U.S.A v. Torre

• Decision Date: 30 March 2010
• Docket Number: No. 09-3029.,09-3029.
• Citation: 599 F.3d 1198
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julio C. DE LA TORRE, DefendantAppellant.

599 F.3d 1198

UNITED STATES of America, Plaintiff-Appellee, v. Julio C. DE LA TORRE, DefendantAppellant.

No. 09-3029.

United States Court of Appeals

Tenth Circuit.

Decided: March 30, 2010.

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John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.

Matthew T. Treaster, Assistant United States Attorney (Lanny D. Welch, United States Attorney, with him on the briefs) District of Kansas, Wichita, KS, for Plaintiff-Appellee.

Before MURPHY, McWILLIAMS, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Julio De La Torre was charged in a twocount superceding indictment with possessing with the intent to distribute fifty grams or more of methamphetamine and possessing with the intent to distribute less than fifty kilograms of a substance containing a detectable amount of marijuana, both in violation of 21 U.S.C § 841(a)(1). After a jury trial, at which he testified, De La Torre was convicted of both counts and was sentenced to 121 months' imprisonment.

De La Torre appeals his methamphetamine conviction and sentence. He argues the district court erred by instructing the jury it could find him guilty of possessing methamphetamine, even if it believed he only knew marijuana was in the backpack and was unaware methamphetamine was present. He also argues the district court erred in admitting statements he made during an interview with Pretrial Services. Finally, De La Torre argues the district court erred by refusing to consider his trial testimony as qualifying him for safety-valve treatment at sentencing.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, the court AFFIRMS De La Torre's conviction but REMANDS to the district court to vacate and reconsider his sentence for the purpose of evaluating whether the safety-valve provision should be applied.

II. Background

De La Torre was charged in a two-count superceding indictment with possessing with the intent to distribute fifty grams or more of methamphetamine and possessing with the intent to distribute less than fifty kilograms of a substance containing a detectable amount of marijuana, both in vio-lation of 21 U.S.C. § 841(a)(1). At trial De La Torre testified that for several days prior to February 16, 2007, he was partying in Room 150 of the Comfort Inn in Wichita, Kansas. While there, he admits he smoked marijuana, but claims he neither saw nor used methamphetamine.

On the morning of February 16, 2007 the hotel's desk clerk called the Wichita Police Department and reported what she suspected was a false identification used to rent Room 256. When officers arrived the clerk provided a copy of the identification card and explained that the people staving in Room 150 were in the process of moving to Room 256. Additionally, the clerk stated other guests had reported the smell of marijuana coming from Room 150.

De La Torre testified he awoke that morning when someone in the room started screaming that the police were at the hotel. At that point, De La Torre claimed one of the people in the room handed him a backpack and instructed De La Torre to follow him. They left the hotel, at which point the other person told De La Torre to get rid of the backpack. Officer Rago, who was in the parking lot, testified he saw De La Torre and another individual run from the hotel and hop over a short fence. Officer Rago testified De La Torre was carrying a backpack, which he threw into a culvert as he ran away.

Officer Rago informed Officer Springob about what he saw. A few minutes later, De La Torre and a companion walked back to the hotel through the parking lot. Officer Rago recognized them and approached to ask them where they came from and where they were going. Each gave a different answer: one claimed they were coming from the store while the other claimed they were returning from a friend's house. Meanwhile, Officer Springob retrieved the backpack from the culvert. Officer Springob testified he could smell marijuana inside the culvert. When he looked inside the backpack, Officer Springob found a shoe box containing multiple bricks of marijuana, a large bag of methamphetamine, rubber bands, Ziploc bags, and digital scales. As a result, Officer Rago took both men into custody.

Officer Springob read De La Torre his Miranda warnings, and De La Torre agreed to speak with him about the incident. According to Officer Springob, De La Torre admitted knowing the backpack contained marijuana, scales, Ziploc bags, rubber bands, digital scales, and "ice, " a form of methamphetamine. Officer Springob also testified De La Torre admitted being in Room 150 for about three days, where he hung out with friends and used marijuana and ecstasy. De La Torre told Officer Springob his friends sold narcotics in the room. He also admitted using methamphetamine in the past, but not at the hotel.

