United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              September 10, 2003
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 02-40978


UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                versus

JUAN ARTURO MENDOZA-MEDINA,

                                             Defendant-Appellant.




            Appeal from the United States District Court
                 For the Southern District of Texas




Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Juan    Arturo   Mendoza-Medina   appeals   his   convictions      for

conspiracy to possess and possession with intent to distribute more

than fifty kilograms of marijuana.1         We affirm the judgment of

conviction, finding that any error in the district court’s charge

to the jury on deliberate indifference was harmless and that the

court’s admission of hearsay evidence was not plain error.        We also

conclude that although the trial court erred in admitting the

opinion testimony of a government agent, on the facts of this case

     1
         See 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1).
this abuse of the use of a “background” witness was not reversible

error.    We pause to caution that it is time for our able trial

judges to rein in this practice.     The offering of this “expert” was

not background for the jury – a jury is ordinarily blessed with a

common sense well tuned by life in this age.        Rather, excessive use

of this “expert” testimony comes unacceptably close to the use of

evidentiary profiles.

                                    I

     A grand jury indicted Mendoza-Medina on January 8, 2002, on

two counts: conspiracy to possess with intent to distribute more

than fifty kilograms of marijuana, a violation of 21 U.S.C. § 846;

and possession with intent to distribute more than fifty kilograms

of marijuana in violation of 21 U.S.C. § 841(a)(1).              Mendoza-

Medina’s first trial ended in a mistrial – eleven jurors finding

him guilty, one juror when polled answered “not sure.”          The case

was retried.

     At   the   second   trial,   Senior   Border   Patrol   Agent   Mario

Rebolledo testified that he and his drug detecting dog, “Rudy,”

were working in the Laredo Border Patrol checkpoint on December 21,

2001, when Rudy alerted to a tractor-trailer driven by Mendoza-

Medina. Agents directed the truck to a secondary inspection point.

After obtaining the keys from Mendoza-Medina, agents placed Rudy in

the trailer, where he alerted to a group of boxes.           Agents found

marijuana in the boxes.    They arrested Mendoza-Medina and escorted



                                    2
him to the checkpoint trailer.   Mendoza-Medina’s wife and children

remained in the cab.

     Agents advised Mendoza-Medina of his rights and placed him in

a holding cell in the trailer.        He waived his right to remain

silent and agreed to an interview.    He told Rebolledo that neither

he nor his wife had anything to do with the substance found in the

boxes.   He also declared he was willing to talk about the people

who hired him.

     Two agents with the DEA task force were called, and arrived at

the Laredo North Station, which is roughly twenty minutes from the

checkpoint, between 1:30 and 2:00 a.m. the next day.       Mendoza-

Medina, his wife, and his two children were in the processing room.

Initially, the agents planned to interview Mendoza-Medina with his

wife and children in the room, but the children interrupted the

interview.    The agents conducted the interview in a separate room

with the door open.     The children still had access to Mendoza-

Medina, and were in and out of the room several times during the

interview.

     Mendoza-Medina told the agents that he knew nothing about the

contraband.   He asked the agents what was going to happen, and they

responded that he and his wife would be detained and taken before

a magistrate judge.      He then asked what would happen to his

children, and the agents said they would be taken care of by Child

Protective Services.   Mendoza-Medina reacted to this disclosure by

stating to the agents that he would tell them “anything [they]

                                  3
wanted to hear and he would take the blame.”   The agents said they

wanted him to tell the truth.    Mendoza-Medina told them that is

what he would do.

     Mendoza-Medina told the agents that his employer, Julian

Ramirez, asked him to haul marijuana with his legitimate load. The

legitimate load was en route to New York, while the marijuana was

to be dropped off in Dallas. Ramirez had instructed Mendoza-Medina

to pick up the trailer at a gas station in Laredo.    They planned to

rendevous at the Pilot Station Truck Stop in Dallas where the drugs

would be unloaded.     Ramirez was to pay Mendoza-Medina $3000.

Mendoza-Medina stated that this was his first time smuggling drugs.

