U.S. v. Vargas-Castillo

• Decision Date: 15 May 2003
• Docket Number: No. 02-50161.,02-50161.
• Citation: 329 F.3d 715
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo VARGAS-CASTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.3d 715

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo VARGAS-CASTILLO, Defendant-Appellant.

No. 02-50161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2003.

Filed May 15, 2003.

Ross E. Viselman, San Diego, California, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Dorn G. Bishop, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; James K. Singleton, District Judge, Presiding. D.C. No. CR-01-00486-JKS.

Before B. FLETCHER and HAWKINS, Circuit Judges, and BURY, District Judge.^*

OPINION

BURY, District Judge.

Appellant Eduardo Vargas-Castillo ("Vargas") appeals his jury convictions for Importation of Cocaine and Marijuana, in violation of 21 U.S.C. §§ 952 and 960, and Possession of Cocaine and Marijuana with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1). Vargas argues that the indictment was multiplicitous, the search of his car was illegal, and the laws under which he was convicted are unconstitutional. For the reasons set forth below, we affirm.

BACKGROUND

I. Factual History

On the afternoon of February 7, 2001, Vargas drove from Mexico into the United States through the San Ysidro Port of Entry. At the primary inspection point, Vargas denied to a customs inspector that he was bringing anything from Mexico into the United States. The customs inspector noticed a Treasury Enforcement Computer System ("TECS") alert on his computer terminal, indicating that Vargas's car should be referred to secondary inspection. In response to the alert, the customs inspector asked Vargas for the car keys in order to inspect the trunk of the vehicle. The customs inspector noticed Vargas's hand shook as he handed over the keys, but found nothing unusual in Vargas's trunk and referred him to the secondary inspection point.

At the secondary inspection point, a narcotics-detecting dog screened Vargas's vehicle. As a result of that screen, a customs agent drove Vargas's vehicle to the x-ray station while Vargas was taken to the security office. The x-ray caused the customs agent to suspect the presence of narcotics in Vargas's vehicle. During the performance of her physical inspection of Vargas's vehicle, the customs agent noticed that the spare tire in Vargas's trunk was heavier than normal. The customs agent cut open the tire and saw two or three cellophane-wrapped packages. A field test performed on one of the packages revealed that it contained marijuana.

After notifying her superiors that she had discovered narcotics, the customs agent cut the spare tire completely open and found a total of six cellophane-wrapped packages. Five of the packages contained 8.68 kilograms (approximately 19 pounds) of marijuana and one, wrapped in red duct tape, contained .88 kilograms (approximately 2 pounds) of cocaine. Vargas was subsequently placed under arrest. Further inspection of the vehicle revealed registration documents reflecting Vargas as the owner.

A border patrol agent read Vargas his Miranda rights in Spanish, which Vargas acknowledged that he understood and elected to waive. Vargas was then interviewed by a customs special agent, with the border patrol agent acting as translator. At trial, the border patrol agent testified that during the interview Vargas admitted knowing there were narcotics in his vehicle, although he did not know how much or what type. On the other hand, Vargas testified at trial that he knew about the marijuana, but not the cocaine.

According to Vargas, the previous day an individual named "Andres" offered to pay him to smuggle narcotics from Mexico into the United States. Vargas believed he would only be smuggling marijuana as cocaine was never mentioned during his conversation with Andres. Vargas was to drive the narcotics across the border, leave his vehicle at a shopping center, walk back into Mexico, and then call Andres on a cell phone, at which time Vargas would be paid.

At trial, a customs special agent provided expert testimony regarding the value of marijuana and cocaine, what constitutes a distributable amount of each, and the methods and practices of drug smuggling operations. The agent testified that .88 kilograms of cocaine and 8.68 kilograms of marijuana are distributable amounts, rather than amounts intended for personal use. The agent testified that the cocaine and marijuana had a retail value in the United States of approximately $70,000.00 and $15,000.00, respectively. Finally, the agent testified that it is not typical to find the driver's fingerprints on smuggled drug packages.

