U.S. v. Lopez-Martinez
| Decision Date | 10 February 1984 |
| Docket Number | No. 82-1646,LOPEZ-MARTINE,D,82-1646 |
| Parties | 13 Fed. R. Evid. Serv. 1524, 15 Fed. R. Evid. Serv. 100 UNITED STATES of America, Plaintiff-Appellee, v. Armandoefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John M. Roll, Asst. US Atty., Tucson, Ariz., for plaintiff-appellee.
Frank Leon, Tucson, Ariz., for defendant-appellant.
Appeal from the United States District Court for the District of Arizona.
Before BROWNING, Chief Judge, DUNIWAY and ALARCON, Circuit Judges.
Lopez-Martinez appeals from his conviction on both counts of an indictment. Count 1 charged that he "did knowingly and intentionally import approximately 737.2 grams of heroin, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Sections 952 and 960(b)(1)." Count 2 charged that he "did knowingly and intentionally possess with intent to distribute approximately 737.2 grams of heroin, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)." We affirm.
Border Patrol agents arrested Lopez on June 21, 1982, in Nogales, Arizona, just after he had crossed the border from Mexico into the United States through a hole in the border fence. He was carrying a package that contained 737.2 grams of heroin. After waiving his Miranda rights, Lopez said that a man had offered to pay him $1,000 to carry the package from Hermosillo, Mexico, to Nogales, a distance of about 160 miles. He said that he did not know what was in the package, but that he had thought that it might be marihuana. The package was small and weighed about a pound and a half.
At the trial, the government introduced, as part of its case-in-chief and over Lopez's objections, evidence of a statement that Lopez had made while under arrest in 1974 for possessing marihuana with intent to distribute it. A former Drug Enforcement Administration agent testified that in 1974 officials had stopped and confiscated two vehicles containing, between them, a total of 680 pounds of marihuana. He also testified:
I asked [Lopez] how much he was to be paid for driving the car containing the marijuana up to Tucson. He stated he was to receive a thousand dollars.
The trial court instructed the jury that heroin is a controlled substance, defined the two offenses--importing heroin and possessing heroin with intent to distribute it, and stated, in defining each offense, that Lopez must have "knowingly or intentionally imported ... heroin" or "knowingly and intentionally possessed heroin ... in ... Arizona" and "possessed the heroin with intent to distribute the same." (Instruction 8.)
The court then continued:
The Government is not required to show that the defendant knew that the substance involved was heroin. It is sufficient if the evidence establishes beyond a reasonable doubt that the defendant knowingly and intentionally imported and possessed a controlled substance, with intent to distribute. You are instructed that marijuana is a controlled substance within the meaning of the law. [Instruction 9]
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Actual knowledge that the substance the defendant brought into the country was a controlled substance is an essential element of the offense charged. You may not find the defendant guilty of the offenses charged unless you find beyond a reasonable doubt that he knew that what he brought into the country was a controlled substance. It is not sufficient to show that he may have suspected or thought the substance was a controlled substance.
The fact of knowledge, however, may be established by direct or circumstantial evidence, just as any other fact in the case. The prosecutor has the burden of proving beyond a reasonable doubt that the defendant has actual knowledge that what he brought into the country was a controlled substance. It can meet that burden by proving beyond a reasonable doubt that the defendant was aware of the high probability that the substance was a controlled substance and acted with a conscious purpose to avoid learning the truth about the true contents of the package. [Instruction 10]
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[As I stated before,] an act is done knowingly if it is done voluntarily or intentionally and not because of mistake or accident or other innocent reason.
The purpose of adding the word "knowingly" was to insure that no one would be convicted for acts done because of an omission or failure to act due to mistake or accident or other innocent reason.
Thus, if you find beyond a reasonable doubt that the defendant was not actually aware that it was heroin he was carrying when he entered the United States, but that the only reason he did not learn it was because he deliberately chose not to learn for the very purpose of being able to assert his ignorance if he was discovered with the controlled substance in his possession, then you may find that he had the full equivalent of knowledge because his self-imposed ignorance cannot protect him from criminal responsibility.