He told agents that his wife did not know anything about the drugs,

which the agents confirmed.     After a short interview, Mendoza-

Medina’s wife left with the children, and Mendoza-Medina was

processed.

     The agents checked Mendoza-Medina’s story.      They found phone

calls to and from Ramirez on Mendoza-Medina’s cell phone.     A bill

of lading found in Mendoza-Medina’s truck reflected that Ramirez

had picked up the trailer on December 20.      Agents learned that

Mendoza-Medina had begun working for Ramirez only two months

earlier, and that Ramirez had a drug trafficking conviction.

     The shipping company had loaded the truck with women’s jeans

at a warehouse in Laredo on December 20.   Ramirez had brought the

trailer to the warehouse, and left with it some time between 7:30

and 8:00 p.m.   The trailer was locked and sealed.    An employee of

                                 4
the shipping company testified that he inspected the trailer after

it was seized by the Border Patrol, and he believed someone

tampered with the lock and opened the doors without breaking the

seal.

     At trial, the Government had DEA Special Agent Keith Warzecha

qualified as an expert. He testified that the marijuana seized was

worth   $77,600    in   Laredo,   and   about   $135,000   in   Dallas.    He

described the cultivation, wrapping, and packaging of the drugs.

He also described how traffickers usually recruited people who

needed the money to transport the drugs, and enticed them with a

quick pay day. He testified that many truck drivers passed through

Laredo, and some were susceptible to the lure of drug trafficking.

In the usual case, contraband owners limited inexperienced drivers

to smaller loads.       After successfully moving two or three small

loads and proving he could be trusted, a driver would be given

bigger loads.     When the prosecutor asked if traffickers concealed

contraband in a truck without telling the driver it was there, the

district   court    answered      Mendoza-Medina’s   objection     with   the

observation that some times they do, and some times they don’t.

After persisting in the objection, the district court had the

prosecutor move on.      The agent then testified that it was possible

to put the drugs in the trailer without disturbing the seal.              He

also recalled that he had investigated cases in which children were

involved in smuggling, and suggested smugglers were under the



                                        5
impression that law enforcement personnel were not inclined to

suspect individuals with children of smuggling drugs.

     Warzecha      then    testified   that    Ramirez   had   a   history   of

narcotics trafficking, including a 1993 conviction involving over

1000 pounds of marijuana.       Warzecha also explained that agents had

seized $368,000 in cash from Ramirez in October 2001, and opined

that the money was drug related.              At the time of that seizure,

Ramirez told agents that he was returning from a three-day trip

hauling goods to and from Ohio with Mendoza-Medina.            Hotel records

showed that Ramirez had stopped in Dallas during the time he said

he was on the trip.          However, this trip was missing from both

Mendoza-Medina’s and Ramirez’s logbooks, although the logbooks

showed that Mendoza-Medina had been driving with Ramirez since

early   October.      On    cross-examination,     Warzecha    admitted   that

Ramirez had told agents that he had found the money outside the

gate of a forwarding company while Mendoza-Medina was driving the

truck through the gate and that Mendoza-Medina did not know about

the money.      Warzecha admitted that nothing tied the money to

Mendoza-Medina.      He also opined that Ramirez was lying.

     Mendoza-Medina’s wife testified that late in the evening on

December 20 she learned that Mendoza-Medina was going to transport

a load of goods.     Because of the late hour, she suggested she take

their two four-year-olds with them, and leave their other children

with her sister.          They picked up the tractor-trailer at a gas

station, and Ramirez took their van.

                                       6
     She   explained     that   at   the   Laredo   North   Station,   agents

separated her and the children from Mendoza-Medina.               She heard

agents yelling at her husband, and it caused the girls to call out

for their father.       An agent told her he did not believe what her

husband was telling them, emphasizing his point by striking the

wall with heavy blows.      He reportedly told her that if neither she

nor her husband took responsibility for what was going on, they

would lose their daughters to the state.               At the end of his

interrogation, Mendoza-Medina told her that he would have to take

responsibility for the drugs in the trailer so that the agents

would not take the children from her.               According to Mendoza-

Medina’s wife, neither agent told her about Child Protective

Services; instead they told her the children would be taken away.

