IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2009
No. 08-40793 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE PABLO ROMERO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-375
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Pablo Romero was convicted by a jury of conspiracy to possess with
intent to distribute, possession with intent to distribute, and importing into the
United States more than 100 grams of heroin. On appeal, he challenges his
conviction by raising four issues. Because none of his challenges is meritorious,
we affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-40793
I. FACTS AND PROCEDURAL HISTORY
On March 18, 2008, a grand jury returned a three-count indictment
against Jose Pablo Romero stemming from his transport of heroin from Mexico
into the United States. Count I charged him with knowingly and intentionally
conspiring to possess with the intent to distribute more than 100 grams of
heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B), 841(a)(1), and 846. Count Two
charged him with knowingly and intentionally possessing with the intent to
distribute that heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
Count Three charged him with knowingly and intentionally importing that
heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and
960(b)(2)(A).
The government tried its case against Romero before a jury on May 21 and
22, 2008. At trial, evidence showed that Romero was a passenger on a bus
belonging to his employer, Transporte Pegasos. The bus entered the United
States in Laredo, Texas, where Customs and Border Protection agents inspected
its passengers and their luggage. An agent discovered a shoe box containing a
pair of black boots inside Romero’s duffel bag. The sole of each boot contained
a bundle of heroin. The total weight of the heroin was 747.4 grams.
Under questioning, Romero told three inconsistent stories about the boots’
destination. He first claimed that he was delivering them to a friend; he then
stated that he was taking them to his cousin; and, finally, during an interview
with Immigration and Customs Enforcement officers, he declared that he was
transporting them to Transporte Pegasos’s Dallas office as part of its parcel
business.
At trial, Romero maintained that the third iteration was correct and that
he never made the other statements. He testified that his company received
fifteen dollars to ship the boots from Mexico and deliver them to the Dallas
office. Romero claimed that his fifteen-year-old daughter, who helped run the
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No. 08-40793
office in Comonfort, Guanajuato, Mexico, had received the boots in the morning
of the day in question. At trial, his daughter corroborated his testimony. She
testified that the packages were “from Juan for Sergio, and that they were to be
sent to Fort Worth–Dallas.” When Romero arrived at the office later that
afternoon, the boots were already there, and he inspected them. The shoe box
lacked packing materials, was not labeled with origin or delivery destination,
and did not identify the sender or the recipient. Miguel Ramirez-Hernandez,
Transporte Pegasos’s owner, disputed Romero’s story by testifying that he was
not expecting Romero in Dallas and that Transporte Pegasos’s did not conduct
a parcel delivery service. Romero nonetheless denied any knowledge that there
was heroin in the boots and testified that he did not make any arrangements
with anyone to bring drugs into the United States.
After Romero testified, he presented a character witness, his neighbor Jose
Alfonso Lopez. Lopez had known Romero for thirty-five to forty years and was
an employee of Transportes Juventino Rosas, a bus company and parcel service
owned by Carlos Cuellar that was Romero’s former employer. Lopez testified
that he knew Romero well and that Romero had a reputation as a “law-abiding
person.” As discussed in greater detail below, the prosecutor then cross-
examined Lopez about whether he had heard that, during the course of his
employment with Transportes Juventino Rosas, Romero sent extra packages to
Mexico and pocketed the extra money without the company’s permission. Lopez
denied knowledge of this misconduct. On redirect examination, Lopez
reaffirmed that he had not heard of the incidents and that the incidents did not
change his testimony about Romero. The district court, however, did not permit
him to testify about his knowledge of the truth or falsity of the allegations,
Cuellar’s distrust of his employees, or why Romero left his prior employment.
Romero’s counsel later attempted to recall Romero to the stand to testify
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No. 08-40793
regarding the incidents in question and the reasons for his departure from
Transportes Juventino Rosas. The district court similarly denied the request.
After closing arguments, the prosecutor sought and Romero’s counsel
opposed a jury instruction on deliberate ignorance. The district heard
arguments from both parties, decided to include the requested instruction, and
overruled Romero’s objection to its form. The jury heard the instructions,
deliberated, and returned a verdict of guilty on each count. The district court
entered a judgment of conviction on August 15, 2008; sentenced Romero to 123
months’ incarceration and five years’ supervised release; and imposed a $300
special assessment.
Romero timely appealed. We have jurisdiction under 28 U.S.C. § 1291.
