Appeal from a judgment of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, convicting appellant after a jury trial of one count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2. Appellant claims errors in instructions bearing on the issue of whether she knew that a suitcase she was transporting for someone else contained narcotics. Reversed.
Waterman, Anderson and Mansfield, Circuit Judges. Anderson, Circuit Judge, dissenting.
MANSFIELD, Circuit Judge:
Celedonia Morales appeals from her conviction, after a jury trial in the Eastern District of New York before Judge Thomas C. Platt, of one count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She was sentenced, pursuant to 18 U.S.C. § 4205(b)(2), to a term of 12 years imprisonment and a special parole term of 10 years. Appellant does not contend that the evidence adduced at trial was insufficient to convict. Rather, she claims that she was prejudiced by certain errors committed by Judge Platt in his instructions to the jury and by her trial counsel. Because we believe that a series of circumstances had the cumulative effect of denying appellant a fair trial on the issue of whether she knew that a suitcase she was carrying for someone else contained narcotics, we reverse and remand for a new trial.
On February 25, 1977, appellant, using the assumed name of Carmen Ortiz, purchased a one-way plane ticket from O'Hare Airport, Chicago, to LaGuardia Airport, New York. By chance, the tag for her suitcase was lost before the luggage was placed on the airplane and, in the course of searching for information as to its destination, an airlines baggage agent opened it and found inside two small packages, both of which were wrapped completely in silver electrician's tape and buried beneath some dirty clothes. One of the packages had acquired a small tear about a quarter of an inch long in it by the time it was discovered and was giving off a vinegar-like odor. As a result, the baggage agent became suspicious and reported the matter to the authorities. A field test of the contents of the packages performed by an agent of the Drug Enforcement Administration (DEA) revealed that they contained heroin.
After removing small samples of the narcotics, the DEA agent determined the airline's flight number and the destination of the suitcase, alerted the DEA office in New York of its expected arrival, and had the luggage forwarded to LaGuardia Airport. Meanwhile, appellant arrived in New York and again used the assumed name of Carmen Ortiz on a lost baggage report informing the airline that her suitcase was missing. Shortly thereafter the bag arrived, and she picked it up. After appellant made several phone calls, she was arrested by DEA agents who had been keeping her under surveillance.
As appellant spoke English somewhat haltingly, an officer of the Customs Service advised her in Spanish of her constitutional rights. Although she admitted that she had opened the suitcase to put in a blouse, appellant denied knowing that it contained drugs. She explained that a man named "Juan," whom she had seen occasionally in her neighborhood, had promised her $1,000 if she would deliver a suitcase to a man named "Shorty" in New York; she indicated that she had simply followed instructions.
Immediately after her arrest, appellant agreed to cooperate with the federal agents and, as arranged, delivered the suitcase to one Anna Mendez in Brooklyn, New York, who, it was understood, was to turn the narcotics over to "Shorty," the buyer. Although "Shorty" and Mendez were both arrested for their participation in the transaction, appellant was either unwilling or unable to furnish the DEA agents with the name and address of her heroin source.
Appellant and Mendez were jointly indicted for possession of heroin with intent to distribute it, but their cases were severed before trial. Appellant was tried on April 6 and 7, 1977. As much of the intended trial testimony had either been the subject of a lengthy suppression hearing on April 5 or concerned facts not in dispute, the attorneys entered into stipulations which obviated the need for producing several Government witnesses. The Government, therefore, called only Special DEA Agent Gerard Whitmore, who was in charge of the investigation, and Philip Lawry, the officer of the United States Customs Service, who had been called in because of his fluency in Spanish to assist in advising appellant of her rights and in questioning her at the airport. Appellant did not testify or call any witnesses on her behalf.
