FILED
United States Court of Appeals
Tenth Circuit
March 30, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-3029
JULIO C. DE LA TORRE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 6:08-CR-10007-MLB-1)
John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant.
Matthew T. Treaster, Assistant United States Attorney (Lanny D. Welch, United
States Attorney, with him on the briefs), District of Kansas, Wichita, Kansas, for
Plaintiff-Appellee.
Before MURPHY, McWILLIAMS, and GORSUCH, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
Julio De La Torre was charged in a two-count superceding indictment with
possessing with the intent to distribute fifty grams or more of methamphetamine
and possessing with the intent to distribute less than fifty kilograms of a
substance containing a detectable amount of marijuana, both in violation of 21
U.S.C. § 841(a)(1). After a jury trial, at which he testified, De La Torre was
convicted of both counts and was sentenced to 121 months’ imprisonment.
De La Torre appeals his methamphetamine conviction and sentence. He
argues the district court erred by instructing the jury it could find him guilty of
possessing methamphetamine, even if it believed he only knew marijuana was in
the backpack and was unaware methamphetamine was present. He also argues the
district court erred in admitting statements he made during an interview with
Pretrial Services. Finally, De La Torre argues the district court erred by refusing
to consider his trial testimony as qualifying him for safety-valve treatment at
sentencing.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, the court AFFIRMS
De La Torre’s conviction but REMANDS to the district court to vacate and
reconsider his sentence for the purpose of evaluating whether the safety-valve
provision should be applied.
II. Background
De La Torre was charged in a two-count superceding indictment with
possessing with the intent to distribute fifty grams or more of methamphetamine
and possessing with the intent to distribute less than fifty kilograms of a
substance containing a detectable amount of marijuana, both in violation of 21
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U.S.C. § 841(a)(1). At trial, De La Torre testified that for several days prior to
February 16, 2007, he was partying in Room 150 of the Comfort Inn in Wichita,
Kansas. While there, he admits he smoked marijuana, but claims he neither saw
nor used methamphetamine.
On the morning of February 16, 2007, the hotel’s desk clerk called the
Wichita Police Department and reported what she suspected was a false
identification used to rent Room 256. When officers arrived, the clerk provided a
copy of the identification card and explained that the people staying in Room 150
were in the process of moving to Room 256. Additionally, the clerk stated other
guests had reported the smell of marijuana coming from Room 150.
De La Torre testified he awoke that morning when someone in the room
started screaming that the police were at the hotel. At that point, De La Torre
claimed one of the people in the room handed him a backpack and instructed De
La Torre to follow him. They left the hotel, at which point the other person told
De La Torre to get rid of the backpack. Officer Rago, who was in the parking lot,
testified he saw De La Torre and another individual run from the hotel and hop
over a short fence. Officer Rago testified De La Torre was carrying a backpack,
which he threw into a culvert as he ran away.
Officer Rago informed Officer Springob about what he saw. A few minutes
later, De La Torre and a companion walked back to the hotel through the parking
lot. Officer Rago recognized them and approached to ask them where they came
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from and where they were going. Each gave a different answer: one claimed they
were coming from the store while the other claimed they were returning from a
friend’s house. Meanwhile, Officer Springob retrieved the backpack from the
culvert. Officer Springob testified he could smell marijuana inside the culvert.
When he looked inside the backpack, Officer Springob found a shoe box
containing multiple bricks of marijuana, a large bag of methamphetamine, rubber
bands, Ziploc bags, and digital scales. As a result, Officer Rago took both men
into custody.
Officer Springob read De La Torre his Miranda warnings, and De La Torre
agreed to speak with him about the incident. According to Officer Springob, De
La Torre admitted knowing the backpack contained marijuana, scales, Ziploc
bags, rubber bands, digital scales, and “ice,” a form of methamphetamine.
Officer Springob also testified De La Torre admitted being in Room 150 for about
three days, where he hung out with friends and used marijuana and ecstasy. De
La Torre told Officer Springob his friends sold narcotics in the room. He also
admitted using methamphetamine in the past, but not at the hotel.
