United States v. Carmen Denise Heredia ( 2007 )

Opinion by Judge KOZINSKI; Concurrence by Judge KLIENFELD; Dissent by Judge GRABER.

ORDER AND AMENDED OPINION

KOZINSKI, Circuit Judge.

ORDER

Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows:

As our cases have recognized, deliberate ignorance, otherwise known as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). A willfully blind defendant is one who took deliberate actions to avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substantial and unjustifiable risk that his conduct was criminal; a negligent defendant is ■ one who should have had similar suspicions but, in fact, did not.

OPINION

We revisit United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc), and the body of caselaw applying it.

I

Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a “very strong perfume odor” emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).

At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to No-gales, where her mother had a dentist’s appointment. After the appointment, she borrowed her Aunt Belia’s car to transport her mother back to Tucson.¹ Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a “detergent” smell in the car as she prepared for the trip and asked Belia to explain. Belia told her that she had spilled Downey fabric softener in the car a few days earlier, but Heredia found this explanation incredible.

Heredia admitted on the stand that she suspected there might be drugs in the car, based on the fact that her mother was visibly nervous during the trip and carried a large amount of cash, even though she wasn’t working at the time. However, Heredia claimed that her suspicions were not aroused until she had passed the last freeway exit before the checkpoint, by which time it was too dangerous to pull over and investigate.

The government requested a deliberate ignorance instruction, and the judge obliged, overruling Heredia’s objection. The instruction, cribbed from our circuit’s Model Jury Instruction 5.7, read as follows:

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the vehicle driven by the defendant and deliberately avoided learning the truth. You may not find such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant, or if you find that the defendant was simply careless.²

On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge.³ Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.

II

While Jewell has spawned a great deal of commentary and a somewhat perplexing body of caselaw, its core holding was a rather straightforward matter of statutory interpretation: “ ‘[Kjnowingly’ in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it.” 532 F.2d at 702. In other words, when Congress made it a crime to “knowingly ... possess with intent to manufacture, distribute, or dispense, a controlled substance,” 21 U.S.C. § 841(a)(1), it meant to punish not only those who know they possess a controlled substance, but also those who don’t know because they don’t want to know.⁴

Overturning a long-standing precedent is never to be done lightly, and particularly not “in the area of statutory construction, where Congress is free to change [an] interpretation of its legislation.” Ill. Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Even in the criminal context, where private reliance interests are less compelling,⁵ stare decisis concerns still carry great weight, particularly when a precedent is as deeply entrenched as Jewell. See Evans v. United States, 504 U.S. 255, 268-69, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (noting that stare decisis carries considerable weight when “many other courts ... have interpreted the statute in the same way”). Since Jewell was decided in 1976, every regional circuit — with the exception of the D.C. Circuit — has adopted its central holding. See n. 11 infra. Indeed, many colloquially refer to the deliberate ignorance instruction as the “Jewell instruction.” See, e.g., United States v. Bussey, 942 F.2d 1241, 1246 (8th Cir.1991); United States v. Lara-Velasquez, 919 F.2d 946, 951 n. 5 (5th Cir.1990). Congress has amended section 841 many times since Jewell was handed down, but not in a way that would cast doubt on our ruling. Given the widespread acceptance of Jewell across the federal judiciary, of which Congress must surely have been aware, we construe Congress’s inaction as acquiescence.⁶

That said, there are circumstances when a precedent becomes so unworkable that keeping it on the books actually undermines the values of evenhandedness and predictability that the doctrine of stare decisis aims to advance. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Here, we recognize that many of our post-Jewell cases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts — and ourselves — to apply with consistency.⁷ But, rather than overturn Jewell, we conclude that the better course is to clear away the underbrush that surrounds it.

Ill

The parties have pointed out one area where our cases have not been consistent: Whether the jury must be instructed that defendant’s motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime.⁸ Jewell itself speculated that defendant’s motive for failing to learn the truth in that case was to “avoid responsibility in the event of discovery.” 532 F.2d at 699.⁹ Yet the opinion did not define motive as a separate prong of the deliberate ignorance instruction. And we affirmed, even though the instruction given at Jewell’s trial made no mention of motive. Id. at 700. Since then, we’ve upheld two-pronged instructions, similar to the one given here, in at least four other published opinions. See United States v. Shannon, 137 F.3d 1112, 1117 n. 1 (9th Cir.1998) (per curiam); United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir.1984); United States v. Henderson, 721 F.2d 276, 278 (9th Cir.1983); United States v. Suttiswad, 696 F.2d 645, 650 (9th Cir.1982).