II. DISCUSSION
A. Cross-examination of reputation witness about specific instances of
prior misconduct
Romero first argues that the district court erred by permitting the
prosecutor to impeach Lopez regarding specific instances of Romero’s prior
misconduct. Lopez testified that Romero had a reputation as a “law-abiding
person.” During cross-examination, the prosecutor and Lopez engaged in the
following exchange:
Q And did you know that [Romero] previously worked for a bus
company? You were talking about the bus there is called
Cuellar; is that correct?
A Yes.
Q Did you know or are you aware that [Romero] was sending
extra packages from Dallas to Mexico?
[Objection and sidebar; objection overruled 1 ]
1
Romero’s counsel objected to the lack of foundation for and hearsay nature of the
questions. During sidebar, the prosecutor proffered that Cuellar caught Romero sending extra
packages from the United States to Mexico and pocketing the money. The district court
overruled the objection because “when you ask[ed] as to [Romero’s] reputation you opened that
door.”
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No. 08-40793
Q The question was: Did you know that the defendant was
sending extra packages from Dallas to Mexico without his
boss knowing about it?
A I didn’t know.
Q Did you know that he was then pocketing the money he was
getting from those extra packages?
[Objection and sidebar; objection overruled 2 ]
Q Okay. Sir, let me ask the question again. Did you know that
he was pocketing the money without giving it to his boss?
A No.
The district court did not abuse its discretion when it permitted this
questioning. We initially reiterate that the trial judge “is vested with very wide
discretion as to the scope of testimony of witnesses on reputation and especially
wide discretion to prevent having the trial of the accused be diverted into a
collateral inquiry by the efforts at impeachment and subsequent efforts to
rehabilitate the reputation witness.” Shimon v. United States, 352 F.2d 449, 453
(D.C. Cir. 1965); see also Michelson v. United States, 335 U.S. 469, 480 (1948)
(“Both propriety and abuse of hearsay reputation testimony, on both sides,
depend on numerous and subtle considerations, difficult to detect or appraise
from a cold record, and therefore rarely and only on clear showing of prejudicial
abuse of discretion will Courts of Appeals disturb rulings of trial courts on this
subject.”).3
2
Romero’s counsel offered a speaking objection that the allegation was made by
Cuellar, that it was not a conviction, that it was not a proven fact, and that there was no police
or incident report. At sidebar, the district court overruled the objection and admonished
defense counsel for arguing to the jury during an objection.
3
The government asks us to review this issue for plain error. See United States v.
Olano, 507 U.S. 725, 730–37 (1993). Although Romero clearly objected and the district court
overruled his objections to the questions about his prior misconduct, the record does not reveal
that Romero raised or preserved the challenge presented on appeal—that the prior misconduct
was not relevant to the character trait at issue at trial. Because the government prevails
under either standard, we will assume, without deciding, that the challenge was preserved
and thus will review for abuse of discretion.
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No. 08-40793
Under Rule 405(a) of the Federal Rules of Evidence, cross-examination of
a witness offering evidence of the defendant’s reputation (commonly referred to
as character evidence) can include “Have you heard?” questions regarding
relevant, specific instances of the defendant’s conduct.4 See, e.g., United States
v. Wells, 525 F.2d 974, 976 (5th Cir. 1976) (“Once a witness has testified
concerning a defendant’s good character, it is permissible during
cross-examination to attempt to undermine his credibility by asking him
whether he has heard of prior misconduct of the defendant which is inconsistent
with the witness’ direct testimony.”). The point of such questions is “to
determine the credibility and accuracy of [the character witness’s] testimony.”
Aaron v. United States, 397 F.2d 584, 585 (5th Cir. 1968). There are two
limitations to this type of cross-examination. First, the prosecution must have
a good faith factual basis for the prior bad act or misconduct. Second, the
incidents must be relevant to the defendant’s character traits that are at issue
in the trial. Michelson, 335 U.S. at 481 n.18; United States v. Nixon, 777 F.2d
958, 970 (5th Cir. 1985); Wells, 525 F.2d at 977; Aaron, 397 F.2d at 585.
Romero concedes that the government had a good faith factual basis for
probing Lopez on the prior misconduct but argues that the specific incidents are
not relevant to character traits at issue in the trial. This argument lacks merit.
The alleged incidents constituted prior unlawful conduct, thus testing the
credibility and accuracy of Lopez’s knowledge of Romero’s reputation as a law-
abiding person—the character trait that Romero put on trial by having Lopez
testify. See Michelson, 335 U.S. at 479 (“[The government] may test the
sufficiency of his knowledge by asking what stories were circulating concerning
events, such as one’s arrest, about which people normally comment and
4
Although the relevant questions in this case were phrased in the impermissible “Did
you know?” form, the defendant did not object to the phrasing of the questions and has not
raised the issue on appeal.