De La Torre testified he did not tell the officer he knew there was
methamphetamine in the backpack. Instead, he claimed he told Officer Springob
he believed it only contained marijuana because he and others in the hotel room
had only used marijuana. Nonetheless, De La Torre admitted the quantities of
both the methamphetamine and marijuana discovered in the backpack were
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distribution quantities. De La Torre also admitted he had used methamphetamine
in the past, but claimed he had not used any in the year prior to the incident at the
hotel.
At a sidebar, the Government sought to introduce a statement De La Torre
made to Pretrial Services that he used methamphetamine in February 2007. The
Government emphasized this testimony was important because the Government
“believe[d] that his use in February of 2007 was the day in question and that
shows he had knowledge there was meth in that hotel room.” De La Torre
objected due to the absence of notice and the confidentiality of statements made
to Pretrial Services. The district court overruled De La Torre’s objection and
permitted the Government to present the statement, but only for the purposes of
impeachment. During its re-cross-examination of De La Torre, the Government
asked whether he told a federal probation officer he had actually used
methamphetamine in February 2007. De La Torre testified he told the probation
officer he used methamphetamine about two years prior to his May 2008
interview. On rebuttal, the Government called the probation officer, who testified
De La Torre specifically told her he used methamphetamine in February 2007.
Immediately after this testimony, the district judge instructed the jury it could
only consider evidence of the statement “for the purpose of judging his
believability or his credibility and not for any other reason.”
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The jury ultimately convicted De La Torre of both counts. At sentencing,
De La Torre sought the benefit of the Sentencing Guidelines’ safety-valve
provision, USSG § 5C1.2. The parties disputed whether he “truthfully provided
to the Government all information and evidence the defendant ha[d] concerning
the offense” as required under § 5C1.2(a)(5). De La Torre argued his testimony
at trial fulfilled this requirement. The court denied De La Torre’s request on the
grounds that “the mere fact that defendant testified at trial does not entitle him to
‘safety valve’ consideration.” The district court ultimately sentenced De La Torre
to 121 months’ imprisonment to be followed by five years’ supervised release.
III. Discussion
A. De La Torre’s Knowledge of the Backpack’s Contents
De La Torre first challenges his conviction for possessing
methamphetamine with the intent to distribute. He argues the district court erred
in instructing the jury that the Government did not have to prove beyond a
reasonable doubt that he knew the precise nature of all controlled substances he
possessed. This court reviews “the district court’s decision to give a particular
jury instruction for abuse of discretion and consider[s] the instructions as a whole
de novo to determine whether they accurately informed the jury of the governing
law.” United States v. Fria Vazquez Del Mercado, 223 F.3d 1213, 1216 (10th
Cir. 2000) (quotation omitted).
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De La Torre’s challenge stems from his testimony that while he believed
the backpack contained marijuana, he had no idea it also contained
methamphetamine. In support of this argument, he points to his testimony that he
only smoked marijuana in the hotel room and did not see methamphetamine while
he was there. Specifically, De La Torre argues Tenth Circuit case law does not
permit the Government to use his admission that he knew he possessed a single
controlled substance, marijuana, to establish the mens rea for possessing both
marijuana and methamphetamine under 21 U.S.C. § 841(a)(1).
Here, the district court instructed the jury 1:
To find the defendant guilty of this crime you must be convinced that
the government has proved each of the following beyond a
reasonable doubt:
First: the defendant knowingly or intentionally possessed a controlled
substance;
Second: the controlled substance was methamphetamine;
Third: the defendant possessed the methamphetamine with the intent
to distribute it; and
1
The first two elements in the instruction given by the district court
deviated from Tenth Circuit Criminal Pattern Jury Instruction 2.85, which
suggests the Government must prove the defendant knowingly possessed a
particular controlled substance. The first element listed in Pattern Instruction
2.85 is: “the defendant knowingly or intentionally possessed [name controlled
substance] as charged.” The district court correctly noted that this portion of the
Pattern Instruction incorrectly states the law of this circuit. Instead, the district
court properly addressed this issue by breaking the Pattern Instruction’s first
element into two separate elements requiring proof (1) the defendant knew he
possessed a controlled substance and (2) the controlled substance was
methamphetamine.
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Fourth: the weight of the methamphetamine defendant possessed was
at least 50 grams.
It also instructed the jury that the Government did not need “to prove beyond a
reasonable doubt that the defendant knew the precise nature of the controlled
substance or substances.”