     During cross-examination, she admitted that in an earlier

hearing she did not say that the agent threatened to take her

children away.     She conceded that she could see everything that

went on in the interrogation room, and that she did not hear her

husband tell agents how he agreed to haul the drugs.

     The jury found Mendoza-Medina guilty on both counts.                 The

district court sentenced him to concurrent fifty-one month prison

terms   followed   by    concurrent    three-year    terms   of   supervised

release.   Mendoza-Medina timely appealed.

                                      II

                                       A



                                       7
       We turn first to Mendoza-Medina’s objection to the admission

of the expert testimony of Special Agent Warzecha.                  “We review a

district court’s decision to admit or exclude evidence for abuse of

discretion.           Review of evidentiary rulings is heightened in a

criminal case.”2         Any error in admitting the evidence is subject to

harmless        error    review.3     “[U]nless      there    is   a     reasonable

possibility that the improperly admitted evidence contributed to

the conviction, reversal is not required.”4

       Mendoza-Medina argues that Warzecha’s testimony crossed the

line from permissible expert testimony to impermissible opinion

testimony regarding whether Mendoza-Medina was aware that the drugs

were       in   the   truck.    Mendoza-Medina       points   to   the   following

testimony        to   support   his   claim:   (1)    managers     in    charge   of

transportation recruit people to transport drugs; (2) the amount of

drugs in a load depends on the person’s narcotics transporting

experience, for example, new recruits carry 200 to 300 pounds of

marijuana;5 (3) trust between the distributor and driver is an

essential component; and (4) narcotics traffickers bring their

wives and children along to mask the drug trafficking offense.

       2
       United States v. Gutierrez-Farias, 

, 662 (5th
Cir. 2002) (citation omitted).
       3
            United States v. Williams, 

, 1242 (5th Cir.
1992).
       4
           

marks omitted).
       5
       203.5 pounds of marijuana were found in Mendoza-Medina’s
trailer.

                                         8
Mendoza-Medina also argues that the Government impermissibly used

this testimony as substantive evidence in its opening and closing

arguments.       For example, the prosecution stated, “Special Agent

Keith Warzecha’s experience of five years and hundreds of cases

here in Laredo, Texas tells us the defendant knew ...,” and “we

also know that it’s true, based on DEA intelligence, that narcotics

trafficking organizations don’t just stick marijuana on tractors of

drivers that don’t know where it’s going.”

     The     Government        argues     that   Warzecha’s        testimony       was

permissible expert background testimony which never specifically

identified Mendoza-Medina’s conduct as consistent with a drug

courier profile or broached the issue of Mendoza-Medina’s knowledge

of the drugs in the trailer.            It also contends that the court’s

instruction      that   the    expert’s    opinions    could    be    accepted     or

rejected    by   the    jury   was   sufficient,      and   that     any   abuse    of

discretion was harmless because of the other evidence of Mendoza-

Medina’s guilt.

     In United States v. Williams, we noted that drug courier

profiles “have long been recognized as inherently prejudicial

because of the potential they have for including innocent citizens

as profiled drug couriers,” and therefore are not admissible as

substantive evidence of the defendant’s guilt.6                In addition, drug




     6
         

(internal quotation marks omitted).

                                          9
courier profiles can violate Federal Rule of Evidence 704(b)7 when

they are used to prove that the defendant was a courier and

therefore knew that he was transporting drugs.8

     In United States v. Gutierrez-Farias9 and United States v.