De La Torre testified he did not tell the officer he knew there was methamphetamine in the backpack. Instead, he claimed he told Officer Springob he believed it only contained marijuana because he and others in the hotel room had only used marijuana. Nonetheless, De La Torre admitted the quantities of both the methamphetamine and marijuana discovered in the backpack were distribution quantities. De La Torre also admitted he had used methamphetamine in the past, but claimed he had not used any in the year prior to the incident at the hotel.

At a sidebar, the Government sought to introduce a statement De La Torre made to Pretrial Services that he used methamphetamine in February 2007. The Government emphasized this testimony was important because the Government "believe[d] that his use in February of 2007 was the day in question and that shows he had knowledge there was meth in that hotel room." De La Torre objected due to the absence of notice and the confidentiali-ty of statements made to Pretrial Services. The district court overruled De La Torre's objection and permitted the Government to present the statement, but only for the purposes of impeachment. During its recross-examination of De La Torre, the Government asked whether he told a federal probation officer he had actually used methamphetamine in February 2007. De La Torre testified he told the probation officer he used methamphetamine about two years prior to his May 2008 interview. On rebuttal, the Government called the probation officer, who testified De La Torre specifically told her he used methamphetamine in February 2007. Immediately after this testimony, the district judge instructed the jury it could only consider evidence of the statement "for the purpose of judging his believability or his credibility and not for any other reason."

The jury ultimately convicted De La Torre of both counts. At sentencing, De La Torre sought the benefit of the Sentencing Guidelines' safety-valve provision, USSG § 5C1.2. The parties disputed whether he "truthfully provided to the Government all information and evidence the defendant ha[d] concerning the offense" as required under § 5C1.2(a)(5). De La Torre argued his testimony at trial fulfilled this requirement. The court denied De La Torre's request on the grounds that "the mere fact that defendant testified at trial does not entitle him to 'safety valve' consideration." The district court ultimately sentenced De La Torre to 121 months' imprisonment to be followed by five years' supervised release.

III. Discussion

A. De La Torre's Knowledge of the Backpack's Contents

De La Torre first challenges his conviction for possessing methamphetamine with the intent to distribute. He argues the district court erred in instructing the jury that the Government did not have to prove beyond a reasonable doubt that he knew the precise nature of all controlled substances he possessed. This court reviews "the district court's decision to give a particular jury instruction for abuse of discretion and consider[s] the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law." United States v Fria Vazquez Del Mercado, 223 F.3d 1213, 1216 (10th Cir.2000) (quotation omitted).

De La Torre's challenge stems from his testimony that while he believed the backpack contained marijuana, he had no idea it also contained methamphetamine. In support of this argument, he points to his testimony that he only smoked marijuana in the hotel room and did not see methamphetamine while he was there. Specifically, De La Torre argues Tenth Circuit case law does not permit the Government to use his admission that he knew he possessed a single controlled substance, marijuana, to establish the mens rea for possessing both marijuana and methamphetamine under 21 U.S.C. § 841(a)(1).

Here, the district court instructed the jury¹: To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: the defendant knowingly or intentionally possessed a controlled substance;

Second: the controlled substance was methamphetamine;

Third: the defendant possessed the methamphetamine with the intent to distribute it; and

Fourth: the weight of the methamphetamine defendant possessed was at least 50 grams.

It also instructed the jury that the Government did not need "to prove beyond a reasonable doubt that the defendant knew the precise nature of the controlled substance or substances."

Contrary to De La Torre's argument, the district court's instructions were consistent with this court's interpretation of § 841(a)(1). The statute does not require the Government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance. United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir.1997). The Government can establish the mens rea for the possession element by proving only that the defendant knew he possessed some controlled substance. Once it...