Petition for Writ of Certiorari — Ana Feijoo Tomala v. United States

ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

ANA FEIJOO TOMALA,

Petitioner,

-V.-

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MARJORIE M. SMITH

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES UNIT

52 Duane Street - 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Attorney for Petitioner.

QUESTIONS PRESENTED

1. Whether the conscious avoidance charge approved by

the Second Circuit, which permits a jury to convict when the

evidence would have alerted a reasonable person to the

unlawfulness of her conduct, unconstitutionally reduced the

government’s statutory burden to prove petitioner’s knowledge

that she was transporting illegal drugs.

2. Whether the court’s precipitate declaration. of a

mistrial after the jury had deliberated for only one

afternoon violated petitioner’s right under the Double

Jeopardy clause to have her trial “completed by a particular

tribunal." Arizona v. Washington, 434 U.S. 497, 503 & n. ll

(1978).

TABLE OF CONTENTS

Page

TABLE OF CASES AND OTHER AUTHORITIES ......22eeeceeeees ii

QUESTIONS PRESENTED .....cccccccccvcsevseevesscecs Preceding Page

he le a a et ek eee ee we bb GR Ee eee etn eee 1

EE 0 0 544666003404 EE CEME WOO OSSD COCR OCR OESS 1

CONSTITUTIONAL PROVISIONS INVOLVED .......c cece eeecees 2

ees Ge Meee Ge ocsecdsoecesecesoeseresceoeséseeeses 2

The Facts Relevant to Conscious Avoidance ....... 2

The Facts Relevant to Double Jeopardy ........... 4

The Second Circuit’S Opinion ..... eee eeeeecncees 5

REASONS FOR GRANTING THE WRIT

POINT I: THE SECOND CIRCUIT’S APPROVAL OF A “CONSCIOUS

AVOIDANCE" INSTRUCTION AT PETITIONER’S TRIAL

FOR NARCOTICS TRAFFICKING RAISES AN IMPORTANT

QUESTION OF FEDERAL LAW AS TO WHICH THERE IS

A CONFLICT AMONG THE CIRCUITS. ......2eeee08> 6

Intro — rrr rer TTT Te TS CVV PTT CTT TTTLITT ee 7

The Instruction Given was Factually Unwarranted

and Improperly Formulated ........ccceeeevevccces 8

ic te) oe ren. Vcpeceneeekeucerds 10

The Instruction Encroached on the Legislative

EM coccetccseoveceese CO ebeeeeseecoeerececuons 14

POINT II: DOUBLE JEOPARDY LAW BARRED PETITIONER’S

SECOND TRIAL, SINCE THERE WAS NO “MANIFEST

NECESSITY" FOR THE MISTRIAL DECLARATION ... 16

DD £6.65 66200066668 6966668 6664660460 6606 006800666 18

TABLE OF CASES

Arizona v. Washington, 434 U.S. 497 (1978) ......... 16, 17,

Downum v. United States, 372 U.S. 734 (1963) .........

Griego v. United States, 298 F.2d 845 (10th Cir.

BOOS) CocewasCesecesscevecccsprescoesvececeseonses

Leary v. United States, 395 U.S. 6 (1969) ......seeeee Ve

Morissette v. United States, 342 U.S. 246 (1952) ..... 14,

Turner v. United States, 396 U.S. 398 (1970) ......... 7,

United States v. Alvarado, 838 F.2d 311 (9th Cir.

1987), cert. denied, 487 U. S. 1222 (1988) ...... 12,

United States v. Aulet, 618 F.2d 182 (2d Cir.

SESS) cesesececececsedevcesCosedcccescsiecesececese

United States v. Batencort, 592 F.2d 916 (5th

Babe BOTE) cocevdeseccceewcccesecesseesessecciose

United States v. Bussey, 942 F.2d 1241 (8th Cir.

BDU) Ceevesveeseceverecceeesscececesesevessecooce

United States v. Caminos, 770 F.2d 361 (3d Cir.

BNODD Se Se coe erase erseriseceoesscsvescocecengveer 10,

United States v. Chen, 913 F.2d 183 (5th Cir.

BOGE) cecceacccecebecrccsecesdesccpecececosvesser

United States v. Cooperative Grain and Supply

Cone $76 F.24 47 (GER Cir. 1973) cccsccccsvccccees

United States v. de Francisco-Lopez, 939 F.2d

BGGe. CEOEM CEE. . SUPE) coccecccccavcccvocsescccces 10,

United States v. Feroz, 848 F.2d 359 (2d Cir.

EDGE) coevesececesecvcsereseceenesessoccccenecees

United States v. Garzon, 688 F.2d 607 (9th Cir.

BDOS) ch vcceeesresersececvecccoscaneeeesesvescecs

Vv. , 713 F.2d 1203 (6th Cir.

1983), cert. denied, 464 U.S. 1069 (1984) .......

United States v. Guzman, 754 F.2d 482 (2d Cir. '

BPE Sovocceeeeseecdecacegacsseeeesececcecosedes

e 44 «

18

16

10

10

15

10

14

ll

13

12

12

12

10

13

ll

12

ll

United States v. Jack, 890 F.2d 1250 (D.C. Cir. United States v. Wiltberger, 18 U.S. (5 Wheat.)