The first mention of the motive prong came in a dissent by then-Judge Kennedy, who also authored the dissent in Jewell. See United States v. Murrieta-Bejarano, 552 F.2d 1323, 1326 (9th Cir.1977) (Kennedy, J., dissenting). Judge Kennedy’s chief concern was with what he viewed as the absence of deliberate avoidance on the part of the defendant in that case. See id. at 1325. At any rate, he was not writing for the court. Yet some of our opinions seem to have adopted the motive prong, providing little justification for doing so other than citation to Judge Kennedy’s dissent. See, e.g., United States v. Baron, 94 F.3d 1312, 1318 n. 3 (9th Cir.1996); United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987); United States v. Pac. Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985); United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982). Three other federal circuits have followed suit. See United States v. Puche, 350 F.3d 1137, 1149 (11th Cir.2003); United States v. Willis, 277 F.3d 1026, 1032 (8th Cir.2002); United States v. Delreal-Ordones, 213 F.3d 1263, 1268-69 (10th Cir.2000).

Heredia argues that the motive prong is necessary to avoid punishing individuals who fail to investigate because circumstances render it unsafe or impractical to do so. She claims that she is within this group, because her suspicions did not arise until she was driving on an open highway where it would have been too dangerous to pull over. She thus claims that she had a motive other than avoiding criminal culpability for failing to discover the contraband concealed in the trunk.

We believe, however, that the second prong of the instruction, the requirement that defendant have deliberately avoided learning the truth, provides sufficient protections for defendants in these situations. A deliberate action is one that is “[ijnten-tional; premeditated; fully considered.” Black’s Law Dictionary 459 (8th ed. 2004). A decision influenced by coercion, exigent circumstances or lack of meaningful choice is, perforce, not deliberate. A defendant who fails to investigate for these reasons has not deliberately chosen to avoid learning the truth.¹⁰

We conclude, therefore, that the two-pronged instruction given at defendant’s trial met the requirements of Jewell and, to the extent some of our cases have suggested more is required, see page 920 supra, they are overruled. A district judge, in the exercise of his discretion, may say more to tailor the instruction to the particular facts of the case. Here, for example, the judge might have instructed the jury that it could find Heredia did not act deliberately if it believed that her failure to investigate was motivated by safety concerns. Heredia did not ask for such an instruction and the district judge had no obligation to give it sua sponte. Even when defendant asks for such a supplemental instruction, it is within the district court’s broad discretion whether to comply-

IV

Defendant also claims there was insufficient foundation to give the Jewell instruction. In order to address this claim, we must first identify the standard by which we review a district court’s decision to issue a Jewell instruction.

A. The differing standards of review we apply reflect the relative competencies and functions of the appellate and district courts. Miller v. Fenton, 474 U.S. 104, 114-15, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Whether a jury instruction was properly given presents two questions, one primarily factual, the other purely legal. Whether the substance of the instruction itself is correct — i.e., whether it accurately describes the elements of the charged crime — is a legal question of the sort we review de novo. United States v. Feingold, 454 F.3d 1001, 1007 (9th Cir.2006). But whether an instruction should be given in the first place depends on the theories and evidence presented at trial. This is mostly a factual inquiry, but not entirely. It also requires judgment as to whether the proposed instruction is relevant to the issues presented or would unduly confuse the jury. The district judge’s proximity to the trial and intimate knowledge of the record justify considerable deference to his judgment in these situations. Accordingly, we typically review such decisions for abuse of discretion. See, e.g., United States v. Johnson, 459 F.3d 990, 992 n. 3 (9th Cir.2006).

Jewell cases have been an exception to this general order of things, as we have long reviewed a district court’s decision to give a deliberate ignorance instruction de novo. See Shannon, 137 F.3d at 1117; United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.1997); United States v. Asuncion, 973 F.2d 769, 772 (9th Cir.1992). This rule derives, not from Jewell itself, but from a later case, Asuncion. Asuncion summarily adopted the de novo standard in Jewell cases, purportedly relying on another of our cases, United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). Sanchez-Robles provides no support for this proposition. It mentions de novo review, but only in conjunction with the legal question of whether the jury instruction “misstated elements of a statutory crime.” Id. The rule adopted in Asuncion has been followed by no other federal court of appeals.¹¹

On reflection, we find no reason to treat Jewell instructions differently from other jury instructions. Still, we might have been willing to leave well enough alone had Asuncion’s, progeny shown promise. But, in the years since, we’ve seen a proliferation of narrow, heavily fact-dependent and at times contradictory opinions that have been difficult for both judges and litigants to navigate.¹² It should not be surprising that our attempt to micromanage the district courts by cataloguing the various situations in which an instruction is justified has yielded such poor results. We therefore abandon the Asuncion enterprise and re-adopt the normal rule applicable to jury instructions by reviewing the decision to give a deliberate ignorance instruction for abuse of discretion. Opinions to the contrary, see page 921 supra, are overruled.