Ramirez-Velasquez,10    we   held   that   admission   of   similar   expert

testimony was an abuse of discretion.         In Gutierrez-Farias, a DEA

agent testified as an expert on the business of transporting

illegal narcotics through South Texas.11        He explained:

     The way it usually works in that respect is that I don’t
     think they would target somebody just off the street
     that, you know, has no knowledge. Usually, it’s somebody
     that is a friend of a friend.    It could start that way.
     Usually they want to use people that ... have a certain
     amount of trust and responsibility because you have to
     realize as we showed before here, the amount of money
     that the narcotics communicates too. It’s a lot of money
     and ... this is ... a business.... [J]ust as in any other
     business, the people need a certain amount of



     7
          Federal Rule of Evidence 704(b) reads:

     No expert witness testifying with respect to the mental
     state or condition of a defendant in a criminal case may
     state an opinion or inference as to whether the defendant
     did or did not have the mental state or condition
     constituting an element of the crime charged or of a
     defense thereto. Such ultimate issues are matters for the
     trier of fact alone.
     8
       See United States v. Ramirez-Velasquez, 

, 879
(5th Cir. 2003); United States v. Gutierrez-Farias, 

,
661-63 (5th Cir. 2002).
     9
          

.
     10
          

.
     11
          

.

                                     10
       credentials, if you will, to be employed or to be sought
       out by a narcotics trafficking organization.12

We expressed doubts as to whether the agent’s testimony about what

a   drug     courier     would   have   known     could   be   characterized   as

“expert.”13        We then concluded:

       Agent Afanasewicz’s testimony crosses the borderline long
       recognized by this court between a mere explanation of
       the expert’s analysis of the facts and a forbidden
       opinion on the ultimate legal issue in the case. The
       clear suggestion of Agent Afanasewicz’s testimony is
       that, because most drivers know there are drugs in their
       vehicles, Gutierrez must have known too.         Although
       admittedly Agent Afanasewicz did not say the magic words
       – “In my expert opinion, Gutierrez knew the marijuana was
       in the tires.” – we believe his testimony amounted to the
       functional equivalent of such a statement.14

       In Ramirez-Velasquez we reached the same conclusion.15                  The

prosecutor at first sought an explicit opinion from the agent,

asking, “And based on your experience, do those drivers know what

they    are       carrying?”16    On    defense    counsel’s     objection,    the

prosecutor rephrased her question to ask how drug conspiracy

organizations choose their drivers.17               The agent then testified,

with no objection from defense counsel, that “drivers are paid



       12
            

       13
            

       14
            

(internal quotation marks and citations omitted).
       15
            

.
       16
            

       17
            

on past performance, and that organizations tend to seek

trustworthy       drivers     because   their     cargo   is    valuable      and

uninsurable.”18       The agent stated:

     With a legitimate product you have – you don’t have to
     conceal it. And you have insurance in case the product
     is lost or damaged. In the case of an illegal product,
     of course you have to conceal it and try to get it where
     it’s going without being detected. There is no insurance
     if it’s lost or stolen. The only real assurance you have
     is the trust you have in the people that are working for
     you.19

Relying on Gutierrez-Farias, we concluded that admission of this

testimony       was   plain   error   because,    “[a]s   did   the   agent    in

Gutierrez-Farias, Agent Hacking made the generalization, albeit not

quite directly, that drivers know they are carrying drugs.”20

     In the same vein we find that the district court abused its

discretion in admitting Agent Warzecha’s testimony.              Warzecha made

the same generalized statements regarding distributors having to

trust their couriers and included the profile that couriers often

bring their wives and children along.            In addition, the prosecutor

argued that this testimony proved that Mendoza-Medina knew the

drugs were present, using the testimony as substantive evidence.

     We must next decide whether the error was harmless.                      The

evidence against Mendoza-Medina is substantial.                 Mendoza-Medina



     18
          

at 878 n.12.
     20
          

                                        12
confessed, although he challenges that confession as coerced.            His

confession   is   supported    by   the   evidence   that   Ramirez   was   a

convicted drug trafficker and was found with $368,000 in cash

following a trip with Mendoza-Medina that involved a stop in

Dallas.     Given the strength of this evidence we conclude that

admission of this testimony, although error, was harmless.

