                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 31 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 14-10286

              Plaintiff - Appellee,              D.C. No. 13-cr-01161-CKJ

  v.
                                                 MEMORANDUM*
ANGELA MARIE EWING,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted May 10, 2016
                             San Francisco, California

Before: IKUTA and WATFORD, Circuit Judges, and WATSON, District Judge.**


       Angela Marie Ewing appeals her jury conviction and sentence for

(1) conspiracy to possess with the intent to distribute heroin and

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846;


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Derrick Kahala Watson, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
(2) possession with the intent to distribute heroin, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C); (3) possession with the intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);

(4) conspiracy to import heroin and methamphetamine, in violation of 21 U.S.C.

§§ 952(a), 960(a)(1), 960(b)(3), and 963; (5) importation of heroin, in violation of

21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3); and (6) importation of

methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3).

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1. Sufficient evidence supported Ewing’s conviction. Viewing the facts in

the light most favorable to the government, United States v. Nevils, 598 F.3d 1158,

1163-64 (9th Cir. 2010) (en banc), Ewing admitted to knowingly agreeing to work

for a drug trafficking organization that imported drugs from Mexico into the

United States, that the money she agreed to conceal and transport across the

Mexico-United States border was generated from the sale of these imported drugs,

and that her concerted activity with others, including her co-Defendant Reyna

Macias, was illegal. Her agreement to participate in the drug trafficking

conspiracy in this fashion rendered her guilty of activities beyond those that she

specifically agreed to carry out herself—including those involving the heroin and

methamphetamine concealed in the door panels of the vehicle in which she crossed


                                           2
the border on June 7, 2013. See Ocasio v. United States, 136 S. Ct. 1423, 1429-30

(2016) (“The government does not have to prove that the defendant intended to

commit the underlying offense himself/herself. Instead, if conspirators have a plan

which calls for some conspirators to perpetrate the crime and others to provide

support, the supporters are as guilty as the perpetrators”) (citations, quotations,

signals and some alterations omitted). Even assuming that Ewing did not expressly

agree to undertake all of the acts underlying the charged offenses, she is no less “a

conspirator by agreeing to facilitate only some of the acts leading to the substantive

offense.” Salinas v. United States, 522 U.S. 52, 65 (1997). Accordingly, “any

rational trier of fact could have found the essential elements of the crime[s] beyond

a reasonable doubt.” Nevils, 598 F.3d at 1163-64 (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

      2. The district court did not abuse its discretion in formulating the jury

instructions on conspiracy. See United States v. Woodley, 9 F.3d 774, 780 (9th Cir.

1993). “A trial court is given substantial latitude in tailoring jury instructions so

long as they fairly and adequately cover the issues presented.” United States v.

Powell, 955 F.2d 1206, 1210 (9th Cir. 1991) (internal quotation marks omitted).

The instructions here, taken as a whole, were neither misleading nor inadequate to

guide the jury’s deliberations. Id.


                                           3
      We review de novo the denial of a jury instruction based on a question of

law, including whether the instructions adequately cover a defendant’s theory of

defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995). The jury was

properly instructed on the elements of conspiracy, and the district court’s failure to

give Ewing’s theory-of-the-defense instruction was not error, where the

instructions, in their entirety, fairly and adequately covered the defense theory. See

id. (citing United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled

on other grounds by Dixon v. United States, 548 U.S. 1 (2006)).

      3. The district court did not abuse its discretion by instructing the jury on

deliberate ignorance. The factual predicates for the instruction were satisfied and

the instruction as given accurately stated the law. See United States v. Heredia,

483 F.3d 913, 921-22 (9th Cir. 2007) (en banc) (holding that whether to give a

deliberate ignorance instruction is reviewed for abuse of discretion, and the

sufficiency of the supporting evidence is considered in the light most favorable to

the requesting party). The government introduced sufficient evidence from which

a reasonable jury could infer that Ewing was aware of a high probability that she

was in possession of drug contraband and that her failure to investigate was a

deliberate action taken to avoid learning the truth. Notably, a reasonable juror

could have found beyond a reasonable doubt that the questionable series of events


                                           4
at the Arizona Mills Mall in Phoenix where vehicles were swapped to “fix” an

unidentified problem, in the midst of rapid border crossings during a short period

of time, made defendant aware of a high probability that drugs were in the car.

