532 F.2d 697 (9th Cir. 1976)
Appellant Jewell entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat.1
Jewell testified that he did not know the marijuana was present.2 Circumstantial evidence indicated that Jewell had positive knowledge of the presence of the marihuana.3 There was also evidence that although Jewell knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery.4
Jewell had sold his car for $100 to obtain funds to have a good time.5 He then rented a car for about $100, and he and a friend drove the rented car to Mexico.6 A stranger identified as Ray offered to pay them $100 to drive a car back to Los Angeles.7 Jewell accepted the offer.8 He checked the glove box, under the front seat, and in the trunk but did not investigate the secret compartment further.9
The trial court instructed the jury that the government could prove the knowledge element by showing that if the defendant was not actually aware that there was marijuana in the vehicle, his ignorance was solely and entirely a result of his having made a conscious purpose to avoid learning the truth.10 Jewell requested but was denied an instruction requiring a finding that he knew he was in possession of marihuana.11 The jury convicted Jewell on two counts under 21 U.S.C. §§ 952(a) and 841(a)(1).12
The Ninth Circuit took the case en banc to address the proper interpretation of the knowledge requirement and related issues from prior precedent in United States v. Davis.13
Whether the opinion in United States v. Davis correctly characterized possession of a controlled substance prohibited by 21 U.S.C. § 841(a)(1) as a general intent crime?14
The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent to manufacture, distribute, or dispense.15
No. The characterization in Davis is incorrect because the required mental state demands more than a mere intent to perform the prohibited act.16 The jury in this case received an instruction reflecting knowledge of the nature of the act together with specific intent to distribute, and that instruction aligns with the statutory text.17
The facts show Jewell was charged under provisions requiring knowing importation and knowing possession with intent to distribute.18 Evidence established he knew of the secret compartment and surrounding circumstances yet chose not to confirm the presence of marijuana.19 These facts trigger the specific knowledge and intent elements rather than a general intent standard.20
The opinion in Davis did not correctly characterize possession under section 841(a)(1) as a general intent crime.21
Whether the term knowingly in 21 U.S.C. §§ 841 and 960 requires proof of positive knowledge that a controlled substance is involved as an element of each offense?22
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.23
No. The term knowingly encompasses awareness of a high probability that a controlled substance is present and does not demand positive knowledge in every case.24 The Model Penal Code definition adopted by the Supreme Court in Turner and Leary supplies the governing standard.25
Jewell knew of the secret compartment and had facts indicating it contained marijuana yet deliberately avoided confirmation.26 Under the established definition, this state of mind satisfies the knowledge element even without positive knowledge of the precise contents.27
The term knowingly does not require proof of positive knowledge that a controlled substance is involved.28
Whether it was reversible error to instruct the jury that the defendant could be convicted if, lacking positive knowledge that a controlled substance was concealed in the automobile, his ignorance resulted solely from a conscious purpose on his part to avoid learning the truth?29
A deliberate ignorance instruction is proper when the government proves beyond a reasonable doubt that the defendant's ignorance resulted solely from a conscious purpose to avoid learning the truth. This is consistent with the Model Penal Code definition of knowledge.30
No. The instruction accurately captured the deliberate ignorance doctrine and did not constitute reversible error.31 The trial court correctly rejected Jewell's proposed instruction that would have required absolute positive knowledge.32
The evidence permitted the jury to find either actual knowledge or deliberate avoidance.33 The instruction required the government to prove the ignorance was solely and entirely the product of conscious avoidance, thereby satisfying the statutory knowledge element without relieving the government of its burden.34
It was not reversible error to give the conscious purpose instruction.35
Related opinions on this issue
Judge Kennedy dissented on the ground that the instruction was defective because it omitted the Model Penal Code requirements of awareness of a high probability and the actual belief exception.36 He noted that the instruction permitted conviction on an objective theory or on mere ignorance rather than defining knowledge itself.37
Kennedy further concluded that defense counsel's objections were sufficient to preserve the error and that the evidence, while adequate for a properly instructed jury, did not render the error harmless.38 He emphasized that the instruction allowed conviction without being certain beyond a reasonable doubt that Jewell possessed the required mens rea for knowing possession or importation.39