United States v. Estrada ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10500
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00247-DFL
MATEO ESTRADA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
April 3, 2006—San Francisco, California
Filed July 14, 2006
Before: John T. Noonan, Senior Circuit Judge, Jay S. Bybee,
Circuit Judge, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
7829
7832 UNITED STATES v. ESTRADA
COUNSEL
Tim A. Pori, Law Offices of Tim A. Pori, Vallejo, California,
for the defendant-appellant.
Carolyn K. Delaney, Assistant United States Attorney and
McGregor W. Scott, United States Attorney, Sacramento,
California, for the appellee.
UNITED STATES v. ESTRADA 7833
OPINION
SCHWARZER, Senior District Judge:
Defendant-appellant Mateo Estrada appeals his conviction,
after jury trial, of possessing pseudoephedrine knowing, or
with reasonable cause to believe, that it would be used to
manufacture methamphetamine, in violation of 21 U.S.C.
§ 841(c)(2). We affirm.
FACTUAL AND PROCEDURAL HISTORY
Responding to a report of an accident, a California High-
way Patrol (CHP) Officer found an overturned pickup truck
with a camper shell on a remote, hilly road in Colusa County.
The truck contained 178 pounds of pseudoephedrine pills, as
well as 78 gallons of denatured alcohol, a can of acetone, and
other paraphernalia suggesting to the officer that the contents
were going to be used to make methamphetamine. The CHP
officer found Estrada near the overturned truck, conscious but
dazed and with a contusion on his forehead.
After sending Estrada to the hospital, the CHP towed the
truck and performed an inventory search. Following the
search, the truck was released back to the towing company.
About two months after the crash, the towing company sold
the truck at a lien sale.
During the inventory search, the CHP found a recent
receipt from a Home Depot store for several cans of denatured
alcohol. One of the officers reviewed video footage from the
Home Depot made at the time of the sale indicated on the
receipt. The footage was not clear enough to identify Estrada
as the customer, but the customer shown was approximately
the same height and stature as Estrada, and was wearing a
shirt that appeared to resemble the shirt Estrada was wearing
at the time of the accident. Investigators were unable to
recover fingerprints from the cans of denatured alcohol in the
7834 UNITED STATES v. ESTRADA
truck. Fingerprints recovered from a respirator mask and the
cardboard boxes holding the pills did not match Estrada’s.
Estrada moved to dismiss the indictment contending that
the government’s destruction of the evidentiary value of the
truck was in bad faith. The district court denied the motion.
At trial the government introduced evidence that in a 1994
seizure of items from a storage locker in San Jose, Estrada’s
fingerprints had been found on a type of flask used in manu-
facturing methamphetamine. The flask also had a residue of
iodide, which suggested that it had been used to manufacture
methamphetamine. Also recovered from the storage locker
were large amounts of ephedrine (different from pseudoephe-
drine, but also used to make methamphetamine). Other than
the fingerprints on the flask, there was no evidence linking
Estrada to the storage locker. Estrada objected to the admis-
sion of this evidence, but the district court overruled the
objection with a limiting instruction.
The court instructed the jury that the government must
prove:
First: The defendant knowingly possessed pseu-
doephedrine; Second: Pseudoephedrine is a listed
chemical; [and] Third: The defendant possessed it
knowing, or having reasonable cause to believe, that
it would be used to manufacture methamphetamine.
This instruction tracked the Ninth Circuit Model Jury Instruc-
tion — Criminal § 9.23. During deliberations, the jury asked
the court: “Can we get any other definition of what it means
to knowingly possess pseudoephedrine specifically at the time
he had it, or does it mean any substance that can be used to
make methamphetamine?” After conferring with counsel, the
court gave the following supplemental instruction:
The government does not have to prove that the
defendant knew that the pills were pseudoephedrine.
UNITED STATES v. ESTRADA 7835
The government does have to prove beyond a rea-
sonable doubt that the defendant knew, or had reason
to know, that the pills would be used to manufacture
methamphetamine. The government also has to
prove beyond a reasonable doubt that the defendant
knew that the pills were in his possession. The gov-
ernment also has to prove beyond a reasonable doubt
that the pills were in fact a listed chemical.
You may not find the defendant guilty based upon
his knowing possession of either the denatured alco-
hol or the acetone because these are not listed chemi-
cals.
The jury returned a guilty verdict. On appeal, Estrada
argues that the supplemental jury instruction improperly
relieved the government of having to prove that he knew the
pills were pseudoephedrine, that there was insufficient evi-
dence to prove he knew the pills were pseudoephedrine, that
the loss of the truck’s evidentiary value violated his due pro-
cess rights, and that the district court erred in admitting the
evidence of his fingerprints on the flask recovered from the
1994 storage locker seizure.
