything . . .

to deliberately avoid [learning the truth] . . . .” She did not

argue in the district court, as she now does on appeal, that the

wilful blindness instruction, if given, should include a requirement that a defendant’s wilful blindness be motivated by a

desire to avoid criminal responsibility.43

Defendant’s argument was that the evidence showed that

Heredia could not have discovered the marijuana because the

key she had been given would not open the trunk (it seems to

have been a valet key — the DEA had to break the trunk lock

with a screwdriver), and that by the time she began suspecting

the presence of drugs, there was no freeway exit before the

checkpoint. As we held in Mapelli, a wilful blindness 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.”

44 In this case, though,

the district court correctly concluded that the evidence

allowed the jury properly to conclude that there was wilful

avoidance of positive knowledge. 

I agree with the majority that our review of whether the

instruction was justified is for abuse of discretion, not de novo.45

The jury did not have to believe everything Heredia said. It

43Similarly, Heredia did not argue below that the Jewell instruction, as

a matter of law, should never be given. Omitting a Jewell instruction altogether, as the dissent would, means that if a jury asks a judge to instruct

it further on the meaning of “knowing,” the court will decline. Rather than

protecting defendants, that invites jury arbitrariness, because the meaning

of knowledge in this context is important and non-obvious. 

44United States v. Mapelli, 971 F.2d 284, 286 (9th Cir. 1992). 

45Majority at 4665-66. 

UNITED STATES v. HEREDIA 4681
could believe all, part, or none of her testimony and the testimony of others. The district court reasonably exercised its discretion to give a Jewell instruction, because (1) there was

testimony that Heredia’s husband opened the trunk at Heredia’s aunt’s house while Heredia was present and could look

if she wanted to, (2) the car smelled of fabric softener, (3)

Heredia thought her mother and her mother’s boyfriend were

involved with drugs, (4) Heredia was suspicious because her

mother and aunt were visibly “nervous,” (5) Heredia knew

she would be driving through a border patrol checkpoint, and

(6) Heredia despite her suspicions avoided asking her mother

and aunt if there were drugs in the car. Together, this evidence justified a jury inference of wilful avoidance of positive

knowledge to avoid criminal responsibility if apprehended. 

GRABER, Circuit Judge, with whom PREGERSON,

THOMAS, and PAEZ, Circuit Judges, join, dissenting: 

Assuming the Jewell instruction to be proper, I agree with

the majority that the standard by which to review a district

court’s decision to give one is “abuse of discretion” in the

light of the evidence presented at trial. But as a matter of statutory construction, I believe that the Jewell instruction is not

proper because it misconstrues, and misleads the jury about,

the mens rea required by 21 U.S.C. § 841(a)(1). Because the

legal error of giving a Jewell instruction in this case was not

harmless beyond a reasonable doubt, I respectfully dissent. 

Under 21 U.S.C. § 841(a)(1), it is a crime to “knowingly or

intentionally . . . manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (Emphasis added.) The plain text of the

statute does not make it a crime to have a high probability of

awareness of possession—knowledge or intention is required.

The majority recognizes that willful blindness is a mens rea

separate and distinct from knowledge. See Majority op. at

4682 UNITED STATES v. HEREDIA
4668 (“Actual knowledge, of course, is inconsistent with willful blindness.”); see also United States v. Jewell, 532 F.2d

697, 705-06 (9th Cir. 1976) (en banc) (Kennedy, J., dissenting) (“The majority opinion justifies the conscious purpose

jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. . . . [T]he

English authorities seem to consider wilful blindness a state

of mind distinct from, but equally culpable as, ‘actual’ knowledge.” (emphasis added)). Similarly, if not even more obviously, willful blindness is at least one step removed from

intention. 

