U.S. v. Garcia-Paz

• Decision Date: 13 March 2002
• Docket Number: No. 01-50078.,01-50078.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan GARCIA-PAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 1212

UNITED STATES of America, Plaintiff-Appellee, v. Ivan GARCIA-PAZ, Defendant-Appellant.

No. 01-50078.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2001.

Filed March 13, 2002.

Gary P. Burcham, San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney, Brian M. Pearce, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Judith N. Keep, Chief Judge, Presiding. D.C. No. CR-00-02484-K.

Before GOODWIN, WALLACE and THOMAS, Circuit Judges.

WALLACE, Circuit Judge.

Garcia-Paz appeals from his conviction, following a jury trial, of importation of merchandise in violation of 18 U.S.C. § 545 (2001). He argues that (1) for the purposes of section 545, marijuana does not constitute "merchandise"; (2) the district court improperly refused to instruct the jury that it must find that Garcia-Paz knowingly imported marijuana in order to sustain a conviction under section 545; and (3) there was insufficient evidence to support his conviction of importation of merchandise in violation of section 545 because he believed he was smuggling medicine, not marijuana. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291. We affirm.

I.

On July 21, 2000, approximately 1:20 p.m., Garcia-Paz entered the United States from Mexico at the San Ysidro port of entry in an ambulance driven by Reynoso-Cordero, while Garcia-Paz, working as an emergency medical technician and translator, was in the back of the ambulance with a patient in critical condition. The patient was to be delivered to an air ambulance at nearby Brown Field in the United States. As the ambulance went through an emergency lane, a narcotics dog sniffed the ambulance and alerted. United States customs officials allowed the ambulance to proceed to Brown Field to deliver the patient to the air ambulance, but instructed Reynoso-Cordero to return immediately to the San Ysidro port of entry upon completion of the delivery for a more thorough inspection of the vehicle. A customs inspector followed the ambulance to the airport to ensure compliance with the instruction to return. Upon subsequent inspection at the port of entry, customs inspectors found a total of 239 packages throughout the ambulance, containing approximately 1,000 pounds of marijuana. Reynoso-Cordero waived his Miranda rights and gave a statement in which he admitted knowledge of the marijuana and stated that he had told Garcia-Paz that the smuggling venture involved "illegal drugs." Thereafter, Garcia-Paz was advised of his Miranda rights, waived them in writing, and agreed to an interview. Garcia-Paz denied knowledge of the marijuana, asserting that he knew only that he was being paid $400 to help bring "medicine" across the border. He stated that he had worked for Reynoso-Cordero several times as a translator when patients were transported to the United States, and that he was usually paid $50 per trip. Garcia-Paz further stated that Reynoso-Cordero had called him at about 11:00 a.m. that morning and offered him $400 to transport some medicine to a pharmacy. Garcia-Paz said that he knew his conduct was illegal.

Garcia-Paz was originally indicted by the grand jury for violations of 21 U.S.C. §§ 952 and 960, importation of marijuana, and 21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute. A superseding indictment also charged him with importation of merchandise in violation of 18 U.S.C. § 545. Following the government's case, Garcia-Paz moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29; the district court took the motion under consideration. Over the objection of Garcia-Paz, the district court instructed the jury that marijuana constituted merchandise for purposes of 18 U.S.C. § 545, and that Garcia-Paz could be deemed culpable under count three (importation of merchandise in violation of section 545) if he believed he was smuggling any illegal merchandise across the border, regardless of what was actually found in the ambulance. The jury returned verdicts of not guilty on counts one and two (importation of marijuana and possession of marijuana with intent to distribute, respectively) and guilty as to count three. The district court thereafter denied Garcia-Paz's motion for judgment of acquittal as to count three.

II.

Garcia-Paz argues that the district court improperly instructed the jury that marijuana constitutes "merchandise" for purposes of 18 U.S.C. § 545. We review de novo the district court's interpretation of a statute. United States v. Doe, 136 F.3d 631 (9th Cir.1998).

