The appeal is from an adjudication of the appellant's guilt of importation of 2000 grams of cocaine, a Schedule II controlled substance, into the United States in violation of Title 21 U.S.C., 952(a). The sole question presented for our review is whether the trial judge properly instructed the jury as to the intent necessary to be proved to constitute guilt under 952(a), and the accompanying penalty statute Title 21, U.S.C., 960(a)(1). We reverse for what we consider the prejudicial deficiency of the jury instruction.

The appellant, Mariela Zapata,1 arrived in the United States at Miami International Airport on July 29, 1973, on a flight from Baranquilla, Colombia. She passed through a preliminary customs inspection by offering her suitcase for search and by presenting a standard passenger declaration form stating that she was carrying no gifts which she was required to declare.2 Following this preliminary inspection, as Ms. Zapata bent over to retrieve her suitcase, customs Patrol Officer O'Connell noticed that she appeared to have on unusually bulky undergarments beneath her outer-clothing, a pants suit. She was detained by Officer O'Connell and referred to a private room for a secondary customs inspection. This second inspection, which consisted of Ms. Zapata's removing her clothing in the presence of two female customs inspectors, yielded six packets containing approximately 2000 grams of 76% Pure cocaine. The packets had been concealed underneath a girdle and corset which Ms. Zapata wore when she entered the United States. After being read a card advising her of her rights, Miranda v. Arizona, 1966, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, by a Spanish-speaking customs inspector, Ms. Zapata was questioned concerning her possession of the cocaine. She indicated an awareness of wrongdoing on her part,3 but denied knowledge that the substance contained in the packets was cocaine. She further disclosed to customs inspectors her entry under a false passport. The record is open to the inference that a separate prosecution was at least initiated for this offense.

A grand jury returned an indictment charging Ms. Zapata in two counts as follows: Count I, knowingly and intentionally importing the 2000 grams of cocaine into the United States in violation of Title 21 U.S.C., 952(a); and Count II, possession of the 2000 grams of cocaine with the intent to distribute it in violation of Title 21, U.S.C., 841(a)(1). The external facts, as we have set them forth, were not in dispute at trial. The primary issue for decision by the jury was whether Ms. Zapata possessed the requisite intent to violate the two code sections at the times charged.

Ms. Zapata took the stand and related through an interpreter that the events culminating in her arrest at the Miami airport began in mid-July 1973, in the small town of Medellin, Colombia, where she resided. She testified that she was approached by a stranger, a foreigner, who offered her a sum of money if she would agree to transport some 'raw materials' to the United States for him. She consented because of her desperate need of money to support her four children. A plan was arranged that day under which Ms. Zapata later met the stranger in Baranquilla. She was there supplied with a false passport, an airline ticket to Miami, traveling money in the amount of $500, and the cocaine and undergarments in which to secrete it. The stranger agreed to meet Ms. Zapata upon her arrival in Miami. She was reassured several times by the stranger that everything which she would be doing was perfectly legal and that she would incur no penalties as a result of her actions.

At the close of all the testimony, counsel for the defendant and for the United States engaged in a lengthy charge conference with the district judge as to jury instructions to be given covering the requisite proof of intent under Title 21 U.S.C., 952(a) and 960(a)(1).4

The prosecution requested an instruction which tacitly assumed that conviction required a showing that the defendant knew that the substance she was importing was cocaine. But the requested instruction permitted the jury to return a verdict of guilty upon a finding that the defendant consciously avoided learning the nature of the substance she imported into the United States.5 Defense counsel, for his part, requested simply that the jury be charged that the government had the burden of proving the defendant's actual knowledge that the substance she was importing was cocaine, or, in the alternative, that she knew that the substance was a controlled substance.6

The trial judge rejected both of the proposed instructions and gave the following:

The government, in order to establish (that the cocaine was imported knowingly and intentionally), need not prove that this defendant knew that there was cocaine on her person.

But the government must prove beyond a reasonable doubt, if there is to be a conviction, that there was, in fact, cocaine imported into the United States; and that at the time it was imported, the person importing it had the guilty mind, was aware of the fact that he was committing some kind of wrong, or some sort of crime-- not necessarily the crime of bringing in cocaine itself.

What we are saying is, to convict, in addition to Count I, the government must show that the act was done willfully, intentionally, the very act itself, and with a bad purpose to do something which the law forbids, not just an innocent mistake or accident, or with no purpose to do anything which the law forbids; but not necessarily any knowledge of this particular crime, nor that it was cocaine itself within the equipment there.

As to Count II, which charged Ms. Zapata with possession with intent to distribute in violation of Title 21, U.S.C., 841(a)(1), the trial judge charged the jury that the government had the burden of proving 'that the defendant knowingly had cocaine in his possession, and he knew what it was.' The judge amplified his Count II instruction in response to a question propounded by the jurors after they had retired for their deliberation by stating: 'The government does have to prove (the defendant) in fact knew it was cocaine, because of the specific intent proposition in the charge that I gave you, as distinguished from any general intent.'

Before the jury retired defense counsel objected to the charge on Count I on the stated ground that it failed to inform the jury that the government was required to prove that the defendant knew that she was importing either cocaine specifically or a controlled substance generally. From the jury verdict of guilty as to Count I and the consequent judgment and sentence, this appeal was timely taken.

The appeal raises the same question raised and preserved for review below, the sufficiency of the jury instruction as to appellant's knowledge that the substance brought into the country by her was cocaine specifically or a controlled substance generally, which she asserts is requisite under Title 21, U.S.C., 952(a). The government answers that the instruction given by the trial court here was in substance equivalent to the charge requested by the appellant and, further, that the instruction was basically the same charge given by the trial court and approved by this Court in United States v. Jiminez, 5 Cir. 1973, 484 F.2d 91.

Viewed in the context of the testimony and evidence in this particular case, we agree that the jury charge was defective, but we take a different approach from that urged by appellant. The instruction given was fundamentally misleading in that it allowed the jury to convict appellant on an incorrect theory of criminal liability. The defect is brought into sharp focus by the peculiar circumstances of this case. We do not reach the broader legal question whether the instruction as given was sufficient to charge specific intent under the statute as construed by Jiminez, supra.7

The defect in the instruction arises from its conjunction with testimony that Ms. Zapata stated that she knew she was doing something wrong. The ambiguous nature of this statement was pointed out in Note 3, supra. This ambiguity coupled with the judge's instruction to the jury that they could convict Ms. Zapata on Count I if the government proved that she 'was aware of the fact that (she) was committing some kind of wrong, or some sort of crime-- not necessarily the crime of bringing in cocaine itself,' raises a likelihood that the jury found Ms. Zapata guilty under Count I under an erroneous theory of law. The jury was entitled to conclude from the judge's instruction that Ms. Zapata's possession of the cocaine on arrival coupled with either (1) her failure to declare the cocaine to customs officials or (2) her entering the United States under a false passport was sufficient to support a finding of guilty under Count I. The conviction on Count I viewed in contrast to the acquittal on Count II, raises a strong inference that the jury did precisely this. Neither of these assumptions is supported by a correct legal theory, and a conviction under either theory would constitute a violation of Fifth Amendment due process. Cameron v. Hauck, 5 Cir. 1967, 383 F.2d 966, 973, cert. denied 1968, 389 U.S. 1039, 88 S. Ct. 777, 19 L. Ed. 2d 828. In the circumstances here, the record makes it impossible to determine whether such an impermissible constitutional foundation undergirds the guilty verdict. A new trial is in order as to Count I of the indictment.

Reversed.

Reversed.