Instead of justifying its sleight-of-hand directly, the majority points to the fact that Jewell has been on the books for 30

years and that Congress has not amended the statute in a way

that repudiates Jewell expressly. Majority op. at 4661. I find

this reasoning unpersuasive. “[C]ongressional inaction lacks

persuasive significance because several equally tenable inferences may be drawn from such inaction . . . .” United States

v. Craft, 535 U.S. 274, 287 (2002) (internal quotation marks

omitted). “It is impossible to assert with any degree of assurance that congressional failure to act represents affirmative

congressional approval of the [courts’] statutory interpretation.” Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 186 (1994) (alteration in original) (internal

quotation marks omitted); see also Jones v. Liberty Glass Co.,

332 U.S. 524, 533-34 (1947) (rejecting the doctrine of legislative acquiescence as, at best, “an auxiliary tool for use in

interpreting ambiguous statutory provisions”). 

Whatever relevance congressional inaction holds in this

case is outweighed by actual congressional action. Under 21

U.S.C. § 841(a)(1), a person is guilty of a crime only if the

requisite act is performed “knowingly or intentionally.” By

contrast, both before and after Jewell, Congress has defined

several other crimes in which the mens rea involves a high

probability of awareness—but it has done so in phrases dramatically different than the one here, which lists only knowlUNITED STATES v. HEREDIA 4683
edge and intent. See, e.g., 18 U.S.C. §§ 175b(b)(1) (“knows

or has reasonable cause to believe”), 175b(b)(2) (same), 792

(“knows, or has reasonable grounds to believe or suspect”),

842(h) (“knowing or having reasonable cause to believe”),

2332d(a) (“knowing or having reasonable cause to know”),

2339(a) (“knows, or has reasonable grounds to believe”),

2424(a) (“knowing or in reckless disregard of the fact”). Most

importantly, Congress has done so in adjacent sections of the

same statute, the Controlled Substances Act, 21 U.S.C.

§§ 801-971, and even within the same section of the same

statute. See 21 U.S.C. §§ 841(c)(2) (“knowing, or having reasonable cause to believe”), 843(a)(6) (“knowing, intending, or

having reasonable cause to believe”), 843(a)(7) (same). “It is

axiomatic that when Congress uses different text in ‘adjacent’

statutes it intends that the different terms carry a different

meaning.” White v. Lambert, 370 F.3d 1002, 1011 (9th Cir.

2004). Thus, “[i]f we do our job of reading the statute whole,

we have to give effect to [its] plain command, even if doing

that will reverse the longstanding practice under the statute

and the rule.” Lexecon Inc. v. Milberg Weiss Bershad Hynes

& Lerach, 523 U.S. 26, 35 (1998) (citations omitted). 

The majority recognizes that the Jewell instruction

embodies a substantive decision that those who possess a controlled substance and “don’t know because they don’t want to

know” are just as culpable as those who knowingly or intentionally possess a controlled substance. Majority op. at 4660;

see also Model Penal Code § 2.02 cmt. 9, at 248 (“Whether

such cases [of wilful blindness] should be viewed as instances

of acting recklessly or knowingly presents a subtle but important question.”). But Congress never made this substantive

decision about levels of culpability—the Jewell court did. By

“clear[ing] away the underbrush that surrounds” the instruction, majority op. at 4662, the majority chooses to reaffirm

this judge-made substantive decision. In so doing, the majority directly contravenes the principle that “[i]t is the legislature, not the Court, which is to define a crime, and ordain its

punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.)

4684 UNITED STATES v. HEREDIA
76, 95 (1820). “ ‘The spirit of the doctrine which denies to the

federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes

by constituting them from anything less than the incriminating

components contemplated by the words used in the statute.’ ”

Jewell, 532 F.2d at 706 n.7 (Kennedy, J., dissenting) (quoting

Morissette v. United States, 342 U.S. 246, 263 (1952)). The

majority creates a duty to investigate for drugs that appears

nowhere in the text of the statute, transforming knowledge

into a mens rea more closely akin to negligence or recklessness. 