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No. 08-40793
speculate.”). Furthermore, the record shows that the prosecutor’s questioning
was narrow. He used the prior misconduct only to impeach Lopez’s
testimony—he did not overly emphasize the facts of those incidents and did not
rely on them in his closing argument, asking the jury only to weigh how well
Lopez knew Romero. Cf. Shimon, 352 F.2d at 454 (concluding that it was
improper for the government to “go out of [its] way” to describe the prior
activities).
Romero’s prior misconduct was also not so dissimilar to the charged crimes
as to contravene existing precedent.5 Cf. Aaron, 397 F.2d at 585 (in a trial for
bank fraud, cross-examination of character witness about an illicit affair was
impermissible where character witness testified to defendant’s honesty and fair-
dealing). As the Supreme Court explained in Michelson:
The good character which the defendant had sought to establish was
broader than the crime charged and included the traits of ‘honesty
and truthfulness’ and ‘being a law-abiding citizen.’ . . . The crimes
may be unlike, but both alike proceed from the same defects of
character which the witnesses said this defendant was reputed not
to exhibit. It is not only by comparison with the crime on trial but
by comparison with the reputation asserted that a court may judge
whether the prior arrest should be made subject of inquiry.
335 U.S. at 483–84. The prior incidents in this case involved conduct that was
not so remote as to call into question the district court’s exercise of its discretion.
See Salgado v. United States, 278 F.2d 830, 833 (1st Cir. 1960) (“The kind of
character which may be shown calls for a matter of judgment as to its
relevancy.”). Thus, the district court did not abuse its discretion.
5
In fact, the district court concluded that Romero’s misconduct was sufficiently similar
to permit an inference of a pattern of behavior that was admissible to show knowledge and
absence of mistake in accordance with Rule 404(b) of the Federal Rules of Evidence. The
prosecutor chose not to pursue that line of evidence at trial.
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No. 08-40793
B. Denial of opportunity to proffer evidence regarding prior instances
used during cross-examination of reputation witness
Romero next argues that the district court erred by sustaining objections
during his attorney’s redirect examination of Lopez and by denying Romero the
opportunity to testify a second time. During Lopez’s redirect examination, the
district court sustained the prosecutor’s objections to questioning about whether
the allegations of Romero’s misconduct were true or false, why Romero left
Transportes Juventino Rosas, and the rate of employee turnover at that
company (which ostensibly reflected Cuellar’s distrust of his employees). The
district court explained (1) that Lopez testified that he did not know anything
about the allegations, thus he could not verify their truth or falsity; (2) that
Romero’s departure was not raised on cross-examination, thus it was beyond the
permissible scope of redirect; and (3) that “Cuellar is not the issue here,” thus his
distrust of Romero or his other employees was not relevant. The district court
also denied Romero’s counsel’s request to recall Romero to testify about the
alleged misconduct and about his departure from Transportes Juventino Rosas.
The court denied the request for numerous reasons, particularly because the
incidents and reasons for his departure from Transportes Juventino Rosas were
not relevant.
We review for an abuse of discretion the district court’s rulings on
evidentiary matters such as whether to sustain or overrule an objection or to
permit a party to recall a witness. See United States v. Masat, 948 F.2d 923, 933
(5th Cir. 1991) (“The district court has wide discretion in determining the
relevance and materiality of evidence.”); Johnson v. United States, 207 F.2d 314,
322 (5th Cir. 1953) (“The order in which evidence is to be received, the recalling
of witnesses to the witness stand . . . and the acceptance or rejection of rebuttal
testimony are matters which are necessarily committed to the broad discretion
of the trial court, the exercise of which will not be disturbed upon appeal in the
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No. 08-40793
absence of a clear showing of abuse.”). In this case, the district court did not
abuse its discretion.
“[T]he Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” United States v. Scheffer, 523 U.S.
303, 329 n. 16 (1998) (Stevens, J., dissenting) (quotation marks and citations
omitted). It, however, does not grant the defendant a right to present evidence
that is cumulative, confusing, harassing, prejudicial, or only marginally
relevant. See Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005); see also
United States v. Mizell, 88 F.3d 288, 294 (5th Cir. 1996) (noting that a
defendant’s right to call witnesses “is limited and must be weighed against
the . . . ‘interest in the fair and efficient administration of justice[] and the
potential prejudice to the truth-determining function of the trial process.’” (first
alteration in original) (quoting Taylor v. Illinois, 484 U.S. 400, 414–15 (1988)).
