United States v. Azubike

United States Court of Appeals
For the First Circuit

No. 08-1493

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKLIN AZUBIKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

James H. Budreau for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief
for appellee.

April 29, 2009
 LYNCH, Chief Judge. After this court vacated a prior

conviction and remanded for a new trial, Franklin Azubike was again

convicted for conspiring to distribute heroin and possessing heroin

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),

846. This court had vacated his prior 2006 conviction and had

remanded to the district court, finding that although there was

sufficient evidence to uphold the jury's verdict, prosecutorial

error required a new trial. United States v. Azubike (Azubike I),

504 F.3d 30, 31 (1st Cir. 2007). He appeals from his 2008

conviction; this time, we affirm.

I.

The background for this case is detailed in our previous

opinion. See Azubike I, 504 F.3d at 32-34. We briefly recount the

facts essential to this appeal.

The story begins with a briefcase filled with heroin.

The briefcase had been sent by FedEx to Richard Mukasa, a Malden

resident, from Solomon Lui, a Sudanese businessman living in

Uganda. Solomon had set up a sham courier service for the purpose

of importing heroin into the United States. Mukasa had been told

by Solomon that he would receive packages containing African arts

and crafts, intended for Sudanese refugees in the country; the

refugees' relatives would pick up the packages and pay Mukasa a

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small fee. Mukasa was not aware of the true nature of these

shipments.1

Immigration and Customs Enforcement ("ICE") intercepted

the package containing the briefcase in Memphis, Tennessee, on

February 13, 2005. The airbill indicated that the contents of the

package were "African design cloths," and the briefcase did in fact

contain several brightly colored cloths -- but the briefcase was

also unusually heavy. An x-ray of the briefcase revealed that

there were two secret compartments built into its walls. Within

these compartments, approximately two kilograms of high-potency

heroin were expertly hidden. The wholesale value of the heroin was

approximately $120,000.

On February 15, an undercover police officer dressed as

a FedEx delivery person delivered the package to Mukasa. After

Mukasa signed for the package, he was approached by law enforcement

agents from ICE and the state police. He informed the agents that

he did not know what was in the briefcase but that he had been

suspicious, and he agreed to cooperate with the government.

The next day, at the agents' direction, Mukasa called

Solomon; the call was recorded. Mukasa told Solomon he knew what

was in the package. He said he had not opened it, but that he had

lifted it, and "it was real heavy my friend." Mukasa demanded that

1
Mukasa was sent two other packages by Solomon before
receiving the ones at issue in this case. The details surrounding
these prior shipments are not important.

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Solomon give him more money to compensate for putting him at risk.

Solomon agreed to pay Mukasa $1500 for handling the package, and

told him a man named "Johnson" would call to arrange the exchange.2

Mukasa received a call from "Johnson," who was later

identified as Peter Ike, the following day. Initially confused by

the voice, Mukasa asked Ike if he was Solomon; Ike responded, "Not

Solomon, Johnson. . . . Yah, sound like Solomon." The two arranged

to meet in a movie theater parking lot in Revere, Massachusetts, on

February 18. The meeting went according to plan, and Mukasa handed

Ike the briefcase in exchange for $1500.

On March 4, 2005, Mukasa received another briefcase from

Solomon. This briefcase also contained approximately two kilograms

of heroin. That night, Solomon called Mukasa to confirm the

package had been delivered; he said "Mike" would call to arrange an

exchange. "Mike," who was later identified as Roy Oki, called

Mukasa on March 8, and said he would be sending "Franklin" to pick

up the briefcase. He indicated that "Franklin" was coming from New

York and would call Mukasa when he was nearby.

On March 11, 2005, a Friday, Mukasa received a call from

defendant Franklin Azubike, who identified himself as "Al Hajji,"

his childhood nickname. He asked Mukasa, "Did Mike tell you about

2
Mukasa also asked Solomon whether John Kaggwa, the man
who had introduced Solomon to Mukasa, "[knew] this business."
Solomon responded that he was a "confidential man" and that "I have
nobody who know[s] this business."

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me?" Mukasa answered "yes." Azubike told Mukasa that "Mike" had

delayed him, but that he was now on his way to Boston. Mukasa,

however, told Azubike that the "stuff" was not yet ready; the

package was being kept by a friend, and he could not retrieve it

until Sunday. Azubike was irritated at the delay, and the two

argued about who was at fault. Azubike said he would call Mukasa

back. After trying and failing to reach "Mike," Azubike did so,

and the two continued to argue.

In a later phone call that day, Azubike continued to

press Mukasa for an earlier meeting date. As the argument

continued, Mukasa said, "Solomon called me . . . [l]ike ten days

ago, and I've been here all the time." Azubike responded, "No, no,

no, forget about that. What is going to happen? Forget about what

happened." Mukasa then told Azubike that the package would not be

available until Monday at noon. Azubike was exasperated, but

Mukasa explained that he didn't want his friend, who was keeping

the briefcase, "to get involved in this stuff." "I don't want him

to be suspicious," he added, "because he doesn't know much about

this stuff." Azubike responded: "It's OK, it's OK. You don't have

to say that on the phone. . . . Don't say nothing more, don't say

anything."

Mukasa later spoke to "Mike," who assured him that his

"friend" would be able to pick up the package that Monday. On

Sunday, March 13, Azubike called Mukasa and the two agreed to meet

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the following day around noon. The meeting was to take place in a

theater parking lot in Revere.