B. A district court should approach the government’s request to give a Jewell instruction in the same way it deals with any other proposed jury instruction. In general, a party is entitled to an instruction to help it prove its theory of the case, if the instruction is “supported by law and has foundation in the evidence.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002).

In deciding whether to give a particular instruction, the district court must view the evidence in the light most favorable to the party requesting it. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Turner v. United States, 396 U.S. 398, 417-18, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). When a party requests instructions on alternative theories, the district judge must consider the instructions separately and determine if the evidence could support a verdict on either ground. See Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (noting that a general verdict cannot stand if the jury could have convicted on a legally flawed theory). When knowledge is at issue in a criminal case, the court must first determine whether the evidence of defendant’s mental state, if viewed in the light most favorable to the government, will support a finding of actual knowledge.¹³ If so, the court must instruct the jury on this theory. Actual knowledge, of course, is inconsistent with willful blindness. The deliberate ignorance instruction only comes into play, therefore, if the jury rejects the government’s case as to actual knowledge. In deciding whether to give a willful blindness instruction, in addition to an actual knowledge instruction, the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government’s evidence of actual knowledge. If so, the court may also give a Jewell instruction.

This case well illustrates the point. Taking the evidence in the light most favorable to the government, a reasonable jury could certainly have found that Heredia actually knew about the drugs. Not only was she driving a car with several hundred pounds of marijuana in the trunk, but everyone else who might have put the drugs there — her mother, her aunt, her husband — had a close personal relationship with Heredia. Moreover, there was evidence that Heredia and her husband had sole possession of the car for about an hour prior to setting out on the trip to Tucson. Based on this evidence, a jury could easily have inferred that Here-dia actually knew about the drugs in the car because she was involved in putting them there.

The analysis in the foregoing paragraph presupposes that the jury believed the government’s case in its entirety, and disbelieved all of Heredia’s exculpatory statements. While this would have been a rational course for the jury to take, it was not the only one. For example, a rational jury might have bought Heredia’s basic claim that she didn’t know about the drugs in the trunk, yet disbelieved other aspects of her story.¹⁴ The jury could, for example, have disbelieved Heredia’s story about when she first began to suspect she was transporting drugs. The jury could have found that her suspicions were aroused when Belia gave her the unsatisfactory explanation for the “detergent” scent,¹⁵ see pages 917 supra, or while she drove to Tucson but before the last exit preceding the checkpoint. Or, the jury might have believed Heredia that she became suspicious only after she had passed the last exit before the checkpoint but disbelieved that concerns about safety motivated her failure to stop.

All of these are scenarios the jury could rationally have drawn from the evidence presented, depending on how credible they deemed Heredia’s testimony in relation to the other evidence presented. The government has no way of knowing which version of the facts the jury will believe, and it is entitled (like any other litigant) to have the jury instructed in conformity with each of these rational possibilities. That these possibilities are mutually exclusive is of no consequence. A party may present alternative factual theories, and is entitled to instructions supporting all rational inferences the jury might draw from the evidence.

We do not share the worry, expressed in some of our cases, that giving both an actual knowledge and a deliberate ignorance instruction is likely to confuse the jury. See, e.g., Sanchez-Robles, 927 F.2d at 1073-74. A jury is presumed to follow the instructions given to it, Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir.2006), and we see no reason to fear that juries will be less able to do so when trying to sort out a criminal defendant’s state of mind than any other issue. Nor do we agree that the Jewell instruction risks lessening the state of mind that a jury must find to something akin to recklessness or negligence. See, e.g., United States v. Alvarado, 817 F.2d 580, 584 (9th Cir.1987); Garzon, 688 F.2d at 609. The instruction requires the jury to find beyond a reasonable doubt that defendant “was aware of a high probability” of criminality and “deliberately avoided learning the truth.” Indeed, the instruction actually given in this case told the jurors to acquit if they believed defendant was “simply careless.” Recklessness or negligence never comes into play, and there is little reason to suspect that juries will import these concepts, as to which they are not instructed, into their deliberations. See n. 4 supra.

