United States v. Raquel Rivera

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-3293
____________
UNITED STATES OF AMERICA
v.
RAQUEL RIVERA,
Appellant
On Appeal from the District Court of the Virgin Islands
(St. Thomas Division)
(D.C. No. 3-20-cr-00020-001)
District Judge: Honorable Robert A. Molloy
Argued on June 3, 2022
Before: JORDAN, MATEY and ROTH, Circuit Judges
(Opinion filed: July 19, 2023)
Matthew A. Campbell (ARGUED)
Office of Federal Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802
Counsel for Appellant
Adam Sleeper (ARGUED)
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
O P I N I ON
ROTH, Circuit Judge:
In 2018, the President signed into law the Agriculture
Improvement Act, colloquially called the Farm Bill. The Farm
Bill amended the Controlled Substances Act to exclude hemp
from the definition of marijuana. 1 Both hemp and marijuana
are the plant Cannabis sativa L., which we will refer to simply
as cannabis. 2 However, hemp has a tetrahydrocannabinol
1
Pub. L. 115-334, 132 Stat. 4490.
2
Compare 21 U.S.C. § 802(16) with 7 U.S.C. § 1639o(1).
2
(“THC”) concentration of 0.3% or less. 3
In this case, a jury convicted Raquel Rivera of
possessing marijuana with the intent to distribute. Rivera
concedes that she possessed cannabis. She argues, however,
that there was insufficient evidence to support her conviction
because the government did not prove her cannabis had more
than 0.3% THC, i.e., that it was not hemp.
Contrary to Rivera’s argument, the government did not
need to prove this fact. By excluding hemp from the definition
of marijuana, the Farm Bill carved out an exception to
marijuana offenses: Someone with cannabis possesses
marijuana except if the cannabis has a THC concentration of
0.3% or less. The government need not disprove an exception
to a criminal offense unless a defendant produces evidence to
put the exception at issue. 4 Because Rivera did not put the
hemp exception at issue, the government bore no burden to
prove that it was inapplicable. We will therefore affirm the
District Court’s judgment of conviction.
I. BACKGROUND
A. Facts
In April 2020, Rivera flew from Miami to Saint
Thomas. At the Saint Thomas airport, Customs and Border
Protection officers selected her for extra screening. As part of
that process, they asked her to fill out a Customs Declaration
Form. On the Form, and in statements to officers, Rivera
3
7 U.S.C. § 1639o(1).
4
See United States v. Polan, 970 F.2d 1280, 1282–83 (3d Cir.
1992).
3
claimed ownership of two suitcases that she had retrieved from
the baggage claim.
When officers later brought Rivera to an examination
room, they again asked her if she owned both suitcases. This
time, she said she did not own one of them. The suitcase that
Rivera said she did not own had a baggage tag with her name
on it. Rivera said the suitcase belonged to her friend, Amber
Nieves. The other suitcase, which Rivera did not disclaim, had
a baggage tag with Nieves’ name on it.
Rivera said that Nieves came to Saint Thomas on an
earlier American Airlines flight, but Nieves’s suitcase was put
on Rivera’s flight and Nieves asked Rivera to pick it up for her.
Rivera said that Nieves told her that the suitcase contained
groceries. At another point, Rivera said she did not know if
Nieves was traveling that day. Rivera also said she was coming
to the Virgin Islands for the funeral of a friend. She said that
someone she knows only by the name “Mama” would pick her
up.
The officers ultimately searched both suitcases in front
of Rivera. Each suitcase contained six vacuumed-sealed bags
of a green, plant-like substance. The bags were concealed by
clothes, towels, blankets, and dryer sheets. An officer testified
that, throughout the search, Rivera “was mainly calm” and did
not seem surprised.
A Department of Homeland Security special agent came
to the airport to interview Rivera. When speaking with the
agent, Rivera changed her story about who told her to pick up
one of the suitcases. The agent later testified at trial that “a
friend, a person she only knew as Bebar, asked her to pick up
4
Nieves’ suitcase.” 5 When the agent asked Rivera about the
green, leafy substance in the suitcases, she said she did not
know it was in the suitcases. She said the suitcases were
packed by someone she knew as “Uncle” or “Tio.”
Rivera told the agent that she did not have a bank
account, debit card, or credit card, and that she had only a few
dollars in cash. The agent testified that, at the end of the
interview, he told Rivera that her “story didn’t make any
sense.” 6 Rivera responded that her life doesn’t make sense, or
something to that effect.
