                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 16 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10324

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-01779-DCB-JR-1
 v.

JOHN PAUL FRISBY,                                MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                            Submitted April 12, 2018**
                             San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and OLGUIN,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Fernando M. Olguin, United States District Judge for
the Central District of California, sitting by designation.
      John Paul Frisby (“Frisby”) appeals convictions following a jury trial. We

affirm. Because the parties are familiar with the history of the case, we need not

recount it here.

                                            I

      The district court did not abuse its discretion in giving a “deliberate

ignorance” jury instruction nor in failing to give a specific intent instruction.

                                           A

      We review a district court’s decision to give a deliberate ignorance

instruction for abuse of discretion, and we consider the sufficiency of the

supporting evidence in the light most favorable to the requesting party. United

States v. Heredia, 483 F.3d 913, 921-22 (9th Cir. 2007) (en banc).

      A deliberate ignorance instruction is not contrary to law. See United States

v. Jewell, 532 F.2d 697, 700-03 (9th Cir. 1976) (en banc). “The Jewell standard

eliminates the need to establish . . . positive knowledge to obtain a conspiracy

conviction.” United States v. Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013)

(quoting United States v. Nicholson, 677 F.2d 706, 711 (9th Cir. 1982)). A district

court may give a deliberate ignorance instruction if it determines that a jury could

rationally find deliberate ignorance. Heredia, 483 F.3d at 922.




                                            2
      Here, the jury could rationally find deliberate ignorance. Dionasis

Hernandez-Margillan (“Hernandez”) asked Frisby to drive him to a deserted area

near the U.S.-Mexico border fence on two occasions late at night. On the second

occasion, Hernandez offered Frisby $400 for the ride, even though the ride was a

very short distance. Hernandez also asked Frisby to turn off his van’s headlights

when they approached the border. Frisby never asked Hernandez why he wanted

to be driven to the area near the border fence, why he was offering $400 for the

ride, or why he wanted to turn off the van’s headlights. Even after Frisby “knew

something was going on,” according to his testimony, he continued to claim that he

did not know what was inside the bundle while he was driving towards it. Given

these facts, a jury could rationally find deliberate ignorance.

                                           B

      The district court’s decision not to give Frisby’s proposed “specific intent”

instruction was also not an abuse of discretion. The instruction given adequately

advised the jury on the requisite elements of the offense.

                                           II

      The district court did not abuse its discretion in declining to instruct the jury

on the lesser-included offense of simple possession. We review a district court’s

denial of a jury instruction on a lesser-included offense using a two-part analysis.


                                           3
See United States v. Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009) (citing

United States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007)). “First, we review

de novo whether the offense on which instruction is sought is a lesser-included

offense of that charged.” Id. (citations omitted). Second, if the instruction sought

is a lesser-included offense, we review for abuse of discretion whether a jury could

rationally conclude that the defendant was guilty of the lesser but not the greater

crime. Id. (citation omitted). Here, the parties only dispute whether the jury could

rationally conclude that the defendant was guilty of the lesser but not the greater

offense.

      A jury could not rationally conclude that Frisby was guilty of the lesser

offense of simple possession. The quantity of marijuana in the bundle is strong

evidence that the marijuana was intended for distribution. The amount of

marijuana at issue—59 kilograms, with a market value of $106,400—was far more

than a rational jury could conclude was for personal use. Cf. United States v.

Hernandez, 476 F.3d 791, 798 (9th Cir. 2007) (“Drugs by themselves, in quantities

that could rationally be thought by the jury to be for personal use, without other

evidence of intent to distribute, are not enough to exclude a jury instruction on a

lesser included offense.”). Frisby’s counsel even conceded in his closing argument




                                           4
that possession of that amount of marijuana “is clearly possession with intent to

distribute.”

      Frisby argues that he did not possess the marijuana with an intent to

distribute it, but only with an intent to transport it to Hernandez’s home. There is

no support in the record for Frisby’s account. Frisby never explicitly testified

that he intended to pick up the bundle at all, even for mere possession. He testified

that when he pulled his van forward, he was “going to pick [Hernandez] up, take

him home, either not talk to him again or just beat his ass right there.” When asked

what he was going to do with the bundle, he said, “I wasn’t going to do anything. I

wasn’t going to do anything with that tube. Nothing at all.” When asked whether

he drove towards the bundle, Frisby clarified that he only drove towards

Hernandez. Frisby’s literal testimony does not support a conclusion that he was

guilty of simple possession; it suggests that he was not guilty of any offense. A

jury could not rationally conclude that Frisby was guilty of the lesser offense of

simple possession. Thus, the district court’s denial of the lesser-included

instruction was not an abuse of discretion.

                                          III

      The district court’s instructions on conspiracy, Pinkerton, and aiding and

abetting, taken as a whole, were not improper. We review a district court’s


                                          5
formulation of jury instructions for abuse of discretion. “The relevant inquiry is

whether the instructions as a whole are misleading or inadequate to guide the jury’s

deliberation.” United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)

(quotation marks and citation omitted).

      The district court’s conspiracy instruction did not improperly allow the jury

to presume an intent to conspire. Nor did the district court err by declining to

instruct the jury that it could only convict on the conspiracy charge if Frisby agreed

to “the entire scope of the conspiracy.” Frisby’s reliance on United States v.

Loveland, 825 F.3d 555 (9th Cir. 2016), for these propositions is misplaced.

Loveland merely clarified that, in the context of alleged buyer-seller conspiracies,

the agreement element needed to be satisfied by something more than the fact of

the buyer-seller relationship or simple knowledge that a buyer was reselling drugs.

Id. at 562. Loveland did not make a broad holding that a defendant must agree to

“the entire scope of the conspiracy,” nor did it suggest that deliberate ignorance

cannot satisfy the mens rea element of the conspiracy statute under certain

circumstances.

      Frisby’s challenges to the Pinkerton and aiding and abetting instructions also

lack merit. His challenge to the Pinkerton instruction is derivative of his challenge

to the deliberate ignorance instruction on the conspiracy charge. As discussed, a


                                          6
deliberate ignorance instruction in the context of a conspiracy charge is not

contrary to law. Aiding and abetting liability can also be based on deliberate

ignorance. United States v. Nosal, 844 F.3d 1024, 1039-40 (9th Cir. 2016).

Neither the Pinkerton instruction nor the aiding and abetting instruction was an

abuse of discretion.



      AFFIRMED.




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