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U.S. 9th Circuit Court of Appeals
USA v ORDUNO AGUILERA
9850346
UNITED STATES OF AMERICA,
No. 98-50346
Plaintiff-Appellee,
D.C. No.
v.
CR-98-00423-JTM
ZEFERINO ORDUNO-AGUILERA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
June 8, 1999--Pasadena, California
Filed July 19, 1999
Before: Dorothy W. Nelson, Stephen Reinhardt and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Trott
_________________________________________________________________
OPINION
TROTT, Circuit Judge:
Zeferino Orduno-Aguilera appeals his jury convictions for
importing anabolic steroids in violation of 21 U.S.C. SS 952,
960 and possessing anabolic steroids with intent to distribute
in violation of 21 U.S.C. S 841. We have jurisdiction pursuant
to 21 U.S.C. S 1291, and because (1) the substances with
which he was charged were only esters, i.e., salts of anabolic
steroids, and (2) the government offered no evidence that the
substances promote muscle growth as required by the statute,
we reverse for insufficient evidence.
I
Background
Orduno-Aguilera was attempting to enter the United States
through the San Ysidro, California Port of Entry when custom
inspectors searched his Toyota Tercel. Underneath the rear
seat, in hidden compartments within both of the doors and in
the trunk, the inspectors found small boxes containing over
400 vials of liquid. Orduno-Aguilera was subsequently
indicted on two counts: importation of and possession with
intent to distribute anabolic steroids, a Schedule III Controlled
Substance, in violation of 21 U.S.C. SS 841, 952, 960.
At trial, the government offered the testimony of Wisen
Maroge, a forensic chemist with eleven years of experience
working for the Drug Enforcement Administration ("DEA").
During voir dire, he admitted he did not have any expertise in
determining the physiological effects of any chemical sub-
stance on the human body, and that he was just a chemist.
Maroge testified that he analyzed the substances seized and
determined that the vials contained testosterone propionate,
boldenone undecylenate, and testosterone enanthate. Over
defense counsel's objection, he further testified that these
chemicals were anabolic steroids.
On cross-examination, however, defense counsel estab-
lished that (1) the chemicals testosterone propionate and tes-
tosterone enanthate are actually ester derivatives 1 of the drug
testosterone and (2) that boldenone undecylenate is an ester
derivative of the drug boldenone. Defense counsel further
established that Maroge's sole basis for determining that the
drugs in question were anabolic steroids was the fact that they
tested positive as ester derivatives of testosterone and bolde-
none.
At the close of evidence, the defense moved under Rule 29
for an acquittal on the basis that the Government failed to
prove beyond a reasonable doubt that the substances involved
in the case were anabolic steroids. The judge denied the
motion; the case went to the jury; and Orduno-Aguilera was
convicted on both counts.
II
Standard of Review
"There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. " United
States v. Nelson, 137 F.3d 1094, 1103 (9th Cir. 1998) (citing
Jackson v. Virginia,
443 U.S. 307, 319
(1979)). Because
Orduno-Aguilera properly preserved this issue by making a
motion for an acquittal after the close of all evidence, this
court's standard of review is the same as that of the district
court's denial of that motion. United States v. Bahena-
Cardenas, 70 F.3d 1071, 1072-73 (9th Cir. 1995). We review
de novo. Id. at 1072.
III
Sufficiency of Evidence
[1] Orduno-Aguilera argues that the Government failed to
prove the substances in question are anabolic steroids because
it failed to provide any evidence that the substances in ques-
tion satisfied the statutory definition. The statutory definition
provides:
The term "anabolic steroid" means any drug or hor-
monal substance, chemically and pharmacologically
related to testosterone (other than estrogens, proges-
tins, and corticosteroids) that promotes muscle
growth, and includes--
(i) boldenone,
. . .
(xxvi) testosterone,
. . . and
(xxviii) any salt, ester, or isomer of a drug or sub-
stance described or listed in this paragraph, if that
salt, ester, or isomer promotes muscle growth.
