United States v. Munguia

• Citation: 704 F.3d 596
• Decision Date: 27 November 2012
• Docket Number: No. 10–50253.,10–50253.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenia MUNGUIA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

704 F.3d 596

UNITED STATES of America, Plaintiff–Appellee,

v.Kenia MUNGUIA, Defendant–Appellant.

No. 10–50253.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 9, 2012.

Filed Nov. 27, 2012.

Karen Landau, Oakland, CA, for the Appellant.

Curtis Arthur Kin, Anthony James Lewis, Justin Randall Rhoades, and Jennifer Leigh Williams, Office of the United States Attorney, Los Angeles, CA, for the Appellee.

Sheryl Gordon McCloud, Seattle, WA; Peter Goldberger, Ardmore, PA, Amicus Curiae, California Partnership to End Violence, National Clearinghouse for the Defense of Battered Women, and National Association of Criminal Defense Lawyers.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:08–cr–00767–PSG–2.

Before: STEPHEN REINHARDT and WILLIAM A. FLETCHER, Circuit Judges, and CHARLES R. BREYER, District Judge.^*

Opinion by Judge FLETCHER; Concurrence by Judge BREYER.

OPINION

W. FLETCHER, Circuit Judge:

After a jury trial, Appellant Kenia Munguia was convicted of conspiring to possess and of possessing pseudoephedrine, knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The key question at trial was whether Munguia knew or had reasonable cause to believe that the drugs she purchased were being used to manufacture methamphetamine. Munguia appeals her conviction. She contends that the district court erred as a matter of law in refusing a requested jury instruction specifying that “reasonable cause to believe” must be evaluated from her perspective, based on her knowledge and sophistication. The instruction given by the district court provided that “reasonable cause to believe” should be evaluated from the perspective of a hypothetical reasonable person rather than from the perspective of Munguia. We hold that the district court erred in refusing Munguia's requested instruction and that the error was not harmless.

I. Background

Pseudoephedrine is a common ingredient in many over-the-counter cold medications, including Sudafed, Claritin–D, and similar cold-and-allergy medications. Pseudoephedrine is a methamphetamine precursor. To combat the manufacture and distribution of methamphetamine, federal law limits the quantity of pseudoephedrine that retailers can sell to individual consumers, as well as the quantity that individual consumers can purchase. Under the Combating Methamphetamine Epidemic Act of 2005, retailers can sell only 3.6 grams of pseudoephedrine per day to any particular individual. 21 U.S.C. § 830(d)(1). An individual can purchase only nine grams in a thirty-day period. § 844(a). A box of over-the-counter cold medication typically contains 2.4 grams of pseudoephedrine.

To ensure compliance with federal and state law, many retailers contract with MethCheck, a privately managed database that tracks the purchase of drugs containing pseudoephedrine. Retailers using MethCheck require that purchasers of drugs containing pseudoephedrine provide identification and an electronic signature at the time of purchase. MethCheck records each purchase for which identification is provided and keeps a record of the purchase history of each purchaser.

On June 13, 2008, the government charged Munguia, Munguia's boyfriend Edwin Alas, Alas's brother David Hernandez, and two others with illegally obtaining large amounts of pseudoephedrine for use in the manufacture of methamphetamine. Alas, the leader and organizer of the group, quickly cooperated with the government and pled guilty. An indictment was returned against Munguia and the three others on July 1. It charged one count of conspiracy “[t]o possess a listed chemical, namely pseudoephedrine, knowing and having reasonable cause to believe that the pseudoephedrine would be used to manufacture ... methamphetamine,” in violation of 21 U.S.C. § 841(c)(2). (Emphasis added.) It charged a second count of “knowingly and intentionally possess[ing] ... approximately 184.8 grams of pseudoephedrine, knowing, and having reasonable cause to believe, ... [that it] would be used to manufacture ... methamphetamine,” also in violation of § 841(c)(2). (Emphasis added.) It was sufficient to convict under the indictment and under § 841(c)(2) that a defendant either knew or had reasonable cause to believe.