Yet, at no point did Ewing inquire about the exchange of the Chevrolet Malibu for

the Ford Focus, the request to put the title of the vehicle into her name, the

possibility of needing to get a police report from the car dealership, the use of her

cell phone by Macias to send text messages, or the myriad other unusual events

during the relevant time period. Under the totality of these circumstances, a jury

could reasonably conclude that her failure to inquire or investigate constitutes

deliberate ignorance. See United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en

banc).

         Nor did the district court commit legal error in the formulation of the

deliberate ignorance instruction. See United States v. Ramos-Atondo, 732 F.3d

1113, 1119 (9th Cir. 2013) (“Deliberate ignorance involves ‘(1) a subjective belief

that there is a high probability a fact exists and (2) deliberate actions taken to avoid

learning the truth.’”) (quoting United States v. Yi, 704 F.3d 800, 804 (9th Cir.

2013)); Ninth Circuit Model Instr. 5.7. Because the conspiracy and deliberate

ignorance instructions together covered her theory of the case, it was not error to

exclude Ewing’s proposed deliberate ignorance instruction.


                                             5
       4. The district court did not abuse its discretion in admitting evidence of

Ewing’s border crossing history. The trial court weighed the prejudicial effect of

this evidence against its probative value, pursuant to Federal Rule of Evidence 403,

and we cannot say that its admission of this evidence constituted a discretionary

abuse. Wagner v. Cty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2012).

       Nor did the district court err in admitting the testimony of the case agent

over Ewing’s Rule 704 objection. The district court properly concluded that the

agent’s testimony recounting his interview of Ewing was merely descriptive of

what transpired and did not constitute improper opinion testimony. Morever, the

district court’s decision to give a curative instruction, drafted with input from all

counsel, left little room for confusion, and there is no indication that the jury was

unable to follow the court’s instruction. See Dubria v. Smith, 224 F.3d 995, 1002

(9th Cir. 2000); United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th Cir.

1991).

       5. Because Ewing failed to object at trial, we review her claims of

prosecutorial misconduct during closing arguments for plain error. See United

States v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010). “Under the plain error

standard, relief is not warranted unless there has been: (1) ‘error,’ (2) that was

‘plain,’ (3) that affected ‘substantial rights,’ and (4) that ‘seriously affected the


                                            6
fairness, integrity, or public reputation of the judicial proceedings.’” Id. (quoting

United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004)). Ewing’s contention

that the government’s closing statement denied her due process right to a fair

trial—because it made arguments that had no foundation in evidence, required

inferences that were unreasonable, appealed to jurors’ concern about crime in their

community, and again raised the case agent’s opinion testimony—does not

withstand scrutiny. On plain error review, none of the statements amounts to

improper conduct that “so affected the jury’s ability to consider the totality of the

evidence fairly that it tainted the verdict and deprived [Ewing] of a fair trial.”

United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005).

      6. The district court did not clearly err in sentencing by denying a three-

level downward adjustment for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1. See United States v. Fleming, 215 F.3d 930, 939 (9th Cir. 2000) (“We

review for clear error a district court’s decision to deny a reduction for acceptance

of responsibility.”). Throughout, including sentencing, Ewing steadfastly denied

her knowledge of the secreted drugs. Accordingly, the trial court did not clearly

err in finding the absence of an acceptance of responsibility and in withholding the

adjustment under Section 3E1.1. See United States v. Johal, 428 F.3d 823, 830




                                            7
(9th Cir. 2005) (“[T]he reduction is inappropriate where the defendant does not

admit that he or she had the intent to commit the crime.”).

      The judgment of conviction and the sentence are AFFIRMED.