On Monday morning, Mukasa called Azubike to say he was en

route. Shortly thereafter, Azubike told Mukasa he did not like the

meeting place they had agreed upon, since there were "no cars" in

that parking lot; Mukasa agreed to move the meeting place to the

Stop 'N Shop parking lot across the street. Azubike drove into the

Stop 'N Shop parking lot in a blue Impala that had been rented in

Baltimore under a different name and pulled up next to Mukasa's

Jeep. Azubike handed Mukasa $2000 and then retrieved the briefcase

from the trunk of the Jeep. He then opened the trunk of his car,

placed the briefcase at the back, and rearranged the other luggage

in the trunk so the briefcase was not visible. Azubike asked

Mukasa for directions out of Boston and left the parking lot,

driving south.

Azubike was stopped by Massachusetts state police a short

time later, while driving on Interstate 95 South. Questioned by

the officer, Azubike said he had come to Boston to visit his cousin

and that he had stayed the previous night in the Colonnade Hotel.

Pressed further, he was unable to tell the officer what his

cousin's name was, and he did not respond when asked where his

cousin lived. Azubike never asked why he had been stopped. A

search of Azubike and his car revealed, among other things, $490,

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a receipt for a storage locker in New York, and the briefcase.

Azubike was arrested.

In a later search of the New York storage locker,

officers found documents containing Ike's phone number. Azubike's

telephone records also showed that, between February 1, 2005 and

March 14, 2005, there were 175 calls between Azubike and Oki and

three calls between Azubike and Ike. Two calls were made from

Azubike's cell phone to Oki on March 14, after the briefcase was

exchanged, but before Azubike was arrested; six more calls were

made from Oki to Azubike the same day, after Azubike was arrested.

After a seven-day trial, Azubike was convicted and

sentenced to 120 months' imprisonment. On appeal, this court

rejected Azubike's challenge to the sufficiency of the evidence.

Azubike I, 504 F.3d at 36-38. However, it vacated and remanded on

the grounds of prosecutorial error.3 Id. at 31.

Azubike was tried again. The evidence presented to the

jury during this five-day trial was largely the same as that

presented in the first trial, with a few minor differences At

retrial, Mukasa did not testify as he did in the first trial about

certain unrecorded conversations he had with other co-conspirators;

he had also testified at greater lengths at the first trial about

3
In statements to the jury, the prosecutor misstated the
evidence to suggest Azubike said he knew Solomon. This court found
the error was unintentional, but that it was nonetheless
prejudicial, since it went to the central issue of Azubike's role
in the conspiracy. Azubike I, 504 F.3d at 38-42.

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certain background matters. Moreover, at retrial the government

chose not to put on the stand one of its witnesses who had been

impeached during the first trial. Defendant also presented

witnesses at the second trial who testified that he and Ike were

not known to be close.

More importantly, at the retrial, unlike in the first

trial, the district court gave the jury a willful blindness

instruction. Over defendant's objection, the court instructed the

jury:

In deciding whether Mr. Azubike acted
knowingly, you may, but need not, infer that
he had knowledge of a fact if you find that he
deliberately closed his eyes to a fact that
otherwise would have been obvious to him. In
order to infer knowledge, you must find that
two things have been established. First, that
Mr. Azubike was aware of the high probability
of the fact in question, second, that Mr.
Azubike consciously and deliberately avoided
learning of that fact; that is to say, that he
willfully made himself blind to that
fact. . . . [I]t is important to bear in mind
that mere negligence or mistake in failing to
learn the fact is not sufficient. There must
be a deliberate effort to remain ignorant of
the fact.

Azubike was convicted on the same counts on February 29, 2008, and

was sentenced to 72 months' imprisonment.

II.

Defendant raises three challenges on appeal: (1) that the

evidence was not sufficient to support the conviction; (2) that the

court erred in giving a willful blindness instruction to the jury;

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and (3) that the court erred in denying his motion for a new trial.

We reject all three.

A. Sufficiency of the Evidence

We review preserved challenges to sufficiency of the

evidence de novo. United States v. Cruz-Rodríguez, 541 F.3d 19, 26

(1st Cir. 2008). "In assessing sufficiency, we examine the

evidence, both direct and circumstantial, in the light most

favorable to the prosecution . . . , including all plausible

inferences drawn therefrom." Id. "If, in this light, any

reasonable jury could find all the elements of the crime beyond a

reasonable doubt, we must uphold the conviction." United States v.

Lizardo, 445 F.3d 73, 81 (1st Cir. 2006); see also Cruz-Rodríguez,

541 F.3d at 26; Azubike I, 504 F.3d at 36. The court "need not

believe that no verdict other than a guilty verdict could sensibly

be reached, but must only satisfy itself that the guilty verdict

finds support in a plausible rendition of the record." United

States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (quoting United

States v. Gomez, 255 F.3d 31, 35 (1st Cir. 2001)) (internal

quotation marks omitted).

Defendant argues the court erred in failing to grant his

motion for judgment of acquittal because the government failed to

prove an essential element of the offenses for which he was

convicted: that he "knowingly and intentionally" possessed a

controlled substance with intent to distribute. To convict

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defendant under 21 U.S.C §§ 841(a)(1) and 846, the government had

to prove beyond a reasonable doubt that defendant knew the

briefcase he received from Mukasa contained a controlled substance.

Azubike I, 504 F.3d at 36-37 & n.6; see also United States v.

Thomas, 114 F.3d 403, 405 (3d Cir. 1997).

Defendant quite reasonably concedes that a rational jury

could conclude from the evidence presented that he knew the

briefcase contained something illegal. He argues, however, that

there was insufficient evidence to show he knew the briefcase

contained drugs -- as opposed to some other form of contraband.

We do not take into account the fact that we previously

found the evidence from the first trial sufficient, but

independently conclude that the evidence presented at retrial was

sufficient to reach the same conclusion.

First, a jury could rationally infer that defendant knew

what was in the briefcase and that these contents should not be

discussed over the phone from the recorded conversations between

him and Mukasa -- specifically his response to Mukasa's comments

about not wanting to involve his friend, who was holding the

briefcase. Mukasa said he did not want to make the friend

suspicious, "because he doesn't know much about this stuff."