Contrary to De La Torre’s argument, the district court’s instructions were
consistent with this court’s interpretation of § 841(a)(1). The statute does not
require the Government to prove a defendant knew the precise nature of the
controlled substance he possessed, so long as he knew he did in fact possess a
controlled substance. United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir.
1997). The Government can establish the mens rea for the possession element by
proving only that the defendant knew he possessed some controlled substance.
Once it proves the defendant had the requisite guilty mind to possess some
controlled substance within the universe of all controlled substances, it has
established the mens rea necessary to establish the possession element with
respect to any and all drugs the defendant actually possessed. This is so even if
the defendant was unaware of the nature or number of controlled substances he
actually possessed. The Government must then prove the defendant did possess
the particular controlled substance charged in the indictment. See United States v.
Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). The Government is not
required, however, to prove that the controlled substance the defendant actually
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possessed corresponds to the controlled substance the defendant believed he
possessed. 2
In the instant case, De La Torre’s admission established he had the
necessary mens rea to be convicted of possessing methamphetamine with the
intent to distribute it. Even if De La Torre was, as he claimed, wholly unaware of
the presence of a second controlled substance in the backpack, 3 he admits he
knew the backpack contained a controlled substance. This admission was
sufficient to establish his guilty mind as to the possession element with respect to
both drugs. Thereafter, De La Torre admitted he did in fact possess distribution
amounts of both marijuana and methamphetamine. Consequently, De La Torre’s
statements were sufficient for the jury to convict him of both counts. The district
2
De La Torre does not argue the district court’s wording of the third
element required the jury to find he intended to distribute methamphetamine
specifically. He simply argues that when two controlled substances are present,
the Government must establish he actually knew both controlled substances were
present, not just one. In other words, his argument focuses only on the first
element of the district court’s instruction. Accordingly, this court need not
determine whether the third element of the district court’s instruction imposed a
higher burden on the prosecution than the law requires with respect to the
defendant’s knowledge of the particular controlled substances he intended to
distribute. Cf. United States v. Romero, 136 F.3d 1268, 1271-73 (10th Cir. 1998)
(“[T]he Government is required to prove all elements put forth in [a jury
instruction to which the Government did not object] . . . even if the Government
would not, under law, be otherwise required to do so.”). De La Torre admits he
possessed distributable quantities of both marijuana and methamphetamine.
3
Though this court makes no credibility determinations, it is worth noting
that whether De La Torre was unaware of the presence of methamphetamine was
disputed at trial. Specifically, Officer Springob testified De La Torre admitted
knowing the backpack contained “ice.”
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court did not abuse its discretion or misapply the law in giving the relevant
instruction.
B. Admissibility of Statements from De La Torre’s Pretrial Interview
De La Torre next argues the district court erroneously admitted a statement
from his pretrial interview regarding his use of methamphetamine in February
2007. This court reviews evidentiary rulings for an abuse of discretion. United
States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009).
De La Torre’s argument hinges on 18 U.S.C. § 3153(c), which provides:
Information obtained in the course of performing pretrial services
functions in relation to a particular accused shall be used only for the
purposes of a bail determination and shall otherwise be confidential.
18 U.S.C. § 3153(c)(1). Additionally, § 3153(c)(3) provides that confidential
information obtained by Pretrial Services
is not admissible on the issue of guilt in a criminal judicial
proceeding unless such proceeding is a prosecution for a crime
committed in the course of obtaining pretrial release or a prosecution
for failure to appear for the criminal judicial proceeding with respect
to which pretrial services were provided.
As De La Torre himself points out, however, the inadmissibility of statements
made to Pretrial Services as to the issue of guilt does not restrict the Government
from using such statements to impeach a defendant’s trial testimony. Indeed, a
number of other circuits have recognized that statements made to Pretrial Services
are admissible for impeachment purposes. See United States v. Griffith, 385 F.3d
124, 126 (2d Cir. 2004); United States v. Stevens, 935 F.2d 1380, 1395-97 (3d
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Cir. 1991); United States v. Wilson, 930 F.2d 616, 619 (8th Cir. 1991). This court
is persuaded by these decisions and agrees § 3153(c)’s statutory bar to using such
statements to prove guilt does not prohibit the Government from offering such
statements to impeach the defendant’s credibility.