B. Procedural History
A grand jury charged Rivera with (1) conspiracy to
possess, with intent to distribute, less than 50 kilograms of
marijuana; and (2) possession, with intent to distribute, less
than 50 kilograms of marijuana.
At trial, the government presented the testimony of a
drug chemist, Rafael Martinez, who works in Customs and
Border Protection’s laboratory division. The District Court
certified Martinez as an expert in forensic chemistry. Martinez
testified that he performed three tests on the substance seized
from Rivera, including one test that determines whether the
substance contains THC. Based on the results of these tests,
Martinez testified that the substance was marijuana. However,
on cross-examination, Martinez stated that he did not
determine the precise amount of THC in the substance—that
is, whether the substance had more than 0.3% THC.
5
Id. at 167–68.
6
Id. at 182.
5
After the government presented its evidence, Rivera
rested without presenting any evidence. Rivera then moved for
judgment of acquittal under Federal Rule of Criminal
Procedure 29. Rivera argued that the government failed to
prove its case beyond a reasonable doubt because it did not
present evidence that there was more than 0.3% THC in the
seized substance. The District Court deferred ruling on the
motion until after the jury returned a verdict.
The District Court instructed the jury on the statutory
definitions of “marijuana” and “hemp.” The District Court
also instructed the jury that it could rely on both direct and
circumstantial evidence. The jury acquitted Rivera of the
conspiracy offense and convicted her of the possession offense.
After the jury returned its verdict, the District Court denied
Rivera’s motion for judgment of acquittal.
The District Court sentenced Rivera to 60 months of
probation. She appealed.
II. JURISDICTION & STANDARD OF
REVIEW
The District Court had jurisdiction under 48 U.S.C. §
1612 and 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291.
Under Federal Rule of Criminal Procedure 29, a
defendant is entitled to judgment of acquittal if, viewing the
record in the light most favorable to the government, no
rational jury could have found the defendant guilty beyond a
6
reasonable doubt. 7 We review de novo a district court’s denial
of a motion for judgment of acquittal. 8
III. DISCUSSION
A. Statutory Background
With the passage of the Farm Bill, the Controlled
Substances Act provided:
(16)(A) Subject to subparagraph (B), the term
“marihuana” means all parts of the plant
Cannabis sativa L., whether growing or not; the
seeds thereof; the resin extracted from any part
of such plant; and every compound,
manufacture, salt, derivative, mixture, or
preparation of such plant, its seeds or resin.
(B) The term “marihuana” does not include—
(i) hemp, as defined in section 1639o of
Title 7; or
(ii) the mature stalks of such plant, fiber
produced from such stalks, oil or cake
made from the seeds of such plant, any
other compound, manufacture, salt,
derivative, mixture, or preparation of such
mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the
sterilized seed of such plant which is
7
United States v. Willis, 844 F.3d 155, 164 n.21 (3d Cir. 2016).
8
Id.7
incapable of germination. 9
In turn, Hemp is defined as:
the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and all
derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether
growing or not, with a delta-9 [THC]
concentration of not more than 0.3 percent on a
dry weight basis. 10
Separately, 21 U.S.C. § 885(a)(1) provides that the government
does not need to “negative any exemption or exception set
forth” in the subchapter of the Controlled Substance Act that
defines marijuana. 11 Indeed, through § 885(a)(1), Congress
placed “the burden of going forward with evidence” of “such
exemption or exception” squarely on “the person claiming its
benefit.” 12
We applied § 885(a)(1) in United States v. Polan. 13
9
21 U.S.C. § 802(16). We use “marijuana” and “marihuana”
interchangeably rather than alter quoted language to conform
to our preferred spelling, “marijuana.” As of December 2,
2022, the first line of Section 16(A) has been changed from
“the term ‘marihuana’ means” to “the terms ‘marihuana’ and
‘marijuana’ mean.” Pub. L. 117–215, § 2(b)(1). 16(B) has also
been amended to read “The terms ‘marihuana’ and ‘marijuana’
do not include.” Pub. L. 117–215, § 2(b)(2).
