USA. v. Aguilera

• Decision Date: 08 June 1999
• Docket Number: No. 98-50346,D,ORDUNO-AGUILER,98-50346
• Citation: 183 F.3d 1138
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ZEFERINOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1138

183 F.3d 1138 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ZEFERINO ORDUNO-AGUILERA, Defendant-Appellant.

No. 98-50346

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 8, 1999--Pasadena, California

Filed July 19, 1999

Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Sam T. Liccardo, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-98-00423-JTM.

Before: Dorothy W. Nelson, Stephen Reinhardt and Stephen S. Trott, Circuit Judges.

TROTT, Circuit Judge:

Zeferino Orduno-Aguilera appeals his jury convictions for importing anabolic steroids in violation of 21 U.S.C. SS 952, 960 and possessing anabolic steroids with intent to distribute in violation of 21 U.S.C. S 841. We have jurisdiction pursuant to 21 U.S.C. S 1291, and because (1) the substances with which he was charged were only esters, i.e., salts of anabolic steroids, and (2) the government offered no evidence that the substances promote muscle growth as required by the statute, we reverse for insufficient evidence.

I Background

Orduno-Aguilera was attempting to enter the United States through the San Ysidro, California Port of Entry when custom inspectors searched his Toyota Tercel. Underneath the rear seat, in hidden compartments within both of the doors and in the trunk, the inspectors found small boxes containing over 400 vials of liquid. Orduno-Aguilera was subsequently indicted on two counts: importation of and possession with intent to distribute anabolic steroids, a Schedule III Controlled Substance, in violation of 21 U.S.C. SS 841, 952, 960.

At trial, the government offered the testimony of Wisen Maroge, a forensic chemist with eleven years of experience working for the Drug Enforcement Administration ("DEA"). During voir dire, he admitted he did not have any expertise in determining the physiological effects of any chemical substance on the human body, and that he was just a chemist. Maroge testified that he analyzed the substances seized and determined that the vials contained testosterone propionate, boldenone undecylenate, and testosterone enanthate. Over defense counsel's objection, he further testified that these chemicals were anabolic steroids.

On cross-examination, however, defense counsel established that (1) the chemicals testosterone propionate and testosterone enanthate are actually ester derivatives ¹ of the drug testosterone and (2) that boldenone undecylenate is an ester derivative of the drug boldenone. Defense counsel further established that Maroge's sole basis for determining that the drugs in question were anabolic steroids was the fact that they tested positive as ester derivatives of testosterone and boldenone.

At the close of evidence, the defense moved under Rule 29 for an acquittal on the basis that the Government failed to prove beyond a reasonable doubt that the substances involved in the case were anabolic steroids. The judge denied the motion; the case went to the jury; and Orduno-Aguilera was convicted on both counts.

II Standard of Review

"There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. " United States v. Nelson, 137 F.3d 1094, 1103 (9th Cir. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because Orduno-Aguilera properly preserved this issue by making a motion for an acquittal after the close of all evidence, this court's standard of review is the same as that of the district court's denial of that motion. United States v. BahenaCardenas, 70 F.3d 1071, 1072-73 (9th Cir. 1995). We review de novo. Id. at 1072.

III Sufficiency of Evidence

Orduno-Aguilera argues that the Government failed to prove the substances in question are anabolic steroids because it failed to provide any evidence that the substances in question satisfied the statutory definition. The statutory definition provides:

The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, and includes -

(i) boldenone,

. . .

(xxvi) testosterone,

. . . and

(xxviii) any salt, ester, or isomer of a drug or substance described or listed in this paragraph, if that salt, ester, or isomer promotes muscle growth.

21 U.S.C. S 802(41)(A) (West Supp. 1999) (emphasis added).

Orduno-Aguilera argues that, because the Government failed to provide any evidence that the ester derivatives in question promote muscle growth, there was insufficient evidence to uphold the conviction. We agree.

The Due Process Clause requires the Government to prove all facts necessary to convict a defendant beyond a reasonable doubt. This matter was resolved in In re Winship, 397 U.S. 358 (1970), in which the Court held, "Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364.

The importance of this ruling was recently reaffirmed in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), in which the Court, while addressing the distinction between elements of the offense and sentencing factors, reiterated that every element of the offense "must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Id. at 1219.

In this case, the jury was properly instructed that the elements of the offense for unlawful...