US v. Cordoba-Hincapie

Decision Date07 July 1993
Docket NumberNo. CR 92-650,CR 92-1366.,CR 92-650
Citation825 F. Supp. 485
PartiesUNITED STATES of America v. Maria CORDOBA-HINCAPIE, Defendant. UNITED STATES of America v. Libardo BUELVAS-CASTRO, Defendant.
CourtU.S. District Court — Eastern District of New York

Zachary W. Carter, U.S. Atty., Brooklyn, NY by Alan Vickery (Cordoba-Hincapie), Margaret Giordano (Buelvas-Castro), for U.S.

Marcia Levy, Legal Aid Society, Brooklyn, NY, for Cordoba-Hincapie.

Douglas Morris, Legal Aid Society, Brooklyn, NY, for Buelvas-Castro.

WEINSTEIN, Senior District Judge.

                                                    TABLE OF CONTENTS
                  I.   FACTS .............................................................. 488
                       A. Cordoba-Hincapie ................................................ 488
                       B. Buelvas-Castro .................................................. 489
                 II.  LAW ................................................................. 489
                      A. The Mens Rea Principle ........................................... 489
                         1. Origins ....................................................... 489
                         2. Modern View ................................................... 492
                            a. Theory ..................................................... 492
                            b. Exceptions ................................................. 495
                                 i. Public-Welfare Offenses ............................... 496
                                ii. Other Forms of Strict Liability ....................... 497
                               iii. Negligence ............................................ 500
                            c. Model Penal Code ........................................... 501
                            d. Current Trends ............................................. 504
                         3. Constitutional Dimension ...................................... 505
                            a. Supreme Court Treatment .................................... 505
                                 i. Strict Liability ...................................... 506
                                ii. Mens Rea Generally .................................... 509
                               iii. Other Cases ........................................... 513
                                    (a) First Amendment ................................... 513
                                    (b) Void-for-Vagueness ................................ 513
                                    (c) Actus Reus ........................................ 513
                            b. Due Process Analysis ....................................... 515
                         4. Lower Federal Courts .......................................... 518
                      B. Sentencing Context ............................................... 521
                         1. General Principles ............................................ 521
                         2. Effect of Guidelines .......................................... 522
                      C. Mistake in Narcotics Cases ....................................... 527
                         1. Applicable Law ................................................ 527
                            a. Statutes ................................................... 527
                            b. Guidelines ................................................. 529
                            c. Second Circuit Cases ....................................... 530
                         2. Burden-of-Proof Structure ..................................... 531
                         3. Justifications ................................................ 532
                III. APPLICATION OF LAW TO FACTS .......................................... 534
                 IV. CONCLUSION ........................................................... 534
                

These cases present two profound and fundamental questions about the operation of the criminal law in a democratic constitutional society. Can the requirement of proof of mens rea as a basis for criminals' punishment be circumvented by manipulation of a sentencing system? Can the guarantees of a jury trial to determine the substantive predicates of criminality be shortcircuited by characterizing a critical element of great significance in deciding punishment as one for the judge to determine in fixing sentence ?€” a sentence predetermined under fixed guidelines, not one imposed under a discretionary regime?

To impose the sentences demanded by the prosecution under the United States Sentencing Guidelines (Guidelines) would require that both these questions be answered affirmatively. To do so in the context of the instant cases would be to strike a blow at constitutional protections that developed in England and this country over almost a millennium. Congress could not have intended such a bizarre and dangerous result when it adopted guideline sentences. The war on drugs does not require that we win a minor battle with two drug mules by denigrating what we seek to protect ?€” constitutional rights and privileges.

Defendants imported heroin into the United States believing it to be cocaine. The punishment under the Guidelines for smuggling heroin is greater than for bringing in cocaine. The issue presented is how to treat their mistakes of fact: should they be punished only for the crimes they believed they were committing?

