Vol. 12, No. 43
Covering Cases Published in the Advance Sheets through Oct. 24, 2005

Knowledge of Illegality: A Bouncing Ball

Apprendi, Blakely, Booker and Restitution

Misprision of a Felony

 

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Booker Box Score
Past Weeks' New Decisions - 123 Total Since Jan. 12, 2005 -  4838

 

U.S. v. Truong, 425 F.3d 1282 (10th Cir. Oct. 17, 2005) (Judge McConnell)
U.S. v. Heredia, 426 F.3d 1226 (9th Cir. Oct. 24, 2005) (Judge Bybee)

In these two drug cases, the courts addressed different aspects of the mens rea element of some of the Government’s main drug statutes; and, in both cases, the courts found that the Government had failed to provide sufficient evidence to support the jury verdicts - although for different reasons.

Truong

The defendant in this case, Trung Truong, who worked in a Texaco station in Tulsa, OK, admitted to selling “very large quantities of ephedrine or pseudoephedrine to various people on numerous occasions.” (Id., at 1284). Almost all of the sales took place “under unusual circumstances,” such as at night after the station had closed and all the lights had been turned off.

Truong was charged with violating one of the Government’s main drug statutes - 21 U.S.C. § 841(c)(2) - which makes it a crime to possess or distribute certain listed chemicals if the defendant knows, or has reasonable cause to believe, that the chemicals will be used to manufacture a controlled substance. At the close of the prosecution’s case, Truong moved for a judgment of acquittal, arguing that the Government had offered no evidence to prove that he knew or had reasonable cause to believe that the chemicals he sold would be used to make methamphetamine. The district court denied that motion.

Then, after the presentation of all the evidence, the Government requested a “deliberate ignorance” instruction which would permit the jury to infer knowledge from acts purposefully taken by the defendant to avoid learning that the pseudoephedrine he sold was likely used to manufacture methamphetamine. The district court declined to deliver the instruction on the ground that "there is no record that establishes or that forms the basis for, indicates conduct that includes deliberate acts to avoid actual knowledge of the operant facts." (Id., at 1288). As a matter of interest, the Government did not challenge that ruling on appeal; and the Court noted that any such arguments were therefore waived.

After the jury returned a verdict of guilty, Truong appealed; and the issue before the Court was whether the Government had met its burden of proof under the “reasonable cause to believe” standard of § 841(c)(2). In addressing that issue, Judge McConnell wrote:

“On the face of the statute, it might appear that the mens rea element of these offenses could be either subjective or objective - that a defendant could be convicted upon proof of actual knowledge or intent (subjective) or upon proof that a reasonable person in the defendant's circumstances should have known (had 'reason to believe') that the substance would be used to manufacture methamphetamine (objective). Two circuits have so held [citing decisions from the Eighth and Ninth Circuits]. . . . But this Circuit has interpreted the 'reasonable cause to believe' standard of 21 U.S.C. §§ 841(c)(2) and § 843(a)(6) as 'akin to actual knowledge.' . . . In order to convict in this case, therefore, the prosecution had to offer evidence sufficient to allow the jury to infer that Mr. Truong had actual knowledge, or something close to it, that the pseudoephedrine and ephedrine he sold would be used to manufacture methamphetamine." (Id., at 1289) (Internal citations omitted).

Judging the facts of this case in light of the “unusually specific mens rea requirement of § 841(c)(2),” Judge McConnell then concluded that the Government had failed to present “sufficient evidence from which a jury could have reasonably inferred Mr. Truong knew or had reasonable cause to believe the drugs he sold would be used to manufacture methamphetamine.” Accordingly, it reversed his conviction as unsupported by sufficient evidence.

Heredia

Carmen Heredia, was stopped at an Arizona Border Patrol checkpoint. Riding in her car with her were her mother, an aunt, and two of her young children. After smelling a perfume scent, the Border Patrol agent sent the car to secondary inspection area where it was searched. Over 349 pounds of marijuana were found in the trunk, covered with dryer sheets – a method commonly used to conceal its odor. Heredia was then charged with knowingly possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a).