DISCUSSION
I. SUPPLEMENTAL JURY INSTRUCTION
[1] Estrada contends that the supplemental jury instruction
was erroneous in failing to require the government to prove
that Estrada knew that the substance he possessed was pseu-
doephedrine. Section 841(c)(2) makes it unlawful for “[a]ny
person [to] knowingly or intentionally . . . possess[ ] or dis-
tribute[ ] a listed chemical knowing, or having reasonable
cause to believe, that the listed chemical will be used to man-
ufacture a controlled substance.” Estrada argues that for a
defendant to knowingly possess something he must know
what he possessed, in this case pseudoephedrine. The supple-
7836 UNITED STATES v. ESTRADA
mental jury instruction was erroneous, Estrada argues, in tell-
ing the jurors that they had to find only that he knew the pills
were in his possession, not that he knew they were pseu-
doephedrine. Estrada does not otherwise challenge the
instruction.
Whether a jury instruction misstates elements of the crime
is a question of law reviewed de novo. United States v.
Knapp, 120 F.3d 928, 930 (9th Cir. 1997). “[W]here the party
fails to object at trial or fails to state distinctly the grounds for
the objection, we review only for plain error.” United States
v. McIver, 186 F.3d 1119, 1130 (9th Cir. 1999). Here, the
court and counsel engaged in a lengthy conference concerning
the text of the supplemental instruction. Counsel for Estrada
insisted that the jury would have to find that Estrada knew the
pills were pseudoephedrine. The court declined to so instruct
but offered counsel the opportunity to research the law over-
night. In the end, the court read the instruction to counsel as
eventually given; government counsel approved and counsel
for Estrada said, “Okay.” We therefore review for plain error.
We recently interpreted the mens rea requirement of
§ 841(c)(2) in United States v. Lo, 447 F.3d 1212 (9th Cir.
2006). Lo was charged with possession of MDP-2-P, a listed
chemical. The court instructed the jury that to find the defen-
dants guilty, the government must prove: “First, that the
defendants knowingly possessed MDP-2-P; second, the
defendants knowingly possessed it, knowing or having rea-
sonable cause to believe that it would be used to manufacture
a controlled substance. It does not matter whether the defen-
dants knew that MDP-2-P was a list chemical.” Id. at 1229.
On appeal, Lo argued that the instruction was erroneous in
that it eliminated the first mens rea requirement; “knowing-
ly,” he contended, modified the term “listed chemical” rather
than the term “possession.” Id.
While recognizing that it was not entirely clear grammati-
cally that “knowingly” does not modify both the phrase “pos-
UNITED STATES v. ESTRADA 7837
sesses or distributes” and “listed chemical,” we rejected the
argument. We did so for two reasons. First, we distinguished
Liparota v. United States, 471 U.S. 419, 421 (1985), requiring
proof under an analogous statute that the defendant knew his
conduct was unauthorized by law, on the ground that while
there the statute contained no mens rea requirement,
§ 841(c)(2) does contain one. Id. at 1230. Second, we noted
that Congress adopted the present version of § 841(c)(2), pro-
hibiting the possession and distribution of listed chemicals, by
substituting its text for an earlier version prohibiting only the
possession of piperidine knowing that it will be used to manu-
facture phencyclidine. Id. at 1230-31. We concluded that it
would be unreasonable to infer that when Congress included
“knowingly,” it meant to add an additional element of
required proof. “[I]t seems very unlikely,” we observed, “that
Congress would have chosen to make prosecution more diffi-
cult by requiring proof that the defendant knew that the chem-
ical was a listed chemical, while at the same time seeking to
expand the scope of prosecution for the possession and distri-
bution of precursor chemicals . . . .” Id. at 1231.
Estrada, unlike Lo, does not contend that the government
must prove that he knew the pills were a listed chemical. He
argues instead that the government must prove that he knew
that the pills were pseudoephedrine. Although his argument
takes a route different from Lo’s, it arrives at the same barrier.
The argument would import a second mens rea requirement
into the statute: knowledge or reasonable cause to believe that
the substance will be used in the manufacture of a controlled
substance plus knowledge of the identity of the specific sub-
stance possessed.
[2] Estrada’s argument is foreclosed by Lo. Lo holds that
§ 841(c) contains only one mens rea requirement and that the
term “knowingly” modifies only the phrase “possesses or dis-
tributes” and not “listed chemical.” What § 841(c) requires
the government to prove is (1) that the defendant knew he
possessed a substance with knowledge or reasonable cause to
7838 UNITED STATES v. ESTRADA
believe that the substance would be used to manufacture a
controlled substance, and (2) that the substance was in fact a
listed chemical. Because we hold that the district court’s
instruction was correct, we do not reach Estrada’s contention
that the evidence was insufficient to prove that he knew the
pills were pseudoephedrine.