ADGD) cccccccccccrscccccesseseeeseeseresesesesoes 13 76 (1820) ...... eeeeegersccesccoecs TETTETILTTiTe 14

United States v. Jewell, 532 F.2d 697 (9th Cir. Wade v. Hunter, 336 U.S. 684 (1949) .....c ec eeeeeeeees 16

1976), cert. denied,

COS Gills FES COUPER Se cccecscvesscvuseess 7, Op O- 10, 12, 38 In re Winghip, 397 U.S. 358 (1970) ....ccccccccccccces 9

nite ates v. Jorn, 400 U.S. 470 (1971) ...eeeeeeee 17

Vv. , 790 F.2d 1015 (2d Cir. OTHER AUTHORITIES

SEED ub 0dbebbeednneberescen gene nesheewenekesane 10

, 948 F.2d 363 (7th Cir. Be Getote | Beme GE GOD cocccceccccdccececcccceccceces 1

BPG T) ccccccccceveerdsvcccesevessesseceesesssoece 13

ep rs i ET (Ch CeeU Ue ie keke cb eebsccoecoeseseceese 1

United States v. Mang Sun Wong, 884 F.2d 1537 (2d

Cir. 1989), cert. denied, 493 U.S. 1082 a ne a Or See deedeednctecbseccesooctceccoese 6

C2990) wcccccccccccccvesesceseccsessvecncesessece 11, 13, 14

ey es ee ROOD n. . ececoesececececoses 1

United States v. Martin, 773 F.2d 579 (4th Cir.

BOOS) cecvcesdpececccereccerererecnsserseesecsese 10, 12 et ee CP EEE SS Gbedeeececcboseceteccorcoceeeoes 1

United States v. Moser, 509 F.2d 1089 (7th Cir. Model Penal Code, §2.02(7) (Official Draft and Revised

1978S) acvccccccweseseeceseceesereseeseeseceseeeees 10 COMMBMES LFGS) ccccccccccccscceccccccsececesecees 10

United States v. Murrieta-Bejarano, 552 F.2d 1323 Robbins, “The Ostrich Instruction: Deliberate

(StH Civ. 1977) wccccccccccssccccssccesesessecere 10, 13 Ignorance as a Criminal Mens Rea,” 81 J. Crim. L.

re BE COUUUD coccccccccccceceoceeeces 15

United States v. Nazon, 940 F.2d 255 (7th Cir.

BODE) cocccnveperesvescececerecssscceseseeseeseeses 12

168 F.2d 1096 (9th Cir. 1985) ccccscevceccccceeee 8

Vv. , 22 U.S. (9 Wheat.) 579

(1824) ...... CeO Keer eseocrenesdecneseereesesedeces 16

, 788 F.2d 39 (lst

Cir.), ge SPO G.8. GSP CBOSS coccieses 10, 12

, 575 F.2d 524

(5th Cir.), cert. denied, 439 U.S. 935

bo OP errpyrrrsesy errr sibawevwndsnneens 10

United States v. Rivera, 944 F.2d 1563 yt Cir.

ents, PE ry eT Po eee er re 10, 13

, 806 F.2d 318 (list Cir

1986) oe ewe Se = SS .e.e.e ews ewe eee eee 2 ae |] See eeeegeeeee &é ee & & 7

United States v. Thomas, 484 F.2d 909 (6th Ci«. )s SOKhs cert. os

Seen, GEE Ses CON COTES ccccaveccéeresa ; 10

- iii - - iv -

TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES AND THE

ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT.

Petitioner Ana Feijoo Tomala respectfully requests that a

writ of certiorari issue to review a judgment of the United

States Court of Appeals for the Second Circuit that affirmed a

judgment of the United States District Court for the Eastern

District of New York dated March 6, 1991, convicting her of

importation of cocaine, 21 U.S.C. § 952(a), 960(b)(2)(B)(ii) and

18 U.S.C. § 3551 et seq., and sentencing her to five years of

imprisonment to be followed by four years of supervised release.

OPINION BELOW

The Court of Appeals rendered an unpublished opinion

affirming petitioner’s sentence on September 27, 1991, which is

annexed as Appendix A. The Court of Appeals denied petitioner's

petition for rehearing on November 4, 1991. The order denying

rehearing is annexed as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on November

18, 1991. See Appendix A. No application has been filed for an

extension of time within which to file this petition. The

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Due Process Clause of the Fifth Amendment:

{[Njor deprived of life, liberty, or property,

without due process of law.

Double Jeopardy Clause of the Fifth Amendment:

{[Njor shall any person be subject for the

same offence to be twice put in jeopardy of

life or limb.

STATEMENT OF THE CASE

The Facts Relevant to Conscious Avoidance

The government’s case against petitioner consisted of proof

that a suitcase containing dresses that she brought into the

United States had cocaine secreted in it. Since the cocaine was

hidden in the sides of the suitcase, the critical issue was

whether petitioner had knowledge of its presence. At trial, the

government argued that petitioner had actual knowledge that the

suitcase contained cocaine, not that she consciously avoided

learning that cocaine was in the suitcase. The government never

offered any evidence that petitioner was promised or received

money for taking the suitcase, or that the cocaine was visible to

anyone making a cursory examination of the suitcase’s contents.