10
7 U.S.C. § 1639o(1).
11
21 U.S.C. § 885(a)(1).
12
Id.13
970 F.2d 1280, 1282–83 (3d Cir. 1992).
8
There, the government charged a doctor with violating a
provision of the Controlled Substances Act that makes it
unlawful to distribute a controlled substance “[e]xcept as
authorized by this subchapter.” 14 We recognized that a
physician falls within the authorized-by-this-subchapter
exception when the physician distributes drugs in the usual
course of his professional practice. 15 However, because the
exception is just that—an exception, not an element of the
offense—the government did not have to allege in the
indictment that the physician was not distributing drugs in the
usual course of his practice. 16 Polan illustrates how §
885(a)(1) relieves the government of any burden to negative an
exception to certain drug offenses, at least until the defendant
presents evidence to put the exception at issue.
B. Analysis
Congress codified § 885(a)(1)’s rule over 50 years
ago. 17
However, the general principle that the government
need not negative an exception to an offense has been settled
for at least a century. 18 In Smith v. United States, a decision
14
21 U.S.C. § 841(a)(1).
15
Polan, 970 F.3d at 1282.
16
Id.
17
Pub. L. 91-513, Title II, § 515, Oct. 27, 1970, 84 Stat. 1279.
18
McKelvey v. United States, 260 U.S. 353, 356–57 (1922).
This principle is not limited to controlled substance offenses—
the subject of § 885(a)(1). To take one example: For offenses
that turn on whether a defendant used a “firearm,” as defined
by 18 U.S.C. § 921(a)(3), the government does not ordinarily
need to prove that the defendant’s weapon was not an antique
firearm. United States v. Lawrence, 349 F.3d 109, 121 (3d Cir.
9
that predates § 885(a)(1), the D.C. Circuit applied this general
principle when a defendant was “convicted for violating the
marihuana statutes.” 19 At the time, the definition of marijuana
in the U.S. Code was similar to the Code’s definition of
marijuana today. 20 Although the Code did not include the
hemp exception, it set forth the same broad definition of
marijuana and included a carve-out, like today’s Code, for
items such as “‘the mature stalks’” of a cannabis plant. 21
Whereas today’s Code states that marijuana “does not include”
these items (and hemp), 22 the Code then stated that marijuana
“‘shall not include’” these items. 23
In Smith, an expert testified that “certain cigarettes
which [the defendant] sold ‘contained marihuana’ and that
‘Cannabis sativa is marihuana.’” 24 However, “there was no
testimony that the Cannabis sativa in [the defendant’s]
cigarettes was, or that it was not, derived from the sources
2003). Although § 921(a)(3) provides that the term “firearm”
“does not include an antique firearm,” we explained that the
“exemption for antique firearms . . . is an affirmative defense
that must be raised by [the] defendant and supported by some
evidence before the government has to prove the contrary
beyond a reasonable doubt.” Lawrence, 349 F.3d at 123.
19
Smith v. United States, 269 F.2d 217, 218 (D.C. Cir. 1959)
(per curiam).
20
Compare id. (quoting 26 U.S.C. § 4761(2), 68A Stat. 566)
with 21 U.S.C. § 802(16).
21
Smith, 269 F.2d at 218 (quoting 26 U.S.C. § 4761(2)).
22
21 U.S.C. § 802(16).
23
Smith, 269 F.2d at 218 (quoting 26 U.S.C. § 4761(2), 68A
Stat. 566).
24
Id.10
which the statute says marihuana ‘shall not include.’” 25 The
D.C. Circuit nonetheless affirmed the defendant’s conviction,
relying on the principle that the defendant bears the burden of
producing evidence that an exception to a criminal offense
applies. 26
This case is like Smith: The government in Smith did
not need to produce evidence that the defendant’s substance
was not one of the items that marijuana “shall not include.”
Here the government did not need to produce evidence that
Rivera’s substance was not hemp that marijuana “does not
include.” This holding is dictated by the general principle, now
codified at § 885(a)(1), that the government need not negative
an exception to a criminal offense.
Rivera argues that the Farm Bill created a new element
for marijuana offenses: That a defendant’s cannabis has more
than 0.3% THC. Put differently, Rivera tries to avoid
§ 885(a)(1) by arguing that the Farm Bill did not create an
exception to marijuana’s definition, but rather redefined
marijuana as a general matter. This argument fails. The words
that the Controlled Substances Act uses to describe
marijuana’s relationship with hemp—“does not include”—are
plainly exception-creating words. They differ from the words
Congress used when defining THC concentration as an
element of a substance: Hemp is “the plant Cannabis sativa L.
. . . with a delta-9 [THC] concentration of not more than 0.3
percent . . . ” 27 If Congress wanted to make cannabis’s THC
concentration an element of marijuana, it could have defined
25
Id.