Azubike cut Mukasa off to stop any further description, saying,

"You don't have to say that on the phone. . . . Don't say nothing

more, don't say anything." Azubike did not want to run the risk of

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direct description of the "stuff" on a phone which might be tapped.

From this, a jury could infer that he knew exactly what the "stuff"

was.

Second, a jury could infer that Azubike knew the contents

of the briefcase from his close association with Oki and Ike, who

had a direct relationship with Solomon, the source of the drugs.4

The jury was presented with defendant's statements indicating he

reported to "Mike," the numerous phone calls between defendant,

Oki, and Ike, and the fact that Ike's contact information was found

in defendant's storage locker.

Third, Azubike was entrusted with a large amount of

drugs. As we have noted, "drug organizations do not usually take

unnecessary risks by trusting critical transactions to outsiders."

Azubike I, 504 F.3d at 37 (citing United States v. Thomas, 467 F.3d

49, 54 (1st Cir. 2006)). The jury had before it evidence regarding

Solomon's attempts at secrecy and in any event could reach the

common-sense conclusion that if a large drug operation trusted

defendant to transport such a significant quantity of heroin, it is

unlikely he was ignorant of the contents of the briefcase. See

Thomas, 467 F.3d at 54; United States v. DiMarzo, 80 F.3d 656, 661

(1st Cir. 1996).

4
Solomon told Mukasa that he would be receiving calls from
Ike and Oki, although he referred to both by pseudonyms. Ike also
acknowledged to Mukasa that he "sound[s] like Solomon," thus
suggesting he was familiar with Solomon.

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 Fourth, the modus operandi of the crime was the same as

that of drug transactions sadly common in this geographic area: the

use of multiple couriers, the drugs being hidden in suitcases, the

drugs being of the right weight to be carried, the meeting in the

parking lot. This, in turn, also supports the jury's conclusion

that defendant knew he was transporting drugs, and not some more

exotic form of illegal material. See United States v. Hurley, 63

F.3d 1, 12 (1st Cir. 1995) (concluding in a money laundering

prosecution that there was sufficient evidence that defendant knew

the source of the money was drugs because, although "[t]here are

plenty of cash-generating businesses[,] . . . among those that

require the illicit laundering of funds, the drug business is

notorious and preeminent"); see also United States v. Cruz-Arroyo,

461 F.3d 69, 74 (1st Cir. 2006) ("[J]urors are neither required to

divorce themselves from their common sense nor to abandon the

dictates of mature experience." (quoting United States v. Ortiz,

966 F.2d 707, 712 (1st Cir. 1992)) (internal quotation marks

omitted)).

Although this is sufficient to uphold the verdict, we

address defendant's contention that, in his view, the prosecution's

evidence at retrial was weaker than the evidence presented the

first time around and so the evidence was insufficient. For

example, defendant notes that Mukasa testified at greater lengths

in Azubike I about the two packages he received before the

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briefcases in question, the other couriers, and the involvement of

"Mike." Mukasa also testified in the first trial about certain

unrecorded conversations with other co-conspirators and how he

became suspicious about the contents of the packages when he

learned Nigerians were involved. This evidence may have been

helpful as background, but was unrelated to the question of

Azubike's knowledge; its omission in the second trial in no way

undermined the jury's ability to rationally infer that defendant

knew the contents of the briefcase.

Defendant points to one potentially relevant difference.

At the retrial, Azubike presented witnesses who testified that he

and Ike were not known to be close. But the jury was not required

to credit this testimony, and there was other evidence that the two

were connected. Regardless, this difference did not render the

evidence insufficient.

If anything, the evidence presented at the second trial

was less vulnerable to challenge than that in Azubike I. At the

retrial, the government chose not to present testimony from a

witness who was impeached at the original trial. Moreover, at the

original trial, Mukasa was impeached on the basis of his testimony

regarding certain unrecorded conversations he had with other co-

conspirators; Mukasa did not testify about these conversations at

the second trial.

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 Beyond that, assuming there was no error in the giving of

the willful blindness instruction at retrial, an inquiry set forth

next, the evidence was sufficient on this theory as well. See

Thomas, 467 F.3d at 54; United States v. Jones, 10 F.3d 901, 908

(1st Cir. 1993); United States v. St. Michael's Credit Union, 880

F.2d 579, 586 (1st Cir. 1989); see also United States v. Anthony,

545 F.3d 60, 64 (1st Cir. 2008) ("A willful blindness instruction

informs jurors that they may impose criminal liability on people

who, recognizing the likelihood of wrongdoing, nonetheless

consciously refuse to take basic investigatory steps." (quoting

United States v. Griffin, 524 F.3d 71, 77 n.4 (1st Cir. 2008))

(internal quotation marks omitted)); United States v. Heredia, 483

F.3d 913, 918 (9th Cir. 2007) (en banc).

Thus, the evidence was sufficient to support the

conviction.

B. Willful Blindness

Defendant also argues the court erred by giving a willful

blindness instruction at the retrial. Defendant has preserved his

challenge to the giving of the instruction. Even if we employ de

novo review, we find the district court did not err in giving this

instruction.5

5
This court has utilized both de novo and deferential
standards of review. Anthony, 545 F.3d at 64; accord Lizardo, 445
F.3d at 85; United States v. Epstein, 426 F.3d 431, 440 n.5 (1st
Cir. 2005); see also Heredia, 483 F.3d at 921 n.11 (discussing
circuit split on this issue). We have at times reviewed the

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 A willful blindness instruction is appropriate if (1) a

defendant claims a lack of knowledge, (2) the facts suggest a

conscious course of deliberate ignorance, and (3) the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

of knowledge. Anthony, 545 F.3d at 64 (citing Griffin, 524 F.3d at

78); accord, e.g., United States v. Epstein, 426 F.3d 431, 440 (1st

Cir. 2005). Defendant argues the facts presented at his second

trial were insufficient to justify the instruction.