After less than an hour of deliberations, the jury returned a guilty verdict on all four counts of the Indictment. Vargas was sentenced to 27 months imprisonment with three years supervised release on all four counts, to run concurrently.

II. Procedural History

Prior to trial, Vargas filed numerous motions, several of which form the basis of this appeal. One such motion was to dismiss the indictment on the grounds that 21 U.S.C. §§ 841, 952, and 960 are unconstitutional. On August 10, 2001, the district court heard oral argument and on August 15, 2001, denied Vargas's motion.

At the hearing, Vargas sought leave to file a motion to suppress evidence for violations of the Fourth Amendment. The apparent basis for Vargas's request was that the TECS warning was based upon an anonymous tip and Vargas needed "the opportunity to file a Fourth Amendment issue based on the reliability of that tip." Vargas believed his statements to the authorities would require suppression if it could be proven that the tip was unreliable, thereby eliminating any reasonable suspicion or probable cause. The district court denied Vargas's request for leave to file a motion to suppress.

Vargas also filed motions in limine to dismiss the indictment as multiplicitous and, alternatively, to sever the marijuana counts from the cocaine counts. The district court denied Vargas's motions on the basis that each count of the indictment involved different controlled substances and, therefore, different factual elements.

At the close of evidence, Vargas moved for a judgment of acquittal pursuant to Rule 29, Federal Rules of Criminal Procedure. The district court denied Vargas's motion because Vargas's knowledge that he smuggled marijuana was also sufficient for a jury to find him guilty of smuggling the cocaine. Accordingly, the district court, over Vargas's objections, instructed the jury that Vargas was not required to know the specific types of narcotics he smuggled, in accordance with Ninth Circuit Criminal Jury Instruction 9.27 (2000).

ANALYSIS

I. Multiplicity

The question of whether an indictment is multiplicitous — charges a single offense in more than one count — is reviewed de novo. United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir.1998).

Vargas argues that Counts 1 and 2 were multiplicitous of Counts 3 and 4 of the indictment. Specifically, Vargas argues that charging him under 21 U.S.C. §§ 841(a)(1), 952, and 960 for both marijuana and cocaine resulted in Vargas being charged twice for the same offenses, namely importation and possession of "controlled substances" with intent to distribute.

The test to determine whether an indictment is multiplicitous is "whether each separately violated statutory provision requires proof of an additional fact which the other does not." McKittrick, 142 F.3d at 1176 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)) (internal quotations omitted). In the present case, Vargas was indicted for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). Vargas was likewise indicted for importation of cocaine and importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. The required elements for possession with intent to distribute are: (1) the defendant knowingly possessed the controlled substance; and (2) the defendant possessed the controlled substance with the intent to deliver it to another person. United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir.1999). Similarly, the elements of importation are: (1) the defendant intentionally brought the controlled substance into the United States; and (2) the defendant knew that it was a controlled substance. Id.

The statutory definition of "marijuana" includes various parts of the plant, as well as derivatives thereof. 21 U.S.C. § 802(16). However, the definition excludes "mature stalks ..., fiber produced from such stalks, oil or cake made from the seeds of such plant," as well as other compounds, derivatives, or mixtures. Id. While cocaine is not specifically defined, it falls within the definition of a "narcotic drug." 21 U.S.C. § 802(17)(D).

The government had the burden of proving beyond a reasonable doubt that the substance found in five of the cellophane-wrapped packages was "marijuana." See Orduno-Aguilera, 183 F.3d at 1140. The definition of "marijuana" specifically states that only certain parts of the plant Cannabis sativa L. are included. Therefore, the government had to prove beyond a reasonable doubt that the substance in those five packages consisted of the parts of the plant specifically included and not specifically excluded from the definition of "marijuana." By the same token, the government had to prove that the substance in the red-taped cellophane-wrapped package was "cocaine," a "narcotic drug." While there may not be an express definition of "cocaine," it does not fall within the definition of Cannabis sativa L. See 21 U.S.C. §§ 802(16), (17)(D).

Based upon the foregoing, each separately violated statutory provision required proof of an additional fact that the other did...