USA v. Gilberto Rivera-Razo
UNPUBLISHED OPINION FILED. [11-40206 Affirmed ] Judge: WED , Judge: HRD , Judge: FPB Mandate pull date is 01/31/2012 for Appellant Gilberto Rivera-Razo [11-40206]
Date Filed: 01/10/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
January 10, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-541-1
Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
A jury convicted Gilberto Rivera-Razo of conspiracy to possess with intent
to distribute cocaine and possession with intent to distribute cocaine. He was
sentenced to a 121-month prison term. On appeal, he challenges only the district
court’s decision to give a deliberate ignorance instruction to the jury. Taking into
account the totality of the evidence and drawing all reasonable inferences in the
light most favorable to the Government, we conclude that the district court did
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 01/10/2012
not abuse its discretion. See United States v. Nguyen, 493 F.3d 613, 619 (5th Cir.
2007); United States v. Lara-Velasquez, 919 F.2d 946, 952 (5th Cir. 1990).
A deliberate ignorance instruction may be given only where the defendant
argues that he did not have knowledge of guilt and the evidence at trial supports
an inference that the defendant was deliberately ignorant, meaning that (1) the
defendant was subjectively aware of a high probability of illegal conduct and
(2) he purposely avoided learning of the illegal conduct. Nguyen, 493 F.3d at
According to Rivera-Razo, the instruction was not warranted because the
case hinged on whether the jury believed testimony from Government witnesses
that he confessed knowing he was carrying the cocaine found in a compartment
in the floor of his van. However, more than merely calling into question the
government witnesses’ testimony that he admitted actual knowledge of the
drugs, Rivera-Razo also urged the jury to credit his evidence and conclude that
he had legitimate reasons for coming to the United States—namely, that he was
shopping for heavy construction equipment for his two clients and that he
wanted to buy a pickup truck—and had no knowledge of the drugs in the van.
Accordingly, the district court did not err in determining that Rivera-Razo
argued that he had no guilty knowledge. See id. at 618.
The evidence also suggested that Rivera-Razo was deliberately ignorant.
Evidence of Rivera-Razo’s suspicious behavior, including that he gave
inconsistent statements to federal agents, lied about his travel to and within the
United States, transcribed code words dictated to him by a client, had four cell
phones—including a push-to-talk phone given to him by his clients—and carried
cocaine worth as much as $4.45 million, supported an inference that he was
subjectively aware of a high probability that the van he was driving contained
drugs. See id. at 619–20; see also United States v. Wofford, 560 F.3d 341, 353
(5th Cir. 2009) (explaining that “[f]alse or inconsistent statements have been
held to support an inference that the defendant was subjectively aware of a high
Date Filed: 01/10/2012
degree of probability of illegal conduct”); United States v. Garcia-Flores, 246 F.3d
451, 455 (5th Cir. 2001) (noting that guilty knowledge may be inferred based on
the quantity of drugs as long as other evidence supports the inference).
Additionally, the suspicious circumstances surrounding Rivera-Razo’s trips to
the United States for his clients, including that (i) he intended to leave the van
in the United States despite the fact that he had recently purchased insurance
for it and registered it, (ii) his clients once accompanied him to the United States
to show him the route to take and made him get out of the car and cross the
border on foot, and (iii) one client dictated code words to him when he was en
route to the United States, support an inference that he purposefully avoided
learning of any illegal conduct. See Nguyen, 493 F.3d at 621.
In any event, there was substantial evidence that Rivera-Razo had actual
knowledge that he was bringing drugs into the United States. Two government
witnesses testified that Rivera-Razo admitted smuggling drugs, made
inconsistent statements to the authorities, and was found with a list of code
words in his van. Thus, any error in giving a deliberate ignorance instruction
would have been harmless. See United States v. McElwee, 646 F.3d 328, 341 (5th
Cir. 2011); see also United States v. Mendoza-Medina, 346 F.3d 121, 134–35 (5th
Cir. 2003) (holding that the district court’s error in giving a deliberate ignorance
instruction was harmless where the defendant confessed and the confession was
corroborated by other evidence).
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