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                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-12142
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:12-cr-60267-WJZ-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

MINOWCHE MINISTRE,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                 (May 9, 2014)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Minowche Ministre appeals her convictions for possession with intent to

distribute 500 grams or more of cocaine and for importation of 500 grams or more
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of cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 952(a), 960(b)(2)(B). She

contends that the district court erred in giving the jury a deliberate ignorance

instruction, and that there was insufficient evidence to support her convictions.

                                                I.

       In late September 2012 Ministre and her friend Cathy Meleon visited Haiti.

They spent ten days there, staying with Ministre’s cousin and then in a hotel owned

by Ministre’s boyfriend.1 They flew back on October 6, 2012, landing at the Fort

Lauderdale-Hollywood International Airport.

       While waiting in the customs line, Ministre and Meleon acted suspiciously.

They allowed other passengers to move ahead of them in line, whereas all the other

passengers tried to get through the line as quickly as possible. Ministre was also

“constantly” on her cell phone despite repeated warnings that cell phones could not

be used in the processing area. When they reached a customs agent, Meleon

claimed they were cousins and turned in a single declaration form. 2

       Because of their suspicious behavior, the Customs and Border Protection

(CBP) Officer referred the women to the baggage control area for secondary

inspections. CBP Officer Jacqueline Richard interviewed Ministre. Both


   1
     Because Ministre challenges the sufficiency of the evidence against her, we take the facts
from the evidence at trial, construed in the light most favorable to the convictions, see United
States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007).
   2
    Immediate family members living in the same house can turn in a joint declaration form.
Ministre and Meleon would later admit that they were not actually cousins or related at all.


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Richard’s questions and Ministre’s answers were in English. Ministre described

her visit to Haiti and said that she had packed her bags herself and was not

transporting anything on behalf of anyone else. Richard then opened Ministre’s

duffel bag and found two purses inside. Though the purses were empty, they felt

“very heavy” and had “very thick” lining. As Richard was examining the lining of

the purse, Ministre asked — switching to Haitian Creole — whether Richard spoke

Creole. That sudden switch to Creole struck Richard as an attempt to distract her

from examining the purses. She notified her supervisor that she suspected the

purses contained contraband. When Richard did that, Ministre acted “very

nervous” and started “fidgeting a little bit.”

      Richard and her supervisor escorted Ministre and Meleon to separate search

rooms while the purses remained in the baggage control area. Ministre then

returned to inspect the purses. She cut through the lining of the purses and found

white powder in both. A field test revealed that it was cocaine. At that point,

Ministre was arrested for importing narcotics.

      When special agents from the Department of Homeland Security

interviewed Ministre, she initially lied about how she got the purses. In her first

interview, she told the agents that she purchased the purses while shopping at a

Haitian market with a friend named Sheila. She said the purses had been unusually

heavy when she bought them from the vendor, and that they remained in her



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exclusive possession. In her second interview with a new group of agents, she told

the same story. But when an agent told her it was unbelievable that a vendor

would sell her purses stuffed with cocaine, she teared up and admitted that the

story was a lie. She explained that a friend named P.J. had bought the purses with

her at the market and had asked her to take them to his girlfriend in America.

Instead of giving her the purses when he bought them, P.J. took them somewhere

and brought them to Ministre several hours later at the hotel. He told her that

someone would contact her about the purses once she was home.

      Ministre admitted that when P.J. handed her the purses, she noticed they

were unusually heavy. (Because of the cocaine, they collectively weighed almost

five pounds when empty.) She asked P.J. why they were so heavy, and he told her

“don’t worry about it.” She did not ask any further questions or try to see what

was inside the purses. She explained that she asked P.J. about the weight because

she was afraid the purses would make her bag so heavy that she would have to pay

a baggage fee.

      A federal grand jury indicted Ministre in late October 2012, charging her

with one count of possession with intent to distribute 500 grams or more of cocaine

and one count of importation of 500 grams or more of cocaine. See 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(ii), 952(a), 960(b)(2)(B). She went to trial in February

2013. The government called three CBP officers and two special agents to testify



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to the facts described above, as well as a forensic chemist to confirm that the

powder in the purses was cocaine. Ministre testified in her own defense. She said

that P.J. had given her the purses, and she did not know that there were drugs

inside. Ministre moved for a judgment of acquittal at the close of the

government’s case and at the close of her own. The court denied both motions.