The unique new context of guideline sentencing and the serious drift of the federal criminal law away from first principles require that this problem be treated at some length. A rational and principled system of criminal sanction cannot tolerate the addition of many months of imprisonment to these defendants' sentences simply because it may be inconvenient to draw distinctions based upon traditional notions of mens rea. Congress did not require such a result and the Constitution does not countenance it. Consistent with the fundamental Anglo-American tradition that blameworthiness hinges upon a culpable state of mind, defendants' punishments must be limited by their culpability.

I. FACTS
A. Cordoba-Hincapie

Defendant Maria Theresa Cordoba-Hincapie is 38 years old and a Colombian citizen. On May 4, 1992 she arrived at Kennedy Airport on a flight from Colombia. During the United States Customs inspection that followed her arrival, an x-ray examination revealed balloons in her digestive tract. The balloons contained 772.8 grams of heroin.

Ms. Cordoba-Hincapie was born in Columbia and raised there, with her seven siblings. Her mother washed clothes to support the family. Defendant never married and now has three daughters, ranging in age from nine to eighteen. The children's father has not been in contact with the family since 1990. They have no means to support themselves. Defendant has had five years of education. She has found occasional work in Colombia as a seamstress and at other menial tasks. She came to the United States in hopes of obtaining an operation to cure the loss of hearing in an ear. She planned to use the proceeds of her crime to pay for the operation and to support her family upon her return to Colombia. The government does not contest her account.

She was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C. ?? 952(a) and 960(b)(1)(A). Section 960(b)(1)(A) requires a sentence of at least ten years of imprisonment for importation of in excess of one kilogram of heroin. On July 9, 1992, she pled guilty, pursuant to an agreement with the government that is now common in this district, to the lesser penalty provision of ? 960(b)(2)(A) which carries a minimum sentence of five years imprisonment for 100 grams or more of heroin. That agreement provided that, should the laboratory report reveal the net weight of the heroin to be less than one kilogram, the indictment and plea would be amended at the government's request to charge a violation of ? 960(b)(3), which carries no mandatory minimum term of incarceration. The drugs did turn out to weigh less than a kilogram and thus no statutory minimum applied to her sentence.

The government, by allowing a plea predicated on less than 100 grams of heroin, was able to avoid the harsh required minimum sentences of our drug laws. See United States v. McClean, 822 F.Supp. 961, 1993 WL 189290 (E.D.N.Y.1993). It did not ?€” or so the government argues?€”avoid the strictures of the Guidelines which require the "real offense" to control the sentence. If she was smuggling heroin, the Guideline range would be 46 to 57 months. For cocaine, it would be 30 to 37 months.

A Fatico hearing was held at which defendant testified and was cross-examined about the events leading up to her crime. She stated, as she did at her plea allocution, that she was told by the person for whom she acted as courier that the opaque balloons he provided contained cocaine. She testified that she believed him, made no further inquiry, swallowed the balloons and departed from Colombia thinking that she was carrying cocaine. She swore that she was not aware of heroin smuggling from Colombia, had not previously imported drugs and did not know other smugglers. Defendant also submitted a newspaper article describing her case and discussing the relatively novel phenomenon of Colombian production and export of heroin. See Scott Ladd, Heroin Haulers, Newsday, May 26, 1992, at 3.

Her testimony was credible. Based upon her education, her experience, the facts surrounding her involvement in this crime, the physical resemblance between cocaine and heroin and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that she believed she was importing cocaine.

B. Buelvas-Castro

Defendant Libardo Buelvas-Castro is 37 and a Colombian citizen. He arrived at Kennedy Airport on a flight from Colombia on December 11, 1992. An x-ray examination during a Customs inspection revealed foreign bodies in his digestive tract. The balloons contained 686.7 grams of heroin.

Defendant was born in Colombia and raised in an intact family. He married in 1976 and now has four children between the ages of nine and fourteen. He has been employed as a butcher since 1977. He has had five years of school.

He was charged with knowingly and intentionally importing heroin into the United States in violation of 21...

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