                                     B

     Mendoza-Medina also argues that the district court abused its

discretion in admitting Warzecha’s testimony regarding Ramirez’s

statements to other officers at the time of Ramirez’s arrest in

October 2001.     Mendoza-Medina objected in a pretrial motion and

renewed that objection at the start of Warzecha’s testimony at

trial, arguing that the testimony was hearsay or prior bad acts

that did not qualify for admission under Rule 801(d)(2)(E)21 or Rule

404(b).22

     The prosecutor asked Agent Warzecha if he had any information

with regard to Ramirez being involved in narcotics trafficking.

Warzecha    testified   that   Ramirez     had   a   1993   conviction   for


     21
       Under this rule statements offered against a party that were
made by a coconspirator of the party during the course and in
furtherance of the conspiracy are not hearsay.       Fed. R. Evid.
801(d)(2)(E).
     22
       Rule 404(b) provides that evidence of other crimes, wrongs,
or acts is admissible for purposes other than to “prove the
character of a person in order to show action in conformity
therewith,” such as to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b).

                                     13
transporting 1100 pounds of marijuana.           The prosecutor then asked

if Warzecha was aware of any other arrest or detention that

“associate[s] him, in your opinion, with narcotic trafficking.”

Warzecha stated that agents seized $368,000 in cash from Ramirez in

Laredo in late October, 2001.         The prosecutor then asked if that

seizure, which Warzecha viewed as drug related, was “in any way

associated with the defendant.”             Over Mendoza-Medina’s renewed

objection,    Warzecha    testified   as    to   what   Ramirez   told   other

officers in his post-arrest statement after the cash seizure.

     Warzecha stated that Ramirez told officers that Mendoza-Medina

accompanied him on a trip hauling freight to and from Ohio from

October 23 through October 26, 2001.             Ramirez claimed that when

they arrived at the freight forwarding company on the return trip,

he got out of the cab to open the gate while Mendoza-Medina drove

the truck in and unhitched the trailer.          After Mendoza-Medina left

in the truck, Ramirez went to close the gate and found $368,000

cash in boxes by the road.        Ramirez stated that he took the boxes

and left in his car, and that Mendoza-Medina was not aware that he

found the cash.     Warzecha testified that the trip was not in either

Mendoza-Medina’s or Ramirez’s logbooks, but the logbooks showed

that the     two   had   been   driving    together   since   early   October.

Warzecha further explained that agents released Ramirez after the

seizure, and that Ramirez was challenging the forfeiture of the

cash.   He also stated that in his opinion, the money was drug

related, and that Ramirez was lying about finding the cash.

                                      14
     Mendoza-Medina argues that the Government did not prove by a

preponderance of the evidence that a conspiracy existed and that

Ramirez’s statement was made in furtherance of the conspiracy.

“The proponent of admittance under Rule 801(d)(2)(E) must prove by

a preponderance of the evidence (1) the existence of a conspiracy,

(2) the statement was made by a co-conspirator of the party, (3)

the statement was made during the course of the conspiracy, and (4)

the statement was made in furtherance of the conspiracy.”23    As the

Government notes, the court may admit the evidence subject to the

prosecution’s subsequent establishment of an adequate foundation.24

     Although we consider the contents of the statement, they alone

are insufficient “to establish the existence of the conspiracy and

the participation therein of the declarant and the party against

whom the statement is offered.”25         Aside from the challenged

statement, other evidence of a conspiracy included Ramirez’s 1993

conviction for transporting marijuana; the seizure of $368,000 in

cash from Ramirez; the testimony that the logbooks showed Mendoza-

Medina had been driving with Ramirez since early October; Mendoza-

Medina’s confession that Ramirez asked him to transport the drugs


     23
          United States v. Cornett, 

, 782 (5th Cir. 1999).
     24
        United States v. Kimble, 

, 1257 (5th Cir.
1983); Bourjaily v. United States, 

(1987).      These
“subject to” admissions have been constrained by insisting upon a
preliminary (pretrial) showing by the government of its proof of a
conspiracy independent of the proffered statement.
     25
          Fed. R. Evid. 801(d)(2).

