Petition for Writ of Certiorari — Duran Badilla v. United States

| Supreme Court, U.S.

/ FILED

No.__ 4-762 DEC 2 7 2004

en

IN THE

SUPREME COURT OF THE UNITED STATES

SERGIO DURAN BADILLA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

John D. Kaufmann

Attorney At Law

Suite 905 Transamerica Bldg.

177 N. Church Avenue

Tucson, Arizona 85701

(520) 623-2016 Fax (520) 623-8715

Arizona State Bar No. 004156

Pima County Computer No. 30436

IN THE

SUPREME COURT OF THE UNITED STATES

SERGIO DURAN BADILLA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

John D. Kaufmann

Attorney At Law

Suite 905 Transamerica Bldg.

177 N. Church Avenue

Tucson, Arizona 85701

(520) 623-2016 Fax (520) 623-8715

Arizona State Bar No. 004156

Pima County Computer No. 30436

saat. i

1. WHETHER THE FIFTH AND SIXTH AMENDMENT’S

GUARANTEE OF DUE PROCESS, FAIR TRIAL AND JURY

TRIAL IS VIOLATED BY A PERMISSIVE INFERENCE

INSTRUCTION CONCERNING THE SOLE ISSUE BEFORE THE

TRIER OF FACT

Questions Presented For Review

2. WHETHER THE TENTH CIRCUITS REFUSAL TO APPLY

BLAKELY v. WASHINGTON VIOLATES MR. BADILLA’S 6™

AMENDMENT RIGHT TO TRIAL BY JURY

In this case, the Tenth Circuit affirmed a permissive inference

jury instruction concerning the sole issue (of knowledge) in dispute

and affirmed the imposition of a sentence enhancement (obstructing

justice) by refusing to apply Blakley v. Washington, 124 S.Ct.

2251(2004) to Federal Susann Guidelines on Appeal. The

permissive instruction violates the Fifth Amendments Due Process

Right to fair trial, the Sixth Amendment Right to fair trial and jury

determination, and Article III’s implementation of the Court’s

supervisory powers over lesser courts to insure fair trial. As to the

sentencing issue, the Sixth Amendment requires application of Blakely

to Federal Sentencing Guidelines under a plain error review.

ii

TABLE OF CONTENTS

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REASONS FOR GRANTING THE PETITION-WRIT.......... 5

1. Conflict with Ninth Circuit — Permissive Inference

instruction, Not Permitted

2. Conflict with Fifth Circuit — Inference Not Permitted

3. Conflict with Third Circuit — Inference Not Permitted

4. Conflict with the Ninth Circuit: Blakely plain error

ARGUMENT FOR ALLOWANCE OF WRIT... .............. 7

1. The Fifth and Sixth Amendments’ guarantee

of due process, fair trial and jury trial is

violated by a permissive inference instruction

concerning the sole issue before the trier of

3. The Tenth Circuits refusal to apply Blakely v.

Washington violates Mr. Badilla’s

Amendment right to trial by jury.................... 10

iii

CONCLUSION . ... 22. cece cece eee e cece e eee e eee eeeees

RELATED CASES ...... 2 ccc cccccccccccccccccccccccccees 12

CERTIFICATE OF MAILING — PROOF OF SERVICE .......-- 13

iv

TABLE OF AUTHORITIES

CASES PAGE

Apprendi v. New Jersey,

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Blakely v. Washington, :

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In re: Winship,

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Ring v. Arizona,

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Robert Acosta-Meza v. United States

SUF FI SO Cs BD 8 6 ses ndccdesibsasonananl 12

Sandstrom v. Montana,

GES ULE. SHAS OD vc cen nnneceuccdsanwaseesereseweus 7

Ulster County v. Allen,

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United States v. Ameline,

No. 02-30326(9" Cir. Filed July 21, 2004)............ 6, 10

United States v. Cota-Meza

367 F.3d 1218(10" Ce. BOO 0 ccdeddiciece Wiessner 4

United States v. Cotton,

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United States v. Diaz-Carreon

915 F.2d 951(5" PPPS er rrr a 5

978 F.2d 92(3” Cir. 1992)

United States v. Ortega-Reyna,

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United States v. Sergio Duran Badilla,

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RULES

Rules 13(3), Rules of the Supreme Court of the United States... .. . .2

Rule 2% 4), Rules of the Supreme Court of the United States ..... .. 2

APPENDIX

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IN THE

SUPREME COURT OF THE UNITED STATES

SERGIO DURAN BADILLA,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The published order, judgment and decision of the Tenth

Circuit Court of Appeals in v

CA#03-2183 was filed on August 12, 2004 and is attached hereto as

Appendix A.

Statement of Jurisdiction

This Court has jurisdiction pursuant to 28 U.S.C. §1254(1) and

§210(c), to review the Judgment, Decree and Order of the Tenth

Circuit Court of Appeals issued in this case on August 12, 2004. This

Petition for Writ of Certiorari is mailed within 90 days of August 12,

2004; is timely filed; and is served pursuant to Rules 13(3) and 29(4),

Rules of the Supreme Court of the United States.

Constitutional Provisions

1) Fifth Amendment to the United States Constitution provides in

relevant part:

No person shall be deprived of life, liberty or property without

due process of law;

2) Sixth Amendment to the United States Constitution provides in

relevant part:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury;

3) Article [Il, United States Constitution, §1, provides:

The Judicial power of the United States shall be vested in one

Supreme Court, and in such inferior Courts as the Congress may from

time to time ordain and establish.

Statement of the Case

A) Facts

Mr. Badilla was indicted and convicted for knowingly and

intentionally possessing more than 100 kilograms of marijuana with

intent to distribute in violation of 21 U.S.C. §841(a\(1) and (b\(1)\(B)

_ a

and 18 U.S.C. §2. Mr. Badilla exercised his right to jury trial; he took

the stand in his own defense and testified under oath that he had no

knowledge of the 217 kilograms of marijuana, wrapped in 37

individual bundles and found in a hidden compartment which ran the

length of his truck bed.