21 U.S.C. S 802(41)(A) (West Supp. 1999) (emphasis added).
Orduno-Aguilera argues that, because the Government
failed to provide any evidence that the ester derivatives in
question promote muscle growth, there was insufficient evi-
dence to uphold the conviction. We agree.
[2] The Due Process Clause requires the Government to
prove all facts necessary to convict a defendant beyond a rea-
sonable doubt. This matter was resolved in In re Winship, 397
U.S. 358 (1970), in which the Court held, "Lest there remain
any doubt about the constitutional stature of the reasonable-
doubt standard, we explicitly hold that the Due Process
Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged." Id. at 364.
The importance of this ruling was recently reaffirmed in
Jones v. United States, _______ U.S._______, 119 S. Ct. 1215 (1999),
in which the Court, while addressing the distinction between
elements of the offense and sentencing factors, reiterated that
every element of the offense "must be charged in the indict-
ment, submitted to a jury, and proven by the Government
beyond a reasonable doubt." Id. at 1219.
[3] In this case, the jury was properly instructed that the
elements of the offense for unlawful importation were that:
(1) the defendant intentionally brought anabolic steroids into
the United States; and (2) the defendant knew that they were
anabolic steroids or some other prohibited drug. Similarly, the
elements required to convict on the count for possession with
intent to distribute were that (1) the defendant knowingly pos-
sessed anabolic steroids; and (2) the defendant possessed
them with intent to deliver them to another person.
[4] The Government had the burden of proving, beyond a
reasonable doubt, that the substances in question were
"anabolic steroids." Yet the Government failed to offer ade-
quate evidence that the substance met the statutory definition.
The statute specifically states that only certain types of ester
derivatives of boldenone and testosterone--those that pro-
mote muscle growth--meet its definition of anabolic steroids.
The language of the definition necessarily implies that there
may be other types of ester derivatives--those that do not pro-
mote muscle growth--that are not prohibited under the stat-
ute. There was no evidence admitted that even purported to
prove that the substances imported and possessed by Orduno-
Aguilera promote muscle growth. The chemist, Wisen
Maroge, could offer nothing on this issue. Because this fact
is a necessary element of the statutory definition of anabolic
steroids, which is in turn a necessary element of the offense,
failure to offer this evidence resulted in insufficient evidence
to sustain the jury's verdict.
In an effort to uphold the conviction, the Government
argues that it was not required to provide scientific testimony
or other forms of direct testimony to prove that the drugs were
anabolic steroids. It argues that the circumstantial evidence in
the case is sufficient, pointing out the clandestine nature with
which Orduno-Aguilera attempted to bring the drugs across
the border and the fact that there was a distributable quantity
of the drugs.
[5] It is true that "[c]ircumstantial evidence and inferences
drawn from it may be sufficient to sustain a conviction."
United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir.
1998) (citation omitted). Furthermore, we agree with the Sixth
Circuit that the allowance of circumstantial evidence recog-
nizes the practical impossibility of providing direct evidence
in many contexts, particularly drug cases:
an evidentiary rule [requiring scientific analysis to
identify drugs] . . . would insulate from prosecution
a large class of unlawful acts involving illicit drugs
when the government happens upon the scene too
late to seize a sample of the substance. To our
knowledge, no court has held that scientific identifi-
cation of a substance is an absolute prerequisite to
conviction for a drug-related offense, and we too are
unwilling to announce such a rule.
United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988).
However, while circumstantial evidence, combined with
reasonable inferences, may be enough, this does not relieve
the Government of its burden to prove every fact necessary to
convict a defendant beyond a reasonable doubt. In re Winship,
397 U.S. at 364
. The clandestine nature of the transporting of
the vials of liquid, along with the quantity involved, is suscep-
tible to a number of inferences, including a desire to avoid
customs duty. It is not enough by itself to supply the missing
evidentiary link. There is simply no evidence, circumstantial
or otherwise, that would allow the jury to infer the muscle-
promoting potential of the drugs seized. Absent such evi-
dence, the conviction cannot be sustained.
REVERSED. the end
_______________________________________________________________
FOOTNOTES
1 "Ester" was defined at trial simply as "an inorganic--it's called a salt."