Munguia pled not guilty and went to trial. Munguia admitted that she had purchased a significant amount of pseudoephedrine at the direction of Alas. However, there was starkly conflicting evidence about what Munguia knew or had reasonable cause to believe about pseudoephedrine's role in the production of methamphetamine. Alas was the government's key witness on this question. He testified that he told Munguia that the pseudoephedrine would be used to make methamphetamine. Munguia testified that Alas had told her no such thing. She testified that she had not known that pseudoephedrine could be used to make methamphetamine or that the purchase of cold medications could be illegal. She attributed her ignorance in part to the fact that, due to her fear of Alas, she had not asked him probing questions.

Munguia requested a jury instruction that would have told the jury to decide whether Munguia “knew or had reasonable cause to believe” based on what Munguia herself knew or should have known, rather than on what a hypothetical reasonable person had reasonable cause to believe. The district court refused her requested instruction, instead giving an instruction proposed by the government that referred simply to “a reasonable person.”

The jury convicted Munguia on both counts. We hold that the district court erred when it refused Munguia's requested instruction and that the error was not harmless. We do not reach other questions presented in this appeal.

II. Standard of Review

When a party properly objects to a jury instruction, we review de novo whether the instructions given “accurately describe the elements of the charged crime.” United States v. Heredia, 483 F.3d 913, 921 (9th Cir.2007) (en banc). We apply harmless error analysis to determine whether an improper instruction constitutes reversible error. United States v. Thongsy, 577 F.3d 1036, 1040 (9th Cir.2009).

III. Evidence at Trial

At trial, the jury was presented with two irreconcilable stories. Alas, the government's cooperating witness, testified unambiguously that Munguia knew that the pseudoephedrine would be used to make methamphetamine. Munguia, who took the stand on her own behalf, testified unambiguously that she did not know. We summarize the conflicting evidence in order to provide a basis upon which to evaluate the disputed jury instruction.

A. The Government's Evidence

MethCheck records introduced at trial established that between February and June 2008, Munguia visited 564 retail pharmacists and purchased 847 boxes of cold medication. These boxes contained a total of 1,885.2 grams of pseudoephedrine.

Detective Tyrone Miles of the Los Angeles Police Department testified that he observed Alas, Munguia, and the other defendants as they spent a day going to pharmacies in Los Angeles. Miles testified that Munguia drove the group to eleven pharmacies on April 23, 2008. He stated that he followed the group into a store and “observed each one approach the counter and purchase Pseudoephedrine products.” Detective Miles testified that he saw the group discard items in the trash as they left the pharmacies. Police later retrieved these discarded items, which were identified as empty cold medication boxes and receipts itemizing the purchases. Miles testified that when he arrested Munguia, she was seated near “a large amount of Pseudoephedrine pills in a plastic bag.” The car also contained “empty Pseudoephedrine-based boxes, receipts, [and] cell phones.” The pseudoephedrine pills were found rubber-banded in packs of ten.

Alas, Munguia's former boyfriend and the government's star witness, agreed with the defense attorney on cross-examination that he “very quickly made a decision to try to work for the Government to get ... out of some of the trouble [he was] in.” Under his cooperation agreement, he pled guilty and served only a month in jail before being released pending sentencing. Testifying at Munguia's trial was a condition of Alas's cooperation agreement. He admitted in his testimony that he hoped his cooperation would result in a reduced sentence.

Alas told the jury that he began buying pseudoephedrine pills in early 2008. He explained that he was recruited by “a guy named Pirulin,” who asked him if he wanted to make “easy money” purchasing cold medication. He claimed he could not remember Pirulin's real name. Alas testified that he knew from the first day of his involvement with Pirulin that the cold medication he purchased was used to make methamphetamine. He testified that the first time he purchased the medication, “store clerk[s] started asking [him] questions. They would say, ‘Are you making meth with these pills? What are you doing? Why are you buying them?’ ” Alas testified that when he asked Pirulin, he was told that the drugs were being used to manufacture methamphetamine and was warned to be careful.

Alas testified that he brought Munguia into the project several weeks later, when Pirulin asked him to begin recruiting people to assist him. He testified that he thought Munguia would be “a good candidate.” He testified that she had been complaining that he was not spending enough time with her, and that “she was out of a job and ... wanted to make money.” According to Alas, Munguia agreed to participate immediately. He told the jury that she “offered ... to bring her auntie into this business because she worked at a pharmacy and she could get more Sudafed pills....” Alas testified that Munguia told him that she would “get right to it, and that day she went out to stores by herself, and by the next day she had a couple...