The defense case was that petitioner was an innocent dupe,

who had looked in the suitcase and seen only that it contained

dresses, and that she had accepted the suitcase in accordance

with Ecuadorian custom which dictated that favors of this kind be

done even for a stranger. Petitioner testified that she had

looked hastily at the telephone number and address she had been

given for the person she was supposed to deliver the suitcase to

in New York, which was why she had not noticed that the

information was incomplete. Moreover, when petitioner was

stopped at the airport, she exclaimed "Damn it, wny did I bring

it for this woman. This woman gave it to me in the airport in

Ecuador. ”

Not only was a conscious avoidance instruction not factually

warranted but the charge given improperly created a presumption

of guilt. The charge did not state that before finding conscious

avoidance the jury had to find that petitioner had purposely

avoided leaning the truth about the presence of drugs in the

suitcase. Instead, it stated:

.--{I]}t is not necessary for the government

to prove to an absolute certainty that the

defendant knew that she possessed narcotics.

The defendant’s knowledge may be established

by proof beyond a reasonable doubt that the

defendant was aware...of a high probability

that the suitcase contained narcotics unless,

despite this high probability, the facts show

that the defendant actually believed that the

suitcase did not contain narcotics.

Petitioner argued that the charge was erroneous in that it failed

to iniorm the jury that Feijoo had to have deliberately closed

het éyes to the truth about the contents of the suitcase in order

for the jury to conclude that the government had met its burden

of proving conscious avoidance.

The Facts Relevant to Double Jeopardy

Two trials were held in this case, and petitioner argued on

appeal that the second trial should not have been held because

the first trial was aborted by the judge over the defendant's

(and the government’s) objection and without “manifest necessity”

for a mistrial.

After a two-and-a-half day trial, jury deliberations began

at approximately 12:30 P.M. Thereafter, the jury sent out notes

at 4:05 P.M. and 5 P.M. stating that it did not think it could

reach a decision. However, a 5:45 P.M. note, which was seized

upon by the court to declare a mistrial, stated only that the

jury had not as of that moment reached a unanimous verdict (and

gave no indication that the jury expected or wished to be

discharged).

The first note (at 4:05 P.M.) was immediately followed by a

note requesting that a portion of one government witness’ testi-

mony be re-read, indicating that the jury was hardly at a criti-

cal impasse at that time. The court responded to the second note

by telling the jury that it had not spent enough time deliberat-

ing and suggesting that it might return after the weekend to

resume deliberations. At 5:45 P.M. the jury sent out a note

that it had not reached a decision and that one juror had to

leave for religious observance at 6 P.M. Over both defense and

government opposition,’ the court announced that it would de-

clare a mistrial, and then questioned the jury foreman about

whether further deliberations would be productive (the foreman.

reported that some jurors felt that resuming deliberations after

the weekend might produce a verdict).

The Second Circuit’s Opinion

With respect to conscious avoidance, the Court held that it

was appropriate for the court to give such a charge. The panel

stated that such a charge is appropriate “when the evidence

demonstrates that the circumstances would have alerted a reason-

able person of the unlawful nature of his conduct." Noting that

petitioner acknowledged that she had accepted a suitcase from a

stranger to bring to the United S*ates “without further intelli-

gible instructions” the panel concluded that the conscious

avoidance charge was warranted. The Court did not address

petitioner’s claim that the charge given by the district court

was improperly formulated.

With respect to petitioner’s double jeopardy argument, the

Second Circuit held that the second trial.was not barred on

double jeopardy grounds because the district court’s declaration

of a mistrial came after it had given an Allen charge and after

the jury had announced that it was hopelessly deadlocked.

* The prosecutor stated: “I would [join] in [defense

counsel’s] request that they be asked to come back and try

again, if not *omorrow, then Monday.”

e Be

REASONS FOR GRANTING THE WRIT

POINT I: THE SECOND CIRCUIT’S APPROVAL OF A “CONSCIOUS AVOID-

ANCE” INSTRUCTION AT PETITIONER'S TRIAL

FOR NARCOTICS TRAFFICKING RAISES AN IMPORTANT

QUESTION OF FEDERAL LAW AS TO WHICH THERE IS

A CONFLICT AMONG THE CIRCUITS.

In affirming petitioner’s conviction for drug importation,

the Second Circuit approved of the district court’s “conscious

avoidance” instruction. In doing so, the court reduced the

conscious avoidance standard to, at most, recklessness, vitiating

the statutory requirement that the government prove petitioner

acted knowingly in importing drugs.’ This instruction, as well

as conscious avoidance instructions approved by the Second

Circuit in recent reported decisions, see pp. 12-13, infra, is

inconsistent with the law of other circuits. The Court should

grant this writ to resolve the conflict among the circuits and to

* The statute under which petitioner was convicted, 21

U.S.C. § 960 (a), provides:

"(a) Any person who --

(1) contrary to section 952, 953 or 957

of this title, knowingly or intentionally

imports or exports a controlled substance,

seen

shall be punished as provided in subsection

(b) of this section.”

answer the previously unaddressed question’ of whether a

statutory requirement of knowledge may be satisfied by a showing

of conscious avoidance, and if so what that showing must include.