Heredia was convicted after the district court, at the Government’s behest, instructed the jury that the "knowingly" element of the statute would be satisfied if she was deliberately ignorant of the truth. (That instruction is known in the 9th Circuit as a “Jewell” instruction, after the Court’s en banc ruling in U.S. v. Jewell, 532 F.2d 697 (9th Cir. 1976)) . Heredia appealed her conviction; and the principal issue on appeal was whether there was sufficient evidence to warrant the "deliberate ignorance" jury instruction.

There were a lot of disputed facts at the trial. For example, Heredia, who testified at trial, claimed that the car belonged to her aunt; and that she did not know there were drugs in the car. She also first admitted and then denied that she had smelled a strong detergent odor in the car. The Court even concluded that “By her own admission, Heredia actually suspected she might be involved in criminal activity.” Heredia's mother and aunts also testified at trial, and they also denied any knowledge of the marijuana; but the Court noted that “their testimony not only contradicted Heredia's, but contradicted each other's and, often times, was internally inconsistent.”

Despite those damning facts, Judge Bybee, writing for the majority, concluded that it was error for the district court to have given the Jewell instruction in this case. He explained that Jewell was the first Ninth Circuit case to consider whether one can "knowingly" possess contraband without having actual knowledge of it; and he noted that the Jewell court concluded that interpreting § 841(a) to require actual knowledge would make deliberate ignorance a defense, and that "it cannot be doubted that those who traffic in drugs would make the most of it." Jewell, id, at 703. However, he also noted that:

“In the years since we decided Jewell, we have restricted the circumstances under which we will permit the instruction to be issued. We have warned that the instruction is ‘rarely appropriate,’ and should be given only when the government presents ‘specific evidence’ that the defendant ‘(1) actually suspected that he or she might be involved in criminal activity, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself or herself with a defense in the event of prosecution’.” (Internal citations omitted).

Applying those principles to the facts of this case, Judge Bybee reasoned that:

“In this case the government had it both ways. It argued, in effect, that Heredia knew the marijuana was in the trunk, and that, even if Heredia did not know, she nevertheless suspected there was marijuana in the car and deliberately ignored that fact. The fact that the government argued its case in the alternative affects the way that we approach this appeal. We have no way of knowing whether the jury convicted Heredia on the basis of actual knowledge or deliberate ignorance; nor do we know whether the jury even agreed on the facts, or only on the result. . . . Since Heredia only challenges the issuing of the Jewell instruction, we need not concern ourselves with the confusing, contradictory and self-serving evidence received from Heredia's mother and aunts suggesting that Heredia and her husband had access to the car and must have put the marijuana in the trunk. This evidence points only to actual knowledge and cannot support a Jewell instruction.”

Thus, the majority firmly concluded that the Government “failed to provide specific evidence that Heredia deliberately avoided taking steps to confirm or deny her suspicion in order to provide herself with a defense in the event of prosecution. The district court should not have issued the Jewell instruction, and the error is not harmless.”

In dissent, an almost apoplectic Judge Kozinski argued that if there ever was a case that deserved the Jewell instruction, this was it; and he proceeded to explain why, in his view, the evidence against Heredia in the instant case was even stronger than it had been against the defendant in Jewell.


Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. Oct. 31, 2005) (Judge Paez)

The petitioner in this case, Emma Altamirano, is a citizen of Mexico who resides in the U.S. by virtue of a grant of parole by the Attorney General pending final resolution of an immediate relative visa petition filed by her husband, who is a U.S. citizen. In this proceeding Emma was seeking review of an Immigration Judge’s (IJ) decision which denied her motion to terminate removal proceedings against her on the grounds that she had engaged in alien smuggling, in violation of 8 U.S.C. § 1182(a)(6)(E)(I).