Even if the factual predicates of the instruction are present, the district judge has discretion to refuse it. In cases where the government does not present a deliberate ignorance theory, the judge might conclude that the instruction will confuse the jury. The same may be true where a defendant disputes only identity. Concerns of this nature are best dealt with by the district judge, whose familiarity with the evidence and the events at trial is necessarily superior to our own. We will second guess his decision only in those rare cases where we find an abuse of discretion. For the reasons explained, see pages 922-23 supra, the district court did not abuse its discretion by giving the Jewell instruction here.¹⁶

V

We decline the invitation to overrule Jewell, and further hold that district judges are owed the usual degree of deference in deciding when a deliberate ignorance instruction is warranted. While the particular form of the instruction can vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance. The district judge may say more, if he deems it advisable to do so, or deny the instruction altogether. We review such decisions for abuse of discretion. The instruction given at defendant’s trial met these requirements, and the district judge did not abuse his discretion in issuing it.

AFFIRMED.

1 . Belia was not the aunt in the car with Heredia at the time she was stopped at the checkpoint. Belia was traveling on the same interstate at about the same time, but in a separate car.

2 . The model deliberate ignorance instruction was amended to include a third element, see Part III infra, following the panel’s opinion in this case.

3 . Amici, the National Association of Criminal Defense Lawyers and the Arizona Attorneys for Criminal Justice, also advocate this position.

4 . As our cases have recognized, deliberate ignorance, otherwise known as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir.1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991). A willfully blind defendant is one who took deliberate actions to avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substantial and unjustifiable risk that his conduct was criminal; a negligent defendant is one who should have had similar suspicions but, in fact, did not.

5 .See Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ("Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved.”). But see Busic v. United States, 446 U.S. 398, 404, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (invoking stare decisis in the interpretation of a sentencing enhancement provision); United States v. Aguon, 851 F.2d 1158, 1177 (9th Cir.1988) (Wallace, J., dissenting) ("The doctrine of stare decisis is equally applicable to settled interpretations of a criminal statute.”), overruled on other grounds by Evans v. United States, 504 U.S. 255, 265, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992).

6 .Our dissenting colleague seeks support for her position from the fact that Congress has, on occasion, defined the scienter requirement in some criminal statutes as "knows, or has reasonable grounds to believe.” Dissent at 931. But "has reasonable grounds to believe” defines a mental state that is less than actual knowledge. By contrast, Jewell defines willful blindness as knowledge — and sets a much higher standard for satisfying it. Thus, under Jewell, the prosecution must prove that defendant was aware of a "high probability” that he is in the possession of contraband, and that he "deliberately avoided learning the truth.” This standard focuses on defendant’s actual beliefs and actions, whereas "has reasonable grounds to believe” is an objective standard that could be satisfied by showing what a reasonable person would believe, regardless of defendant's actual beliefs. That Congress chose to set a lower scienter requirement in some criminal statutes tells us nothing about our interpretation of "knowledge” in Jewell. It certainly provides an insufficient basis for rejecting an interpretation that Congress has left undisturbed for three decades and that has since been adopted by ten of our sister circuits. See n. 11 infra.

7 . The panel opinion and the dissent in this case, United States v. Heredia, 429 F.3d 820 (9th Cir.2005), illustrate some of the difficulties.

8 . The motive prong usually requires the jury to find that defendant was deliberately ignorant "in order to provide himself with a defense in the event of prosecution.” United States v. Baron, 94 F.3d 1312, 1317 (9th Cir.1996).

9 . The concurrence makes much out of this phrase, concurrence at 925, but it cuts entirely the other way because (as noted in the text) Jewell approved an instruction that did not contain the motive prong. Even though the Jewell court believed this was defendant's likely motive, it did not choose to make it an independent element of deliberate indifference.

10 . The concurrence would add the third prong to the Jewell instruction in order to protect defendants who have ''innocent” motives for deliberately avoiding the truth. But the deliberate ignorance instruction defines when an individual has sufficient information so that he can be deemed to "know” something, even though he does not take the final step to confirm that knowledge. See Dissent at 932. The reason the individual fails to take that final step has no bearing on whether he has sufficient information so he can properly be deemed to "know” the fact. An innocent motive for being deliberately ignorant no more vitiates the knowledge element of a crime than does an innocent motive vitiate any other element.

Equally misplaced is the concurrence's concern about FedEx and similar package carriers. Concurrence at 928. The fact that a tiny percentage of the tens of thousands of packages FedEx transports every day may contain contraband hardly establishes a high probability that any particular package contains contraband. Of course, if a particular package leaks a white powder or gives any other particularized and unmistakable indication that it contains contraband, and the carrier fails to investigate, it may be held liable — and properly so.