U.S. 9th Circuit Court of Appeals
USA v ORDUNO AGUILERA
9850346
UNITED STATES OF AMERICA,
No. 98-50346
Plaintiff-Appellee,
D.C. No.
v.
CR-98-00423-JTM
ZEFERINO ORDUNO-AGUILERA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
June 8, 1999--Pasadena, California
Filed July 19, 1999
Before: Dorothy W. Nelson, Stephen Reinhardt and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Trott
_________________________________________________________________
OPINION
TROTT, Circuit Judge:
Zeferino Orduno-Aguilera appeals his jury convictions for
importing anabolic steroids in violation of 21 U.S.C. SS 952,
960 and possessing anabolic steroids with intent to distribute
in violation of 21 U.S.C. S 841. We have jurisdiction pursuant
to 21 U.S.C. S 1291, and because (1) the substances with
which he was charged were only esters, i.e., salts of anabolic
steroids, and (2) the government offered no evidence that the
substances promote muscle growth as required by the statute,
we reverse for insufficient evidence.
I
Background
Orduno-Aguilera was attempting to enter the United States
through the San Ysidro, California Port of Entry when custom
inspectors searched his Toyota Tercel. Underneath the rear
seat, in hidden compartments within both of the doors and in
the trunk, the inspectors found small boxes containing over
400 vials of liquid. Orduno-Aguilera was subsequently
indicted on two counts: importation of and possession with
intent to distribute anabolic steroids, a Schedule III Controlled
Substance, in violation of 21 U.S.C. SS 841, 952, 960.
At trial, the government offered the testimony of Wisen
Maroge, a forensic chemist with eleven years of experience
working for the Drug Enforcement Administration ("DEA").
During voir dire, he admitted he did not have any expertise in
determining the physiological effects of any chemical sub-
stance on the human body, and that he was just a chemist.
Maroge testified that he analyzed the substances seized and
determined that the vials contained testosterone propionate,
boldenone undecylenate, and testosterone enanthate. Over
defense counsel's objection, he further testified that these
chemicals were anabolic steroids.
On cross-examination, however, defense counsel estab-
lished that (1) the chemicals testosterone propionate and tes-
tosterone enanthate are actually ester derivatives 1 of the drug
testosterone and (2) that boldenone undecylenate is an ester
derivative of the drug boldenone. Defense counsel further
established that Maroge's sole basis for determining that the
drugs in question were anabolic steroids was the fact that they
tested positive as ester derivatives of testosterone and bolde-
none.
At the close of evidence, the defense moved under Rule 29
for an acquittal on the basis that the Government failed to
prove beyond a reasonable doubt that the substances involved
in the case were anabolic steroids. The judge denied the
motion; the case went to the jury; and Orduno-Aguilera was
convicted on both counts.
II
Standard of Review
"There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. " United
States v. Nelson, 137 F.3d 1094, 1103 (9th Cir. 1998) (citing
Jackson v. Virginia,
443 U.S. 307, 319
(1979)). Because
Orduno-Aguilera properly preserved this issue by making a
motion for an acquittal after the close of all evidence, this
court's standard of review is the same as that of the district
court's denial of that motion. United States v. Bahena-
Cardenas, 70 F.3d 1071, 1072-73 (9th Cir. 1995). We review
de novo. Id. at 1072.
III
Sufficiency of Evidence
[1] Orduno-Aguilera argues that the Government failed to
prove the substances in question are anabolic steroids because
it failed to provide any evidence that the substances in ques-
tion satisfied the statutory definition. The statutory definition
provides:
The term "anabolic steroid" means any drug or hor-
monal substance, chemically and pharmacologically
related to testosterone (other than estrogens, proges-
tins, and corticosteroids) that promotes muscle
growth, and includes--
(i) boldenone,
. . .
(xxvi) testosterone,
. . . and
(xxviii) any salt, ester, or isomer of a drug or sub-
stance described or listed in this paragraph, if that
salt, ester, or isomer promotes muscle growth.