Mr. Badilla was the sole occupant of a pickup truck. The

pickup truck was stopped at a Border Patrol Checkpoint near Truth or

Consequences, New Mexico. After a K-9 alerted at a secondary

checkpoint, a search was conducted and the marijuana discovered in

the hidden compartment. The only issue (contested by Mr. Badilla at

his trial) was whether or not he knew the marijuana was located in the

secret compartment of his vehicle.

Over Mr. Badilla’s objection, the Trial Court gave the

following instruction:

With respect to the question of whether

or not the Defendant knew that a

controlled substant was present, you

may-but are not required to-infer that the

driver and sole occupant of the vehicle

has knowledge of the controlled

substance within it.

In addition to the above instruction, the Court gave several

more inference instructions including:

1. When knowledge of the existence of

a particular fact is an element of the

offense, such knowledge is

established if a person is aware of the

high probability of its existence,

unless he actually believes that it

does not exist.

2. Knowledge can be inferred if the

3

Defendant deliberately blinded

himself to the existence of a fact that

otherwise would have been obvious

to him. '

At sentencing, the District Court Judge added an enhancement

of two levels pursuant to U.S.S.G. §3C1.1. The Trial Court found Mr.

Badilla willfully impeded or obstructed justice by denying his

knowledge under oath at his trial and before the jury.

Although Mr. Badilla objected to the enhancement, he did not

raise the issue recently resolved by this Court in Blakely v.

Washington, 124 S.Ct. 2531(2004). Mr. Badilla’s case was fully

briefed by March 2004; argued in the first week of May, 2004 and

decided approximately seven weeks after this Court’s decision in

Blakely. By Motion, Mr. Badilla requested the Tenth Circuit consider

this Court’s decision in Blakely; apply Blakely to United States

Sentencing Guidelines; and vacate the enhancement. Since Mr.

Badilla had not raised the Blakely issue at the District Court, the

Circuit Court declined to reverse Mr. Badilla’s sentence under plain

error review. This matter was resolved in a footnote. See Appendix

one.

B) Related Case

Mr. Badilla notes the existence of a second case, United States

v. Cota-Meza, 367 F.3d 1218(10" Cir. 2004), before this Court on

Petition for Writ of Certiorari from the Tenth Circuit on the same

issue. In both decisions, the Tenth Circuit with two different panels

sitting, noted that the permissive instruction in question was not a

model of clarity and that the Court (Tenth Circuit) would not have

chosen to so instruct a jury. The Tenth Circuit notes that permissive

inference instructions have been roundly criticized for wrongfully

influencing a jury. However, in both cases, the Tenth Circuit stated

that “a permissive instruction is valid if there is a rational connection

1 Mr. Badilla only objected to the italicized instruction. Supra. All

instructions can be found in Appendix two.

4

between the fact that the prosecution proved and the ultimate fact

presumed, and the latter is more likely than not to flow from the

former”. Both cases permit the Trial judge to make the threshold

decision concerning “more likely than not”. Both cases see no

constitutional impediment to the giving of the ‘nstruction citing Ulster

County v. Allen, 442 U.S. 140(1979). The Tenth Circuit declined to

use its supervisory powers to exclude the permissive inference

instruction in cases where the inference goes to the only issue before

the trier of fact.

Reasons for Granting the Petition-Writ

1. Conflict with Ninth Circuit — Permissive Inference

Instruction, Not Permitted

The Ninth Circuit has considered, rejected and determined that

the permissive inference instruction given in this case is reversible

error. United States v. Rubio-Villareal, 967 F.2d 294(9" Cir. 1992).

After raising Fifth and Sixth Amendment issues, the Ninth Circuit

based its decision upon the exercise of its supervisory authority. There

is a direct conflict with the Tenth Circuit.

2. Conflict with Fifth Circuit — Inference Not Permitted

In direct conflict with the Tenth Circuit, the Fifth Circuit holds

knowledge of a controlled substance (present in a vehicle) may not be

inferred from exclusive control over the vehicle if the substance is

located in a hidden compartment. United States v. Diaz-Carreon, 915 _

F.2d 951(5" Cir. 1990), United States v. Ortega-Reyna, 148 F.3d

540(5" Cir. 1998). See also, United States v. Anchondo-Sandoval, 910

F.2d 1234(5" Cir. 1990). The circuit has determined that the threshold

question of “more likely than not”, is a jury question that should be

resolved without judicial interference.

3. Conflict with Third Circuit — Inference Not Permitted

The Circuit holds that constructive possession of a vehicle

5

containing contraband, standing alone, is not sufficient to prove guilt

knowledze and constructive possession. United States v. lafelice, 978

F.2d 92(3™ Cir. 1992).

4. Conflict with the Ninth Circuit: Blakely plain error

In United States v. Ameline, No. 02-30326(9" Cir. Filed July

21, 2004) the Ninth Circuit determined that a Blakely error was plain

error, affecting substantial rights and prejudicing the Defendant.

Consideration for the first time under appeal for plain error is proper.

Ameline is in direct conflict with Badilla.

Argument for Allowance of Writ

1. THE FIFTH AND SIXTH AMENDMENTS’ GUARANTEE

OF DUE PROCESS, FAIR TRIAL AND JURY TRIAL IS

VIOLATED BY A PERMISSIVE INFERENCE INSTRUCTION

CONCERNING THE SOLE ISSUE BEFORE THE TRIER OF

FACT

An important question of constitutional law concerning

permissive inference instructions (first addressed in Ulster County y.

Allen, supra) has not been settled. In Ulster County, this Court held

that permissive instructions do not implicate the due process clause as

defined by the Fourteenth Amendment. The Court has not considered

whether permissive inferential instructions violate either the Fifth

Amendment right to due process and fair trial, the Sixth Amendment

right to fair trial and jury trial, or whether the Courts supervisory role

requires reconsideration and clarification of its Ulster County holding.

A string of recent Supreme Court cases including Apprendi v.

New Jersey, 530 U.S. 466(2000); Ring v. Arizona, 536 U.S. 584(2002);

and Blakely v. Washington, supra, have recently identified this Court’s

desire to protect jury determination of all issues concerning guilt and

punishment. The permissive inference instruction interferes with jury

determination.