In this case, the information that Romero’s counsel sought to elucidate on
redirect of Lopez lacked proper foundation, was not relevant, or had not been
raised on cross-examination. Because Lopez admitted that he had not heard
about Romero’s misconduct, redirect questioning about that misconduct lacked
any foundation. Furthermore, Lopez’s opinion about Cuellar’s disposition was
undoubtedly a collateral issue. And, the prosecutor did not question Lopez about
Romero’s departure from Transportes Juventino Rosas, thus any questioning on
the issue for the first time on redirect was impermissible. The district court did
not abuse its discretion in sustaining the prosecutor’s objections.
The district court also did not abuse its discretion by denying Romero’s
counsel’s request to recall Romero to the stand. The district court’s exercise of
its discretion was consistent with our precedent. For example, in United States
v. James, 510 F.2d 546 (5th Cir. 1975), we held that the district court did not
abuse its discretion in denying the defendant the opportunity to recall a witness
even where a subsequent witness “gave a slightly different account of the
9
No. 08-40793
occurrences;” this was particularly so for a “point of limited significance.” Id. at
551; see also Masat, 948 F.2d at 933 (holding that the district court did not abuse
its discretion by denying the defendant an opportunity to recall a witness who
had already testified and been subject to cross-examination).6 Here, the
proposed testimony was even less relevant because it would not have
contradicted or clarified any substantial testimony. Defense counsel sought to
recall Romero to testify regarding the incidents that the prosecutor used to cross-
examine Lopez’s knowledge of Romero’s reputation and regarding his departure
from Transportes Juventino Rosas. Yet, when Lopez admitted he had not heard
of Romero’s prior misconduct, the impeachment was complete, and clarifying the
substance of the incidents or the events surrounding Romero’s departure from
Transportes Juventino Rosas would not serve to rehabilitate Lopez. Moreover,
the government notified Romero that it intended to present evidence of his prior
misconduct, so the use of those events to cross-examine Lopez was not surprising
to Romero. Similarly, the prosecutor did not elucidate any information about
Romero’s departure from Transportes Juventino Rosas, so no “rebuttal”
6
None of the cases cited by Romero compels the conclusion that the district court
abused its discretion in denying Romero’s recall to testify about collateral matters. See United
States v. Parker, 73 F.3d 48, 53–54 (5th Cir. 1996) (reversing the district court’s denial of
motion to reopen a case to permit the defendant to recall a witness to testify that an
eyewitness admitted that the gun that the perpetrator possessed could have been a toy gun
because the testimony refuted the only disputed element), reh’g granted and op. vacated by 80
F.3d 1042 (5th Cir. 1996) (en banc), relevant portions of op. reinstated by 104 F.3d 72 (5th Cir.
1997) (en banc); United States v. Farmer, 923 F.2d 1557, 1568–69 (11th Cir. 1991) (affirming
the district court’s refusal to permit the use of a prior misdemeanor theft because the theft was
not probative of the witness’s veracity); United States v. Portis, 542 F.2d 414, 417–18 (7th Cir.
1976) (reversing the district court’s denial of surrebuttal testimony by the defendant’s expert
regarding the defense of insanity because it was necessary for the government’s expert to first
testify before the defense expert could give an impeaching opinion); Shimon, 352 F.2d at 453–55
(permitting a character witness to testify about the criminal charges that the prosecutor used
to impeach his testimony about defendant’s reputation because the witness stated that he had
heard of those charges and that they did not alter the defendant’s reputation); State v.
Reynolds, 931 P.2d 94, 97–98 (Or. 1997) (reversing district court’s denial of surrebuttal
testimony as to defendant’s truthfulness because defendant’s testimony had made his
credibility a central issue in the case).
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No. 08-40793
testimony was necessary on that issue. The testimony proposed by Romero’s
counsel was otherwise collateral or only minimally relevant; thus, the district
court did not abuse its discretion by forestalling the trial of those issues.7
Overall, then, the district court did not abuse its discretion in its decisions
on the evidentiary issues that Romero now appeals.
C. Deliberate ignorance jury instruction
Romero separately contends that the district court erred by instructing the
jury on deliberate ignorance.8 Romero argues both that the evidence did not
warrant the submission of any deliberate ignorance instruction to the jury and
that the instruction itself was incorrect. The second contention is without
foundation 9 ; thus, we will focus our analysis on the first contention. “We review
7
Romero also seeks relief under the Federal Rules of Evidence. Evidence Rule 806
provides:
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or
(E), has been admitted in evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if declarant had testified as a witness.