Introduction

One form or another of « onscious avoidance instruction has

been approved in each of the circuits.* The instruction is meant

to allow the jury to "impose criminal] liability on people who,

recognizing the likelihood of wrongdoing, nonetheless consciously

refuse to take basic investigatory steps." United States v.

Rothrock, 806 F.2d 318, 323 (lst Cir. 1986) (emphasis added). In

perhaps the most widely cited analysis of conscious avoidance,

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

cert. denied, 426 U.S. 951 (1976), the Ninth Circuit concluded

that conscious avoidance requires that the defendant’s ignorance

be “solely and entirely a result of... a conscious purpose to

avoid learning the truth." ld. at 704. This ignorance must

* In two cases this Court has touched on the related

issue of when knowledge can be inferred from circumstances.

Turner v. United States, 396 U.S. 398, 416 n.29 (1970) (adop-

ting proposed Model Penal Code definition of knowledge to

infer defendant's knowledge that heroin he sold was import-

ed); Leary v. United States, 395 U.S. 6, 46 n.93 (1969)

(adopting proposed Model Penal Code definition of knowledge

to negate inference of defendant’s knowledge that marihuana

he possessed was imported).

* The significance of the issue raised by this petition

is reflected in a Westlaw search which shows that since 1970

there have been over one hundred reported circuit court

decisions involving challenges to the application or

formulation of conscious avoidance charges.

— 2

result from "a calculated effort to avoid sanctions of the

statute while violating its substance." Ibid. See also United

tates v. Pacific Hid Fur Depot, Inc., 768 F.2d 1096, 1098

(9th Cir. 1985) (the government must "present evidence that the

defendant purposely contrived to avoid learning all of the facts

in order to have a defense in the event of subsequent

prosecution"). A finding of conscious avoidance is appropriate

only where "it can almost be said that the defendant actually

knew." United States v. Jewell, 532 F.2d at 704 (quoting G.

Williams, Criminal Law: The General Part, §57 at 159 (2d ed.

1961)).

The Instruction Given was Factually Unwarranted and

Improperly Formulated

In this case, a conscious avoidance charge was neither

factually warranted nor properly formulated. The government did

not argue its case on a conscious avoidance theory, nor did it

produce evidence that petitioner consciously refused to learn the

facts regarding the cocaine contained in the suitcase, a prereq-

uisite for a conscious avoidance charge. Contrary to the panel’‘s

conclusion, that petitioner accepted the suitcase from a stranger

“without further intelligible instructions" may evidence care-

lessness, but does not show that petitioner deliberately sought

to avoid knowing that there were drugs in the suitcase.

Moreover, the district court’s instruction made no reference

to the requirement that the jury find petitioner had purposely

avoided knowing about the cocaine. The Second Circuit’s approval

of the instruction without this requirement drastically diminish-

es the showing the government is required to make to prove

conscious avoidance. In so doing, it violates petitioner's

constitutional right to have the government carry the burden of

proving beyond a reasonable doubt that she knowingly transported

narcotics. In re Winship, 397 U.S. 358, 364 (1970).

Having approved a conscious avoidance charge that equated

knowledge with recklessness, the panel went even further, and

approved the giving of a conscious avoidance charge whenever

“evidence demonstrates that the circumstances would have alerted

a reasonable person of the unlawful nature of his conduct." By

approving the instruction when the evidence points only to

negligence, the Second Circuit invites the jury to convict not on

a finding of knowledge or even recklessness, both of which

require awareness by the defendant, but on a finding “that the

defendant should have known his conduct was illegal." United

States v. Garzon, 688 F.2d 607, 609 (9th Cir. 1982) (emphasis in

original). Yet "true ignorance, no matter how unreasonable,

cannot provide a basis for criminal liability when the statute

requires knowledge." United States v. Jewell, 532 F.2d at 707

(9th Cir. 1976) (Kennedy, J., dissenting). For this reason, a

conviction based on conscious avoidance requires that “the

defendant had subjective knowledge of his criminal behavior,"

i.e., that his “ignorance of an operant fact was deliberate."

‘

United States v. de Francisco-Lopez, 939 F.2d 1405, 1409-10 (10th

Cir. 1991) (emphasis added). To hold otherwise, as the Second

Circuit panel did in this case, in effect creates "a presumption

of guilt." United States v. Murrieta-Bejarano, 552 F.2d 1323,

1325 (9th Cir. 1977).

The Conflict Among the Circuits

The Second Circuit’s recent holdings on the content and the

circumstances justifying a conscious avoidance instruction

conflict with the law of other circuits.

In accordance with this Court’s holdings in Leary and Turner

(see n.4), each circuit has incorporated into its definition of

conscious avoidance the Model Penal Code definition of knowledge

-- that knowledge of a fact is established "if a person is aware

of a high probability of its existence, unless he actually

believes that it does not exist."® Except for the Second Cir-

cuit, whose most recent pronouncements have omitted this require-

° Model Penal Code, §2.02(7) (Official Draft and Revised

Comments 1985). See, e.g., United States v. Picciandra, 788

F.2d 39 (lst Cir.), cert. denied, 479 U.S. 847 (1986); United

States v. Lanza, 790 F.2d 1015 (2d Cir. 1986); United States

v. Caminos, 770 F.2d 361 (3d Cir. 1985); United States v.