26
Id.
27
7 U.S.C. § 1639o(1).
11
marijuana as “the plant Cannabis sativa L. . . . with a delta-9
[THC] concentration of more than 0.3 percent.” Instead,
Congress provided a general definition of marijuana, and then
established exceptions with the words “does not include.”
Legislative history confirms that the Farm Bill carved
out hemp as an exception to marijuana. A House Conference
Report expressly calls the hemp provision an exemption; in
detailing conforming changes to the Controlled Substances
Act, the Report states that the “Senate amendment amends the
existing exemptions to include hemp” and the “Conference
substitute adopts the Senate provision.” 28
To support her argument that THC concentration is an
element of marijuana offenses, Rivera cites cases that analyze
marijuana offenses under the categorical approach. 29 The
specifics of that approach, and how courts applied it in the
cases cited by Rivera, are irrelevant here. What matters is that
none of the courts mentioned, much less applied, § 885(a)(1).30
They therefore did not consider its rule that the government
does not generally bear the burden of disproving an exception
28
H.R. Conf. Rep. 115-1072 (emphasis added).
29
See Appellant’s Br. at 24–28 (citing United States v.
Bautista, 989 F.3d 698, 704–05 (9th Cir. 2021); United States
v. Williams, 850 F. App’x 393, 399–402 (6th Cir. 2021);
United States v. Batiz-Torres, 562 F. Supp. 3d 28, 32–33 (D.
Ariz. 2021); United States v. Jamison, 502 F. Supp. 3d 923,
927–31 (M.D. Pa. 2020); United States v. Miller, 480 F. Supp.
3d 615, 621–24 (M.D. Pa. 2020)).
30
Bautista, 989 F.3d at 704–05; Williams, 850 F. App’x at
399–402; Batiz-Torres, 562 F. Supp. 3d at 32–33; Jamison,
502 F. Supp. 3d at 927–31; Miller, 480 F. Supp. 3d at 621–24.
12
to a criminal offense.
Separately, Rivera relies on United States v. Vargas-
Castillo, 31 where the Ninth Circuit Court of Appeals examined
the elements of marijuana offenses. In that case, a defendant
was caught crossing the border with marijuana and cocaine,
and a grand jury charged him with both (1) possessing and
importing marijuana and (2) possessing and importing
cocaine. 32 The question on appeal was whether the indictment
was multiplicitous; that is, whether the grand jury charged
multiple counts for a single offense. 33 The court held that the
marijuana counts were not multiplicitous of the cocaine counts
because the marijuana counts required the government to prove
that the defendant’s substance was marijuana and the cocaine
counts required the government to prove that the defendant’s
substance was cocaine. 34 In reaching this conclusion, the court
stated that to prove the marijuana offenses, the government had
to prove that the defendant possessed “the part of the plant
specifically included and not specifically excluded from the
definition of ‘marijuana.’” 35 The court observed, “While there
may not be an express definition of ‘cocaine,’ it does not fall
within the definition of Cannabis sativa L.” 36
To hold that the definition of cocaine is different from
the definition of marijuana does not require a careful reading
of the definition of marijuana, nor does it require an
31
329 F.3d 715, 719 (9th Cir. 2003).
32
Id. at 717.
33
Id. at 718–19.
34
Id. 719–20.
35
Id. at 719.
36
Id.13
examination of who bears the burden of production on
exceptions to marijuana offenses. Perhaps for that reason,
Vargas-Castillo, like the categorical approach cases cited by
Rivera, does not mention § 885(a)(1). Vargas-Castillo
therefore fails to dissuade us that Rivera bore the burden of
producing evidence to put the hemp exception at issue.
IV. CONCLUSION
Because the government did not bear the burden of
proving that Rivera’s cannabis was not hemp, we will affirm
the judgment of the District Court. 37
37
The government argues that, even if it were required to prove
that Rivera’s cannabis was not hemp, we should affirm because
the government presented sufficient evidence of this fact. We
need not address this argument given our conclusion that the
government was not required to prove that Rivera’s cannabis
was not hemp.
The District Court took the opposite tack: It decided there
was sufficient evidence for the jury to conclude Rivera
possessed marijuana rather than hemp, but it did not address
whether the government bore the burden of proving that fact.
Regardless, we may affirm the District Court “for any reason
supported by the record,” United States v. Schneider, 801 F.3d
186, 201 (3d Cir. 2015) (internal quotation marks omitted), and
will do so here.
14