In determining whether the facts suggest the type of

deliberate avoidance warranting a willful blindness instruction,

"we must consider whether the record evidence reveals 'flags' of

suspicion that, uninvestigated, suggest willful blindness."

Epstein, 426 F.3d at 440 (quoting United States v. Coviello, 225

F.3d 54, 70 (1st Cir. 2000)) (internal quotation marks omitted).

Direct evidence of willful blindness is not required; what is

needed are sufficient warning signs that call out for investigation

or evidence of deliberate avoidance of knowledge. United States v.

Singh, 222 F.3d 6, 11 (1st Cir. 2000); see also Keene, 341 F.3d at

83. The evidence is reviewed in the light most favorable to the

government. Singh, 222 F.3d at 11; see also United States v.

Lalley, 257 F.3d 751, 755 (8th Cir. 2001).

question de novo, see United States v. Keene, 341 F.3d 78, 83 (1st
Cir. 2003), and at other times for abuse of discretion, see United
States v. Coviello, 225 F.3d 54, 70 (1st Cir. 2000); we have also
suggested, quite reasonably, that the level of scrutiny may depend
on the nature of the challenge, see Lizardo, 445 F.3d at 85 n.6.

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 It is possible that from defendant's point of view, he

may not have cared what the exact nature of the illegal contents of

the briefcase were. This is doubtful, however, given that the

risks to him of carrying the briefcase may well have turned on what

the contents were and what their value was. Included among those

risks were high federal sentences for convicted heroin traffickers.

See 21 U.S.C. § 841(b) (providing for different minimum sentences

based on the amount and type of drugs involved). The jury could

easily have concluded that defendant went out of his way to avoid

learning the contents of the briefcase, if he did not already know.

When Mukasa began discussing the contents of the briefcase,

referring to it in coded language, defendant asked him to stop,

saying, "Don't say nothing more, don't say anything." This

evidence clearly supports the inference that defendant was on

notice but purposefully avoided learning the contents of the

briefcase. See United States v. Bilis, 170 F.3d 88, 93 (1st Cir.

1999); see also Lizardo, 445 F.3d at 85; Epstein, 426 F.3d at 440-

41; Coviello, 225 F.3d at 70-71.

Defendant argues that the instruction was nonetheless

improper because, as a matter of law, the evidence that supported

the instruction could not be the same as evidence used to support

a finding of actual knowledge. He argues that a willful blindness

instruction may never be given in such circumstances, relying on

our statement in a footnote in United States v. Brandon, 17 F.3d

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409 (1st Cir. 1994), quoted in Bilis, 170 F.3d at 93, that, "[a]s

long as separate and distinct evidence supports a defendant's

deliberate avoidance of knowledge and the possibility exists that

the jury does not credit the evidence of direct knowledge, a

willful blindness instruction may be appropriate." Brandon, 17

F.3d at 452 n.74. Both defendant and the dissent take the phrase

"separate and distinct" out of context and use it for a proposition

which is not our law.

This quoted language stands for the unremarkable

proposition that when the government offers evidence of direct

knowledge, this does not preclude a willful blindness instruction.

See Bilis, 170 F.3d at 93 ("The fact that the government also

offered evidence to support the theory that [defendant] possessed

direct knowledge . . . did not render the willful blindness

instruction inappropriate."); Brandon, 17 F.3d at 452 n.74 ("We

reject the argument that proof of direct knowledge precludes a

willful blindness instruction that is otherwise appropriate.").

Indeed, Brandon used this language in a footnote to summarize the

holdings in two cited cases. As the two cases cited make clear,

what the "separate and distinct" requirement means is that when the

evidence presented at trial provides the jury with only a binary

choice between actual knowledge and innocence, a willful blindness

instruction is inappropriate. See United States v. Lizotte, 856

F.2d 341, 343 (1st Cir. 1988) (rejecting defendant's claim that a

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willful blindness instruction was inappropriate because there would

be no evidence of willful blindness if the jury did not credit the

witness that testified to defendant's direct knowledge, on the

grounds that the jury could have found the witness "credible in

part and incredible in part," and thus "there was evidence before

it justifying the inference [of willful blindness]"); see also

United States v. Ochoa-Fabian, 935 F.3d 1139, 1142 (10th Cir. 1991)

("While a deliberate ignorance instruction is not appropriate when

the evidence points solely to direct knowledge, where, as here, the

evidence supports both actual knowledge and deliberate ignorance,

the instruction is properly given."). It does not follow from

this, however, "that evidence must be placed in either an actual

knowledge or a deliberate ignorance category. It is permissible

for the government to present some evidence supporting both

theories and some of the government's evidence might be relevant to

both actual knowledge and deliberate ignorance." Griffin, 524 F.3d

at 79 (quoting United States v. Carrillo, 435 F.3d 767, 784 (7th

Cir. 2006)). "Separate and distinct" evidence of willful blindness

exists where, as in this case, the jury could take one view of the

evidence and reasonably conclude that the defendant had actual

knowledge or, alternatively, reject that view of the evidence but

still reasonably conclude instead that the defendant was willfully

blind.

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 That we have recognized a "requirement" that there be

"separate and distinct" evidence, Anthony, 545 F.3d at 65 n.7, and

that we found the requirement to have been met in Bilis and

Anthony, says little about the meaning of this requirement. This

court has never read the phrase "separate and distinct," as the

dissent urges in its novel construction, to create a requirement

that the set of evidence supporting an inference of willful

blindness cannot be contained within a larger set of evidence that,

in the alternative, could support a finding of actual knowledge, or

even that the two sets cannot completely overlap. Further, the

dissent is incorrect in stating that there is "complete overlap"

between the evidence supporting willful blindness and the evidence

supporting actual knowledge in this case. Although the phone

conversation in which defendant urged Mukasa to "say nothing more"

about the "stuff" could support an inference of either actual

knowledge or, in the alternative, willful blindness, substantial

amounts of other evidence, discussed in section II.A, supra, was

presented to support exclusively a finding of actual knowledge.