Martin, 773 F.2d 579 (4th Cir. 1985); United States v. Res-

trepo-Granda, 575 F.2d 524 (Sth Cir.), cert. denied, 439 U.S.

935 (1978); U.S. v. Thomas, 484 F.2d 909 (6th Cir.), cert.

denied, 414 U.S. 912 (1973); United States v. Moser, 509 F.2d

1089 (7th Cir. 1975); United States v. Cooperative Grain and

Supply Co., 476 F.2d 47 (8th Cir. 1973); United States v.

Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426

U.S. 951 (1976); Griego v. United States, 298 F.2d 845 (10th

Cir. 1962); United States v. Rivera, 944 F.2d 1563 (llth Cir.

1991).

e 109 «

ment, all the circuits have added to this two-part definition a

third component: that the defendant acted deliberately, willfully

or purposefully to avoid learning the truth. It is this third

element that sets conscious avoidance apart from reckless disre-

gard for the truth.

The Second Circuit’s recent decisions on conscious avoidance

have rejected the deliberateness test outlined in Jewell and in

its own prior decisions.® Thus, in United States v. Feroz, 848

F.2d 359, 360 (2d Cir. 1988), the Second Circuit approved a

conscious avoidance instruction consisting only of the Model

Penal Code definition of knowledge: "knowledge of the existence

of a particular fact is established (1) if a person is aware of a

high probability of its existence, (2) unless he actually be-

lieves that it does not exist." See also United States v. Mang

Sun Wong, 884 F.2d 1537, 1541 (2d Cir. 1989), cert. denied, 493

U.S. 1082 (1990).

The Second Circuit’s approva!’ of the instruction without the

®* The Second Circuit has on prior occasions adopted some

form of the Jewell deliberateness test for conscious avoid-

ance. See, e.g., United States v. Guzman, 754 F.2d 482, 488

(2d Cir. 1985) (conscious avoidance requires finding that

defendant “deliberately refused to learn the specific

facts"); United States v. Aulet, 618 F.2d 182, 191 (2d Cir.

1980) (conscious avoidance charge must include reference to

“purposeful avoidance of the truth”). The Aulet - Guzman

deliberateness requirement has been overruled sub-silentio by

the Second Circuit’s decisions in United States v. Feroz, 848

F.2d 359, 360 (2d Cir. 1988) and United States v. Mang Sun

Wong, 884 F.2d 1537, 1541 (2d Cir. 1989), cert. denied, 493

U.S. 1082 (1990).

» £28 «

Jewell deliberateness test sets it apart from other circuits.

See, e.g., United States v. Picciandra, 788 F.2d 39, 46 (lst Cir.

1986) (conscious avoidance charge appropriate only where “the

facts suggest a conscious course of deliberate ignorance");

United States v. Caminos, 770 F.2d 361 (3d Cir. 1985) (approving

conscious avoidance charge requiring jury to find that "defendant

deliberately closed his eyes to what otherwise would have been

obvious to him"); United States v. Martin, 773 F.2d 579, 584 (4th

Cir. 1985) (approving conscious avoidance instruction requiring

finding of "conscious purpose" and “deliberate closing of the

eyes"); United States v. Chen, 913 F.2d 183, 190-91 (5th Cir.

1990) (conscious avoidance occurs “only where it can almost be

said that the defendant actually knew"); United States v. Gul-

lett, 713 F.2d 1203, 1212 (6th Cir. 1983), cert. denied, 464 U.S.

1069 (1984) (conscious avoidance instruction designed to prevent

defendant "from escaping conviction merely by deliberately

closing his eyes” to the truth); United States v. Nazon, 940 F.2d

255, 258 (7th Cir. 1991) (approving conscious avoidance instruc-

?

tion requiring finding that defendant “shut his eyes for fear of

what he would learn"); United States v. Bussey, 942 F.2d 1241,

1246 (8th Cir. 1991) (conscious avoidance occurs only where

defendant had “a conscious purpose to avoid enlightenment”);

United States v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987),

cert. denied, 487 U. S. 1222 (1988) (instruction warranted only

where defendant purposely “contrived to avoid learning all of the

~—

facts in order to have a defense in the event of a subsequent

prosecution"); United States v. de Francisco-Lopez, 939 F.2d at

1409 (10th Cir., 1991) (defendant’s acts to avoid truth must be

“deliberate and not equivocal"); United States v. Rivera, 944

F.2d 1563, 1571 (llth Cir. 1991) (defendant must have “purposely

contrived" to avoid learning the truth); United States v. Jack,

890 F.2d 1250 (D.C. Cir. 1989) (conscious avoidance instruction

warranted only where defendant “deliberately failed to investi-

gate the matter in order to remain ignorant of the truth").

Not only does the Second Circuit not require that a con-

scious avoidance charge incorporate the notion that the defendant

deliberately and purposefully shut her eyes to the truth, but the

Second Circuit’s approach conflicts in another way with that of

the Fifth, Ninth, Seventh and Eleventh Circuits. These Circuits

require the presence of facts indicating deliberate ignorance

before a conscious avoidance charge may be given. United States

v. Batencort, 592 F.2d 916, 918 (5th Cir. 1979); United States v.

