United States v. Martha Solano , 694 F. App'x 581 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10112
Plaintiff-Appellee, D.C. No.
4:14-cr-01558-CKJ-CRP-1
v.
MARTHA EDILIA SOLANO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted July 10, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD,** District
Judge.
Martha Solano appeals her convictions for conspiracy with intent to
distribute, possession with intent to distribute, conspiracy to import, and
importation of methamphetamine. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
The district court did not err by denying Solano’s motion for disclosure of
the confidential source’s identity. The court reviewed the Government’s
information about the source in camera and reasonably applied the balancing test
from Roviaro v. United States, 353 U.S. 53 (1957). See United States v. Jaramillo-
Suarez, 950 F.2d 1378, 1387 (9th Cir. 1991) (holding that there was no abuse of
discretion in denial of disclosure motion where there was no evidence that
confidential informant was only witness to alleged crime and the Government did
not rely on source’s information at trial).
To the extent that Solano asked the court to order the Government to
affirmatively investigate certain individuals, the court did not err by denying this
request. See United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980)
(per curiam) (observing that Brady v. Maryland, 373 U.S. 83 (1963), “does not
require the government to create exculpatory material that does not exist”); see
also United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985).
The court did not err by giving a deliberate ignorance instruction to the jury.
Solano argues that if the jury rejected the Government’s evidence of actual
knowledge—ownership of multiple Trailblazers with identical interiors, frequent
border crossings, limited reported income, allowing the Trailblazer to leave her
possession while in Mexico, and the firmness of the seats—it could not then find
deliberate ignorance. But this argument misinterprets United States v. Heredia,
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483 F.3d 913 (9th Cir. 2007) (en banc).
Here, as in Heredia, the Government’s evidence of direct knowledge was
circumstantial. See id. at 923. And here, as in Heredia, the jury could have either
inferred that Solano knew of the drugs in her car based on that circumstantial
evidence or rejected the inference and believed that Solano did not have actual
knowledge. See id. And finally here, as in Heredia, the jury could have rejected
finding actual knowledge but nonetheless believed that the same evidence
supported a finding of deliberate ignorance. See id. Solano’s attempt to
distinguish Heredia based on Heredia’s testimony that she suspected that there
were drugs in her vehicle is unavailing. Our analysis in that case turned on the
range of conclusions that the jury could have drawn from the evidence, not on any
particular piece or type of evidence, or on which witness presented that evidence.
See id. The district court’s conclusion here that the jury could find willful
blindness even if it rejected actual knowledge, and its decision to give the
deliberate ignorance instruction were thus consistent with our en banc decision in
Heredia. The district court did not abuse its discretion in giving the instruction.
The district court also did not abuse its discretion in denying the motion for
a new trial. Like the district court, we have reviewed the Government’s
information about the source in camera. Even if we assume that information that a
district court had already reviewed in camera could count as newly discovered
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evidence for the purposes of a new trial motion, the source’s identity and potential
testimony do not “indicate[] the defendant would probably be acquitted in a new
trial.” See United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013) (quoting
United States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010)). And even if the
source would have corroborated Bojorquez-Rodriguez’s testimony, that testimony
is still consistent with deliberate ignorance.
AFFIRMED.
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