While the Government initially sought to introduce the Pretrial Services
statement to suggest De La Torre had in fact used methamphetamine while at the
hotel, and therefore had reason to know the backpack contained
methamphetamine, the district court specifically ruled that the statement
regarding De La Torre’s February 2007 methamphetamine use could only be
admitted to impeach De La Torre’s trial testimony. Moreover, after the probation
officer testified regarding De La Torre’s statement, the court gave an appropriate
limiting instruction informing the jury it could only consider the statement for the
purposes of assessing De La Torre’s credibility. Because the statement was only
admitted for the limited purpose of impeachment, the district court did not abuse
its discretion.
C. Safety-Valve Application
De La Torre next argues the district court erred by denying his request for
application of USSG § 5C1.2, the safety-valve provision, in calculating his
sentence. “We review a district court’s factual determination on safety-valve
eligibility for clear error, including whether a defendant has provided the
government with complete and truthful information. A district court’s legal
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interpretation guiding its application of the safety-valve provision is reviewed de
novo.” United States v. Cervantes, 519 F.3d 1254, 1256 (10th Cir. 2008) (citation
omitted).
USSG § 5C1.2(a) provides that, when a defendant has committed an
offense under 21 U.S.C. § 841, “the court shall impose a sentence in accordance
with the applicable guidelines without regard to any statutory minimum
sentence,” so long as the court determines the applicable criteria are met. One
criterion a defendant must establish in order to qualify for the safety-valve
adjustment, and the only one at issue here, is:
[N]ot later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information
shall not preclude a determination by the court that the defendant has
complied with this requirement.
USSG § 5C1.2(a)(5); 18 U.S.C. § 3553(f)(5). Additionally, if all necessary
criteria are met, a defendant whose guidelines range is calculated under USSG
§ 2D1.1 is entitled to a two-level reduction in his offense level. USSG
§ 2D1.1(b)(11).
At sentencing, De La Torre’s advisory guidelines range was calculated
under USSG § 2D1.1 and he sought application of the safety-valve provision even
though he did not consent to being de-briefed by the Government. Nonetheless,
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De La Torre argued he fulfilled the requirements of § 5C1.2(a)(5) because by
testifying at trial, he provided the Government with “all information and
evidence” he had concerning the crime. The district court categorically
concluded that trial testimony alone can never support safety-valve consideration
and denied De La Torre’s request. On appeal, the Government argues the district
court was correct in refusing to consider the safety-valve adjustment because
§ 5C1.2(a)(5) requires a defendant to meet directly with Government agents for
de-briefing in order to qualify.
Neither USSG § 5C1.2(a)(5) nor its statutory counterpart, 18 U.S.C.
§ 3553(f)(5), delineates the suitable methods of providing the information to the
Government. Additionally, neither party points to any decision issued by this or
any other federal circuit court addressing whether trial testimony itself may
constitute an acceptable method of providing the Government with such
information. This is not surprising, however, as a defendant’s trial testimony
most often includes a denial of the essential factual elements of guilt and directly
conflicts with the jury’s finding of guilt. No reasonable defendant could claim
safety-valve eligibility based on trial testimony that necessarily contradicts the
conviction itself.
Accordingly, this case presents a novel circumstance because De La Torre’s
testimony primarily sought to convince the jury that while he knew he possessed
marijuana, he did not know he possessed methamphetamine. As discussed earlier,
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because De La Torre admitted possessing a distributable amount of a controlled
substance, his alleged lack of knowledge regarding the varieties of controlled
substances he actually possessed does not shield him from criminal liability under
21 U.S.C. § 841. Thus, it is conceivable that a fact-finder could believe De La
Torre’s testimony without necessarily contradicting the conviction. Similarly, in
rare circumstances, a defendant may be eligible for an acceptance of
responsibility adjustment, even though he proceeded to trial. See USSG § 3E1.1,
cmt. n. 2.
In describing 18 U.S.C. § 3553(f)(5), from which the language in USSG
§ 5C1.2(a)(5) is drawn, this court has explained the “defendant must affirmatively
volunteer all he knows, including facts beyond the basic elements of the crime.”
