FILED
NOT FOR PUBLICATION
MAY 31 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10286
Plaintiff - Appellee, D.C. No. 13-cr-01161-CKJ
v.
MEMORANDUM*
ANGELA MARIE EWING,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted May 10, 2016
San Francisco, California
Before: IKUTA and WATFORD, Circuit Judges, and WATSON, District Judge.**
Angela Marie Ewing appeals her jury conviction and sentence for
(1) conspiracy to possess with the intent to distribute heroin and
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846;
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Derrick Kahala Watson, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
(2) possession with the intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C); (3) possession with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);
(4) conspiracy to import heroin and methamphetamine, in violation of 21 U.S.C.
§§ 952(a), 960(a)(1), 960(b)(3), and 963; (5) importation of heroin, in violation of
21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3); and (6) importation of
methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3).
We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Sufficient evidence supported Ewing’s conviction. Viewing the facts in
the light most favorable to the government, United States v. Nevils, 598 F.3d 1158,
1163-64 (9th Cir. 2010) (en banc), Ewing admitted to knowingly agreeing to work
for a drug trafficking organization that imported drugs from Mexico into the
United States, that the money she agreed to conceal and transport across the
Mexico-United States border was generated from the sale of these imported drugs,
and that her concerted activity with others, including her co-Defendant Reyna
Macias, was illegal. Her agreement to participate in the drug trafficking
conspiracy in this fashion rendered her guilty of activities beyond those that she
specifically agreed to carry out herself—including those involving the heroin and
methamphetamine concealed in the door panels of the vehicle in which she crossed
2
the border on June 7, 2013. See Ocasio v. United States, 136 S. Ct. 1423, 1429-30
(2016) (“The government does not have to prove that the defendant intended to
commit the underlying offense himself/herself. Instead, if conspirators have a plan
which calls for some conspirators to perpetrate the crime and others to provide
support, the supporters are as guilty as the perpetrators”) (citations, quotations,
signals and some alterations omitted). Even assuming that Ewing did not expressly
agree to undertake all of the acts underlying the charged offenses, she is no less “a
conspirator by agreeing to facilitate only some of the acts leading to the substantive
offense.” Salinas v. United States, 522 U.S. 52, 65 (1997). Accordingly, “any
rational trier of fact could have found the essential elements of the crime[s] beyond
a reasonable doubt.” Nevils, 598 F.3d at 1163-64 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
2. The district court did not abuse its discretion in formulating the jury
instructions on conspiracy. See United States v. Woodley, 9 F.3d 774, 780 (9th Cir.
1993). “A trial court is given substantial latitude in tailoring jury instructions so
long as they fairly and adequately cover the issues presented.” United States v.
Powell, 955 F.2d 1206, 1210 (9th Cir. 1991) (internal quotation marks omitted).
The instructions here, taken as a whole, were neither misleading nor inadequate to
guide the jury’s deliberations. Id.
3
We review de novo the denial of a jury instruction based on a question of
law, including whether the instructions adequately cover a defendant’s theory of
defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995). The jury was
properly instructed on the elements of conspiracy, and the district court’s failure to
give Ewing’s theory-of-the-defense instruction was not error, where the
instructions, in their entirety, fairly and adequately covered the defense theory. See
id. (citing United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled
on other grounds by Dixon v. United States, 548 U.S. 1 (2006)).
3. The district court did not abuse its discretion by instructing the jury on
deliberate ignorance. The factual predicates for the instruction were satisfied and
the instruction as given accurately stated the law. See United States v. Heredia,
483 F.3d 913, 921-22 (9th Cir. 2007) (en banc) (holding that whether to give a
deliberate ignorance instruction is reviewed for abuse of discretion, and the
sufficiency of the supporting evidence is considered in the light most favorable to
the requesting party). The government introduced sufficient evidence from which
a reasonable jury could infer that Ewing was aware of a high probability that she
was in possession of drug contraband and that her failure to investigate was a
deliberate action taken to avoid learning the truth. Notably, a reasonable juror
could have found beyond a reasonable doubt that the questionable series of events
4
at the Arizona Mills Mall in Phoenix where vehicles were swapped to “fix” an
unidentified problem, in the midst of rapid border crossings during a short period
of time, made defendant aware of a high probability that drugs were in the car.