Garcia-Paz and the government agree that while "merchandise" is not defined in Title 18, it is defined in Title 19, which was part of the same act as Title 18, and that Title 19 should control the definition of merchandise for purposes of 18 U.S.C. § 545. Title 19 defines "merchandise" as "goods, wares, and chattels of every description,... includ[ing] merchandise the importation of which is prohibited." 19 U.S.C. § 1401(c) (2001). Garcia-Paz points out that Title 19 goes on to define "controlled substance" by saying "[f]or purposes of this chapter, a controlled substance shall be treated as merchandise the importation of which into the United States is prohibited, ..." and that therefore by negative implication, controlled substances should not be treated as merchandise outside of that particular chapter. 19 U.S.C. § 1401(m). Garcia-Paz argues that since the offense with which he was charged, a violation of 18 U.S.C. § 545, is outside the chapter, the controlled substance marijuana is not merchandise.

The description in section 1401(m) of controlled substances as merchandise "[f]or purposes of this chapter" does not say that a controlled substance is merchandise "for purposes of this chapter only." Considering the breadth of the definition of merchandise contained in section 1401(c) ("goods, wares, and chattels of every description" (emphasis added)), there is no reason to believe that Congress meant to restrict in any way the categories of things that could qualify as merchandise under that definition.

Further, the use of the limiting phrase "for purposes of this section" has been interpreted in other contexts not to limit the application of the relevant definition to that section only, see Johnson v. United States, 206 F.2d 806, 808 (9th Cir.1953), and there is no reason to believe a different conclusion should be reached when the word "chapter" is substituted for "section."

Finally, our precedent portends our holding today that "merchandise" under section 545 includes marijuana. Steiner v. United States, 229 F.2d 745, 747 & n. 5 (9th Cir.1956), opined in dicta that the definition of "merchandise" in 19 U.S.C. § 1401(c) probably applies to violations of 18 U.S.C. § 545, and Olais-Castro v. United States, 416 F.2d 1155, 1158 n. 7 (9th Cir.1969), assumed without deciding that Steiner was correct. See also United States v. Jerome-Oboh, 883 F.Supp. 917, 923 n. 4 (W.D.N.Y.1995) (holding that "[h]eroin should be considered `merchandise,' for purposes of the smuggling statute"); United States v. Meza-Arcadia, 458 F.2d 31, 31-32 (9th Cir.1972) (affirming a conviction under 18 U.S.C. § 545 for smuggling marijuana); Padron v. United States, 254 F.2d 574 (5th Cir.1958) (same).

Applying the section 1401(m) definition to section 545 violations does not, as Garcia-Paz suggests, render the limiting language ("for purposes of this chapter") in section 1401(m) meaningless. A fair reading of section 1401(m) demonstrates that the limiting language is more appropriately read to qualify the entire phrase "merchandise the importation of which into the United States is prohibited," rather than simply "merchandise." 19 U.S.C. § 1401(m). Section 1401(m) does not define controlled substances or merchandise. It explicitly states that the term "controlled substance" has a meaning assigned elsewhere. Rather, section 1401(m) simply delineates the class of merchandise into which controlled substances fall and designates them for special treatment under this chapter because they are merchandise "the importation of which" is, with certain explicitly stated exceptions, prohibited. 19 U.S.C. §§ 1401(c) and 1401(m).

III.

Garcia-Paz next argues that, in refusing his proposed jury instruction, which would have required the jury to find that Garcia-Paz knowingly imported marijuana to sustain a conviction under 18 U.S.C. § 545, the district court committed reversible error and violated his Fifth Amendment right to stand trial only on charges made by a grand jury in its indictment. Garcia-Paz bases this argument on the proposition that, by adding the appositive phrase "to wit, marijuana," the indictment charged that Garcia-Paz knowingly imported marijuana. Garcia-Paz then bases his Fifth Amendment argument on the rule that "after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Garcia-Paz contends that by not requiring the jury to find that he knowingly imported marijuana in the jury instruction under count three, the district court broadened the charges against him such that the government no longer had to prove that he knew he was smuggling marijuana. "Whether a jury instruction misstates elements of a statutory crime is question of law" we review de novo. United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir.2001) (citing United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992)).

A plain reading of the indictment does not support the construction Garcia-Paz advances. The relevant portion of the third count of the indictment reads: "defendant IVAN...