Romero admits that “the hearsay allegations used by the prosecutor in his cross-examination
of Mr. Lopez were technically not admitted into evidence”; thus, Rule 806 does not apply.
Romero’s reference to Evidence Rule 402—which states in part that “[a]ll relevant evidence
is admissible”—is likewise misplaced, as neither Romero’s departure from Transportes
Juventino Rosas nor Cuellar’s disposition is relevant to this case. Appropriately, Rule 402
concludes: “Evidence which is not relevant is not admissible.”
8
“The term ‘deliberate ignorance’ ‘denotes a conscious effort to avoid positive knowledge
of a fact which is an element of an offense charged, the defendant choosing to remain ignorant
so he can plead lack of positive knowledge in the event he should be caught.’” United States
v. Wofford, 560 F.3d 341, 352 (5th Cir. 2009) (quoting United States v. Lara-Velasquez, 919
F.2d 946, 951 (5th Cir. 1990)).
9
The district court instructed the jury as follows:
You may find that a defendant had knowledge of a fact if you find that
the defendant deliberately closed his eyes to what would otherwise would have
been [sic] obvious to him. While knowledge on the part of the defendant cannot
be established merely by demonstrating that the defendant was negligent,
careless, or foolish, knowledge can be inferred if the defendant deliberately
blinded himself to the existence of a fact. However, this does not lessen the
government’s burden to show beyond a reasonable doubt that the knowledge
element of the crime has been satisfied.
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No. 08-40793
challenges to jury instructions to determine whether the court’s charge, as a
whole, is a correct statement of the law and whether it clearly instructs jurors
as to the principles of law applicable to the factual issues confronting them.”
United States v. Moreno, 185 F.3d 465, 475–76 (5th Cir. 1999) (quotation marks
omitted). We “must carefully examine the totality of the evidence” when
determining whether the instruction was permissible, Lara-Velasquez, 919 F.2d
at 952, and “must view the evidence and all reasonable inferences therefrom in
favor of the government,” Moreno, 185 F.3d at 476. Within this framework,
“[t]he district court has broad discretion in fashioning the charge.” Id.10
“This Court has consistently upheld deliberate ignorance instructions as
long as sufficient evidence supports their insertion in the charge.” Lara-
Velasquez, 919 F.2d at 951. “The purpose of the deliberate ignorance instruction
is to inform the jury that it may consider evidence of the defendant’s charade of
ignorance as circumstantial proof of guilty knowledge.” Wells, 262 F.3d at 465.
Yet, because “a deliberate ignorance instruction creates a risk that the jury
might convict for negligence or stupidity, i.e., that the defendant should have
been aware of the illegal conduct,” Wofford, 560 F.3d at 352, “[t]he instruction
is properly given only when the defendant claims a lack of guilty knowledge and
the proof at trial supports an inference of deliberate ignorance,” Lara-Velasquez,
919 F.2d at 951 (quotation marks and alterations omitted). Thus, “[t]he evidence
at trial must raise two inferences: (1) the defendant was subjectively aware of
a high probability of the existence of the illegal conduct; and (2) the defendant
This charge is consistent with deliberate ignorance instructions that we have upheld in prior
cases. See, e.g., Lara-Velasquez, 919 F.2d at 949.
10
The government seeks plain error review of this issue. Romero undoubtedly opposed
the inclusion of the deliberate ignorance instruction prior to the district court’s distribution
of the final proposed instruction to the parties. The record also reveals, however, that Romero
did not object to its inclusion (as opposed to its form) after distribution. Assuming without
deciding that Romero preserved his opposition to the instruction, we review for abuse of
discretion.
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No. 08-40793
purposely contrived to avoid learning of the illegal conduct.” Id. “[T]he district
court should not instruct the jury on deliberate ignorance when the evidence
raises only the inferences that the defendant had actual knowledge or no
knowledge at all of the facts in question.” Id.
In this case, Romero undisputedly raised a lack of guilty knowledge in his
defense. Thus, we first inquire whether the evidence permitted an inference
that Romero was subjectively aware of a high probability of the existence of
illegal conduct. We “permit[] a deliberate ignorance instruction only when the
Government presents facts that support an inference that the particular
defendant subjectively knew his act to be illegal and not when the Government
presents facts that tend to support an inference that a reasonable person would
have known the act to be illegal.” Id. at 952. Within this test, “[s]uspicious
behavior may be sufficient to infer subjective awareness of illegal conduct.”