The only reason to give the inferential instruction on

knowledge in Mr. Badilla’s case was to assist the government in

proving the sole element in dispute. The instruction permits the judge

to tell a jury what it can infer. The judge tells the jury that it can not

ignore the Court’s instructions on law. This Court has continuously

held that the government must prove every element of an offense and

any type of instruction violates due process if it reduces the

government’s burden. Jn re: Winship, 397 U.S. 358(1970); Sandstrom

v. Montana, 442 U.S. 510(1979); Ulster County v. Allen, supra. A

permissive inference is designed to reduce the governments burden

and violates due process right to fair trial as guaranteed vy the Fifth

and Sixth Amendment.

In Ulster County v. Allen, this Court upheld permissive

inferences under the due process clause of the Fourteenth Amendment

as long as it can be said with substantial assurance that the inferred fact

is more likely than not to flow from an approved fact on which it is

made to depend. In Ulster the Supreme Court gave no direction as to

how to determine whether an inferred fact is more likely than not to

flow from an approved fact. This Court permitted trial judges to

become gate keepers concerning “more likely than not”. The Court

went on to say that some presumptive inferences may still constitute a

‘violation of the Fourteenth due process clause and prohibition against

judicial comment if it has the effect of shifting the burden of proof to

the Defendant in any manner.

The gate keeper function interferes with a jury’s exclusive right

to weigh facts. Traditionally the “gate keeper function” of a trial court

was limited to the existence of facts. Trial Courts were asked to

determine if facts exist that would support a prosecution or defense.

Once. the Courts make that decision, it is up to the jury to weigh facts

against a burden of proof standard. When the Court weighs facts in

criminal cases, it violates Sixth Amendment right of jury

determination. Weighing is not the function of a neutral judicial

officer when a jury has been impaneled.

This Court must review how its ruling in Ulster is being

applied. The twenty five years that have passed since Ulster. During

this time, Federal Courts have been reticent to give permissive

inference instructions. Petitioner can find no other circuit that

approves the permissive inference instruction given in this case and

grudgingly approved by the Tenth Circuit. While the Tenth Circuit

applies Ulster County broadly, all other circuits seek to narrow its

application raising both 5" and 6" Amendment objections.

The danger of a permissive inference highlights 5" and 6"

amendment issues. The instruction focuses the jury on one fact (sole

possession of a motor vehicle) rather than the totality of evidence. In a

one issue case, it gives undue judicial emphasis to a particular piece of

8

evidence. It permits a trial judge and not a jury to determine that an

inferred fact is more likely than not to flow from a proven fact. It

violates the defendant’s Sixth Amendment Right to fair trial and trial

by an impartial jury.

In Mr. Badilla’s case, the jury was told by a judge that they

may, but were not required to, infer that the driver and sole occupant

of the vehicle had knowledge of the controlled substance within it.

The instruction permits a judge to comment on how to apply the law.

To say the jury is not required by the instruction to infer, begs the issue

of now a jury reacts to judicial instructions that they are ordered

generically to follow. The instruction reduces the government’s

burden of proof. The sole intent of the instruction is to reduce and

assist the government in its burden of proof. It allows for the

government to rely upon the instruction to prove its case. It reduces

jury fact finding.

Petitioner is requesting this Court reevaluate its Fifth

Amendment Due Process constraints concerning fair trial and judicial

comment. The Defendant requests the Court apply the Sixth

Amendment prohibition on judicial comment and guarantee fair trial

and jury trial to prohibit permissive instructions where it concerns the

sole issue in a case. Finally Petitioner requests the Court exercise the

Court’s supervisory authority and reject these types of permissive

inferences in cases that constitute judicial comment on evidence

concerning sole issues of fact before the jury.

2. THE TENTH CIRCUITS REFUSAL TO APPLY BLAKELY v.

WASHINGTON VIOLATES MR. BADILLA’S 67

AMENDMENT RIGHT TO TRIAL BY JURY

The Tenth Circuit refused to apply Blakely v. Washington to

Badilla’s enhancement for obstructing justice, claiming plain error

review precluded relief. The Tenth Circuit found a Blakely Sixth

Amendment violation is not plain error. The Ninth Circuit on the

other hand, determined in Ameline, supra, that a Blakely error is plain

error requiring review by an appellate court. In Ameline, the

Defendant’s failure to object to his sentence on the grounds that the

Sentencing Guidelines or procedures used to determine material

sentencing facts were unconstitutional under Apprendi or on the

grounds that material sentencing facts were not alleged in the

Indictment, submitted to the jury or proved beyond a reasonable doubt,

did not prohibit judicial review.

Both the Ninth and Tenth Circuit measured plain error against

the standard enunciated in United States _v. Cotton, 535 US.

625(2002). Of the four prongs discussed in Cotton, the Ninth and

Tenth Circuits disputed whether the error seriously affected the

fairness, integrity or public reputation of judicial proceedings. The

resolution of that dispute is found in the Blakely decision itself where

this Court indicated the fairness dictated jury determination of

sentencing disputes beyond a reasonable doubt and not by

preponderance of evidence evaluations used by a District Court Judge.

10

Conclusion

For these reasons, Petitioner Sergio Duran Badilla respectfully

requests this Court grant his Petition for Writ of Certiorari.

RESPECTFULLY SUBMITTED this“) day of

November, 2004.

OK fang

John D. Kaufmann [ ri

Attorney for Petitioner

11

I hereby certify, that to Appellant’s knowledge, the only case

related to the above-captioned case is Robert Acosta-Meza v. United

States, 367 F3d 1218(10™ Cir. 2004) on Petition for Writ of Cert to the

United States Court of Appeals from the Tenth Circuit.

Dated this Fs 4 day of November,

2004.