I agree with the Jewell court that “one ‘knows’ facts of

which he is less than absolutely certain.” 532 F.2d at 700.

That being so, the mens rea-reducing Jewell instruction not

only is wrong, it also is unnecessary in the face of the kind

of proof that a prosecutor is likely to produce. For example,

if your husband comes home at 1:00 a.m. every Friday (after

having left work at 5:00 p.m. the day before as usual), never

reveals where he has been, won’t look you in the eye on Fridays, and puts Thursday’s shirts in the hamper bearing lipstick stains, your friends will agree that you “know” he is

having an affair even if you refuse to seek confirmation. The

role of a jury is to apply common sense to the facts of a given

case. A sensible jury will be persuaded that a drug mule

“knows” what she is carrying when confronted with evidence

of how mules typically operate and how this mule acted—all

without reference to a Jewell instruction. 

Thus, I would overrule Jewell and interpret 21 U.S.C.

§ 841(a) to require exactly what its text requires—a knowing

or intentional mens rea. If Congress wants to criminalize willful ignorance, it is free to amend the statute to say so and, in

view of the several examples quoted above, it clearly knows

how. 

Because I believe that the district court’s giving of a Jewell

UNITED STATES v. HEREDIA 4685
instruction in this case was legal error,1

“ ‘the proper rule to

be applied is that which requires a verdict to be set aside in

cases where the verdict is supportable on one ground, but not

on another, and it is impossible to tell which ground the jury

selected.’ ” Griffin v. United States, 502 U.S. 46, 52 (1991)

(quoting Yates v. United States, 354 U.S. 298, 312 (1957)).2

As the majority acknowledges, it is not possible to tell

whether the jury convicted Carmen Heredia based on actual

knowledge. “[A] rational jury might have bought Heredia’s

basic claim that she didn’t know about the drugs in the trunk,

yet disbelieved other aspects of her story,” thereby concluding

that she acted with willful ignorance. Majority op. at 4668.

Accordingly, I cannot find that the error of giving a Jewell

instruction was harmless, and I respectfully dissent.

1Heredia objected at trial to the giving of the Jewell instruction, RT

3/12/03, pp. 186-90, and her own set of proposed instructions excluded it.

Thus, we review under the usual principles and not just for plain error. 

2

In Griffin, the Supreme Court applied the Yates harmless error test to

legal errors in instructing a jury and the Turner v. United States, 396 U.S.

398 (1970), harmless error test to instructional errors concerning the

weight of the evidence. Griffin, 502 U.S. at 59-60. Under the Turner rule,

“ ‘[w]hen a jury returns a guilty verdict on an indictment charging several

acts . . . , the verdict stands if the evidence is sufficient with respect to any

one of the acts charged.’ ” Griffin, 502 U.S. at 56-57 (quoting Turner, 396

U.S. at 420). The Court distinguished the two errors by reasoning that 

[w]hen . . . jurors have been left the option of relying upon a

legally inadequate theory, there is no reason to think that their

own intelligence and expertise will save them from that error.

Quite the opposite is true, however, when they have been left the

option of relying upon a factually inadequate theory, since jurors

are well equipped to analyze the evidence. 

Id. at 59. 

Several of our sister circuits have held the giving of a Jewell instruction

to be harmless error if sufficient evidence supports a finding of actual

knowledge. See, e.g., United States v. Leahy, 445 F.3d 634, 654 n.15 (3d

Cir. 2006); United States v. Hanzlicek, 187 F.3d 1228, 1235-36 (10th Cir.

1999); United States v. Mari, 47 F.3d 782, 786-87 (6th Cir. 1995); United

States v. Adeniji, 31 F.3d 58, 63 (2d Cir. 1994); United States v. Stone, 9

F.3d 934, 939-42 (11th Cir. 1993). But that is because they presume the

Jewell instruction to be a correct statement of the law and, thus, apply the

Turner rule. 

4686 UNITED STATES v. HEREDIA