United States v. Gonzalez-Montoya, 161 F.3d 643, 652 (10th Cir. 1998). Though
undoubtedly rare, there are circumstances in which trial testimony could be
sufficiently thorough so as to constitute adequate compliance with this
requirement. The language of USSG § 5C1.2(a)(5) and 18 U.S.C. § 3553(f)(5)
does not require the defendant to consent to a private de-briefing with the
Government, nor does it prohibit trial testimony as a potential method of
providing the necessary information. The language of the safety-valve provision
only requires the defendant provide, and the Government receive, the information
“not later than the time of the sentencing hearing.” USSG § 5C1.2(a)(5); 18
U.S.C. § 3553(f)(5).
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De-briefing may be logistically preferential to trial testimony from the
Government’s standpoint and, in most cases, it may be the only practical method
by which the defendant can provide the Government with complete information
regarding the offense. Here, however, it appears De La Torre’s testimony on
direct examination was quite broad, such that the Government may have had a full
and fair opportunity to cross-examine the defendant “concerning the offense or
offenses that were part of the same course of conduct or of a common scheme or
plan.” USSG § 5C1.2(a)(5). Additionally, if the Government believes De La
Torre’s trial testimony was neither truthful nor complete, or believes it lacked an
adequate opportunity to cross-examine De La Torre due to the scope of direct
examination, the Government has a sufficient opportunity to challenge the safety-
valve request on those grounds at re-sentencing.
This court concludes a district court is not categorically precluded from
considering a defendant’s trial testimony in determining whether he qualifies for
the safety-valve adjustment under USSG § 5C1.2(a)(5). On remand, the burden
remains on De La Torre to establish his eligibility by a preponderance of the
evidence. Gonzalez-Montoya, 161 F.3d at 652. As this court explained in
Cervantes,
[a]bsent a favorable recommendation from the government, a
defendant needs to put on evidence at the sentencing hearing to meet
his burden of showing that he truthfully and fully disclosed
everything he knew and to rebut government claims to the contrary.
This evidence may include proffer documents, stipulated facts, or, in
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all likelihood, testimony from the defendant or a representative of the
government subject to cross-examination. Security precautions may
be taken if necessary. It is axiomatic that he who has the burden of
proof must put on some evidence at a sentencing hearing to allow the
district court to find, by a preponderance of the evidence, that he is
eligible for the safety-valve adjustment.
519 F.3d at 1258. While De La Torre did not produce any evidence at the
sentencing hearing below, the district court did not permit him the opportunity to
do so, instead concluding trial testimony could not, under any circumstances,
satisfy USSG § 5C1.2(a)(5). On remand, De La Torre shall be permitted to
attempt this showing.
Finally, in its supplemental brief, the Government argues that any error is
harmless because De La Torre’s 121-month sentence is within the guidelines
range even if that range is revised by the application of the safety-valve. Without
considering the safety-valve provision’s applicability in light of De La Torre’s
trial testimony, the district court calculated De La Torre’s guidelines range as 121
to 151 months. The district court imposed a sentence at the bottom of the
guidelines range, 121 months. Had the district court fully considered the safety-
valve provision and determined that it applied, De La Torre’s guidelines range
would have been reduced to 97 to 121 months under USSG § 2D1.1(b)(11).
According to the Government, the district court’s imposition of a sentence
which would also fall within the guidelines range reduced by application of the
safety-valve provision, coupled with the court’s refusal to grant a downward
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variance, indicates the district court would have imposed the same sentence
absent any error. This court disagrees and concludes the Government has failed
to meet its burden of establishing the district court would have imposed the same
sentence. See United States v. Lozano, 514 F.3d 1130, 1134 (10th Cir. 2008). At
sentencing, the district court indicated its intent to sentence De La Torre at the
low-end of the relevant guidelines range. Thus, the district court’s refusal to
grant a downward variance outside the advisory guidelines range does not, in and
of itself, suggest the court would not impose a lower sentence within a reduced
guidelines range. Absent any other indication to the contrary, this court
concludes the record does not support the Government’s contention that the
district court would have imposed the same sentence under a revised guidelines
range.
Accordingly, De La Torre’s sentence must be vacated and remanded so he
can attempt to present sufficient evidence from which the district court can
determine whether he is eligible for the safety-valve adjustment.
IV. Conclusion
For these reasons, the court hereby AFFIRMS De La Torre’s convictions
but REMANDS to the district court to vacate and reconsider De La Torre’s
sentence for the purpose of evaluating whether the safety-valve provision should
be applied.
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