11 . Six of our sister circuits have explicitly adopted the abuse of discretion standard for reviewing a district judge’s decision to give a deliberate ignorance instruction. United States v. Flores, 454 F.3d 149, 156 (3d Cir.2006); United States v. Ruhe, 191 F.3d 376, 384 (4th Cir.1999); United States v. Fuchs, 467 F.3d 889, 902 (5th Cir.2006); United States v. Beaty, 245 F.3d 617, 621 (6th Cir.2001); United States v. McClellan, 165 F.3d 535, 549 (7th Cir.1999); United States v. King, 351 F.3d 859, 866 (8th Cir.2003). The Eleventh Circuit follows what it describes as a "deferential” standard. United States v. Puche, 350 F.3d 1137, 1148 (11th Cir.2003). The Second Circuit has suggested that a highly deferential standard of review is appropriate because a claim that the factual predicates for giving the instruction are unmet "is little more than a challenge to the sufficiency of the evidence to support a conscious avoidance conviction. A defendant challenging a conviction based on insufficient evidence bears a heavy burden.” United States v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir.2003). Two other circuits have recognized conflicts in their caselaw regarding the appropriate standard of review, but have declined, thus far, to resolve them. See United States v. Lizardo, 445 F.3d 73, 85 (1st Cir.2006); United States v. McConnel, 464 F.3d 1152, 1158 n. 3 (10th Cir.2006). And, as previously mentioned, the D.C. Circuit has yet to fully endorse the deliberate ignorance instruction. See United States v. Alston-Graves, 435 F.3d 331, 339-41 (D.C.Cir.2006).

12 . Whether the evidence is sufficient to warrant giving a Jewell instruction is an issue that has divided several panels. See, e.g., Heredia, 429 F.3d at 820; United States v. McAllister, 747 F.2d 1273 (9th Cir.1984); United States v. Murrieta-Bejarano, 552 F.2d 1323 (9th Cir.1977). In cases where we've held that the evidence was insufficient, we’ve often distinguished the facts from those in Jewell itself on exceedingly narrow grounds. See, e.g., Heredia, 429 F.3d at 827 (distinguishing Jewell because defendant’s close relationship with the purported principals mitigated evidence of suspicion); Baron, 94 F.3d at 1318(distin-guishing Jewell on the basis that defendant was not aware of a secret compartment in the car). The result has been a patchwork of rules that apply only in particular factual situations, such as the rule regarding suspicious scents. Seen. 15 infra.

13 . As previously noted, willful blindness is tantamount to knowledge. See n. 6 supra. We use the phrase “actual knowledge’’ to describe the state of mind when defendant, in fact, knows of the existence of the contraband rather than being willfully blind to its existence.

14 . We have long held that juries are not bound to believe or disbelieve all of a witness's testimony. "The jury may conclude a witness is not telling the truth as to one point, is mistaken as to another, but is truthful and accurate as to a third.” Elwert v. United States, 231 F.2d 928, 934 (9th Cir.1956).

15 . Some of our cases have suggested that irregular or strong scents are not enough to support the inference that defendant suspected he might be transporting drugs. See Sanchez-Robles, 927 F.2d at 1075; Baron, 94 F.3d at 1318. This rule is a byproduct of the hands-on approach to reviewing Jewell cases we eschew today and does not survive our opinion. Whether an irregular scent provides a sufficient foundation for the first prong of the Je^vell instruction depends on the evidence in each case. It is a matter committed to the sound discretion of the district court. Contrary statements in our opinions are disapproved.

16 . Some of our opinions have commented on how often Jewell instructions should be given. See, e.g., Baron, 94 F.3d at 1318 n. 3 (“We emphasize again today, as we have in the past, that a Jewell instruction is rarely appropriate.”); Sanchez—Robles, 927 F.2d at 1073 ("[W]e have recognized that the instruction should be used sparingly.”); United States v. Alvarado, 817 F.2d 580, 584 (9th Cir.1987) ("The cases in which the facts point to deliberate ignorance are relatively rare.”); United States v. Garzon, 688 F.2d 607, 609 (9th Cir.1982) ("The instruction should be given rarely because of the risk that the jury will convict on a standard of negligence.”); Murrieta-Bejarano, 552 F.2d at 1325 ("The Jewell instruction should not be given in every case where a defendant claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance.”). This kind of speculation is misguided and should not be read to imply additional limitations on a district court’s discretion to issue a Jewell instruction beyond what we've indicated above. Whether the instruction is given depends solely on the state of the evidence in the case, analyzed as we have explained above. Cases suggesting the contrary are, to that extent, overruled.