Mew

John D. Kaufmann

Attorney for Petitioner

STATEMENT OF RELATED CASES

12

CERTIFICATE OF SERVICE

I, JOHN D. KAUFMANN, attorney for Petitioner, declares

under penalty of perjury that the following is true and correct:

That in accordance with Rule 29.2,

Supreme Court Rules, he has property

deposited in a Federal Express facility,

the original and forty (40) copies of

Petitioner’s Petition For Writ Of

Certiorari to be forwarded to the

Clerk of the Supreme Court of the

United States of America within the

period prescribed in Rule 13.1,

Supreme Court Rules;

That in accordance with Rule 29.5,

Supreme Court Rules, three (3) copies

of this Petition For Writ of

Certiorari have this |“ day of

November, 2004, been mailed via

United States Postal Service mail, first

class postage prepaid to United States

Attorney’s Office, Norman Cairns, PO

Box 607, Albuquerque, NM 87103;

Three (3) copies via United States

Postal Service mail, first class postage

prepaid to the Honorable Paul

Clement, Solicitor General, U.S.

Department of Justice, 950

Pennsylvania Avenue, N.W., Room

5614, Washington D.C. 20530;

One (1) copy via United States

Postal Service mail, first class postage

13

——$—$—$—

aaa enema

prepaid to Sergio Badilla, #23111,

FCI-Tucson, 901 S. Wilmot Road,

Tucson, Arizona 85706, Petitioner.

ohn D. Kaufmann J

Attorney for Petitioner

State Bar Number 004156

APPENDIX 1 — Opinion of Tenth Circuit Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, __)

Plaintiff-A ppellee, No. 03-2183

v. :

SERGIO DURAN BADILLA, )

Defendant-Appellant.

ORDER

Filed September 8, 2004

Before SEYMOUR, HOLLOWAY and MURPHY, Circuit Judges.

On the court’s own motion, the previously filed order and judgment

of August 12, 2004, shall be published. A copy of the published opinion is

attached.

Entered for the Court

PATRICK FISHER, Clerk of Court

Deputy Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, __ )

Plaintiff-Appellee, No. 03-2183

v. )

SERGIO DURAN BADILLA,

Defendant-Appellant.

Appeal from the United States District Court

For the District of New Mexico

(D.C. No. CR-02-1791-MV)

John D. Kaufmann, Attorney at Law, Tucson, Arizona, for Defendant-

Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias,

United States Attorney, Norman Cairns, Assistant United States Attorney, on

the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

L. INTRODUCTION

Defendant-appellant Sergio Duran Badilla was indicted for

knowingly and intentionally possessing more than one hundred kilograms of

marijuana with intent to distribute in violation of 21 U.S.C. §841(aX1) and

(bX(1)(B) and 18 U.S.C. §2. Badilla was found guilty after a jury trial. He

was sentenced to seventy-eight months’ imprisonment and four years’

supervised release.

Badilla appeals both his conviction and sentence. Exercising

jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C. §3742(a), this court

affirms Badilla’s conviction and sentence.

Il. BACKGROUND

Badilla was stopped at a permanent Border Patrol checkpoint in New

Mexico. The checkpoint was approximately ninety-eight air miles from the

New Mexico-Mexico border. Badilla was the sole occupant of a pick-up

truck. Border patrol agent Pedro Antonio Reyes asked Badilla if he was the

owner of the pick-up truck. Badilla responded that he was. Reyes noticed

that the bed of Badilla’s track was unusually high and had been modified.

Testimony at trial showed that the truck was unusually high and had been

modified. Testimony at trial showed that the truck’s bed and cab were lifted

by approximately five inches, and that it was possible to tell that a lift kit had

been installed by looking at the truck from the side. Badilla told Reyes that

he had “not done anything to the truck.”

c

Reyes asked for Badilla’s consent to inspect the truck with his canine.

Badilla said, “Sure, go ahead.” The canine immediately alerted to the bed of

the truck. Reyes looked under the bed of the truck to where the canine had

alerted. Reyes noticed that the ed had been modified. Another agent lifted

the bed liner and Reyes detected the odor of marijuana emanating from the

truck’s bed. Reyes found two hundred and seventeen kilograms of marijuana,

wrapped in thirty-seven individual bundles, in a hidden compartment which

ran along the length of the truck bed. The street value of the marijuana

ranged from $119,515 to $310,739. Badilla had $1016 in cash when he was

arrested.

Badilla moved to suppress the marijuana. The district court denied

the motion. At trial, Badilla testified, under oath, that he did not know the

marijuana was in the truck until he “was told [by the Border Patrol Agent],

after the dog.”

The district court instructed the jury as follows: “[w]ith respect to the

question of whether or not a defendant knew that the controlled substance was

present, you may — but are not required to — infer that the driver and sole

occupant of a vehicle has knowledge of the controlled substance with it.”

(hereafter “Jury Instruction 8(f)”).

Badilla objected to the Jury Instruction 8(f), arguing that it singled

out one portion of the evidence and shifted the burden to him. The district

court overruled that objection. The court also instructed the jury that: (1) it

d

must consider the jury instruction as a whole; (2) it should not assume that

anything the judge said during trial expressed his opinion concerning the

issues in the case; (3) it must arrive at its own fact findings; (4) it must

consider all of the evidence; and (5) the government had the burden of

proving Badilla’s guilt beyond a reasonable doubt.

Over Badilla’s objection, the district court adopted the Pre-Sentence

Report’s (“PSR”) conclusion that Badilla lied on the stand when he testified

that he did not know about the marijuana until he “was told, after the dog.”

The district court reasoned that “[y]ou just don’t trust somebody with two

hundred and seventeen kilograms of marijuana unless they’ re a trusted

individual.” As a consequence, the district court imposed a two-level increase

to Badilla’s base offense level for obstruction of justice pursuant to United

States Sentencing Commission Guidelines Manual (“U.S.S.G.”) §3C1.1.

It. DISCUSSION

A. Permissive Inference Jury Instruction

This court reviews a district court’s decision to give a particular jury

instruction for an abuse of discretion and considers the instructions as a whole

de novo to determine whether they accurately informed the jury of the

governing law. United States v. Cota-Meza, 367 F.3d 1218, 1221 (10° Cir.

2004). On review, this court merely determines whether the jury was misled

by the instructions and whether it had an understanding of the issues and its

duty to resolve those issues. Jd.

This court must first decide whether the presumption in Jury

Instruction 8(f) is permissive or mandatory. Jd. Jury Instruction 8(f) is

permissive because it makes clear that the jury may infer Badilla’s knowledge

of the marijuana from his sole possession of the vehicle. Jd. It further states

that the jury is not required to infer knowledge, thus leaving the jury

discretion to determine the ultimate fact of guilt beyond a reasonable doubt

independent of the interference. Id.