Nor has this court -- or any other circuit -- ever found

a willful blindness instruction inappropriate on the basis of such

overlap. Indeed, we have explicitly cautioned that this phrase

should not be read "too narrow[ly]." Anthony, 545 F.3d at 65 n.7

("[T]here is always some overlap between the evidence that a

defendant knew a fact and the evidence that, if he did not know it,

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he ought to have known it."). In Griffin, moreover, we found a

willful blindness instruction appropriate where the only evidence

that supported an inference of willful blindness also,

alternatively, supported a finding of actual knowledge. See

Griffin, 524 F.3d at 78-79 (finding that the fact that defendant

reported sales income from two companies but failed to discuss

sales income she received from another company with her tax

preparers was sufficient, "[o]n the one hand, . . . [to] support[]

the theory that [the defendant] deliberately avoided discussing her

income from [the third company] in order to avoid actual

knowledge," while, "[o]n the other hand, this evidence is also

consistent with the theory that [defendant] knew of her legal

obligation to report this income but simply chose not to report

it").

In the present case, as in Griffin, "[e]vidence [was]

presented at trial [that] may support either a finding of actual

knowledge or a finding of willful blindness," and "these theories

can coexist." Id. The evidence presented did not require the jury

to make a binary choice between actual knowledge and innocence.

The jury could reasonably infer from defendant's conversation with

Mukasa that he was trying to deliberately avoid knowledge of what

the "stuff" was; or, it could have rejected such an inference and

reasonably inferred instead from this conversation and from the

other evidence presented that defendant knew exactly what was in

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the briefcase but was merely trying to avoid detection. Thus,

"separate and distinct" evidence supported the willful blindness

instruction.

Assuming there is sufficient evidence on which a jury

could reasonably find either actual knowledge or willful blindness,

defendant cannot claim to have been unfairly prejudiced by the

court's allowing the jury to convict on the basis of either theory.

There is no reason why a jury should be precluded from reaching one

of these reasonable conclusions simply because there is no single

piece of evidence that points exclusively to willful blindness,

rather than to willful blindness or actual knowledge in the

alternative. Such a rule is not only illogical, it would lead to

inconsistent and unjust outcomes.

The district court did not err in giving the willful

blindness instruction, which was supported by sufficient facts. As

is clear from what we have said, there was also sufficient evidence

to support defendant's conviction on that theory.

C. New Trial Motion

For the same reasons that defendant is not entitled to

acquittal for lack of sufficient evidence, he is not entitled to a

new trial on the grounds that the jury verdict was against the

weight of the evidence. Azubike I, 504 F.3d at 38.

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 III.

The conviction is affirmed.

-Dissenting Opinion Follows-

-22-
 TORRUELLA, Circuit Judge (Dissenting). We have before us

the second round of this case. See United States v. Azubike, 504

F.3d 30 (1st Cir. 2007) [hereinafter "Azubike I"]. In Azubike I,

we vacated the conviction and remanded the case for retrial because

the prejudicial statements of the prosecution invalidated the

outcome. By retrying appellant, the government has now had two

shots at proving beyond a reasonable doubt all of the essential

elements of the crimes charged. As in Azubike I, whether Azubike

"knowingly and intentionally" possessed a controlled substance

under 21 U.S.C. § 841(a) is the linchpin of this controversy. In

my view, the government's evidence once again does not permit a

rational jury to find this essential element beyond a reasonable

doubt. In addition, and unique to the instant case, the district

court gave a fatal willful blindness instruction, one which, in

itself, is sufficient to flaw Azubike's latest conviction. For

these reasons, I respectfully dissent.

A. Sufficiency of the Evidence

In my dissenting opinion in Azubike I, I concluded that

the government failed to establish Azubike's criminal scienter

beyond a reasonable doubt. 504 F.3d at 42-43. A review of the

record in the present appeal leaves me in no better position to

find that the government has met its constitutional burden in this

respect. See United States v. Nieves-Castaño, 480 F.3d 597, 601

(1st Cir. 2007) ("[K]nowledge that one is guilty of some crime is

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not the same as knowledge that one is guilty of the crime charged."

(emphasis in the original)); see also United States v. Cruz, 363

F.3d 187, 198-99 (2d Cir. 2004) (holding that there was

insufficient evidence to conclude defendant had specific knowledge

that drugs were the object of the transaction); United States v.

Cartwright, 359 F.3d 281, 286, 290-91 (3d Cir. 2004) (holding that

the government failed to show sufficient evidence that lookout knew

transaction involved drugs even though he knew the transaction was

illegal); United States v. Fitz, 317 F.3d 878, 882-83 (8th Cir.

2003) (holding that despite giving false name and other factors

showing defendant knew transaction was probably not legitimate,

evidence was insufficient to conclude knowledge of presence of

drugs); United States v. Thomas, 114 F.3d 403, 405-06 (3d Cir.

1997) (holding evidence insufficient to conclude defendant had

knowledge that drugs were involved in the transaction despite his

knowledge that the transaction was illegal). In fact, if anything,

I am even more skeptical than in Azubike I that the government met

its burden this second time around, for I find that the record is

now factually weaker. It appears that the government was somewhat

complacent in its presentation of evidence in the present case,

perhaps being lulled into that condition by the outcome in Azubike

I.6

6
The government presented far more evidence in Azubike I
as compared to the instant case. First, in Azubike I, Richard
Mukasa, the original addressee of the briefcase with the hidden

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 Specifically, I disagree with several arguments the

majority makes in support of its sufficiency holding. First, I

consider neither Azubike's "close association" with Oki and Ike,

nor the fact that Azubike was entrusted with a briefcase that was

found to contain drugs, to be probative of Azubike's knowledge of

the contents of the briefcase under the circumstances of this case.

