                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50348

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00234-LAB-1
 v.

DEMETRIO CISNEROS,                              MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                             Submitted July 11, 2018**
                               Pasadena, California

Before: FISHER,*** WATFORD, and FRIEDLAND, Circuit Judges.

      Demetrio Cisneros appeals his jury conviction for importing

methamphetamine in violation of 21 U.S.C. §§ 952 and 960. He alleges that the



      *
             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 D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
District Court committed two principal errors: first, by instructing the jury that he

was required to know that the substance in his car was “methamphetamine or some

other prohibited drug,” as opposed to the defense-requested instruction

“methamphetamine or some other substance listed on the federal drug schedules;”1

and second, in giving a deliberate ignorance instruction. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and will affirm.

      We review the substance of jury instructions de novo and their formulation for

an abuse of discretion, inquiring whether, as a whole, they are “misleading or

inadequate to guide the jury’s deliberation.” United States v. Hofus, 598 F.3d 1171,

1174 (9th Cir. 2010) (quoting United States v. Frega, 179 F.3d 793, 806 n.16 (9th

Cir. 1999)). In the context of this case, “prohibited drug” and “substance listed on

the federal drug schedules” were functionally synonymous. Moreover, this case

dealt only with methamphetamine—a paradigmatic controlled substance—so there

is no reasonable chance that the jury was in any way misled by the District Court’s

wording. Cisneros’s reliance on McFadden v. United States, 135 S. Ct. 2298 (2015),

is misplaced. McFadden could be relevant if, for instance, Cisneros had claimed he

did not know that the substance was on a federal drug schedule. See id. at 2304. But

Cisneros contended instead that he did not know his car contained any drugs.



      1
      The “some other prohibited drug” language comes from the Ninth Circuit
Model Criminal Jury Instructions 9.32 (2010 ed.).

                                           2
      The decision to give a deliberate ignorance or willful blindness instruction is

left to the District Court’s discretion, and is appropriate if—viewing the evidence in

the Government’s favor—a jury “could rationally find willful blindness.” United

States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007) (en banc). This requires both a

subjective awareness of a high probability that a particular fact exists and

“deliberate actions taken to avoid learning the truth.” United States v. Yi, 704 F.3d

800, 804–05 (9th Cir. 2013). Cisneros admitted that “of course” he suspected he

was transporting drugs, so the first prong was met. The evidence also amply

supported the second prong because a jury could have rationally found that

Cisneros’s decision to have his vehicle modified for smuggling without asking

what was being smuggled was precisely the kind of “deliberate action” at which the

instruction is directed. United States v. Ramos-Atondo, 732 F.3d 1113, 1119 (9th

Cir. 2013).

      Because both of the challenged instructions were appropriate, the District

Court did not err in allowing argument consistent with them, nor in prohibiting

arguments in contravention thereof.

     AFFIRMED.




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