The district court did not abuse its discretion in giving Jury

Instruction 8(f). A permissive inference instruction is valid if there is a

rational connection between the fact that the prosecution proved and the

ultimate fact presumed, and that latter is more likely than not to flow from the

former. Jd. at 1221-22. We judge that likelihood not in the abstract but as

applied to the specific case in which the instruction was given. Jd. at 1222.

The totality of the evidence in this case supports an inference that Badilla

knew of the marijuana’s presence in the vehicle. Badilla owned the truck.

The marijuana had an estimated street value of at least $1 19,515, making it

unlikely that the owner of the marijuana would allow it to be stored and

transported in a vehicle which is owned and driven by someone who had no

knowledge of its presence. The five-inch lift of the truck’s cab and bed was

visible from outside the vehicle, making the hidden compartment readily ;

discoverable by Badilla. The large volume and weight of the marijuana

further supports the inference that Badilla knew of its presence within his

f

vehicle. Ou these facts, the inference of Badilla’s knowledge of the hidden

drugs is more likely than not to flow from the undisputed fact of his sole

possession of the truck. Moreover, the instruction is consistent with Tenth

Circuit precedent which allows the jury to infer that the driver of a vehicle has

knowledge of contraband in the vehicle. Jd. (citing United States v. Levario,

877 F.2d 1483, 1485-86 (10" Cir. 1989), overruled on other grounds by

Gozlon-Peretz v. United States, 498 U.S. 395(1991)).

Jury Instruction 8(f) did not dilute the standard requiring proof

beyond a reasonable doubt for conviction because, as demonstrated above, the

jury could rationally make the connection permitted by the inference under

the facts of this case. See County Court of Ulster County v. Allen, 442 US.

140, 157(1979) (holding that a permissive inference instruction “affects the

application of the beyond a reasonable doubt standard only if, under the facts

of the case, there is no rational way the trier [of fact] could make the

connection permitted by the inference”). Likewise, the instruction did not

impermissibly shift the burden of proof to Badilla.

A de novo review of the jury instructions as a whole shows that they

accurately informed the jury of the governing law. The jury was instructed to

Consider the instructions as a whole. The other instruction clearly stated that

the government had the burden of proving Badilla guilty beyond a reasonable

doubt. The jury was instructed to consider all the evidence admitted at trial.

The court charged that the jury should not assume that anything it said during

§

the trial expressed its opinion concerning any of the issues in the case. In this

context, Jury Instruction 8(f) does not undermine the jury’s ability to

deliberate, does not prevent the jury from considering all evidence in the case,

does not dilute the government’s burden of proving guilt beyond a reasonable

doubt, and does not shift the burden of proof to Badilla. See Cota-Meza, 367

F.3d at 1222.

Nevertheless, this court cautions, as it did in United States v. Cota-

Meza, that permissive inference jury instructions run the risk of “encouraging

the jury to convict on the basis of one damning fact without considering all of

the other evidence.” Jd. As noted above, however, the other instructions

largely dispelled any possibility of misunderstanding. Therefore, the district

court’s decision to use Jury Instruction 8(f) does not constitute an abuse of

discretion in this case. Moreover, assuming, without deciding, that this Court

has the authority to reverse Badilla’s conviction on the basis of our

supervisory power, we choose not to do so because Badilla’s trial preceded

this court’s opinion in Cota-Meza.

B. Denial of Motion to Suppress

In reviewing the denial of a motion to suppress, this court looks at the

evidence in a light most favorable to the government. United States v.

Patten, 183 F.3d 1190, 1193 (10" Cir. 1999). The ultimate determination of

reasonableness under the Fourth Amendment is reviewed de novo. Id.

Badilla argues that the marijuana should have been suppressed

because it was obtained in violation of his Fourth Amendment rights. Badilla

grounds this argument on the theory that he was unlawfully stopped at the

Border Patrol checkpoint, and that the officers had no reasonable suspicion or

probable cause to stop him otherwise. This argument is unavailing.

Badilla’s Fourth Amendment rights were not violated by the stop at

the Border Patrol checkpoint. Border Patrol agents can briefly detain vehicles

in the absence of any individualized suspicion at reasonably located

permanent checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543,

545, 562(1976). This court has held that a Border Patrol checkpoint located

within one-hundred miles from the border is at a reasonable distance

therefrom. United States v. Anderson, 468 F.2d 1280, 1282(10" Cir. 1972);'

* Badilla requests that this court revisit its decision in United States v.

Anderson, 468 F.2d 1280(10" Cir. 1972). Badilla argues that Anderson’s

holding that one hundred air miles is a reasonable distance is

“uncoristitutional. . . . [because i]n the United States, approximately 80% of

the population. . . live[s] within” one-hundred air miles from the borders. Our

holding in Anderson, however, is consistent with the Code of Federal

Regulations. See 8 C.F.R. §287.1(a\(2).

Moreover, the Supreme Court in Martinez-Fuerte noted that the

Code of Federal Regulations in force4 at the time authori 2d Border Patrol

agents to inspect vehicles for aliens within one-hundred air miles of the

border. 428 U.S. 543, 553 n.8(1976). The Martinez-Fuerte Court was not

troubled by the reasonableness of the one-hundred air mile distance

enumerated in the applicable regulation. Jd. On the contrary, the Court

specifically mentioned that “(t]he choice of checkpoint locations must be left

largely to the discretion of Border Patrol officials, to be exercised in

accordance with statutes and regulations that may be applicable.” Id. at 559

n.13. Therefore, we find Badilla’s argument unavailing and decline the

invitation to reconsider Anderson.

1

see also 8 C.F.R. §287.1(a(2). Badilla was stopped at a checkpoint ninety-

eight air miles from the border, which is within a reasonable distance.

Therefore, the stop at the Border Patrol checkpoint was constitutional.

Once stopped, Badilla voluntarily consented to the canine sniff. A

canine alert gives rise to probable cause to search a vehicle. United States v.