The majority maintains that the jury could use its "common-sense"

to conclude that Azubike was not ignorant of the contents of the

briefcase because a large drug operation trusted him to transport

a significant quantity of heroin. However, in this particular drug

operation, the jury should not have been able to rely on this

common-sense conclusion because Solomon entrusted Mukasa, who also

had no knowledge of the true nature of the shipments, to receive

and distribute the "unusually heavy" briefcases. In addition, the

evidence shows that Solomon made substantial efforts to conceal

relevant aspects of the operation from those upon whom he relied to

compartments containing heroin sent from Uganda, testified in
significant detail about prior briefcases, the couriers, and of Roy
Oki's involvement and place in the conspiracy. Mukasa barely
discusses these matters in the present case. Second, in Azubike I,
Mukasa testified about unrecorded conversations between himself and
John Kaggwa, a Ugandan lawyer who introduced Solomon Lui, a
Sudanese businessman living in Uganda, to Mukasa. Solomon was the
mastermind of the drug smuggling operation. In the present case,
Mukasa did not testify about these unrecorded conversations.
Third, in Azubike I, this court considered various unrecorded
statements between Mukasa and co-conspirators in its sufficiency of
the evidence analysis. These statements were not offered into
evidence in the trial of the present case. Finally, State Trooper
Coffey testified extensively in Azubike I, but not in the present
trial.

-25-
distribute the briefcases. Given Solomon's penchant for secrecy,

evidence of frequent discussions between Azubike and Oki and Ike is

minimally probative of Azubike's knowledge of the briefcase's

contents.

Second, I also disagree with the majority that the modus

operandi of this criminal enterprise would permit a jury to

conclude beyond a reasonable doubt that Azubike knew he was

transporting drugs. A modus operandi involving multiple couriers,

briefcases with secret compartments, and a meeting in the parking

lot is consistent with other forms of high-value contraband

activity such as smuggling diamonds, gems commonly smuggled from

Africa into the United States. See generally United States

Government Accountability Office, GAO 06-978, Conflict Diamonds:

Agency Actions Needed to Enhance Implementation of the Clean

Diamond Trade Act (2006) [hereinafter GAO Diamond Report].

Lastly, I disagree with the majority's reliance on the

conversation between Azubike and Mukasa, where Azubike states that

"You don't have to say that on the phone . . . . Don't say nothing

more, don't say anything" in response to Mukasa's comment that

Mukasa's friend did not "know much about this stuff." Even when

viewed in the light most favorable to the government, this exchange

would not permit a rational juror to infer that Azubike knew what

the "stuff" was. Rather, when read in context, this exchange

merely reflects Azubike's knowledge that the "stuff" was illegal

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and indicates his reluctance to discuss the illegal activity on the

phone. See Cruz, 363 F.3d at 198-99; Fitz, 317 F.3d at 882-83.

The unmistakable reality is that the majority assumes too

much, and places the bar that the government must clear at too low

a level. Although the government is allowed to prove by

circumstantial evidence that Azubike knew that the briefcase in

question contained drugs, it only succeeded in establishing that

Azubike knew something illegal was afoot. Any conclusion by the

jury beyond that, specifically imputing to Azubike knowledge of the

contents of the briefcase, was the product of pure speculation

(influenced, perhaps, by an improper willful blindness instruction,

which I will discuss infra). This is particularly true when one

considers that the burden is proof beyond a reasonable doubt. See

United States v. Idowu, 157 F.3d 265, 270 (3d Cir. 1998) (holding

that there was insufficient evidence that the object of the

transaction was drugs and that "no reasonable jury could have

concluded that the government had met its burden of proof, which

requires proof beyond a reasonable doubt"); United States v. Olivo-

Infante, 938 F.2d 1406, 1409 (1st Cir. 1991).

As I stated in Azubike I, the evidence the government

presented in this case would have been just as consistent with that

of a case involving the smuggling of diamonds or any other high-

value contraband from Africa. 504 F.3d at 43. Lest this assertion

be considered also in the realm of speculation, I suggest that

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diamond smuggling from Africa into the United States, one of the

world's largest consumers of industrial and gem grade diamonds, is

a reality which has been confronted by our government with

considerable attention and limited success. See generally GAO

Diamond Report.

It may be that the majority opinion is part of an

inexorable trend in the relaxation and degradation of the

constitutional standards that are now to be applied in criminal

proceedings involving controlled substances. If that is the case,

it is one parade in which I am not willing to march. See generally

Kevin Jon Heller, Note, Whatever Happened to Proof Beyond a

Reasonable Doubt? Of Drug Conspiracies, Overt Acts, and United

States v. Shabani, 49 Stan. L. Rev. 111, 142 (1996) (noting that

"[i]n case after case involving drugs, the courts have whittled

away vital protections for the accused" and that "the standard of

proof beyond a reasonable doubt [should be added] to the long list

of vital protections sacrificed in the name of the War on Drugs")

(internal quotation marks omitted); see also Tucker v. Palmer, 541

F.3d 652, 671 (6th Cir. 2008) (Keith, J., dissenting) (noting the

court's responsibility to ensure "the constitutional guarantee [of

proof beyond a reasonable doubt]" and that, in that case, "[t]he

majority turn[ed] a blind eye to this basic constitutional

responsibility and undermine[d] the concept of equal justice under

the law"); United States v. Mangual-Corchado, 139 F.3d 34, 49 (1st

-28-
Cir. 1998) (McAuliffe J., dissenting in part) ("'[T]he sufficiency

of the evidence warrants particular scrutiny when the evidence

strongly indicates that a defendant is guilty of a crime other than

that for which he was convicted, but for which he was not

charged.'") (quoting United States v. Salamanca, 990 F.2d 629, 638

(D.C. Cir. 1993)); Hon. Jon O. Newman, Beyond "Reasonable Doubt,"

68 N.Y.U. L. Rev. 979, 989 (1993) ("[I]n the federal courts, the

primary expositors of federal requirements, we have insisted that

juries be instructed that they must be persuaded beyond a

reasonable doubt, but we have not insisted on meaningful observance

of this standard as a rule of law for testing the sufficiency of

the evidence.").