         Both the possession and importation counts have a knowledge element. See

United States v. Herrera, 931 F.2d 761, 763 (11th Cir. 1991); United States v.

Peart, 888 F.2d 101, 104 (11th Cir. 1989). When it came time to instruct the jury,

the parties could not agree on whether a deliberate ignorance instruction was

warranted given the facts of the case. See generally United States v. Stone, 9 F.3d

934, 936–38 (11th Cir. 1993). The government requested that the jurors be

instructed that: “you may find that a Defendant acted ‘knowingly’ if you find

beyond a reasonable doubt . . . that he or she deliberately closed her eyes to what he

or she had every reason to believe was the fact.” Ministre objected, arguing that

the facts at trial did not support such an instruction. The district court overruled

her objection and instructed the jurors on both actual knowledge and deliberate

ignorance.3 The jury found Ministre guilty on both counts, and the court sentenced

her to 63 months in prison.




   3
       The full instruction given to the jurors was:


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                                              II.

      Ministre contends that the district court erred in giving the jurors the

deliberate ignorance instruction and that there was insufficient evidence to support

her convictions. An erroneous deliberate ignorance instruction is harmless error if

the district court alternatively instructed the jury on actual knowledge and there

was sufficient evidence to conclude that the defendant had actual knowledge. See

United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). We therefore assume

that the instruction was erroneous and proceed to examine the sufficiency of the

evidence presented at trial, which we review de novo and view in the light most

favorable to the government, see United States v. Browne, 505 F.3d 1229, 1253

(11th Cir. 2007).

      Ministre’s sufficiency challenge is limited to one element common to both

counts: knowledge. She claims that the government failed to present evidence that



          When knowledge of the existence of a particular fact is an essential part of an offense,
      such knowledge may be established if the Defendant is aware of a high probability of its
      existence, unless the Defendant actually believes that it does not exist.
          So, with respect to the issue of the Defendant’s knowledge in this case, if you find
      from all the evidence beyond a reasonable doubt that the Defendant believed that she was
      transporting a controlled substance into the United States from a place outside the United
      States, and deliberately and consciously tried to avoid learning the specifics pertaining to
      the controlled substance in order to be able to say, if apprehended, that she did not know
      what she would be transporting, you may treat such deliberate avoidance of positive
      knowledge as the equivalent of knowledge.
          In other words, you may find that a Defendant acted “knowingly” if you find beyond
      a reasonable doubt either: (1) that the Defendant actually knew that she was to transport
      and deliver controlled substances; or (2) that she deliberately closed her eyes to what she
      had every reason to believe was the fact.


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she knew the purses contained a controlled substance. See Peart, 888 F.2d at 104

& n.2 (explaining that, where a defendant brings a bag containing narcotics into the

country, knowledge that the bag contains a controlled substance is an essential

element of both importation and possession with intent to distribute). Here, there

was circumstantial evidence that allowed the jury to reasonably infer that she knew

the purses contained drugs. See id. at 104 (“Direct evidence of intent is not

necessary; knowledge can be based upon inferences from the surrounding

circumstances.”). The jurors could reasonably infer she had actual knowledge

based on the following facts: (1) the purses weighed about five pounds when

empty; (2) Ministre’s nervous behavior in the customs line suggested she knew she

was bringing something illegal into the country; (3) Ministre and Meleon falsely

claimed to be cousins and tried to turn in a single declaration form; (4) her attempt

to distract CBP Officer Richard while Richard examined the purses suggested she

knew they contained something illegal; and (5) she initially lied to the special

agents about where she got the purses — implying that she knew they contained

contraband and wanted to make up a story to make her seem innocent.

      On top of all that, Ministre took the stand and testified that she did not know

the purses contained cocaine. Given that we must construe all the evidence at trial

in the light most favorable to the convictions, we must assume that the jury

rejected Ministre’s testimony “and consider that testimony ‘as substantive evidence



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of [her] guilt.’” United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009)

(quoting United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)).

      For those reasons, we conclude that there was sufficient evidence for the

jury to find that Ministre had actual knowledge that the purses held cocaine, and

the court therefore did not err in denying her motion for a judgment of acquittal.

That conclusion means the district court did not commit reversible error in giving

the jury a deliberate ignorance instruction.

      AFFIRMED.




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