Case o' The Week: Why Ask Why; Dodge Delicti? - Niebla and Corpus Delicti Rule in Drug Conspiracies
(Maybe “Why! Hike Pozo Redondo Mountain!”)
United States v. Niebla-Torres, 2017 U.S. App. LEXIS 1699 (9th Cir. Jan. 31, 2017), decision available here.
Players: Decision by Judge Christen, joined by Judges W. Fletcher and Friedland.
Facts: Niebla was arrested on Pozo Redondo mountain (see map below, showing mountain and town of "Why"). This mountain is near the Arizona-Mexico border: a purported smuggling corridor. Id. at *2.
According to the government’s expert witness at trial, drug trafficking organizations control that route: individuals can only cross if they pay, backpack-in drugs, or act as a scout. Id. at *3. Scouts watch for law enforcement from mountaintops, as backpacking smugglers cross the easier flatlands. Id. Agents had seen men acting furtively on this mountain for two days. Id. When a helicopter then detected possible scouts, agents hiked up and found Niebla and another man. Id. at *4.
In a satchel worn by Niebla they found cell phones and radio batteries. Id. In a nearby cave they found hand-held radios and binoculars. Id. Both men were wearing camo. Id.
In a Mirandized interview Niebla admitted he was working as a scout, for presumed marijuana smuggling (no marijuana was ever seen or seized). Id. At the trial for conspiracy to distribute a controlled substance, the government introduced Niebla’s confession, his prior scouting conviction in the same area, and testimony from the aforementioned expert. Id.
Niebla’s Rule 29 was denied, and he was convicted. Id. at *8.
Issue(s): “[Niebla] argues that the conviction must be vacated under the corpus delicti doctrine because the government did not present sufficient evidence to corroborate his confession.” Id. at *8.
Held: “[E]ven if we define the core of the offense very specifically, as an agreement to possess and distribute marijuana, the government satisfied its corpus delicti burden.” Id. at *12.
“We conclude that the government satisfied the first prong of the Lopez-Alverez corpus delicti test by introducing sufficient corroborating evidence that the core conduct of Niebla’s crime actually occurred.” Id. at *17.
Of Note: Those infernal stash house cases are doubly damnable: they unfairly hammer our clients in the cases themselves, and they create bad law that then infects other areas of jurisprudence. See generally blog entries here.
Here, the question for the corpus delicti analysis was whether there was sufficient evidence to corroborate a conviction for conspiracy to smuggle marijuana. However, there was no evidence (outside of the confession) that marijuana was ever actually smuggled. Id. at *14.
Judge Christen notes that the Ninth has affirmed stash house drug-conspiracy convictions, when the “drugs” involved were just the products of the agents’ active imaginations. Id. at *14-*15. So too in Niebla: the fact that this was a conspiracy to smuggle (potentially non-existent) marijuana doesn’t impact the corpus delicti analysis.
How to Use: The first prong of the corpus delicti analysis asks if there was sufficient corroborating evidence to establish the criminal conduct at the core of the offense. Id. at *10. So, what is the “core of the offense,” for “conspiracy to distribute a controlled substance?” That simple question is remarkably complicated: the parties argued for three different definitions during the litigation, sometimes flipping back and forth. Id. at *12.
The Ninth sidesteps the issue, assumes the most defense-friendly version, and decides against Niebla on that theory. Id. This “core of the offense” issue remains unsettled law – start there if dealing with a corpus delicti case.
For Further Reading: Last July, the Ninth decided Lindsey: a frustrating mortgage fraud case that rejected lender negligence as a defense and created some unwelcome new law on fraud materiality. See blog here.
The Ninth just granted Lindsey’s petition for rehearing. See order here.
Why the change of heart? Maybe Universal Health Serv. Inc. v. United States ex rel. Escobar, 579 U.S. __ (2016), decided just before Lindsey. Knock wood for a better materiality outcome in Lindsey, Take Two.
Image of the Pozo Redondo Mountains from https://www.google.com/maps/place/Pozo+Redondo+Mountainsemail@example.com,-112.8765615,82491m/data=!3m1!1e3!4m5!3m4!1s0x812aabee6bfa0a1f:0x68b5f39de1d6d81c!8m2!3d32.3114492!4d-112.6984805
Image of “Why, Arizona” by Ken Lund - Flickr: Why, Arizona (2), CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=16396941
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org