The evidence was equally consistent with Azubike

possessing contraband other than controlled substances. Thus,

because the government failed to prove an essential element of the

crimes charged by proof beyond a reasonable doubt, the Constitution

mandates acquittal on both charges against him.

B. Willful Blindness Instruction

The district court's failure to grant Azubike's Rule 29

motion was exacerbated by its giving a willful blindness

instruction. On this record, that instruction amounted to a

bolstering of the government's case on the issue of knowledge which

I have just discussed.

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 We have held that "[a] willful-blindness instruction 'is

proper if a defendant claims a lack of knowledge, the facts suggest

a conscious course of deliberate ignorance, and the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

of knowledge.'" United States v. Keene, 341 F.3d 78, 83 (1st Cir.

2003) (quoting United States v. Masse, 816 F.2d 805, 812 (1st Cir.

1987)); see also United States v. Singh, 222 F.3d 6, 11 (1st Cir.

2000); United States v. Cunan, 152 F.3d 29, 39 (1st Cir. 1998).

Further, we have stressed that a willful blindness instruction "is

proper when there is evidence to support the inference that the

defendant was aware of a high probability of the existence of the

fact in question and 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. Brandon, 17 F.3d 409, 452 (1st Cir.

1994) (emphasis added) (quoting United States v. Rivera, 944 F.2d

1563, 1571 (11th Cir. 1991)).

Most relevant to the present case, however, is our

requirement that a willful blindness instruction should not be

given unless the evidence of willful blindness is "separate and

distinct" from the evidence of actual knowledge. United States v.

Bilis, 170 F.3d 88, 93 (1st Cir. 1999) (reiterating the rule in

this circuit that "proof of direct knowledge [does not] preclude[]

a willful blindness instruction that is otherwise appropriate: 'As

long as separate and distinct evidence supports a defendant's

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deliberate avoidance of knowledge and the possibility exists that

the jury does not credit the evidence of direct knowledge, a

willful blindness instruction may be appropriate.'" (quoting

Brandon, 17 F.3d at 452 n.74) (emphasis added)). Such evidence

does not exist in this record.

It was practically undisputed, and without serious

question established, that the government proved that Azubike knew

that some criminal activity was taking place and that he was an

active participant. The majority relies on the phone conversation7

7
The relevant part of the conversation between Mukasa and
Azubike is as follows:

H [Azubike]: I'm talking about him getting it Saturday night and
giving it to me Sunday morning, morning, morning, 8 o'clock.
CI [Mukasa]: Monday morning we cannot meet. It must be midday
because it's not near here. He works uh like, uh uh, you know
Swampscott? I don't think . . . you don't live in this place. It's
about an hour and a half drive from here.
H: My God.
CI: Yah.
H: Oh, no.
CI: So if he works from Swampscott he has to get here by, if he
leaves work at 8, by the time he gets here it's about 9:30 and then
I get an arrangement. We can meet at like 12 noon. That's if he
works on Saturday.
H: Why 12 noon?
CI: I, I, I don't want him to get involved in this stuff, so
because, it's between me and you and the other guy, me and you . .
. I don't want him to be involved.
H: I know, but what I am saying is this, is think about this
CI: You know I . . .
CI: Hold on a minute
H: . . . And I'll come out
CI: I don't want him to be suspicious, because he does not know
much about this stuff. You know?
H: It's ok, it's ok. You don't have to say that on the phone.
CI: If I, if I, yah. I try . . .
H: Don't say nothing more, don't say anything.

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between Mukasa and Azubike to support either an inference that

Azubike knew the contents of the briefcase or one that Azubike

engaged in a "conscious course of deliberate ignorance." As I

stated above, I believe that this evidence merely supports an

inference that Azubike was involved with activities and actions

aimed at avoiding detection by law enforcement. It is clear that

Azubike was simply uncomfortable discussing the illegal activity on

the phone. This evidence does not remotely suggest that Azubike

was deliberately evading knowledge of the contents of the

briefcase.

In addition, the instruction allowed the jury to rely on

evidence that was not "separate and distinct" from the evidence

presented by the government to establish Azubike's actual knowledge

of the contents of the briefcase. This instruction allowed the

jury to speculate improperly that Mukasa's conversation with

Azubike created an inference of avoidance, when no such inference

was permitted based on evidence barred by the "separate and

distinct" rule. It also may have tipped the scales in favor of the

government's paper-thin case.

The majority states that I take the phrase "'separate and

distinct' out of context and use it for a proposition which is not

our law." The majority then explains that "what the 'separate and

distinct' requirement means is that when the evidence presented at

trial provides the jury with only a binary choice between actual

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knowledge and innocence, a willful blindness instruction is

inappropriate."