                                     15
seized on December 21; and the evidence concerning Ramirez’s

involvement in the loading of the freight on December 20.

     This evidence, when combined with the proffered statement that

Mendoza-Medina was along on the October trip when the money was

“found,” is sufficient to conclude by a preponderance of the

evidence that a conspiracy existed between Mendoza-Medina and

Ramirez in October when Ramirez made the challenged statements.           A

preponderance of the evidence also supports that Ramirez made the

statements during and in furtherance of the conspiracy, as he

likely made them to conceal the source of the $368,000 and assure

that the conspiracy could continue.26          Given this evidence, we

cannot    conclude   that   the   district   court’s   admission   of   the

statements under Rule 801(d)(2)(E) was an abuse of discretion.

     Neither was it an abuse of discretion to admit the evidence

under Rule 404(b).27    The key issue in Mendoza-Medina’s trial was

his knowledge of the drugs seized from the truck he was driving.

At the time of the seizure, Mendoza-Medina testified that Ramirez

asked him to transport the drugs to Dallas in exchange for $3000.

That Ramirez had been found with $368,000 in cash immediately

     26
       See United States v. Phillips, 

, 419 (5th Cir.
2000) (“Efforts to conceal an ongoing conspiracy obviously can
further the conspiracy by assuring that the conspirators will not
be revealed and the conspiracy brought to an end.”).
     27
       See United States v. Hernandez-Guevara, 

, 870
(5th Cir. 1998) (stating that evidence is admissible under Rule
404(b) if it is “relevant to an issue other than the defendant’s
character .... [and] possess[es] probative value that is not
substantially outweighed by its undue prejudice”).

                                     16
following a trip with Mendoza-Medina that involved a stop in Dallas

suggests that Mendoza-Medina had been involved in drug trafficking

before, and therefore probably knew of the drugs on December 21.

Because this evidence went towards his knowledge of the drugs, it

was admissible under Rule 404(b).

      On    appeal,   Mendoza-Medina    raises    a   further   objection   to

Warzecha’s testimony regarding Ramirez’s statement to agents at the

time of the cash seizure.        Mendoza-Medina argues that even if

Ramirez’s statements are admissible under Rule 801(d)(2)(E), they

are still inadmissible hearsay because Ramirez did not make the

statements to Warzecha, but rather to other officers.                 Because

Mendoza-Medina did not raise this objection at trial, we review the

admission of the evidence for plain error.28

      Warzecha’s testimony regarding statements Ramirez made to

other officers does appear to be double hearsay even if the

statements themselves are admissible as those of a coconspirator

under Rule 801(d)(2)(E).      That Warzecha was presented as an expert

did   not   automatically   permit     him   to   testify   about   Ramirez’s

statements to other officers and avoid the hearsay rule.29 However,

in reviewing admission of this evidence only for plain error, it is


      28
       See United States v. Greenwood, 

, 1463 (5th
Cir. 1992).
      29
       See United States v. Cantu, 

, 205-06 (5th Cir.
1999) (discussing how allowing law enforcement officers to testify
as experts because of their involvement in an investigation would
circumvent the hearsay rule and raise serious concerns).

                                       17
within our discretion to correct an error if we conclude that,

“when examined in the context of the entire case, it is so obvious

and substantial that failure to notice and correct it would affect

the    fairness,          integrity,   or     public    reputation          of    judicial

proceedings.”30 Because the Government could have elicited the same

testimony from the interviewing agent, and defense counsel likely

preferred Agent Warzecha instead, the admission of Warzecha’s

testimony         recounting    Ramirez’s        statements   did     not    affect     the

fairness, integrity, or public reputation of this proceeding and we

decline to find plain error.