                                          8
                                                                           FILED
United States v. Ewing, No. 14-10286
                                                                            MAY 31 2016
WATFORD, Circuit Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      I would reverse Ewing’s convictions. Each of the offenses alleged against

her required the government to prove that she knew drugs were hidden in the car

on June 7, 2013, when Ewing and Macias attempted to re-enter the United States

from Mexico. The government presented no evidence from which a jury could

rationally conclude that Ewing had actual knowledge that drugs were present in the

car; the narcotics were skillfully concealed in hidden compartments in the car’s

rocker panels and were detected only with the aid of a drug-detection dog and a

“density buster” meter. In the past we’ve allowed juries to infer knowledge when

the defendant was the driver and sole occupant of a car, see United States v. Diaz-

Cardenas, 351 F.3d 404, 407 (9th Cir. 2003), but here Ewing was only a passenger

in the Malibu, which was driven by and registered to Macias. So the government

was forced to rely on a theory of “deliberate ignorance,” which required it to prove

that Ewing was aware of a high probability drugs were hidden inside the car and

that she deliberately avoided learning the truth. See United States v. Heredia, 483

F.3d 913, 917, 920, 924 (9th Cir. 2007) (en banc); United States v. Jewell, 532

F.2d 697, 699–701, 703–04 (9th Cir. 1976) (en banc).

      The government introduced insufficient evidence to support its deliberate

ignorance theory. The government introduced plenty of evidence from which the
                                                                           Page 2 of 4
jury could infer that Ewing knew the car had hidden compartments, and that she

knew cash derived from drug sales had been hidden in those compartments when

she and Macias drove the car from Phoenix to Mexico on June 5. Ewing admitted

to that. She further admitted knowing that the people to whom they delivered the

car in Mexico were drug traffickers. What the government did not prove, however,

was Ewing’s awareness of facts that made it highly probable drugs had been

loaded into the car’s hidden compartments for the return trip back to Phoenix on

June 7.

      In fact, the government introduced no evidence of what happened to the car

after Ewing and Macias dropped it off in Mexico. (All of the facts mentioned by

the majority, see Memdispo at 4–5, concern the cash-smuggling activities that

occurred back in Phoenix, which Ewing admitted having knowledge of.) The

government did not prove, for example, that when Ewing and Macias delivered the

car to the drug traffickers so that the cash could be extracted, they saw drugs

present in the garage when they left the vehicle but then returned several hours

later to retrieve the car and noticed that the drugs were gone. Nor did the

government attempt to establish that there was anything about the car—a strong

and unusual odor, for example—that would have tipped off its occupants to the

presence of drugs hidden inside. Those are facts from which a jury could
                                                                          Page 3 of 4
rationally infer that Ewing was aware of a high probability drugs had been hidden

in the car. That’s the kind of evidence our cases require to support drug-trafficking

convictions on a deliberate ignorance theory. See, e.g., United States v. Ramos-

Atondo, 732 F.3d 1113, 1119–20 (9th Cir. 2013); Heredia, 483 F.3d at 923–24;

United States v. Bobadilla-Lopez, 954 F.2d 519, 523 (9th Cir. 1992); United States

v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir. 1988) (per curiam); Jewell, 532

F.2d at 699 & n.2. We have never upheld a drug-trafficking conviction on a

deliberate ignorance theory with evidence this thin.

      Rather than present adequate evidence to the jury from which rational

inferences could be drawn, the government offered us this argument on appeal:

Everybody knows that drug traffickers, being the profit-maximizers that they are,

would never smuggle cash into Mexico by car but then leave the car empty for the

return trip to the United States. Does everybody really know that? Drug

traffickers’ smuggling techniques are hardly matters of common knowledge. For

all we know, drug traffickers operating out of Mexico use cars to transport drug

proceeds from the United States into Mexico because the risk that cash will be

detected at the border on the way out is relatively low. But perhaps the risk that

drugs will be detected at the border on the way into the United States is much

higher, such that drug traffickers typically smuggle drugs into the United States by
                                                                         Page 4 of 4
other means—tunnels, planes, panga boats, etc. I don’t know where the truth lies

on that score, and I’m not sure how the jury was supposed to know either, since the

government didn’t even put on an expert from the DEA to educate the jury about

the smuggling practices drug traffickers typically use.

      In short, I don’t think the government presented a shred of proof to establish

that Mexican drug traffickers always use the same cars to smuggle drugs into the

United States that they use to smuggle cash into Mexico, much less that everybody

knows that’s how things work. And since the government put on no evidence to

establish that Ewing became aware of facts making it highly probable the particular

car in which she was riding would be used in that fashion, the government

necessarily failed to carry its burden of proof here.