Yet, at no point did Ewing inquire about the exchange of the Chevrolet Malibu for
the Ford Focus, the request to put the title of the vehicle into her name, the
possibility of needing to get a police report from the car dealership, the use of her
cell phone by Macias to send text messages, or the myriad other unusual events
during the relevant time period. Under the totality of these circumstances, a jury
could reasonably conclude that her failure to inquire or investigate constitutes
deliberate ignorance. See United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en
banc).
Nor did the district court commit legal error in the formulation of the
deliberate ignorance instruction. See United States v. Ramos-Atondo, 732 F.3d
1113, 1119 (9th Cir. 2013) (“Deliberate ignorance involves ‘(1) a subjective belief
that there is a high probability a fact exists and (2) deliberate actions taken to avoid
learning the truth.’”) (quoting United States v. Yi, 704 F.3d 800, 804 (9th Cir.
2013)); Ninth Circuit Model Instr. 5.7. Because the conspiracy and deliberate
ignorance instructions together covered her theory of the case, it was not error to
exclude Ewing’s proposed deliberate ignorance instruction.
5
4. The district court did not abuse its discretion in admitting evidence of
Ewing’s border crossing history. The trial court weighed the prejudicial effect of
this evidence against its probative value, pursuant to Federal Rule of Evidence 403,
and we cannot say that its admission of this evidence constituted a discretionary
abuse. Wagner v. Cty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2012).
Nor did the district court err in admitting the testimony of the case agent
over Ewing’s Rule 704 objection. The district court properly concluded that the
agent’s testimony recounting his interview of Ewing was merely descriptive of
what transpired and did not constitute improper opinion testimony. Morever, the
district court’s decision to give a curative instruction, drafted with input from all
counsel, left little room for confusion, and there is no indication that the jury was
unable to follow the court’s instruction. See Dubria v. Smith, 224 F.3d 995, 1002
(9th Cir. 2000); United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th Cir.
1991).
5. Because Ewing failed to object at trial, we review her claims of
prosecutorial misconduct during closing arguments for plain error. See United
States v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010). “Under the plain error
standard, relief is not warranted unless there has been: (1) ‘error,’ (2) that was
‘plain,’ (3) that affected ‘substantial rights,’ and (4) that ‘seriously affected the
6
fairness, integrity, or public reputation of the judicial proceedings.’” Id. (quoting
United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004)). Ewing’s contention
that the government’s closing statement denied her due process right to a fair
trial—because it made arguments that had no foundation in evidence, required
inferences that were unreasonable, appealed to jurors’ concern about crime in their
community, and again raised the case agent’s opinion testimony—does not
withstand scrutiny. On plain error review, none of the statements amounts to
improper conduct that “so affected the jury’s ability to consider the totality of the
evidence fairly that it tainted the verdict and deprived [Ewing] of a fair trial.”
United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005).
6. The district court did not clearly err in sentencing by denying a three-
level downward adjustment for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1. See United States v. Fleming, 215 F.3d 930, 939 (9th Cir. 2000) (“We
review for clear error a district court’s decision to deny a reduction for acceptance
of responsibility.”). Throughout, including sentencing, Ewing steadfastly denied
her knowledge of the secreted drugs. Accordingly, the trial court did not clearly
err in finding the absence of an acceptance of responsibility and in withholding the
adjustment under Section 3E1.1. See United States v. Johal, 428 F.3d 823, 830
7
(9th Cir. 2005) (“[T]he reduction is inappropriate where the defendant does not
admit that he or she had the intent to commit the crime.”).
The judgment of conviction and the sentence are AFFIRMED.