                                             C

       We turn next to Mendoza-Medina’s challenge to the district

court’s deliberate ignorance instruction.                 Mendoza-Medina objected

to the instruction at trial and argues that it was reversible error

because       the    evidence    did   not    raise    the    issue    of        deliberate

ignorance.          “The standard of review of a defendant’s claim that a

jury instruction was inappropriate is 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.”31                 The trial court’s charge

must        not    only    be   “legally      accurate,       but     also        factually


       30
       Whitehead v. Food Max of Miss., Inc., 

, 275 (5th
Cir. 1998) (internal quotation marks and brackets omitted).
       31
       United States v. Lara-Velasquez, 

, 950 (5th Cir.
1990) (italics and internal quotation marks omitted).

                                             18
supportable”; “the court may not instruct the jury on a charge that

is not supported by evidence.”32    In assessing whether the evidence

sufficiently supports the district court’s charge, we “view the

evidence and all reasonable inferences that may be drawn from the

evidence in the light most favorable to the Government.”33       Any

error is subject to harmless error review.34

     We have often cautioned against the use of the deliberate

ignorance instruction.35    “Because the instruction permits a jury

to convict a defendant without a finding that the defendant was

actually aware of the existence of illegal conduct, the deliberate

ignorance instruction poses the risk that a jury might convict the

defendant on a lesser negligence standard – the defendant should

have been aware of the illegal conduct.”36     We have established a

two-pronged test for determining when the evidence supports a

deliberate ignorance instruction:

     The circumstances which will support the deliberate
     ignorance instruction are rare. The evidence at trial
     must raise two inferences: (1) the defendant was
     subjectively aware of a high probability of the existence


     32
          

marks omitted).
     33
          

United States v. Cartwright, 

, 301 (5th Cir.
1993).
     35
       See, e.g., United States v. Bieganowski, 

, 289
(5th Cir. 2002); United States v. Peterson, 

, 395 (5th
Cir. 2001).
     36
          

.

                                   19
     of the illegal conduct; and (2) the defendant purposely
     contrived to avoid learning of the illegal conduct.37

The sine qua non of deliberate ignorance “is the conscious action

of the defendant – the defendant consciously attempted to escape

confirmation of conditions or events he strongly suspected to

exist.”38       Where “the choice is simply between a version of the

facts in which the defendant had actual knowledge, and one in which

he was no more than negligent or stupid, the deliberate ignorance

instruction is inappropriate.”39

     Neither the Government nor the defense requested a deliberate

ignorance instruction, but the district court sua sponte gave one

over the objection of Mendoza-Medina.      The trial court overruled

the objection, concluding that the evidence supported the charge.

It explained that according to its reading of United States v.

Wells the instruction is appropriate whenever the evidence shows

both “a subjective awareness of a high probability of the existence

of illegal conduct” and “some attempt by the defendant, whether it

is direct or indirect, to deny the knowledge of the illegal

activity or conduct.”40



     37
          

     39
          

district court cited United States v. Wells, 

, 465-66 (5th Cir. 2001), although it incorrectly referred to
the case as United States v. Scott.

                                   20
     The district court misstated the test; the second prong is not

that the defendant denied knowledge of the illegal activity, but

rather “purposeful contrivance to avoid learning of the illegal

conduct.”41

     The Government argues that there was evidence of actual

knowledge, specifically Mendoza-Medina’s admission that Ramirez

offered    him    an     opportunity   to   transport   contraband   with   a

legitimate       load.       The   Government   also    asserts   that   the

circumstances surrounding the seizure raised an inference that

Mendoza-Medina had a subjective awareness of a high probability of

the existence of illegal conduct. It notes that Mendoza-Medina was

on the Ohio trip during which Ramirez “found” the large stash of

cash outside a freight forwarding company, and points to the fact

that Mendoza-Medina picked up his load at a gas station well away

from the freight forwarding warehouse, more than two hours after it

was loaded.

     As for the second element, that the defendant purposely

contrived to avoid learning of the illegal conduct, the Government

cites Mendoza-Medina’s testimony that it was not unusual for a

driver to pick up a load at a location away from the loading dock

some hours later and that it was not unusual for drivers to neglect

to fill out their logbooks.         The Government further points to the

testimony of Mendoza-Medina’s wife, who testified that Mendoza-


     41
          

(internal quotation marks omitted).

