08-1817-cr(L), 08-3121-cr(Con)
USA v. Romero-Padilla

                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                               August Term, 2009

 (Argued: September 1, 2009                                                   Decided: October 7, 2009)

                              Docket Nos. 08-1817-cr(L); 08-3121-cr(Con)

UNITED STATES OF AMERICA ,

                        Appellee,

                v.

JAIME ENRIQUE ROMERO -PADILLA ,

                        Defendant-Appellant,

JUAN CARLOS CARDONA,

                        Defendant.*

Before: CALABRESI, CABRANES, and HALL, Circuit Judges.

        Appeal from a judgment of the United States District Court for the Southern District of New

York (Denise Cote, Judge) entered June 19, 2008, after a jury found defendant-appellant guilty of

manufacturing or distributing five kilograms or more of cocaine with the knowledge or intent that the

cocaine would be unlawfully imported into the United States, see 21 U.S.C. § 959(a), and of conspiring

to do the same, see 21 U.S.C. § 963. We hold that a conviction under 21 U.S.C. § 959(a) requires proof

beyond reasonable doubt that a defendant actually knew or intended that a substance manufactured or

distributed in violation of that Section would be unlawfully imported into the United States.

        Affirmed.


        *
            The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.

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                                       MICHAEL A. YOUNG (Joyce C. London, on the brief) Joyce C.
                                            London, P.C., New York, NY, for Jaime Enrique Romero-
                                            Padilla.

                                       MARC P. BERGER , Assistant United States Attorney (Michael J.
                                             Garcia, United States Attorney for the Southern District
                                             of New York, and Kevin R. Puvalowski, Assistant
                                             United States Attorney, on the brief), for appellee.

PER CURIAM :

       In this appeal, we consider principally whether 21 U.S.C. § 959(a) requires proof beyond a

reasonable doubt that a defendant knew or intended that a substance manufactured or distributed in

violation of that Section would be unlawfully imported into the United States.

                                           BACKGROUND

       On May 4, 2006, a grand jury indicted defendant-appellant Jaime Enrique Romero-Padilla1 and

six other individuals for conspiring to manufacture or distribute five kilograms or more of cocaine with

the knowledge or intent that the cocaine would be unlawfully imported into the United States, see 21

U.S.C. § 963, and with the substantive offense of manufacturing or distributing five kilograms or more

of cocaine with the knowledge or intent that the cocaine would be unlawfully imported to the United

States in violation of 

The government alleged that Romero-Padilla, formerly an anti-narcotics

officer in the Colombian National Police (“CNP”), and his co-defendants participated in a scheme to

move large quantities of cocaine from Colombia to Mexico with the knowledge that the cocaine would

then be imported into the United States. Of the seven indicted defendants, only Romero-Padilla went

to trial. Three of Romero-Padilla’s co-conspirators testified against him, as did two police officers who

had dealt with him as undercover agents. Among other things, the jury also heard wiretap recordings

of Romero-Padilla and his alleged co-conspirators and saw surveillance videos that showed him with


       1
          The appeal of defendant-appellant Juan Carlos Cardona was dismissed by a July 16, 2008
order of this Court. Accordingly, this opinion addresses only the appeal of defendant-appellant
Jaime Enrique Romero-Padilla.
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the alleged co-conspirators. After the jury returned a verdict of guilty on both counts of the

indictment, the United States District Court for the Southern District of New York (Denise Cote, Judge)

sentenced Romero-Padilla principally to 180 months’ imprisonment.

                                              DISCUSSION

        On appeal, Romero-Padilla contends that (1) the evidence presented at his trial was not

sufficient to establish his knowledge or intent that the narcotics he helped to distribute would be

imported into the United States, as opposed to another country; (2) the District Court erred in admitting

into evidence at his trial proof that Romero-Padilla and one Henry Ferro-Varon (“Ferro”), an alleged

co-conspirator in the instant matter, plotted to transport narcotics to the United States via Mexico and

the Dominican Republic as part of separate transactions not charged in this case; and (3) the District

Court erred in failing to give the jury a “multiple conspiracy instruction.” Appellant’s Br. 47.

        As an initial matter, we consider whether an offense under 21 U.S.C. § 959(a), which provides

that it is “unlawful for any person to manufacture or distribute a controlled substance . . . (1) intending

that such substance or chemical will be unlawfully imported into the United States . . . or (2) knowing

that such substance or chemical will be unlawfully imported into the United States,” 

(emphasis added), requires proof of actual (as opposed to constructive) knowledge where the

government does not prove intent. Romero-Padilla argues, and the government agrees, that § 959(a)

requires proof beyond a reasonable doubt that the defendant actually knew or intended that a

controlled substance he distributed or manufactured would be illegally imported into the United States.