Lennartz, 948 F.2d 363, 368-69 (7th Cir. 1991); United States v.

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

v. Rivera, 944 F.2d 1563 (llth Cir. 1991). The Second Circuit,

however, requires merely that the “surrounding circumstances” be

such that “reasonable persons could have concluded that the

circumstances alone should have apprised defendant[] of.the

unlawful nature of [her] conduct." United States v. Mang Sun

Wong, 884 F.2d at 1541. Indeed, the Second Circuit has acknowl-

o £86

edged that it and the Ninth Circuit, at least, “arguably have

different views concerning use of the ‘conscious avoidance’

charge." Mang Sun Wong, 884 F.2d at 1542 n.5. In Mang Sun Wong,

the Second Circuit contrasted its view with United States v.

Alvarado, 838 F.2d at 314, in which the Ninth Circuit observed

that “cases in which the facts point to deliberate ignorance are

relatively rare.”

The Instruction Encroached on the Legislature's Domain

Moreover, the charge approved by the Second Circuit imper-

missibly encroached on the domain of the legislature. See

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

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 93, 95-96 (1820).

By focusing exclusively on petitioner’s alleged awareness that

there was a “high probability” that the suitcase contained

narcotics, the approved instruction reduced the conscious avoid-

ance standard to one of at most recklessness: it required the

jury to find only that petitioner was aware of a high probability

that the suitcase contained drugs, and that she recklessly

transported the suitcase without investigating further. Yet

recklessness is a distinctly lower standard for the government to

meet than the statutory requirement of knowledge. In approving

the conscious avoidance instruction used here, the Second Circuit

has run afoul of the “spirit of the doctrine which denies to the

federal judiciary power to create crimes,” which also admonishes

the courts not to “enlarge the reach of enacted crimes by consti-

e 84

tuting them from anything less than the incriminating components

contemplated by the words used in the statute.” Morissette v.

United States, 342 U.S. at 263. See also Robbins, “The Ostrich

Instruction: Deliberate Ignorance as a Criminal Mens Rea," 81 J.

Crim. L. & Criminology 191, 231-234 (1990).

. * .

The Second Circuit has relaxed the standard of conscious

avoidance, intended as a “strictly limited exception” to the

requirement of actual knowledge, Jewell, 532 F.2d at 700, to one

of recklessness or even mere negligence. In this case it ap-

proved a conscious avoidance instruction that was neither factu-

ally warranted nor properly formulated. This error was compound-

ed by the panel’s statement that the faulty instruction is

appropriate whenever “evidence demonstrates that the circumstanc-

es would have alerted a reasonable person of the unlawful nature

of his conduct.” The panel’s approach greatly reduces the

government’s burden to prove knowledge beyond a reasonable doubt

and encroaches on the prerogatives of the legislature. This

Court, which has not previously addressed conscious avoidance,

should grant this writ to settle an important and frequently

litigated question of federal law and to resolve the conflict

between the Second and other circuits.

eo

POINT Il: DOUBLE JEOPARDY LAW BARRED PETITIONER'S

SECOND TRIAL, SINCE THERE WAS NO “MANIFEST

NECESSITY” FOR THE MISTRIAL DECLARATION.

Certiorari should also be granted because the Second Cir-

cuit’s denial of petitioner’s double jeopardy claim conflicts

with applicable decisions of this Court.

If a trial court declares a mistrial without the defendant's

consent, a retrial is barred on Double Jeopardy grounds unless

there was “manifest necessity” for the mistrial. United States

v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). In deciding

whether to declare a mistrial, a trial judge cannot slight a

defendant’s “valued right to have his trial completed by a

particular tribunal,” Wade v. Hunter, 336 U.S. 684 (1949); ina

close case, doubts about whether a mistrial was properly granted

are to be resolved in favor of barring retrial. Downum v. United

States, 372 U.S. 734, 738 (1963).

A “genuinely deadlocked” jury may be discharged without

implicating the Double Jeopardy clause, Arizona v. Washington,

434 U.S. 497, 509 (1978), and a trial judge’s decision to declare

a mistrial when he considers the jury deadlocked is properly

accorded deference by a reviewing court. Ibid. Deference is

accorded because the trial court is believed to be in the best

position to weigh all the factors that must be considered in

making the determination whether the jury will be able to reach a

just verdict if it continues to deliberate. Id., n. 28.

On the other hand "[{i]}f the record reveals that the trial

» 86 eo

judge has failed to exercise the ‘sound discretion’ entrusted to

him, the reason for such deference by an appellate court disap-

pears.” Ibid. In Arizona v. Washington, 434 U.S. at 509, this

Court explained the dangers being guarded against:

On the one hand, if [the trial judge] dis-

charges the jury when further deliberations

may produce a fair verdict, the defendant is

deprived of his “valued right to have his

trial completed by a particular tribunal.”

But if he fails to discharge a jury which is

unable to reach a verdict after protracted

and exhausting deliberations, there exists a

significant risk that a verdict may result

from pressures inherent in the situation

rather than the considered judgment of all

the jurors.