                                       21
Medina told her he was surprised to be arrested at the checkpoint

and that he was unaware of why he was being held.                The Government

suggests this was a “purposeful contrivance to avoid learning of

the illegal conduct,” or, at a minimum, “an attempt to create a

charade of innocence.”

     We conclude that the district court erred in giving the

deliberate ignorance instruction.              Mendoza-Medina correctly argues

that the evidence either indicates that he knew about the drugs or

that he did not, and does not suggest that he was deliberately

ignorant to the scheme. We have explained that “the 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.”42

Although    in   some   cases    evidence       of   actual   knowledge   can   be

interpreted      as   evidence   of   a   subjective     awareness   of   a   high

probability of the existence of illegal conduct,43 in this case,

that does not hold true.         Here, the evidence of actual knowledge

was Mendoza-Medina’s admission that he knew he was carrying drugs

and the inference that he had done it before on the trip to Ohio

with Ramirez.         Unlike the case where the evidence supports an

inference of either actual knowledge or a subjective awareness,




     42
          

.
     43
          

                                          22
such    as    nervousness    upon   being     stopped    by   authorities,44   an

admission indicates either that Mendoza-Medina had actual knowledge

or no knowledge at all, if the statement was coerced.                 The other

evidence cited by the Government, such as the fact that the truck

was not picked up at the loading dock, is not sufficient to give

rise to an inference that the defendant was subjectively aware of

a high probability of the existence of the illegal conduct.

       Neither does the evidence support an inference that Mendoza-

Medina      purposely   contrived   to    avoid   learning     of   the   illegal

conduct.       The only evidence supporting that inference is that

Mendoza-Medina picked up the truck away from the loading dock a

couple of hours after it was loaded.                    As there are numerous

innocent explanations for this, it can hardly support an inference

that he “purposely contrived to avoid learning” of the drugs.                  As

for his claims to his wife that he was surprised to be arrested and

did not know what was going on, that also does not support such an

inference. It merely indicates that he was either truly unaware of

the drugs or was pretending that he was innocent.

       Relying on United States v. Boutte,45 the Government argues

that even if we conclude no evidence supported the instruction, it

was harmless error.         In Boutte we reasoned that “where there is no

evidence of conscious ignorance, a deliberate ignorance instruction


       44
            See 

       45
            

(5th Cir. 1994).

                                         23
is surplusage and thus does not create the risk of prejudice.”46

We decline to adopt the Government’s reading of Boutte to establish

a bright-line rule that whenever the evidence does not support the

deliberate ignorance instruction there can be no harm. If the only

time it is error to give the instruction is when the evidence does

not support it, but when there is no evidence to support giving the

instruction it is always harmless to do so, then giving the

instruction can never be reversible error.              We cannot assume that

in every instance in which the evidence does not support the

deliberate ignorance instruction the jury will disregard it.                    We

have repeatedly stated that the instruction should rarely be given

because it possesses a danger of confusing the jury.47

     However, we have also stated that “an error in giving the

deliberate    ignorance       instruction     is   ‘harmless    where   there   is

substantial      evidence     of   actual    knowledge.’”48      Mendoza-Medina

confessed and his confession is corroborated by the evidence

surrounding      the   Ohio   trip.     The    record   contains    substantial

evidence    of   Mendoza-Medina’s       actual     knowledge,    rendering      the

deliberate ignorance instruction harmless error.



     46
          

(internal quotation marks omitted).
     47
          See United States v. Cartwright, 

, 301 (5th Cir.
1993).
     48
       United States v. Saucedo-Munoz, 

, 349 n.5 (5th
Cir. 2002) (quoting United States v. Wells, 

, 466 (5th
Cir. 2001)).

                                        24
                                  III

     The   district   court   erred    in   admitting   Agent   Warzecha’s

testimony and in giving a deliberate ignorance instruction where it

was not supported by the evidence.         However, given the substantial

evidence of Mendoza-Medina’s guilt, we conclude that these errors

were harmless, and AFFIRM the judgment of conviction.




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