If, however, you find that the defendant actually believed that what he was carrying was not a controlled substance, then you must acquit the defendant. [Instruction 12]
Instruction 10 was proposed by defense counsel, but the instruction as given differed from counsel's in one important respect. At each place where "a controlled substance" appears in the court's instruction, the word "heroin" appeared in counsel's instruction. The court, in each instance, struck the word "heroin" and inserted the words "a controlled substance."
Lopez argues that it was error to give instruction 9 and to modify instruction 10 as the court did. The error is said to be that knowingly and intentionally importing marihuana, or possessing marihuana with intent to distribute, were not the offenses charged by the grand jury, which expressly charged that the drug was heroin. It is reversible error to instruct a trial jury that it can convict a defendant of an offense not charged by the grand jury, even though there is ample evidence that the uncharged offense was committed. Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. There, the grand jury charged violation of the Hobbs Act, 18 U.S.C. Sec. 1951, by extortion, which obstructed the movement of sand into Pennsylvania. The trial judge, on the basis of evidence in the record, told the jury that it could convict if the commerce affected was the movement of steel from Pennsylvania to other states. The Court reversed the conviction, holding that the instruction violated the defendant's right, guaranteed by the Fifth Amendment, "to be tried only on charges presented in an indictment returned by a grand jury." 361 U.S. at 217, 80 S.Ct. at 273. Our own decisions are to the same effect. United States v. Carlson, 9 Cir., 1980, 616 F.2d 446; Howard v. Daggett, 9 Cir., 1975, 526 F.2d 1388, 1390; see United States v. Kartman, 9 Cir., 1969, 417 F.2d 893.
Moreover, importing or possessing heroin and importing or possessing marihuana carry different penalties. Both drugs are listed in Schedule I of 21 U.S.C. Sec. 812. Heroin, a derivative of opium, is a "narcotic drug." 21 U.S.C. Sec. 802(16). Marihuana is not. 21 U.S.C. Sec. 802(15). Thus heroin is listed at Schedule I(b)(10) of Sec. 812, while marihuana is listed at Schedule I(c)(10) of Sec. 812. The penalties prescribed in 21 U.S.C. Secs. 841(b)(1)(A) and 960(b)(1) for narcotic drug offenses are far more severe than those for marihuana offenses, prescribed in Secs. 841(b)(1)(B) and 960(b)(2). This lends some color to the argument.
We think, however, that Lopez's argument overlooks the framework of the statutes involved. In the case of unlawful importation, the applicable sections cited in the indictment are 21 U.S.C. Secs. 952 and 960(b)(1). Section 952(a) makes it "unlawful to import ... any controlled substance in schedule I ... of subchapter I of this chapter." Section 812 contains schedule I, in which both heroin and marihuana are listed, along with 79 other controlled substances. Section 960 first lists "Unlawful Acts." Under that heading, it provides, in pertinent part:
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shall be punished as provided in subsection (b) of this section.
It next lists "Penalties." Under that heading, it provides, in pertinent part:
(b)(1) In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than fifteen years, or fined not more than $25,000, or both....
(2) In the case of a violation under subsection (a) of this section with respect to a controlled substance other than a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than five years, or be fined not more than $15,000, or both....
Throughout, the pertinent reference is to a "controlled substance."
Section 841 is similar. It too first lists "Unlawful Acts." Under that heading, it provides, in pertinent part:
(a) ... it shall be unlawful for any person knowingly or intentionally--
(1) to ... possess with intent to ... distribute ... a controlled substance; ....
It then lists "Penalties." Under that heading, it provides, in pertinent part:
(b) ... any person who violates subsection (a) of this section shall be sentenced as follows:
(1)(A) In the case of a controlled substance in schedule I ... which is a narcotic drug, ... a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both....
(B) In the case of a controlled substance in schedule I ... which is not a narcotic drug, ... a term of imprisonment of not more than 5 years, a fine of not more than...
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