Appeal from judgment of conviction after jury trial before Orrin G. Judd, J., in the United States District Court for the Eastern District of New York, finding appellant guilty of aiding and abetting the possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Affirmed.
Friendly and Feinberg, Circuit Judges, and Lasker, District Judge.*fn*
Jacqueline Dozier appeals from conviction after trial on a one-count indictment of aiding and abetting the possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), in the United States District Court for the Eastern District of New York, Orrin G. Judd, J. Dozier was sentenced under the Youth Correction Act, 18 U.S.C. § 5010(e) to a 90-day period of study and observation. Although appellant does not challenge the sufficiency of the evidence against her, she contends that the trial judge erred in portions of his charge to the jury and that the conviction must be reversed because the verdict was rendered by less than twelve competent jurors, in violation of Rule 23(b) Federal Rules of Criminal Procedure.
The facts are uncomplicated. A friend of appellant's, Mary Lou Dantzler,*fn1 arranged to sell cocaine to two New York City undercover policemen. According to plan, the officers drove to Dantzler's home on the night of December 11, 1973. Dantzler and Dozier met them on the street. Dantzler told one of the policemen that she had the package but that the "deal" would take place elsewhere. While Dantzler went to get the cocaine, appellant, at Dantzler's request, entered the officers' car and directed them to a movie theater. When they reached the theater, the three went inside and waited approximately fifteen minutes for Dantzler to arrive. While they were waiting, appellant assured her companions that Dantzler did "straight business." When Dantzler arrived, she and one of the officers entered the men's restroom while Dozier and the other officer stood guard outside the door. Shortly afterward, Dantzler and Dozier were arrested. According to appellant's version, Dantzler had asked her, without further explanation, whether she would escort the men to the movie theater. Dozier denied overhearing any conversation outside Dantzler's house, and testified that she did not ask Dantzler where she was going or why, at the time Dantzler went to pick up the cocaine. She maintained that the wait for Dantzler at the theater did not arouse her suspicions and that she did not want to know the reason for the rendezvous in the men's restroom.
Appellant first claims error in the judge's charge on the question of conscious avoidance of knowledge. He stated:
"I refer to the word knowingly, knowledge can be proved by a defendant's conduct and by all the facts and circumstances surrounding the case. No person can intentionally avoid knowledge by closing his eyes to facts which should prompt him to investigate; and so, knowledge can be established by direct or circumstantial evidence just as any other facts in the case, and you can consider the peculiarity if you consider as such of going to a theater with a couple of strange men without the one who introduced him to you at 10:00 o'clock at night, in the middle of the second show and see whether that is a circumstance that implies knowledge that there was a cocaine transaction to take place in an area where Miss Dozier, Sr. said cocaine was all over the neighborhood, or whether it was just an adventurous girl who thought here was a chance to go out, she had an older friend and she would have an interesting time. If you find from all the evidence beyond a reasonable doubt either that the defendant knew that she was helping in a cocaine transaction, or that she had a conscious purpose to avoid finding out the identity of the substance so as to close her eyes to the facts, you could find sufficient evidence to find her guilty beyond a reasonable doubt. But it's up to you whether there is a reasonable doubt."
We find nothing objectionable or erroneous in the charge nor in the court's supplemental instructions on the subject.*fn2 In one of two appeals decided last year which approved similar instructions, this court stated:
"'studied ignorance' of a fact may, under decisions of the Supreme Court and of this court, constitute an awareness of so high a probability of the existence of the fact as to justify the inference of knowledge of it." United States v. Joly, 493 F.2d 672, 675 (2d Cir. 1974).*fn3
See also, United States v. Olivares-Vega, 495 F.2d 827 (2d Cir. 1974). Moreover, Joly specifically held, in rejecting a contention similar to that made here, that an inference of knowledge that the subject of the transaction is narcotics "does not automatically disappear because other evidence arguably points the other way." United States v. Joly, supra, 493 F.2d at 676. See, also, United States v. Olivares-Vega, supra, 495 F.2d at 830. Contrary to appellant's argument, neither Joly nor Olivares-Vega turned on the fact that the narcotics were at some point in the defendants' possession, but pointed to that item as one of the several pieces of evidence which could support an inference of knowledge. United States v. Joly, supra, 493 F.2d at 676; United States v. Olivares-Vega, supra, 495 F.2d at 830.
Dozier's other objections to the charge are not persuasive. The trial court's instruction on the credibility of a defendant as a witness was not improper, United States v. Tyers, 487 F.2d 828 (2d Cir. 1973); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966); United States v. Sullivan, 329 F.2d 755 (2d Cir.) cert. denied, 377 U.S. 1005, 12 L. Ed. 2d 1054, 84 S. Ct. 1943 (1964) and, particularly in the context of the entire charge, was not prejudicial. Nor did the trial court transgress its legitimate role by its brief comments on the evidence. United States v. Tourine, 428 F.2d 865, 869 (2d Cir. 1970).
Dozier's final point is based on a note given to the trial judge after the jury had been deliberating for a day. The note stated:
"One juror feels there is no way for any person to make a decision regarding any person's guilt. This decision is reserved to God. The juror will not discuss the case, the facts, or anything about it. Maybe you can re-direct what we must do. That we cannot avoid a decision. It is not a matter of ...