              Case: 12-14414    Date Filed: 05/29/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14414
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:12-cr-20074-UU-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

HARRY RICHARD,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (May 29, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Harry Richard appeals his convictions for conspiracy to import and to

possess with intent to distribute 500 grams or more of cocaine, and the
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“[i]mport[ation] of and possession with intent to distribute 500 grams or more of

cocaine.” Richard makes two arguments on appeal: (1) that the district court erred

by giving a jury instruction on deliberate ignorance; and (2) that there was

insufficient evidence to support a conviction, because there was no evidence that

he had the requisite knowledge.

                     I.    The Deliberate Ignorance Instruction

      We review de novo a challenge to a deliberate ignorance instruction. United

States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). The district court has broad

discretion to formulate the instructions it gives the jury as long as the charge as a

whole accurately reflects the law and the facts. United States v. Williams, 526

F.3d 1312, 1320 (11th Cir. 2008). We will only reverse a conviction based on a

jury instruction error “if we are left with a substantial and eradicable doubt as to

whether the jury was properly guided in its deliberations.” United States v. Puche,

350 F.3d 1137, 1148 (11th Cir. 2003) (quotation marks omitted).

      “An instruction on deliberate ignorance is appropriate only if it is shown that

the defendant was aware of a high probability of the fact in question and that the

defendant purposely contrived to avoid learning all of the facts in order to have a

defense in the event of a subsequent prosecution.” Id. at 1149 (quotation marks

omitted). The standard is the same whether the evidence “point[ing] in the




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direction of deliberate ignorance” is direct or circumstantial. United States v.

Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (quotation marks omitted).

      District courts give a deliberate ignorance instruction in error when there is

relevant evidence only of actual knowledge rather than deliberate avoidance.

United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008). This error is harmless,

however, if the jury was properly instructed that finding deliberate ignorance

requires proof beyond a reasonable doubt, the jury was also instructed on the

theory of actual knowledge, and there was sufficient evidence to support the actual

knowledge theory. Stone, 9 F.3d at 937–38; see also Steed, 548 F.3d at 977.

      The facts here support an inference that Richard was aware of a high

probability that he was transporting contraband and deliberately avoided learning

more. Mr. Vital, a new acquaintance, paid for Richard’s roundtrip ticket to Haiti,

Mr. Vital’s cousin paid for Richard’s hotel in Haiti, and Mr. Vital was going to

give him additional money upon his return from Haiti. Apparently, all Richard had

to do in return was bring clothes to Mr. Vital’s family member in Haiti. When he

was in Haiti, Mr. Vital’s cousin took Richard’s personal suitcase, brought back a

different suitcase, and then packed Richard’s belongings in the new suitcase.

      “Not surprisingly, this is not the first time a criminal defendant has obtained

a package under suspicious circumstances, been paid an exorbitant sum to

transport it, and then claimed surprise when the luggage was revealed to be a


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conduit for moving illegal drugs.” United States v. Hristov, 466 F.3d 949, 953

(11th Cir. 2006) (citing cases). “We have upheld a deliberate ignorance instruction

in other cases in which drug couriers have avoided knowledge of the contents of

their parcels.” Arias, 984 F.2d at 1144. Similarly, we conclude that the district

court did not commit error in giving the deliberate ignorance instruction in this

case.1

                            II.     Sufficiency of the Evidence

         We review de novo whether the record has sufficient evidence to support a

jury’s verdict in a criminal trial. United States v. Jiminez, 564 F.3d 1280, 1284

(11th Cir. 2009). Evidence is viewed in the light most favorable to the government

with all reasonable factual inferences drawn in favor of the verdict, and will be

sufficient to support a conviction if a reasonable trier of fact could have found that

the evidence established guilt beyond a reasonable doubt. Id. at 1284–85.

         Richard only argues that there was insufficient evidence to support the

knowledge element of his offenses. Each of Richard’s convictions required proof

of knowledge. His conspiracy convictions (counts 1 and 3) required proof of a

knowing and voluntary participation in an illegal agreement. United States v.

Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006); United States v. McDowell, 250
1
 Also, because the jury was properly instructed that finding deliberate ignorance requires proof
beyond a reasonable doubt and on the theory of actual knowledge, and there was sufficient
evidence for Richard’s convictions under the actual knowledge theory, any purported error in
giving the deliberate ignorance instruction was harmless. See Stone, 9 F.3d at 937–38.

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F.3d 1354, 1365 (11th Cir. 2001). His convictions for importation of and

possession with intent to distribute controlled substances (counts 2 and 4) required

proof that Richard knew that he was importing and knew he possessed controlled

substances, respectively. United States v. Peart, 888 F.2d 101, 104 n.2 (11th Cir.

1989).

      The evidence was sufficient for a reasonable fact-finder to conclude beyond

a reasonable doubt that Richard had the requisite knowledge. For example, in

addition to the previously discussed evidence, Richard was entrusted with

approximately three kilograms of cocaine, worth around $75,000. See United

States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997) (“A reasonable jury

could infer from the quantity of drugs seized that a ‘prudent smuggler’ is not likely

to entrust such valuable cargo to an innocent person without that person’s

knowledge.”). Also, Richard initially lied to the customs agent when asked about

his bag, his demeanor was suspicious, and he did not appear surprised at the

discovery of cocaine in his luggage. See United States v. Almanzar, 634 F.3d

1214, 1222 (11th Cir. 2011); United States v. Leonard, 138 F.3d 906, 909 (11th

Cir. 1998). Further, the “unusual weight of the roller-bag” can also support an

inference of knowledge. See Quilca-Carpio, 118 F.3d at 722.

                                 III.   Conclusion




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      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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