Rosborough, 366 F.3d 1145, 1152(10" Cir. 2004). Reyes’ canine alerted to

the truck’s bed. This provided probable cause for the subsequent search of

the bed. /d. Thus, the marijuana was not obtained in violation of Badilla’s

Fourth Amendment rights. The district court did not err in denying his

motion to suppress.

C. Sentencing Increase for Obstruction of Justice

This court reviews the district court’s interpretations of the

sentencing guidelines de novo and its factual findings for clear error. United

States v. Hawthorne, 316 F.3d 1140, 1145(10" Cir. 2003). A factual finding

is not clearly erroneous unless it has no basis in the record. United States v.

Martin, 163 F.3d 1212, 1217(10" Cir. 1998).

The district court did not err in applying a two-level increase to

Badilla’s base offense level for obstruction of justice.’ A district court can

? On July 30, 2004, Badilla file a Motion for Post-Submission

Consideration challenging the constitutionality of the two-level increase to his

sentence. Badilla argues that the Supreme Court’s recent decision in Blakely

v. Washington, 124 S.Ct. 2531(2004), requires that the enhancement to his

sentence be found beyond a reasonable doubt by a jury. Because Badilla ever

constitutionally enhance a defendant’s sentence pursuant to U.S.S.G. §3C1.1

if, upon reviewing the evidence, it makes independent findings that establish a

willful impediment or obstruction to justice. United States v. Dunnigan, 507

U.S. 87, 95(1993). A willful impediment or obstruction to justice occurs

when the defendant gives false testimony under oath concerning a material

matter with the willful intent to provide false testimony, rather than as a result

of confusion, mistake or faulty memory. /d. at 94. A district court’s findings

regarding the obstruction of justice adjustment must encompass all of the

factual predicates of perjury. Hawthorne, 316 F.3d at 1146. This circuit

requires that the perjurious statement be identified, at least in substance. Jd.

The findings suffice if the elements of perjury are generally identified, ina

line of questions and answers, such that this court is r~_ {-«ced to simply

raised this issue before the district court, this court reviews it only for plain

error. See United States v. Cotton, 535 U.S. 625, 629, 631(2002). oa

We conclude that Badilla’s argument is unavailing. This court will

correct an error not raised before the district court only if: (1) there is an error,

(2) that is plain; (3) that affects substantial rights; and (4) that seriously affects

the fairness, integrity, or public reputation of judicial proceedings. Jd. at 631.

Even assuming that there was an error that was plain, Badilla has failed to

satisfy the fourth factor of the plain error analysis. The evidence that Badilla

lied on the stand was overwhelming. To find Badilla guilty, the jury had to

find that Badilla knew of the marijuana’s presence in the vehicle before he

“was told, after the dog.” To reach this conclusion, the jury had to discredit

Badilla’s testimony to the contrary and therefore necessarily found that he

lied on the stand. Under these circumstances, Badilla has failed to show that

the error seriously affected the fairness, integrity, or public reputation of the

judicial proceedings. See id. at 633. Therefore, we decline to reverse

Badilla’s sentence under plain error review.

k

speculate on what the district court might have believed was the prejurious

testimony. See id.

| The district court made the requisite fact findings. At sentencing

hearing, the government argued that: “defendant’s testimony. . . when he was

asked: ‘When was the first time you realized there was marijuana-in the truck

you were driving?’ And his answer was: ‘When I was told, after the dog.’. . .

this was false and [] it was material becouse it went to the cosential element of

knowledge, and it did not come as a result of confusion or mistake.” The

district court replied “I agree with you.” The government’s argument

encompasses each of the three elements of willful impediment or obstruction

to justice. It specifically identifies the perjurious statement. The district

court’s response clearly adopts the government’s argument as its factual

findings. Although it would have been advisable for the district court to

enumerate the fact findings itself, we hold that, in this context, the court’s

adoption of the government’s argument suffices.

The district court’s finding that Badilla willfully committed perjury is

supported by the record. Badilla’s sole possession of a visibly modified truck

containing marijuana of such high value, volume and weight supports the

inference that he knew of the marijuana’s presence in his vehicle before he

“was told, after the dog.” Therefore, the district court’s finding that Badilla

willfully gave false testimony under oath is not clearly erroneous. The false

testimony concerned the material issue of Badilla’s knowledge of the

l

marijuana’s presence in his truck. Under these circumstances, the district

court did not err in applying a two-level increase to Badilla’s offense level

pursuant to §3C1.1.

IV. CONCLUSION

For the foregoing reasons, this court AFFIRMS Badilla’s conviction

and sentence.

APPENDIX 2 — Jury Instructions

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

)

)

) No. 02-1791 JC

\ )

)

)

)

)

SERGIO DURAN BADILLA,

Defendant

COURT'S PROPOSED JURY INSTRUCTIONS

MEMBERS OF THE JURY:

You may now begin your deliberations.

Time:

Date. >

SENIOR UNITED STATES DISTRICT JUDGE

INSTRUCTION NO. 2

You, as jurors, are the judges of the facts. But in determining what

actually happened — that is, in reaching your decision as to the facts — it is

your sworn duty to follow all of the rules of law as I explain them to you.

And you must follow all of my instructions as a whole. You have no

right to disregard or give special attention to any one instruction, or to

question the wisdom or correctness of any rule I may state to you. You must

not substitute or follow your own notion or opinion as to what the law is or

ought to be. It is your duty to apply the law as I explain it to you, regardless

of the consequences.

It is also your duty to base your verdict solely upon the evidence,

without prejudice or sympathy. That was the promise you made and the oath

you took before being accepted by the parties as jurors, and they have the

right to expect nothing less.

INSTRUCTION NO. 3

The indictment or formal charge against a Defendant is not evidence

of guilt. Indeed, the Defendant is presumed by the law to be innocent. The

law does not require a Defendant to prove his innocence or produce any

evidence at all. The Government has the burden of proving the Defendant

guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the

Defendant.

While the Government’s burden of proof is a strict or heavy burden,

it is not necessary that the Defendant’s guilt be proved beyond all possible

doubt. It is only required that the Government’s proof exclude any

“reasonable doubt” concerning the Defendant’s guilt.