I disagree that I am taking the phrase "separate and

distinct" out of context in light of our pronouncements in Brandon

and Bilis. In Brandon, a case involving a real estate broker's

scheme to obtain loan financing by fraudulently representing

investors' down payments, the court pointed to evidence of willful

blindness "separate and distinct" from evidence it considered to

show actual knowledge. 17 F.3d at 452 n.74. This included

evidence that the defendant "tried to avoid learning of particular

buyers' use of dischargeable mortgages for their down payments" and

that the defendant told a prospective buyer that "he 'didn't want

to know anything about [the second mortgages].'" Id. Similarly, in

Bilis, where we considered whether a bartender was willfully blind

to drug activity in his establishment, we pointed to evidence that

the defendant purposely avoided learning about drug dealing taking

place in his bar. 170 F.3d at 93. We deemed this evidence

"separate and distinct" from evidence demonstrating the defendant's

direct knowledge of drug activity in his bar. Id.

Even in United States v. Anthony, decided less than six

months ago, our most recent case on point, and one where we

cautioned against taking "too narrow a view" of the "separate and

distinct" rule, 545 F.3d 60, 65 n.7 (1st Cir. 2008), we took the

same analytical approach towards "separate and distinct" evidence

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that we applied in Bilis and Brandon. In Anthony, we reaffirmed

that there was a "'separate and distinct' requirement," id.

(emphasis added), and proceeded to cite evidence going exclusively

to willful blindness "separate and distinct" from evidence of

actual knowledge to satisfy that requirement. Id. at 66 (pointing

to "separate and distinct" evidence of willful blindness in tax

evasion case where defendant, despite the fact that the law imposed

a duty on him, did not consult either the most current version of

the tax code or recent case law that may not have supported his

argument).

It follows from Bilis, Brandon, and Anthony that the

majority's newly minted definition of what "separate and distinct"

evidence means is at odds with how we have applied the requirement

in this circuit. To be sure, I do not disagree with the language

the majority borrows from the Seventh Circuit's opinion in United

States v. Carrillo for the majority's definition. 435 F.3d 767,

784 (7th Cir. 2006). It is perfectly sensible that a willful

blindness instruction is inappropriate when a jury is faced with a

binary choice between actual knowledge and complete innocence. Id.

This rule protects against the possibility a jury will "convict a

defendant on the impermissible ground that he should have known [an

illegal act] was taking place" when the evidence only supports a

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finding of actual knowledge.8 See Brandon, 17 F.3d at 452

(internal quotation marks omitted). My disagreement with the

majority, however, is that its definition of "separate and

distinct" reads out the "separate and distinct" evidentiary

requirement altogether. Apparently, the majority reads our

precedent to require only evidence of a "separate and distinct"

mens rea for a willful blindness instruction when we have

repeatedly referred to a requirement that the evidence itself be

"separate and distinct" to support such an instruction.

Admittedly, there is some tension in our case law as we

have remarked that "[e]vidence presented at trial may support

either a finding of actual knowledge or a finding of willful

blindness." United States v. Griffin, 524 F.3d 71, 78 (1st Cir.

2008) (noting that failing to report sales income on tax returns

could support an inference of deliberate avoidance or actual

knowledge). The majority compares Griffin to our case and

concludes that the extent to which evidence of willful blindness

and actual knowledge overlap is immaterial. Griffin, however,

sheds little light on the meaning of "separate and distinct" as

presented in our case law, making no mention of this requirement.

8
Indeed, I believe this rule applies to the present case
as the conversation between Mukasa and Azubike would not permit a
rational jury to infer that Azubike deliberately avoided knowledge
of the contents of the briefcase.

-35-
In Anthony, however, we do explore this requirement, in keeping

with our line of cases.

I do not dispute that "some overlap" between the

government's evidence of actual knowledge and that of willful

blindness is permissible, see Anthony, 545 F.3d at 65 n.7; yet

"complete overlap"9 appears to be contrary to our earlier

pronouncements regarding "separate and distinct" evidence in Bilis,

170 F.3d at 93, and Brandon, 17 F.3d at 452 n.74.

The majority may be correct that the need for "separate

and distinct" evidence of willful blindness is unwise and that a

literal reading of the language that introduced this requirement

into our case law makes our rule broader than necessary. Yet, as

explained above, subsequent to Brandon, we have adhered to this

rule in Bilis and Anthony. As we have recently reiterated, the

"interests of predictability are served by respecting our own prior

language." Awuah v. Coverall, N. Am., Inc., 554 F.3d 7, 11 (1st

Cir. 2009). Thus, I reject the majority's not so subtle attempt to

circumvent circuit precedent. I do not believe the majority's

definition of "separate and distinct" evidence is in keeping with

9
The majority takes issue with my use of the term "complete
overlap." For the sake of clarity, I am merely noting that the
sole evidence upon which the majority relies to show willful
blindness (the phone conversation between Azubike and Mukasa) is
also used to show actual knowledge -- i.e. the evidence of willful
blindness is not "separate and distinct" from the evidence of
actual knowledge. By no means am I suggesting that the
government's other evidence does not go exclusively to actual
knowledge.

-36-
our precedents in Brandon, Bilis, and Anthony, cases which have

explicitly cited the "separate and distinct" rule. Brandon, 17

F.3d at 452 n.74 ("As long as separate and distinct evidence

supports a defendant's deliberate avoidance of knowledge and the

possibility exists that the jury does not credit the evidence of

direct knowledge, a willful blindness instruction may be

appropriate."); see also Anthony, 545 F.3d at 65 (same) (quoting

Brandon, 17 F.3d at 452 n.74); Bilis, 170 F.3d at 93 (same)

(quoting Brandon, 17 F.3d at 452 n.74); id. ("Even without the

testimony of these witnesses, separate and distinct evidence

supported the government's alternate theory of willful

blindness.").

The majority's holding as to the sufficiency of the

evidence supporting Azubike's conviction and the appropriateness of

a willful blindness instruction here runs counter to the proper

administration of the law and should be strongly rejected.

I respectfully dissent.

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