21 U.S.C. S 802(41)(A) (West Supp. 1999) (emphasis added).
Orduno-Aguilera argues that, because the Government
failed to provide any evidence that the ester derivatives in
question promote muscle growth, there was insufficient evi-
dence to uphold the conviction. We agree.
[2] The Due Process Clause requires the Government to
prove all facts necessary to convict a defendant beyond a rea-
sonable doubt. This matter was resolved in In re Winship, 397
U.S. 358 (1970), in which the Court held, "Lest there remain
any doubt about the constitutional stature of the reasonable-
doubt standard, we explicitly hold that the Due Process
Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged." Id. at 364.
The importance of this ruling was recently reaffirmed in
Jones v. United States, _______ U.S._______, 119 S. Ct. 1215 (1999),
in which the Court, while addressing the distinction between
elements of the offense and sentencing factors, reiterated that
every element of the offense "must be charged in the indict-
ment, submitted to a jury, and proven by the Government
beyond a reasonable doubt." Id. at 1219.
[3] In this case, the jury was properly instructed that the
elements of the offense for unlawful importation were that:
(1) the defendant intentionally brought anabolic steroids into
the United States; and (2) the defendant knew that they were
anabolic steroids or some other prohibited drug. Similarly, the
elements required to convict on the count for possession with
intent to distribute were that (1) the defendant knowingly pos-
sessed anabolic steroids; and (2) the defendant possessed
them with intent to deliver them to another person.
[4] The Government had the burden of proving, beyond a
reasonable doubt, that the substances in question were
"anabolic steroids." Yet the Government failed to offer ade-
quate evidence that the substance met the statutory definition.
The statute specifically states that only certain types of ester
derivatives of boldenone and testosterone--those that pro-
mote muscle growth--meet its definition of anabolic steroids.
The language of the definition necessarily implies that there
may be other types of ester derivatives--those that do not pro-
mote muscle growth--that are not prohibited under the stat-
ute. There was no evidence admitted that even purported to
prove that the substances imported and possessed by Orduno-
Aguilera promote muscle growth. The chemist, Wisen
Maroge, could offer nothing on this issue. Because this fact
is a necessary element of the statutory definition of anabolic
steroids, which is in turn a necessary element of the offense,
failure to offer this evidence resulted in insufficient evidence
to sustain the jury's verdict.
In an effort to uphold the conviction, the Government
argues that it was not required to provide scientific testimony
or other forms of direct testimony to prove that the drugs were
anabolic steroids. It argues that the circumstantial evidence in
the case is sufficient, pointing out the clandestine nature with
which Orduno-Aguilera attempted to bring the drugs across
the border and the fact that there was a distributable quantity
of the drugs.
[5] It is true that "[c]ircumstantial evidence and inferences
drawn from it may be sufficient to sustain a conviction."
United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir.
1998) (citation omitted). Furthermore, we agree with the Sixth
Circuit that the allowance of circumstantial evidence recog-
nizes the practical impossibility of providing direct evidence
in many contexts, particularly drug cases:
an evidentiary rule [requiring scientific analysis to
identify drugs] . . . would insulate from prosecution
a large class of unlawful acts involving illicit drugs
when the government happens upon the scene too
late to seize a sample of the substance. To our
knowledge, no court has held that scientific identifi-
cation of a substance is an absolute prerequisite to
conviction for a drug-related offense, and we too are
unwilling to announce such a rule.
United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988).
However, while circumstantial evidence, combined with
reasonable inferences, may be enough, this does not relieve
the Government of its burden to prove every fact necessary to
convict a defendant beyond a reasonable doubt. In re Winship,
397 U.S. at 364
. The clandestine nature of the transporting of
the vials of liquid, along with the quantity involved, is suscep-
tible to a number of inferences, including a desire to avoid
customs duty. It is not enough by itself to supply the missing
evidentiary link. There is simply no evidence, circumstantial
or otherwise, that would allow the jury to infer the muscle-
promoting potential of the drugs seized. Absent such evi-
dence, the conviction cannot be sustained.
REVERSED. the end
_______________________________________________________________
FOOTNOTES
1 "Ester" was defined at trial simply as "an inorganic--it's called a salt."
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