8
FILED
United States v. Ewing, No. 14-10286
MAY 31 2016
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would reverse Ewing’s convictions. Each of the offenses alleged against
her required the government to prove that she knew drugs were hidden in the car
on June 7, 2013, when Ewing and Macias attempted to re-enter the United States
from Mexico. The government presented no evidence from which a jury could
rationally conclude that Ewing had actual knowledge that drugs were present in the
car; the narcotics were skillfully concealed in hidden compartments in the car’s
rocker panels and were detected only with the aid of a drug-detection dog and a
“density buster” meter. In the past we’ve allowed juries to infer knowledge when
the defendant was the driver and sole occupant of a car, see United States v. Diaz-
Cardenas, 351 F.3d 404, 407 (9th Cir. 2003), but here Ewing was only a passenger
in the Malibu, which was driven by and registered to Macias. So the government
was forced to rely on a theory of “deliberate ignorance,” which required it to prove
that Ewing was aware of a high probability drugs were hidden inside the car and
that she deliberately avoided learning the truth. See United States v. Heredia, 483
F.3d 913, 917, 920, 924 (9th Cir. 2007) (en banc); United States v. Jewell, 532
F.2d 697, 699–701, 703–04 (9th Cir. 1976) (en banc).
The government introduced insufficient evidence to support its deliberate
ignorance theory. The government introduced plenty of evidence from which the
Page 2 of 4
jury could infer that Ewing knew the car had hidden compartments, and that she
knew cash derived from drug sales had been hidden in those compartments when
she and Macias drove the car from Phoenix to Mexico on June 5. Ewing admitted
to that. She further admitted knowing that the people to whom they delivered the
car in Mexico were drug traffickers. What the government did not prove, however,
was Ewing’s awareness of facts that made it highly probable drugs had been
loaded into the car’s hidden compartments for the return trip back to Phoenix on
June 7.
In fact, the government introduced no evidence of what happened to the car
after Ewing and Macias dropped it off in Mexico. (All of the facts mentioned by
the majority, see Memdispo at 4–5, concern the cash-smuggling activities that
occurred back in Phoenix, which Ewing admitted having knowledge of.) The
government did not prove, for example, that when Ewing and Macias delivered the
car to the drug traffickers so that the cash could be extracted, they saw drugs
present in the garage when they left the vehicle but then returned several hours
later to retrieve the car and noticed that the drugs were gone. Nor did the
government attempt to establish that there was anything about the car—a strong
and unusual odor, for example—that would have tipped off its occupants to the
presence of drugs hidden inside. Those are facts from which a jury could
Page 3 of 4
rationally infer that Ewing was aware of a high probability drugs had been hidden
in the car. That’s the kind of evidence our cases require to support drug-trafficking
convictions on a deliberate ignorance theory. See, e.g., United States v. Ramos-
Atondo, 732 F.3d 1113, 1119–20 (9th Cir. 2013); Heredia, 483 F.3d at 923–24;
United States v. Bobadilla-Lopez, 954 F.2d 519, 523 (9th Cir. 1992); United States
v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988) (per curiam); Jewell, 532
F.2d at 699 & n.2. We have never upheld a drug-trafficking conviction on a
deliberate ignorance theory with evidence this thin.
Rather than present adequate evidence to the jury from which rational
inferences could be drawn, the government offered us this argument on appeal:
Everybody knows that drug traffickers, being the profit-maximizers that they are,
would never smuggle cash into Mexico by car but then leave the car empty for the
return trip to the United States. Does everybody really know that? Drug
traffickers’ smuggling techniques are hardly matters of common knowledge. For
all we know, drug traffickers operating out of Mexico use cars to transport drug
proceeds from the United States into Mexico because the risk that cash will be
detected at the border on the way out is relatively low. But perhaps the risk that
drugs will be detected at the border on the way into the United States is much
higher, such that drug traffickers typically smuggle drugs into the United States by
Page 4 of 4
other means—tunnels, planes, panga boats, etc. I don’t know where the truth lies
on that score, and I’m not sure how the jury was supposed to know either, since the
government didn’t even put on an expert from the DEA to educate the jury about
the smuggling practices drug traffickers typically use.
In short, I don’t think the government presented a shred of proof to establish
that Mexican drug traffickers always use the same cars to smuggle drugs into the
United States that they use to smuggle cash into Mexico, much less that everybody
knows that’s how things work. And since the government put on no evidence to
establish that Ewing became aware of facts making it highly probable the particular
car in which she was riding would be used in that fashion, the government
necessarily failed to carry its burden of proof here.