Destroyed Jeep May Aid in ‘Blind Mule Defense’

     (CN) – The government’s inadvertent destruction of a Jeep Cherokee stuffed with drugs prompted the 9th Circuit to order a new trial for a Mexican perfume salesman.
     Victor Hugo Sivilla was a purveyor of perfume in the street markets of Tijuana until his arrest in 2010 at the U.S.-Mexico border. Agents found $160,000 worth of cocaine and heroin hidden inside his Jeep’s manifold when Sivilla tried to enter California for more perfume.
     This was two days after Sivilla had loaned the Cherokee to his sister-in-law’s long-term boyfriend, Josue. Sivilla claimed that he was being used as a so-called “blind mule” and that he knew nothing about the drugs. He was arrested and indicted nonetheless, and Josue “was shot dead by unknown persons one month later,” according to a federal appellate ruling published Tuesday.
     Planning a blind mule defense, Sivilla’s lawyer requested preservation of the Jeep and the court approved, but wires got crossed and the Jeep was soon auctioned off and stripped for parts.
     At trial in San Diego, prosecutors argued, based largely on “grainy and indecipherable photographs” of the Jeep’s engine manifold, that Sivilla had to have known about the drugs because of “how long and involved a process it was to remove them from the car,” according to the ruling.
     Sivilla tried to argue the contrary, claiming that “the manifold could be accessed quickly in a public area while [he] was away from the car.”
     Without a thorough inspection of the vehicle, however, the blind-mule defense fell short. A federal jury found Sivilla guilty, and he was later sentenced to 10 years in prison.
     Sivilla argued on appeal that the Jeep’s auction had violated his right to due process, or at the very least should have required the District Court to say something to the jury.
     A three-judge panel of the 9th Circuit concluded Tuesday that the error indeed warrants a new trial with a “remedial jury instruction.”
     Since the sale of the Jeep had been an accident, the error didn’t rise to the constitutional level, according to the ruling. Still, Sivilla was prejudiced by the mistake because he had no real way to contradict the government’s theory.
     “Sivilla sought to use his inspection of the Jeep to rebut the prosecution’s argument that he must have known that the drugs were in the Jeep because of the government introduced the testimony of Officer Cardenas to prove this point,” Judge John Noonan wrote for the unanimous panel. “The photographs were the only substitute evidence available to Sivilla to rebut this argument. But the photographs are inadequate because they are pixelated and difficult to decipher. An expert witness presented only with the photographs would have concluded that next to nothing be determined from them. In order for Sivilla to mount his only defense, that he did not know the drugs were in the car, the defense’s in-house expert witness for hidden compartments in vehicles would have needed access to the vehicle itself.”

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