In United States v. Jorn, 400 U.S. 470, 487 (1971), the plurality

opinion declared that the trial judge had abused his discretion

in discharging the jury: the court had acted precipitately, not

giving due consideration to the possibility of alternatives to a

mistrial, such as a continuance. In short, the trial court had

made no effort to “exercise a sound discretion to assure that,

taking all the circumstances into account, there was a manifest

necessity for the sua sponte declaration of this mistrial.”

In petitioner’s case, the absence of jury deadlock is

evidenced by the fact that, after the 5:45 p.m. note, both the

government and the defense requested that the jury be permitted

to continue its deliberations. See Arizona v. Washington, 434 -

U.S. at 505 (prosecutor must “shoulder the burden of justifying

the mistrial...[{and]) demonstrate ‘manifest necessity’ for any

- 17 «

mistrial declared over the objection of the defendant”). Al-

though the panel opinion stated that there were three statements

by the jury that it was “hopelessly deadlocked,” that is a

misstatement of the record. See p. 6-7, supra.

In seizing upon a jury note after only a few hours of

deliberation as a springboard for declaration of a mistrial, the

district court acted without the requisite sound basis for

concluding that the jury was “hopelessly deadlocked” and thereby

violated petitioner’s “valuable right to have [her] trial com-

pleted by a particular tribunal.” Arizona v. Washington, 434

U.S. at 503. Certiorari should accordingly be granted because

the Second Circuit has decided the question of whether the Double

Jeopardy clause barred petitioner’s retrial in a way that con-

flicts with applicable decisions of this Court.

CONCLUS ION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Dated: New York, New York

January 17, 1992

Respectfully submitted,

MARJORIE M. SMITH

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES UNIT

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Attorney for Petitioner.

oe Me

RKW

89-—cr-795

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the twenty seventh day of September ’

one thousand nine hundred and ninety one

Present:

Honorable J. Edward Lumbard,

Honorable Ralph K. Winter,

Honorable Frank X. Altimari,

UNITED STATES OF AMERICA,

Appellee,

Vv * ORDER

# 91-1233

ANA LENOR FEIJOO-TOMALA,

Defendant -Appellant.

Appeal from the United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District of

New York, and was argued.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged,

and decreed that the judgment of said District Court be and it

hereby is affirmed.

Docket No. 91-1233

Page 2 of 7

Ana Lenora Feijoo-Tomala appeals from her conviction by a

jury before Judge Bartels. Appellant argues that the district

court abused its discretion by declaring a mistrial because of a

hung jury at her first trial and that her second trial was thus

barred on double jeopardy grounds.

We reject this claim. A trial judge may declare a mistrial

in a criminal case without the consent of the defendant if he or

she finds a “manifest necessity" to do so. United States yv.

Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). A grant of a mistrial

is entitled to the "highest degree of respect" and is not to be

disturbed absent an abuse of discretion. Arizons v. Washington,

434 U.S. 497, 511 (1978); Hameed v. Jones, 750 F.2d 154, 161 (2d

Cir. 1984).

A trial judge's belief that a jury is deadlocked is "the most

common form of ‘manifest necessity'” justifying a mistrial.

Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (hung jury the prime

example of sentdest necessity); Arizona v. Washington, 434 U.S.

497 (1978). Although Judge Bartels declared a mistrial after the

jury had deliberated only three and one-half urs, a finding of

manifest necessity is not a mechanical determination subject to

mathematical limits. United States v. Klein, 582 F.2d 186, 193

(24 Cir. 1978). A judge may properly take other factors into

account along with the length of deliberation, such as complexity

of the issues involved. See Arnold v. McCarthy, 566 F.2d 1377,

Docket No. 91-1233

Page 3 of 7

1387 (9th Cir. 1978) (citations omitted). Where the issues are

complex, an announcement of irreconcilable differences after brief

deliberations may suggest that a jury has not fully analyzed the

matter. Where the issues are simple and clear-cut, brief

deliberations may reveal well-considered differences that cannot

be resolved. Moreover, a jury's statement that it is unable to

come to a verdict is the most crucial factor to be considered.

United States v. Lorenzo, 570 F.2d 294, 299 (9th Cir. 1978). In

the instant case, the court did not abuse its discretion in

declaring a mistrial after giving an Allen charge twice and after

the jury had announced three times that it was hopelessly

deadlocked on what the court determined to be a rather simple

criminal case. The second trial was thus not’ barred on double

jeopardy grounds.

Appellant also claims that she was prevented from receiving a

fair second trial because of the court's alleged bias against the

defense and its interference with defense counsel's presentation.

We disagree. We have consistently recognized that it is a trial

court's responsibility to insure that evidence is presented to the

jury in an understandable manner, and the court's role is "not

restricted to that of a mere umpire or referee." United States v.

Mazzilli, 848 F.2d 384 (2a Cir. 1988) (citing United States v.

DiTommaso, 817 F.2d 201, 221 (2d Cir. 1987)). A new trial is thus

warranted only when the judge's conduct denied the defendant a

Docket No. 91-1233

Page 4 of 7

fair trial. DiTomasso, 817 F.2d at 220. The evidentiary rulings

cited by appellant and alleged limiting of defense questioning

were well within the bounds of judicial discretion and did not

deprive appellant of a fair trial.

Additionally, Feijoo-Tomala claims that the court erroneously

disallowed defense expert testimony on Ecuadorian travel

practices. We will overturn a decision regarding admittance of

expert testimony only when the court's decision was “manifestly

erroneous." United States v. Brown, 776 F.2d 397, 400 (2d Cir.