As permitted by the conditions of her parole statue, Emma was allowed to make trips back and forth to Mexico. On one return trip to the U.S., customs officers inspected the car in which Emma was riding with her husband and father-in-law, and they found a Mexican citizen hiding in the trunk. Although Emma admitted that she was aware of the individual's presence in the trunk, the evidence showed that her father-in-law made the plans to transport the individual into the United States.

Although Emma was not charged with a criminal offense, the INA did commence removal proceedings against her, charging that she had knowingly aided the smuggling of an alien into the U.S. in violation of law. The IJ concluded that Emma was no longer admissible under the visa petition that had been filed on her behalf and that she could be removed from the U.S. When that ruling was affirmed by the Board of Immigration Appeals, Emma filed the instant appeal, arguing that although she was present in the vehicle and knew that an alien was in the trunk, she did not "encourage[], induce[], assist[], abet[] or aid[]" another alien to enter the United States in violation of § 1182(a)(6)(E)(I).

By a vote of 2 to 1, the panel reversed the IJ’s decision, holding that Emma’s mere presence in the car did not constitute alien smuggling. The majority reasoned: “The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because [Emma] did not affirmatively act to assist [the alien], she did not engage in alien smuggling. That she was present in the vehicle and knew that [the alien] was in the trunk does not amount to a violation of [§ 1182(a)(6)(E)(I)]. Thus, the IJ's conclusion that [Emma’s] mere presence and knowledge constituted alien smuggling is "clearly contrary to the plain and sensible meaning of the statute."

Judge Rymer dissented. She argued that the IJ’s ruling should be affirmed, reasoning: “The question is not whether [Emma’s] knowledge of illegal activity and mere presence in the car suffice to bring her within the terms of the statute, but whether her deliberate presence in the car when it crossed the border, knowing that her husband and father-in-law were smuggling an illegal alien in the trunk of the car, supports a finding that she joined them in the car and stayed in the car for the purpose of facilitating the smuggling. It does, because [Emma’s] getting into the car and not getting out at the border were affirmative acts that assisted the alien smuggling plan by making it less likely that the car would be stopped.”


U.S. v. Mueffelman, Crim No. 01-10387-NG (D.Mass. Nov. 14, 2005) (Judge Gertner)

This is another of Judge Gertner’s signature discourses on sentencing in the aftermath of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 125 S.Ct. 738 (2005) - and in this one she addressed a topic that has left the courts in great disarray - namely the impact of that trilogy of cases on restitution orders under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (MVRA). She explained some of the relevant issues as follows:

"[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the 'scheme' that was alleged and proved."

The defendant, who was one of the founders of a company organized to assist individuals of marginal or poor credit to achieve home ownership by offering mortgage financing, was convicted of mail fraud and wire fraud; and the principal issue addressed in this Sentencing Memorandum was the amount of “loss” to be used for purposes of both the sentence and the restitution order that was required to be imposed under the MVRA. The defendant argued (pre-Booker) that there should be no enhancement of his sentence beyond the base level of six, because the issues of loss (as well as the number of victims and other victim-related issues) had not been submitted to the jury.

Ultimately, Judge Gertner agreed with the Government’s assessment that the proper loss in this case for both sentencing and restitution purposes was $907,864 - a figure that was established in some related state court proceedings and a figure that the defendant did not challenge in those state proceedings.

While Judge Gertner may have agreed with the Government’s assessment of the amount of the loss in this case, she certainly disagreed with the Government’s position (and the position of a number of other courts) as to whether restitution orders escape the strictures of the Apprendi line of cases. And, on that issue, she first set forth the arguments that have been advanced against applying the Sixth Amendment protections to an award of restitution; and then explained why the “better approach, based on the language of the MVRA, and its legislative history, is to treat restitution as a criminal punishment fully subject to Booker’s constraints.” As usual, Judge Gertner’s decision is an important, timely and compelling analysis of a sentencing issue that is often confused and misdirected.

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

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Year to Date
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56
2221
23,410
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