Possible Jury Confusion over Meaning of "Actual" Meth Unlikely, Court Says

US v. Villegas, -- F.3d --, 2009 WL 225840 (10th Cir. 2/2/09) - affirmance of defendant's convictions for possession with intent to distribute narcotics Suppression motion was properly denied. Mr. Villegas maintained that after traffic stop and return of his driver's license, he did not voluntarily consent to further questioning because a hand gesture made by the officer indicated he was not free to leave. COA defers to district court fact finding because its ruling was based on demonstration of the actual gesture.

Mr. Villegas was charged with possessing just under 500 grams of a mixture of meth, but the government offered lab reports that there was more than 50 grams of "pure" or "actual" meth. Accordingly, Mr. Villegas faced a mandatory minimum sentence of 10 years. Mr. Villegas argued that the jury was wrongly instructed that it could convict of PWID 50 grams or more of "actual or pure" meth even if it found he possessed impure meth. The Court concluded that, while it might be clearer to just refer to "meth," rather than "pure" or "actual" meth, it is unlikely the jury in this case was confused as an expert chemist explained his computation of the weight of the meth molecules in the substance or mixture--by multiplying the total weight of the mixture by the % that was composed of meth molecules.