A “reasonable doubt” is a doubt based upon reason and common

sense after careful and impartial consideration of all the evidence in the case.

Proof beyond a reasonable doubt, therefore, is proof of such a convincing

character that you would be willing to rely and act upon it without hesitation

in the most important of your own affairs. If you are convinced that the

accused has been proved guilty beyond a reasonable doubt, say so. If you are

not convinced, say so.

INSTRUCTION NO. 4

As | told you earlier, it is your duty to determine the facts. In doing

so, you must consider only the evidence presented during the trial, including

the sworn testimony of the witnesses and the exhibits. Remember that any

statements, objections or arguments made by the lawyers are not evidence.

The function of the lawyers is to point out those things that are most

significant or most helpful to their side of the case, and in so doing to call

your attention to certain facts or inferences that might otherwise escape your

notice. In the final analysis, however, it is your own recollection and

interpretation of the evidence that controls in the case. What the lawyers say

is not binding upon you.

// :

During the trial, I sustained objections to certain questions. You

must disregard those questions entirely. Do not speculate as to what the

witness would have said if permitted to answer the question. Your verdict

must be based solely on the legally admissible evidence and testimony.

Also, do not assume from anything I may have done or said during

the trial that I have any opinion concerning any of the issues in this case.

Except for the instructions to you on the law, you should disregard anything I

may have said during the trial in arriving at your own findings as to the facts.

INSTRUCTION NO. 5

While you should consider only the evidence, you are permitted to

draw such reasonable inferences from the testimony and exhibits as you feel

are justified in the light of common experience. In other words, you may

make deductions and reach conclusions that reason and common sense lead

you to draw from the facts which have been established by the evidence.

You should not be concerned about whether the evidence is direct or

circumstantial. “Direct evidence” is the testimony of one who asserts actual

knowledge of a fact, such as an eye witness. “Circumstantial evidence” is

proof of a chain of facts and circumstances indicating that something is or is

not a fact. The law makes no distinction between the weight you may give to

either direct or circumstantial evidence. It requires only that you weigh all of

the evidence and be convinced of the Defendant’s guilty beyond a reasonable

doubt before the Defendant can be convicted.

INSTRUCTION NO. 6

I remind you that it is your job to decide whether the Government has

proved the guilty of the Defendant beyond a reasonable doubt. In doing so,

you must consider all of the evidence. This does not mean, however, that you

must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or “believability” of each

witness and the weight to be given to the witness’s testimony. An important

part of your job will be making judgments about the testimony of the

witnesses, including the Defendant, who testified in this case. You should

decide whether you believe what each person had to say, and how important

that testimony was. In making that decision, I suggest that you ask yourself a

few questions: Did the person impress you as honest? Did the witness have

any particular reason not to tell the truth? Did the witness have a personal

interest in the outcome of the case? Did the witness have any relationship

with either the Government or the defense? Did the witness seem to have a

good memory? Did the witness have the opportunity and ability to

understand the questions clearly and answer them directly? Did the witness’s

testimony differ from the testimony of the other witnesses? These are a few

of the considerations that will help you determine the accuracy of what each

witness said.

|

The testimony of the Defendant should be weighed and his credibility

evaluated in the same way as that of any other witness.

Your job is to think of the testimony of each witness you have heard

and decide how much you believe of what each witness had to say. In

making up your mind and reaching a verdict, do not make any decisions

simply because there were more witnesses on one side than the other. Do not

reach a conclusion no a particular point just because there were more

witnesses testifying for one side on that point. Your job is to think about the

testimony of each witness you have heard and decide how much you believe

of what each witness had to say.

INSTRUCTION NO. /

The testimony of a witness may be discredited by showing that the

witness testified falsely concerning a material matter, or by evidence that at

some other time the witness said or did something, or failed to say or do

something, which is inconsistent with the testimony the witness gave at this

trial.

Earlier statements of a witness were not admitted in evidence to

prove that the contents of those statements are true. You may consider the

earlier statements only to determine whether you think they are consistent or

inconsistent with the trial testimony of the witness and therefore whether they

affect the credibility of that witness.

If you believe that a witness has been discredited in this manner, it is

your exclusive right to give the testimony of that witness whatever weight

you think it deserves.

INSTRUCTION NO. 7A

During the trial, you heard the testimony of experts who have

expressed certain opinions. If scientific, technical or other specialized

knowledge might assist the jury in understanding the evidence or in

determining a fact in issue, a witness qualified by knowledge, skill,

experience, training, or education may testify and state an opinion concerning

such matters.

Merely because such a witness has expressed-an opinion does not

mean, however, that you must accept this opinion. You should judge such

testimony like any other testimony. You may accept it or reject it, and give it

as much weight as you think it deserves, considering the witness’s education

and experience, that soundness of the reasons given for the opinion, and all

other evidence in the case.

INSTRUCTION NO. 8

You are here to decide whether the Government has proved beyond a

reasonable doubt that the Defendant is guilty of the crime charged. The

Defendant is no ton trial for any act, conduct, or offense not alleged in the

Indictment. Neither are you concerned with the guilty of any other person or

persons not on trial as a Defendant in this case.

u

INSTRUCTION NO. 8A

The defendant is on trial before you upon an indictment brought by

the Grand Jury charging as follows:

On or about the 1° day of July, 2002 in Sierra County, in the State

and District of New Mexico, the defendant, SERGIO DURAN BADILLA,

did unlawfully, knowingly and intentionally possess with intent to distribute

100 kilograms and more of Marijuana, a Schedule I controlled substance.

In violation of 21 U.S.C. §841(a(1) and 21 U.S.C. §841(b)(1)(B) and

18 U.S.C. §2.

First: That the offense of possession with intent to distribute

marijuana was committed by some person;

Second. That the defendant associated with the criminal venture;

Third: That the Defendant purposefully participated in the criminal

venture; and

Fourth. That the defendant sought by action to make that venture

successful.

“To associate with the criminal venture” means that the defendant

shared the criminal intent of the principal. This element cannot be established

if the defendant had no knowledge of the principal’s criminal venture.