Wofford, 560 F.3d at 353.
Such highly suspicious evidence was presented to the jury in this case.
For example, Romero changed his story about the destination of the shoes
multiple times—first suggesting they were a gift destined for a friend, then that
he was delivering them to a cousin, and finally that they constituted a paid
parcel for his company. Such inconsistent testimony supports the conclusion
that Romero knew of the probability of illegal activity. Ample evidence also
suggested that the story that he proposed at trial—that he was delivering a
parcel as part of his job—was fabricated. Ramirez-Hernandez testified that
Transporte Pegasos did not have a parcel delivery service. In addition, the shoe
box lacked such traditional trappings of parcels as a label, recipient name and
address, or sender name and address. Similarly, the shoes were destined only
for “Sergio” in Dallas—an unlikely and suspicious target for a parcel delivery.
The totality of the facts thus permitted an inference that Romero was
subjectively aware of the high probability of illegal conduct.
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No. 08-40793
We must next inquire whether the evidence raised an inference that
Romero purposefully contrived to avoid learning that his conduct was illegal.
We “have determined that the circumstances of the defendant’s involvement in
the criminal offense may have been so overwhelmingly suspicious that the
defendant’s failure to question the suspicious circumstances establishes the
defendant’s purposeful contrivance to avoid guilty knowledge.” Lara-Velasquez,
919 F.2d at 952. In this case, the evidence presented to the jury showed
overwhelmingly suspicious circumstances. Although Romero had years of
experience in the busing and parcel industry, he did not inquire about suspicious
circumstances regarding the shoe delivery. International shipments subject to
United States customs are not conducted on a first-name only basis without
contact or forwarding information, packing materials, or labels. Yet, Romero did
not seek more information about the recipient or the sender despite the difficulty
of finding a particular “Sergio” in Dallas or a particular “Juan” in Mexico. Thus,
the evidence permits an inference that Romero purposefully contrived to avoid
learning about the contents of the “parcel” he was delivering.11
11
Although Romero relies on United States v. Mendoza-Medina, 346 F.3d 121 (5th Cir.
2003), our holding in that case is not to the contrary. There, the defendant was convicted for
conspiracy to possess and for possession with intent to distribute more than fifty kilograms
of marijuana after he hauled the drugs into the United States in his tractor-trailer. Id. at 127.
Although the government did not request a deliberate ignorance instruction, the district court
gave one sua sponte. Id. at 133. We held that the deliberate ignorance instruction was
improper because “the evidence either indicates that [the defendant] knew about the drugs or
that he did not, and does not suggest that he was deliberately ignorant to the scheme.” Id.
The “evidence of actual knowledge was [the defendant’s] admission that he knew he was
carrying drugs and the inference that he had done it [on a previous trip].” Id. at 134. “Unlike
the case where the evidence supports an inference of either actual knowledge or a subjective
awareness, such as nervousness upon being stopped by authorities, an admission indicates
either that [the defendant] had actual knowledge or no knowledge at all, if the statement was
coerced.” Id. In that context, the fact that the defendant was asked by his employer to pick
up the drug shipment in a trailer located at a gas station instead of a loading dock did not
permit an inference of deliberate ignorance. Id. at 134. We nonetheless upheld the judgment
of conviction because his admission was more than sufficient to support a conviction based on
actual knowledge, rendering the error harmless. Id. Here, Romero did not admit his crime,
and the evidence permitted the jury to conclude that he was deliberately ignorant.
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No. 08-40793
Thus, because Romero’s defense centered on his lack of knowledge of the
content of the boots and because the government presented sufficient evidence
indicating that his transport of the shoes was with, at minimum, deliberate
ignorance, the district court did not abuse its discretion by instructing the jury
on deliberate ignorance.
D. Cumulative Effect
Romero finally asks us to reverse the district court based on the
cumulative effect of the purported errors in this case. He has not sufficiently
briefed how the cumulative error affected this case, so we are not inclined to
grant his request. See United States v. Stevens, 487 F.3d 232, 242 n.1 (5th Cir.
2007) (“Inadequately briefed issues are deemed abandoned.”). Moreover, as we
have held above, the district court did not err; thus, his claim of cumulative error
must fail. See United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992)
(“Because we find no merit to any of [the defendant’s] arguments of error, his
claim of cumulative error must also fail.”).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment of
conviction.
15