1985); United States v. Campino, 890 F.2d 588, 593 (2d Cir. 1989),

cert. denied, 111 S. Ct. 179 (1990). Neo such error occ:rred in

this case.

Appellant's defense to the narcotics trafficking offense was

that she unwittingly carried narcotics for a citizen of Ecuador

who approached her at the airport and asked her to deliver the

suitcase to a friend in the United States. Feijoo-Tomala sought

to call an expert to testify that it was common for Ecuadorians to

carry packages for each other to foreign countries, but the trial

judge disallowed the testimony. This was not error. See United

States v. Navarro-Varelas, 541 F.2d 1331, 1333-34 (9th Cir. 1976)

(no abuse of discretion to exclude expert testimony that the

practice of hiding —-_ in secret compartments in the luggage

of unsuspecting travelers was a common scheme of drug smugglers),

cert. denied, 429 U.S. 1045 (1977). We agree with the district

Docket No. 91-1233

Page 5 of 7

court that it is not clear what the testimony would have added

other than to bolster marginally Feijoo-Tomala's testimony

regarding her professed ignorance of the narcotics stash, if that.

Appellant's view of the facts was that, at the airport in Ecuador

and on her way back to the United States, she was approached by a

complete stranger and agreed to deliver the suitcase for the

stranger to a person in the United States. Feijoo-Tomala did not

know this person and had only a purported address scribbled on a

piece of paper that included no town. Appellant did not inquire

as to how or where to deliver the suitcase, and the stranger

disappeared moments after handing over the suitcase. Even as

proffered, the expert testimony did not support that story. In

sum, the district court's judgment that no expert was needed to

explain the "cultural context" of Feijoo-Tomala's conduct at the

Ecuadorian airport was not "manifestly erroneous."

Finally, Feijoo-Tomala faults the district court's jury

instructions on two grounds. First, she contends that the

instructions concerning credibility created the risk that the jury

would use a "prejudicial standard" in evaluating her testimony.

We disagree. In United States v. Matias, we made clear that a

court's instruction regarding a defendant's credibility is

"balanced" by using language which conveys the basic message that

a defendant's testimony should be judged no differently than that

of any other witness. United States v. Matias, 836 F.2d 744, 750

Docket No. 91-1233

Page 6 of 7

(2d Cir. 1988) (citations omitted). In the instant case, the

district court repeatedly used such balanced language in its

instructions regarding both the appellant's testimony and that of

law enforcement officials. Therefore, the credibility instruction

could not have prejudiced the jury.

Second, appellant contends that the district court

erroneously instructed the jury on her conscious avoidance,

pointing to the fact that the government offered no proof that

Feijoo-Tomala purposely avoided learning of the hidden cocaine.

The purpose of a conscious avoidance charge is to allow the jury

"to impose criminal liability on people whe, recognizing the

likelihood of wrongdoing, nonetheless consciously refuse to take

basic investigatory steps." United States v. Rothrock, 806 F.2d

318, 323 (1st Cir. 1986). Such a charge is appropriate when the

evidence demonstrates that the circumstances would have alerted a

reasonable person of the unlawful nature of his conduct. United

States v. Mang Sum Wong, 884 F.2d 1537, 1541 (2d Cir. 1989)

(quoting United States v. Guzman, 754 F.2d 482, 489 (2d Cir.

1985), cert. denied, 474 U.S. 1054 (1986)), cert. denied, 110 S.

ct. 1140 (1990).

Given appellant's view of the facts that included accepting a

suitcase from a stranger to be brought to the United States

without further intelligible instructions, the district court was

more than justified in concluding that the conscious avoidance

, rca THe

: SECOND CIRCUIT

tins

. At a stated Term of the United States Court of Appeals for the Second

Circuit, held at the United States Courthouse in the City of New York, on the

Docket No. 91-1233

day of October

Page 7 of 7 Ath

one thousand nine hundred and ninety one.

charge was warranted. :

9 Presest: Hon. J. EDWARD LUMBARD

Affirmed. RALPH K. WINTER

FRANK X. ALTIMARI

( Hon. J. Edward Lumbard, U.S.C.J.

Circuit Judges,

UNITED STATES OF AMERICA,

WHSDA APPELLEE,

Hon. Ralph K. Winter, U.S.C.J. ¥

ANA LENOR FEIJOO TOMALA, } Docket No. 91-1233

DEFENDANT-APPELLANT.

2 Ti. CK

——=-

Hon. Frank X. Altimari, U.S.C.J.

4

A petition for a rehearing having been filed herein by

Appellant, Ana Lenor Feijoo-Tomala.

N.B. THIS SUMMARY ORDER WILL NOT BE Upon consideration thereof, it is

LISH IN R

AND SHOULD NOT BE CITED OR OTHERWISE Ordered that said petition be and it hereby is DENIED.

RELIED UPON IN UNRELATED CASES BEFO

THIS OR ANY OTHER COURT. YS ae 2

' /

< ° -

ha j lL 4 |

Spi Uke }

laine B. Goldg$mith,

Clerk

\

GEO 966-786

BEST AVAILABLE COPY