The only disputed issue at trial was whether appellant had known that her suitcase contained drugs despite her insistence to the contrary in questioning following her arrest. The Government introduced no direct evidence, such as admissions or testimony by others involved in the transportation of the suitcase, to the effect that appellant's denials were false and that she actually was aware of the nature of the contents of the taped packages in her suitcase. Rather, it relied exclusively on circumstantial evidence. The prosecution asked the jury to infer the existence of the knowledge required for a conviction under 21 U.S.C. § 841(a)(1)*fn1 from her statements that she had opened the suitcase to put in a blouse and that she had been offered $1,000 to transport the suitcase to New York, and from her use of an assumed name while she was performing this errand. We cannot share the Government's characterization of this evidence as "overwhelming"; on the contrary, although it could create a suspicion of guilt it was also consistent with ignorance of the general nature of what she transported. The contents of the taped packages were not obvious and could not have been determined by appellant unless she had been advised by someone or had made her own investigation, neither of which was shown. While it is reasonable, as the Government points out, to infer that appellant could hardly have believed that she would be paid $1,000 for transporting a suitcase full of dirty clothes to New York, this does not require an inference that she believed the contents to be narcotics, as distinguished from some other contraband such as stolen jewelry or precious metal, counterfeit bills, uranium, valuable documents, or the like. Thus her use of an alias was as consistent with the defense theory that she was a "mule," ignorant of the nature of the contraband she carried, as with the prosecution's contention that she was fully aware of the contents of the two opaque packages in the suitcase.
Absent direct evidence, the fairness of appellant's trial depended heavily on the jury's being accurately informed of the relevance of circumstantial proof bearing on her state of mind. Not only was all of the evidence consistent with her having been an innocent carrier, a not unusual state of affairs in this kind of case, but also some of the Government's own evidence - the testimony reciting appellant's denials and her swift decision to cooperate - tended to support her claim of ignorance. Under these circumstances, an error in instructions regarding the relevance of the proof was far more significant than it might otherwise have been. Unfortunately the record reveals several errors with respect to the issue of appellant's guilty knowledge. Taken in combination, they were serious enough to deprive appellant of a fair trial.
First, the trial judge charged the jury regarding appellant's use of an assumed name on her lost baggage report as follows:
"There is evidence in this case, or at least the Government claims that there is evidence in this case, that the defendant participated in the fabrication of a document intended to mislead the investigative authorities. If you find beyond a reasonable doubt that this document was spurious or false, and if you find beyond a reasonable doubt that the defendant participated in the making of it, you may consider that fact as probative of the defendant's guilt.
"The fabrication of false documentary evidence has from the earliest time been treated as evidence of guilt. Similarly, if you find beyond a reasonable doubt that the defendant used a name other than her own in order to avoid subsequent identification, that would be a fact from which you may, but need not, if you do not wish to do so, infer a consciousness of guilt on her part." (Tr. 300-01).
Of course appellant's use of a false name on her lost baggage report was admissible to show consciousness of guilt, i.e., that she knew she was doing something wrong or illegal. Consciousness of wrongdoing, in turn, might be considered along with all other relevant evidence bearing on the issue of whether she knew she was carrying narcotics. See 2 Wigmore on Evidence § 276, at 111 (3d ed. 1940). However, neither the use of an alias nor a general consciousness of guilt was an element of the crime charged; the Government had to show that appellant knew she possessed drugs, not that she was aware that she might be involved in some sort of criminal activity. Consequently, this case is closely analogous to United States v. DiStefano, 555 F.2d 1094, 1104 (2d Cir. 1977), in which we held that it was plain error to instruct a jury that a false exculpatory statement made by a defendant after her arrest was "circumstantial evidence of guilt." Despite the limited inferences that might permissibly be drawn from appellant's use of a false name on her baggage report, the district court's instruction indicated that this conduct was unequivocally probative of guilt. Thus, it prejudiced appellant by misstating the relevance of an act whose ambiguity should have been resolved by the jury.*fn2 Moreover, the erroneous instruction immediately followed the prosecutor's argument in summation that appellant's use of an alias on the lost baggage report form was "evidence of guilt," thus lending the court's imprimatur to the prosecutor's error.*fn3
In view of the remainder of the record in this case, we need not decide whether the erroneous instruction regarding appellant's falsification of her lost baggage report - which drew no objection from defense counsel - would in and of itself constitute "plain error," see Rule 52(b), F.R.Cr.P., entitling appellant to reversal. We hold only that, when taken with the other errors discussed below, it was under the circumstances of this case serious enough to require a new trial.
A second error was the trial judge's failure to balance his instruction on the subject of "conscious ...