Defendant's Admitted Knowledge of Marijuana in Bag Supports Conviction for Meth Also in Bag; Defendant Eligible for Safety Valve
United States v. De La Torre, ___ F.3d ___ , 2010 WL ----- No. 09-3029 (10th Cir. 2010). Defendant, convicted after trial of possession with intent to distribute marijuana and methamphetamine, testified that although he knew pot was in the backpack he carried and ditched while fleeing a police raid of a motel party room, he did not know meth was in it. He did not defend on pot count, but defended on meth count.
1. WARNING! Ain’t no such defense. Court determines that jury was properly instructed that if it found Defendant knew he possessed a controlled substance, it was immaterial what was the nature of the contraband. The government proves the mens rea by proof of knowledge of a controlled substances and does not need to prove the Defendant knew it was meth. Defendant basically admitted guilt to the meth charge when he said he knew pot was in the pack. The COA implies that the court’s elements instruction “possessed meth with the intent to distribute it” might have placed a higher burden on the government than required under facts of the case, but Defendant admitted it was a distributable amount of meth so the issue was not reached.
2. Defendant’s testimony that he did not use meth a year prior to the arrest was properly impeached with his statement to Pretrial Services that he used meth around the time of the arrest. Although by statute statements to Pretrial cannot be used to establish guilt, they may be used to impeach.
3. The Court reverses for district court’s erroneous interpretation of the safety valve, USSG Sec. 5C1.2, and Defendant’s eligibility for sentencing under its provisions. Defendant, who refused to be de-briefed, argued that his trial testimony provided all the evidence he had concerning the offense. The Court states that no convicted Defendant who denies guilt could argue that his trial testimony meets safety valve criteria of providing info on the offense, but this was a unique case where there was an admission of guilt, and a fact finder could believe him but find him guilty (for the reason that knowledge of some controlled substance is all that is needed, and it is not important that he did not know nature of the drugs). Timing for disclosure is prior to sentencing, so trial testimony is timely. Error not harmless, and the district court’s refusal to grant Defendant a variance does not mean it would not sentence him to the low end of the lower guideline range: the government did not meet its burden to show that the court would impose the same sentence.
1. WARNING! Ain’t no such defense. Court determines that jury was properly instructed that if it found Defendant knew he possessed a controlled substance, it was immaterial what was the nature of the contraband. The government proves the mens rea by proof of knowledge of a controlled substances and does not need to prove the Defendant knew it was meth. Defendant basically admitted guilt to the meth charge when he said he knew pot was in the pack. The COA implies that the court’s elements instruction “possessed meth with the intent to distribute it” might have placed a higher burden on the government than required under facts of the case, but Defendant admitted it was a distributable amount of meth so the issue was not reached.
2. Defendant’s testimony that he did not use meth a year prior to the arrest was properly impeached with his statement to Pretrial Services that he used meth around the time of the arrest. Although by statute statements to Pretrial cannot be used to establish guilt, they may be used to impeach.
3. The Court reverses for district court’s erroneous interpretation of the safety valve, USSG Sec. 5C1.2, and Defendant’s eligibility for sentencing under its provisions. Defendant, who refused to be de-briefed, argued that his trial testimony provided all the evidence he had concerning the offense. The Court states that no convicted Defendant who denies guilt could argue that his trial testimony meets safety valve criteria of providing info on the offense, but this was a unique case where there was an admission of guilt, and a fact finder could believe him but find him guilty (for the reason that knowledge of some controlled substance is all that is needed, and it is not important that he did not know nature of the drugs). Timing for disclosure is prior to sentencing, so trial testimony is timely. Error not harmless, and the district court’s refusal to grant Defendant a variance does not mean it would not sentence him to the low end of the lower guideline range: the government did not meet its burden to show that the court would impose the same sentence.
posted by Anonymous at 3:35 PM
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