II. DESTRUCTION OF EVIDENCE
[3] Although the truck was not destroyed but instead was
sold by the towing company, Estrada argues that his due pro-
cess rights were violated by the government’s bad faith
destruction of the evidentiary value of the truck. In California
v. Trombetta, 467 U.S. 479, 489 (1984), the Supreme Court
held that for destruction or loss of evidence to constitute a
constitutional violation, “[the] evidence must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably
available means.” In Arizona v. Youngblood, 488 U.S. 51, 58
(1988), the Court further held that where lost or destroyed
evidence is deemed to be only potentially exculpatory, as
opposed to apparently exculpatory, the defendant must show
that the evidence was destroyed in bad faith. We review this
claim de novo, but the district court’s factual findings are
reviewed for clear error. United States v. Hernandez, 109 F.3d
1450, 1454 (9th Cir. 1997).
[4] We discern no constitutional violation. As a preliminary
matter, it is uncertain whether the truck’s evidentiary value
was destroyed or lost at all. While unlikely, it is possible that
the new owner had not repaired the truck or cleaned out the
cab, and Estrada does not appear to have made any effort to
track down or contact the new owner. Moreover, the truck
itself was not apparently exculpatory evidence. Estrada argues
that his initial statements to the police made it clear that the
truck was valuable evidence because his story to the police
was that he was the passenger in the vehicle, and not the
UNITED STATES v. ESTRADA 7839
driver. After the crash, the other individual left the scene,
leaving Estrada behind. However, even if an analysis of the
truck indicated that Estrada was a passenger in and not the
driver of the truck, that would not necessarily show that he
did not have possession of the pseudoephedrine.
[5] Given that the truck was at most only potentially excul-
patory evidence, Estrada must show bad faith on the part of
the government. Here, there is no such showing, as there is no
showing that the government knew or intended for the truck
to be sold by the towing company, let alone that the govern-
ment did so with a malicious intent. There was evidence that
the officers called the towing company twice to find out
whether the towing company still had the truck, but there was
no other discussion between the officers and the towing com-
pany. Estrada has not shown a due process violation.
III. ADMISSIBILITY OF THE 1994 FINGERPRINTS
[6] Federal Rule of Evidence 404(b) excludes evidence of
prior acts when offered to prove that the individual acted in
conformity with those prior acts. However, the rule allows
admission of prior acts when offered for other purposes, such
as to show “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
In making admissibility decisions, the court will
admit Rule 404(b) evidence if (1) the evidence tends
to prove a material point; (2) the prior act is not too
remote in time; (3) the evidence is sufficient to sup-
port a finding that the defendant committed the other
act; and (4) (in cases where knowledge and intent are
at issue) the act is similar to the offense charged.
United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir.
2004). Estrada challenges admission of the evidence under the
first three prongs of this test, arguing that the evidence of his
fingerprints on the triple-neck flask from the 1994 storage
7840 UNITED STATES v. ESTRADA
locker seizure did not prove a material point, that ten years
was too remote in time, and that there was insufficient evi-
dence to show that he committed any prior act. We review the
district court’s decision to admit evidence for abuse of discre-
tion. United States v. Lillard, 354 F.3d 850, 853 (9th Cir.
2003).
[7] There is no merit in Estrada’s argument. The finger-
prints do help to prove a material point, because his connec-
tion to this prior methamphetamine manufacturing operation
tends to show that he knew or had reasonable cause to believe
that the pseudoephedrine would be used to make methamphet-
amine. Courts have allowed Rule 404(b) evidence to be
admitted where ten years or longer periods of time have
passed. See United States v. Martinez, 182 F.3d 1107, 1110-
11 (9th Cir. 1999) (ten years); United States v. Ross, 886 F.2d
264, 267 (9th Cir. 1989) (thirteen years); United States v.
Spillone, 879 F.2d 514, 519 (9th Cir. 1989) (ten years). And
while the fingerprints on the flask are insufficient to conclu-
sively show that Estrada committed any prior act, the standard
for admissibility is only that the evidence is sufficient to “sup-
port a finding that the defendant committed the other act.”
Verduzco, 373 F.3d at 1027; see also United States v. Ogles,
406 F.3d 586, 592 (9th Cir. 2005) (stating that “conclusive-
ness is not the relevant standard”). Here, Estrada was able to
argue the sufficiency of the fingerprint in terms of the weight
that the jury should give this evidence. The district court also
gave a limiting instruction as to this evidence, telling the
jurors that they could consider it only as it related to the
defendant’s intent or knowledge. The district court did not
abuse its discretion in admitting this evidence.
CONCLUSION
For the reasons stated above, the conviction is
AFFIRMED.