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- SUPREME COURT OF THE UNITED STATES
- ANA FEIJOO TOMALA v. UNITED STATES
- on petition for writ of certiorari to the united
- states court of appeals for the second circuit
- No. 91-7051. Decided May 18, 1992
-
- The petition for a writ of certiorari is denied.
-
- Justice White, with whom Justice Thomas joins,
- dissenting.
- The issue in this case is whether the trial court erred in
- instructing a jury that petitioner could be convicted for
- importing illegal drugs if she consciously avoided knowledge
- that drugs were concealed in a suitcase she was carrying.
- Petitioner, who had just arrived from Ecuador with her
- two young daughters, was arrested at Kennedy Internation-
- al Airport when a Customs inspector found three kilograms
- of cocaine in a hidden compartment of a suitcase. She was
- charged with importing cocaine into the United States in
- violation of 21 U. S. C. 952(a). At trial, petitioner defend-
- ed on the theory that she had been unwittingly duped into
- serving as a drug courier. She testified that a woman had
- approached her at the Ecuador airport, identified herself as
- Maria Alcivar, and asked her to deliver the suitcase to
- Alcivar's sister, Georgina de Rodrigues. The woman opened
- the suitcase to show petitioner that it contained several
- new dresses and explained that she was returning the
- dresses to her sister because she had been unable to sell
- them in Ecuador. She provided petitioner with an incom-
- plete New Jersey address and a telephone number, which
- had a New Jersey area code followed by an eight-digit
- number.
- The trial court charged the jury that the Government
- bore the burden of proving beyond a reasonable doubt that
- petitioner knew she possessed narcotics. But the court
- added:
- ``[I]t is not necessary for the government to prove to an
- absolute certainty that [petitioner] knew that she
- possessed narcotics. [Petitioner's] knowledge may be
- established by proof beyond a reasonable doubt that
- [petitioner] was aware, was aware of a high probability
- that the suitcase contained narcotics unless, despite
- this high probability, the facts show that [petitioner]
- actually believed that the suitcase did not contain
- narcotics.-
- Petitioner's first trial ended in a hung jury. On retrial, she
- was convicted and sentenced to 60 months' imprisonment.
- The Court of Appeals for the Second Circuit affirmed.
- Petitioner contends that the trial court erred in giving the
- instruction quoted above because the Government had not
- argued that she consciously avoided knowledge that she
- was transporting drugs and because the instruction allows
- a conviction on the basis of recklessness or negligence,
- thereby vitiating the statutory requirement that the
- Government prove petitioner acted knowingly. She urges
- that the outcome of her case would have been different had
- she been tried in another circuit. The Government concedes
- as much, citing conflicting decisions by the Courts of
- Appeals for the Ninth and Tenth Circuits, and suggests
- that we grant certiorari. See United States v. de Francisco-
- Lopez, 939 F. 2d 1405 (CA10 1991); United States v.
- Sanchez-Robles, 927 F. 2d 1070 (CA9 1991).
- I agree with petitioner and the Government that the
- outcome of a federal criminal prosecution should not depend
- upon the circuit in which the case is tried. I therefore
- would grant certiorari to resolve the conflict in the Courts
- of Appeals.
-