“To arene in the criminal venture” means that the defendant

engaged in some affirmative conduct designed to aid the venture or assisted

the principal of the crime. :

INSTRUCTION NO. 8B

You will note that the indictment charges that the offense was

committed “on or about” a specified date. The Government does not have to

prove that the crime was committed on that exact date, so long as the

Government proves beyond a reasonable doubt that the crime was committed

on a date reasonably near the date stated in the indictment.

INSTRUCTION NO. 8C

Title 21, United States — Section 841(a), makes it a crime for

anyone knowingly or intentionally to possess a controlled substance with the

intent to distribute it.

Marijuana is a controlled substance within the meaning of this law.

For you to find the defendant guilty of this crime, you must be

convinced that the government has proved each of the following beyond a

reasonable doubt:

First. That the defendant knowingly possessed a controlled

substance,

Second: That the controlled substance was in fact marijuana;

Third: That the defendant possessed the substance with the intent to

distribute it, and

Fourth: That the quantity of the substance was at least 100

kilograms.

To “possess with intent to distribute” simply means to possess with

intent to deliver or transfer possession of a controlled substance to another

person, with or without any financial interest in the transaction. -

INSTRUCTION NO. 8D

Possession, as that term is used in this case, may be of two kinds:

actual possession and constructive possession. A person who knowingly has

direct physical control over a thing, at a given time, is then in actual

possession of it.

A person who, although not in actual possession, knowingly has both

the power and the intention, ata given time, to exercise dominion or control

over a thing, either directly or through another person or persons, is then in

constructive possession of it.

Possession may be sole or joint. If one person alone has actual or

constructive possession of a thing, possession is sole. If two or more persons

share actual or constructive possession of a thing, possession is joint.

You may find that the element of possession, as that term is used in

these instructions, is present if you find beyond a reasonable doubt that the

defendant had actual or constructive possession, either alone or jointly with

others.

INSTRUCTION NO. 8E

The guilt of a defendant in a criminal case may be established

without proof that the defendant personally did every act constituting the

offense alleged. The law recognizes that, ordinarily, anything a person can do

for himself may also be accomplished by him through the direction of another

person as his or her agent, or by acting in concert with, or under the direction

of, another person or persons in a joint effort or enterprise.

If another person is acting under the direction of the defendant or if

the defendant joins another person and performs acts with the intent to

commit a crime, then the law holds the defendant responsible for the acts and

conduct of such other persons just as though the defendant had committed the

acts or engaged in such conduct.

Before any defendant may be held criminally responsible for the acts

of others it is necessary that the accused deliberately associate himself in

some way with the crime and participate in it with the intent to bring about

the crime.

Of course, mere presence at the scene of a crime and knowledge that

a crime is being committed are not sufficient to establish that a defendant

either directed or aided and abetted the crime unless you find beyond a

reasonable doubt that the defendant was a participant and not merely a

knowing spectator.

In other words, you may not find any defendant guilty unless you

find beyond a reasonable doubt that every element of the offense as defined in

these instructions was committed by some person or persons, and that the

defendant voluntarily participated in its commission with the intent to violate

the law. |

For you to find the defendant guilty of this crime, you must be

convinced that the government has proved each of the following beyond a

reasonable doubt:

INSTRUCTION NO. 8F

With respect to the question of whether or not a defendant knew that

the controlled substance was present, you may — but are not required to — infer

that the driver and sole occupant of a vehicle has knowledge of the controlled

substance within it.

INSTRUCTION NO. 8G

With respect to the question of whether or not a defendant intended

to distribute any controlled substance, you are instructed that the quantity of

the controlled substance allegedly possessed by a defendant, if proved, may

be considered by the jury in the light of all of the other evidence in the case in

determining whether or not a defendant intended to distribute any such

substance. Whether or not evidence of a particular quantity of substance

shows an intent to distribute the same, and the significance to be attached to

any such evidence, are matters exclusively within the province of the jury.

Zz

INSTRUCTION NO. 8H

The word “knowingly” as that term has been used from time to time

in these instructions, means that the act was done voluntarily and

intentionally.

When knowledge of the existence of a particular fact is an element of

an offense, such knowledge is established if a person is aware of a high

probability of its existence, unless he actually believes that it does not exist.

While knowledge no the part of the defendant cannot be established merely

by demonstrating that the defendant recklessly disregarded the truth, or that

the defendant was negligent, careless, or foolish, knowledge can be inferred if

the defendant deliberately blinded himself to the existence of a fact tat

otherwise would have been obvious to him. Stated another way, if a person

with a lurking suspicion goes on as before and avoids further knowledge, this

may support an inference that he has deduced the truth and is simply trying to

avoid giving the appearance of knowledge in order to have a defense in the

event of a subsequent prosecution.

INSTRUCTION NO. 81

If the Defendant is found guilty, it will be my duty to decide what the

punishment will be. You should not be concerned with punishment in any

way. It should not enter your consideration or discussion.

INSTRUCTION N°. 9

To reach a verdict, whether it is guilty, all of you must agree. Your

verdict must be unanimous. Your deliberations will be secret. You will never

have to explain your verdict to anyone.

It is your duty to consult with one another and to deliberate in an

effort to reach agreement if you can do so. Each of you must decide the case

for yourself, but only after an impartial consideration of the evidence with

your fellow jurors. During your deliberations, do not hesitate to reexamine

your Own opinions and change your mind if convinced that you were wrong.

But do not give up you honest beliefs as to the weight or effect of the

evidence solely because of the opinion of your fellow jurors, or for the mere

purpose of returning a verdict.

Remember at all times, you are judges - - judges of the facts. Your

duty is to decide whether the Government has proved the Defendant guilty

beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is

select one of your number as your foreperson, who will help to guide your

deliberations and will speak for you here in the courtroom.

A form of verdict has been prepared for your convenience.

The foreperson will write the unanimous answer of the jury in the

space provided, either guilty or not guilty. At the conclusion of your

deliberations, the foreperson must date and sign the verdict.

bb

If you need to communicate with me during your deliberations, the

foreperson must write the message and give it to the marshal. I will either

reply in writing or bring you back into the court to answer your message.

Bear in mind that you are never to reveal to any person, not even the

court, how the jury stands, numerically or otherwise until after you have

reached a unanimous verdict.