Case o' The Week: Why Ask Why; Dodge Delicti? - Niebla and Corpus Delicti Rule in Drug Conspiracies

“Why hike Pozo Redondo Mountain?” 

(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+Mountains/@32.1840835,-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

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Case o' The Week: Secret Agent Man & Jury Instruction Plan - Agency in federal criminal law

“Secret agent man.”

Works better as a song, than a theory of the defense.

United States v. Oliver King, 2013 WL 6038242 (9th Cir. Nov. 15, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Thomas and DJ Dearie.

Facts: King, a Canadian, liked guns. Id. at *1. He was unable to legally sell them in the United States, so he paired up with a US citizen named Zarandi. Id. King proposed, and Zarandi agreed, that King would do the “legwork” for a firearms business in Oregon. Id. King filled-out the paperwork and set up a corporation called, “MHPS.” Id. Zarandi was listed as the CEO and sole ‘responsible person’ on the federal firearm application. Id. The application was approved, and along with other more-straightforward transactions King also bought guns – and offered to sell them, in the United States – behind Zarandi’s back. Id. at *2. He was ultimately arrested, charged with, and convicted of – among other things – unlawfully dealing in firearms. Id.

Issue(s): “King’s proposed instructions stated . . . that he could not be convicted of unlicensed firearms dealing unless the government proved that he was not ‘authorized to act on behalf of another person or corporation that did have a license as a firearm dealer.’ King sought these instructions so that he could argue to the jury that he was not guilty of unlicensed firearms dealing because he only acted on behalf of MHPS, a licensed corporate entity.” Id. at *4. “With regard to his conviction for unlawfully dealing in firearms, King contends that the district court erred in refusing to give his proposed jury instructions, which required the government to prove that King was not acting as an authorized agent of a federal firearms licensee.” Id. at *1.

Held: “In an issue of first impression in our circuit, we hold that King is not entitled to such an instruction.” Id.

Of Note: King was also convicted of making material false statements to border agents by not revealing that he was entering the US from Canada to mess with guns. Id. at *8. In reality, however, his lies made no difference: he was the target of an ICE investigation, was being followed and surveilled as soon as he was “allowed” to clear customs, and because he was the target of an investigation it didn’t matter what lies he offered for his reason to cross. Were his lies “material,” because he was going to be admitted regardless so ICE agents could continue their investigation? Yes, says Judge Nguyen: “actual influence is not required, so long as the misstatement has a propensity to influence agency action.” Id. at *8. This disappointing holding forecloses a thoughtful counter-argument laid out in 2011 by dissenting Judge Tashima in United States v. Howard.

How to Use: King’s interesting theory was that he didn’t violate the “dealing in gun” statute because he was an agent of an authorized person or corporation – here, MHPS. Judge Nguyen isn’t keen on that theory, rejecting it as a matter of statutory interpretation. Id. at *4. Of broader import, Judge Nguyen spends a fair amount of time discussing agency theory in the context of federal criminal law. Id. at *5 (discussing with approval United States v. Fleischli, 305 F.3d 643, 652 (7th Cir. 2002)). King is worth a sobering read if mulling an agency defense in another context (such as the purchase of machineguns, the agency theory rejected in Fleischli).

For Further Reading: Can the government supersede with a mandatory minimum charge in retaliation for the defendant filing a suppression motion? Sure – despite the clear spirit of the recent Holder memo, discouraging such vindictive use of mand-mins. 

 Here’s a more interesting question: can the district court dismiss the mand-min count for vindictive prosecution? Sure, explains the Sixth Circuit, in a great new decision: United States v. LaDeau, available here. (“Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.”) 

   This welcome win by Nashville AFPD Michael Holley deserves to be imported into the Ninth.  

“Secret Agent Man” graphic from http://www.secretagentman.net/

Steven Kalar, Federal Public Defender ND Cal, website at www.ndcalfpd.org