In USA v. Jaime Enrique Romero-Padilla, the Second Circuit Court of Appeals adopted the District of Columbia’s appellate court ruling that importation offenses require proof of actual knowledge by the defendant where the government does not prove intent. The law provides that it is “unlawful for any person to manufacture or distribute a controlled substance . . . (2) knowing that such substance or chemical will be unlawfully imported into the United States.” “As the D.C. Circuit put it, ‘[b]y its terms, this provision requires proof of actual, not constructive, knowledge.” United States v. Chan Chun-Yin, 958 F.2d 440, 443 (D.C. Cir. 1992); see also United States v. Martinez, 476 F.3d 961, 968 (D.C. Cir. 2007).
However, based on the evidence presented at trial, the Second Circuit held that the jury could have inferred, beyond a reasonable doubt, Romero-Padilla’s actual knowledge that the narcotics at issue were bound for the United States
“In particular, [the Court] noted that Romero-Padilla:
(1) as an officer in the CNP, was instructed that large shipments of narcotics originating in Colombia are often transported through Mexico and that narcotics transported from Colombia to Mexico typically do not remain in Mexico because their value is considerably higher in the United States;
(2) discussed with alleged co-conspirator Ferro the possibility of importing narcotics to the United States through Mexico;
(3) commented to Ferro that co-defendant Leonidas Molina-Triana, who orchestrated the charged conspiracy, frequently imported drugs to the United States;
(4) expressed concern to several alleged co-conspirators that the Drug Enforcement Agency might be investigating their activities; and
(5) on more than one occasion handled U.S. currency as part of the alleged conspiracy.
With all due respect to the Court of Appeals, its conclusion reflects a lack of knowledge of how drugs are distributed, either because evidence to the contrary was not introduced by the defendant or the Government thought it “unnecessary” to educate the jury any more than required for a conviction.
The fact that the defendant knew from his previous training “that large shipments of narcotics originating in Colombia are often transported through Mexico and that narcotics transported from Colombia to Mexico typically do not remain in Mexico because their value is considerably higher in the United States,” assumes all drugs leaving Mexico are shipped to the United States. This is not true. Drugs shipped to Mexico are also shipped to other countries in the world, particularly in Europe and Asia, “because their value is considerably higher.”
What the Court, and presumably the jury, did not know is that drugs transported to Mexico are often sold locally to other Mexican drug traffickers who have their own clientele, many of whom are in Europe and Asia. For the Colombian or Guatemalan trafficker, the transaction ends in Mexico and inquiring as to the drugs’ ultimate destination is dangerous and invites suspicion. Law enforcement is well aware of this aspect of the drug trade. For years, Mexicans have looked to other markets precisely because the risk of exporting to the U.S. is high.
Recently, a Guatemalan trafficker cooperating with the government innocently stated he was told he could either sell his drugs in Mexico at a low price or in the United States for a larger profit, which also came with greater risk. He chose the less risky option and sold his drugs in Mexico. Choosing this option, he would have no idea where his drugs were ultimately headed.
In an unrelated case, a DEA 6 report (a report written by a DEA agent) stated: “[An informant] stated that an enormous amount of narcotics are currently being shipped to Africa. When asked where in Africa the [informant] could not immediately think of the country and then stated Ghana. The [informant] further stated that from Africa he/she believes the narcotics are being shipped to Europe.” Confidential informants have been telling DEA, ICE and FBI agents this for years. It is common knowledge.
In the case of Romero-Padilla, the court also pointed to the fact that “[defendant] expressed concern to several alleged co-conspirators that the DEA might be investigating their activities,” suggesting, I suppose, that if he was worried about DEA involvement, he knew the drugs were bound for the U.S. However, the DEA investigates drug trafficking organizations even after learning that their drugs are not destined for the United States. The DEA’s mission is simple—to stop the trafficking of drugs.
The Court also noted, “On more than one occasion [Romero-Padilla] handled U.S. currency as part of the alleged conspiracy.” U.S. currency is handled by people all over the world because of the American dollar’s stability. It is preferred globally by major corporate companies, as well as drug dealers.
There are two lessons to be learned here. First, if a defendant is going to press the point that all drugs shipped to Mexico are not imported to the United States, the defendant must do so aggressively and affirmatively. The proof is easy to come by. Studies are constantly being done by most European and Asian countries in order to gauge their drug problem. Italy recently noted a vast concentration of cocaine derivative in parts of its water supply. Even the United Nations publishes surveys on the topic.
The second lesson is more subtle. One should take note that a unanimous jury of twelve people and a court of three judges, fifteen people in all, agreed that the evidence described above was sufficient to convict. The crowd is often accurate. In the book, The Wisdom of Crowds: Why the Many Are Smarter Than the Few, the author argued that decisions made by a group are often better than those that could have been made by any single member of the group. The opening anecdote relates a story about a crowd at a county fair that accurately guessed the weight of an ox. When their individual guesses were averaged, the average was closer to the ox’s true butchered weight than the estimates of most individual crowd members as well as estimates made by individual cattle experts.
So if 15 people think the evidence described above is sufficient, you need to consider that carefully before deciding to go to trial. It is more than likely that another 15 people would feel the same way. They may be wrong, but that is small consolation if you are dong twenty years in prison.
However, I continue to believe, if the jury had been educated about the true nature of drug trafficking in Mexico it would not have reached the same conclusion, and the outcome may well have been different.