Although our Court has not previously addressed this issue, we agree with the parties that § 959 means

what it says. 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, 

, 443 (D.C. Cir. 1992); see also

United States v. Martinez, 

, 968 (D.C. Cir. 2007). Accordingly, we hold that in order to




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obtain a conviction for an offense under § 959(a), the government must prove the defendant’s actual

knowledge or intent beyond a reasonable doubt.

        Viewing all the evidence in the light most favorable to the government and drawing all

reasonable inferences in its favor, see United States v. Autuori, 

, 114 (2d Cir. 2000), we hold

that Romero-Padilla has not met the “heavy burden,” 

that the evidence presented

at trial was insufficient for any rational trier of fact to find beyond a reasonable doubt that Romero-

Padilla actually knew or intended that the cocaine at issue would be imported into the United States.

See generally Jackson v. Virginia, 

, 319 (1979). In particular, we note that Romero-Padilla does

not dispute that the government adduced the following evidence at trial: (1) as an officer in the CNP,

he 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) he discussed with alleged co-

conspirator Ferro the possibility of importing narcotics to the United States through Mexico; (3) he

commented to Ferro that co-defendant Leonidas Molina-Triana, who orchestrated the charged

conspiracy, frequently imported drugs to the United States; (4) he expressed concern to several alleged

co-conspirators that the Drug Enforcement Agency might be investigating their activities; and (5) on

more than one occasion he handled U.S. currency as part of the alleged conspiracy. From that

evidence, a rational trier of fact could have inferred Romero-Padilla’s actual knowledge that the

narcotics at issue were bound for the United States. Romero-Padilla’s contention that the jury was not

required to make that inference is irrelevant. See United States v. Salmonese, 

, 618 (2d Cir.

2003) (“[T]he task of choosing among permissible competing inferences is for the jury, not a reviewing

court . . . .”); cf. Chan 

(“[P]roof [of knowledge] may take the form of

circumstantial as well as direct evidence.”).




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        We reject Romero-Padilla’s contention that evidence of his previous plans with Ferro to import

narcotics into the United States through Mexico and the Dominican Republic was evidence of “other

crimes” and inadmissible under Federal Rule of Evidence 404(b). Although the evidence did not

concern the charged conspiracy, it was relevant background evidence inasmuch as it corroborated the

charge that Ferro and Romero-Padilla were partners during the charged conspiracy and established that

Romero-Padilla’s participation in the charged conspiracy was at least in part motivated by his desire to

acquire the funds necessary to complete the other contemplated transactions with Ferro. Accordingly,

the evidence fell outside the ambit of Rule 404(b)’s prohibition on “other crimes” evidence. See United

States v. Gonzales, 

, 942 (2d Cir. 1997) (“[E]vidence of uncharged criminal activity is not

considered ‘other crimes’ evidence under Fed. R. Evid. 404(b) if it arose out of the same transaction or

series of transactions as the charged offense, if it [is] inextricably intertwined with the evidence

regarding the charged offense, or if it is necessary to complete the story of the crime [on] trial.”

(internal quotation marks omitted)). Moreover, proof of the planned transactions was admissible as

evidence of Romero-Padilla’s knowledge that the narcotics in the charged conspiracy would ultimately

be transported to the United States. Cf. United States v. Brand, 

, 197 (2d Cir. 2006) (“[P]rior

act evidence is generally admissible to prove that the defendant acted with the state of mind necessary

to commit the offense charged.” (internal quotation marks omitted)). The probative value of this

evidence, moreover, was not substantially outweighed by a risk of unfair prejudice. See Fed. R. Evid.

403.

        The District Court did not err in not instructing the jury that it could find that multiple

conspiracies existed in the instant case—one to transport narcotics from Colombia to Mexico and a

separate conspiracy to transport them to the United States. Where, as here, “only one conspiracy has

been alleged and proved[,] . . . defendants are not entitled to a multiple conspiracy charge.” United

States v. Maldonado-Rivera, 

, 962 (2d Cir. 1990) (internal quotation marks omitted). In any


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event, the District Court’s jury instructions addressed Romero-Padilla’s concern that the jury be

informed that “it had to acquit [defendant] unless it found that he was a member of the conspiracy

charged in the indictment.” Appellant’s Br. 49. Romero-Padilla was charged with conspiracy to

manufacture or distribute drugs that he knew would be imported into the United States, and the

District Court instructed the jury that it could only find him guilty if it found beyond a reasonable

doubt that he was aware that he was joining a conspiracy to import narcotics into the United States.

                                            CONCLUSION

        For reasons stated above, the June 19, 2008 judgment of the District Court is AFFIRMED.




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