ALBERTO GOMEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5978 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1513-A1515) is reported at 905 F.2d 1513. JURISDICTION The judgment of the court of appeals was entered on July 13, 1990. The petition for a writ of certiorari was filed on October 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the ten-year mandatory minimum sentence prescribed by 21 U.S.C. 841(b)(1)(A) for cocaine offenses of five or more kilograms applies if the defendant believed at the time of the offense that the drug in which he was trafficking was marijuana. STATEMENT After a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted on one count of conspiracy to possess a controlled substance (cocaine) with intent to distribute, in violation of 21 U.S.C. 846 (Count 1); one count of possessing a controlled substance (cocaine) with intent to distribute, in violation of 21 U.S.C. 841(a)(1) (Count 2); one count of possessing a controlled substance (cocaine), in violation of 21 U.S.C. 844(a) (Count 3); and one count of failing to appear for a court proceeding, in violation of 18 U.S.C. 3146(a)(1) (Count 4). He was sentenced to concurrent 10-year terms of imprisonment for Counts 1 and 2, a concurrent one-year term for Count 3, and a consecutive two-year term for Count 4. The court of appeals affirmed. Pet. App. A1513-A1515; Judgment & Commitment Order. 1. The evidence is summarized in the opinion of the court of appeals. Pet. App. A1514. It showed that, in exchange for $5,000 in cash offered by two men he had met in Miami, Florida, petitioner agreed to drive a car from Miami to a hotel parking lot in Detroit, Michigan, and to leave the car there for several hours before driving it back to Miami. The two men supplied petitioner with a small packet of cocaine for the purpose of helping him stay awake during the drive. Ibid. While petitioner was driving to Detroit, a Georgia state trooper stopped him for speeding. Petitioner consented to the trooper's search of his vehicle, which uncovered the cocaine packet, as well as more than 10 kilograms of cocaine that was concealed in the vehicle's rear quarter panels. According to his statement to police, petitioner knew that some kind of drug was hidden in the car, but believed the drug to be a small quantity of marijuana. Pet. App. A1514. 2. During its deliberations, the jury sent the district judge a note asking whether, in order to be convicted of possession with intent to distribute the concealed cocaine and of conspiracy to commit that offense, petitioner had to know that the controlled substance was cocaine. The court instructed the jury that petitioner did not have to know the type of controlled substance that he was carrying, so long as he knew that he was carrying some controlled substance. The jury's guilty verdicts reflected no determination on its part that petitioner knew he was carrying cocaine. Pet. App. A1514. 3. At sentencing, the district court treated Counts 1 and 2 as falling within Section 841(b)(1)(A)'s 10-year mandatory minimum sentence provision for offenses involving more than five kilograms of cocaine. Accordingly, the court imposed concurrent ten-year prison terms on those counts. The court rejected petitioner's argument that because his theory of defense had been that he believed the concealed drug to be marijuana, and because the jury's verdict reflected no determination of what type of illegal drug he thought he was carrying, the mandatory minimum penalty for cocaine offenses should not apply. Pet. App. A1514. 4. On appeal, petitioner renewed his contention that Section 841(b)(1)(A)'s mandatory minimum sentence provision does not apply to him because he did not know that the drug he transported was cocaine. The court of appeals rejected this argument. Pet. App. A1514-A1515. The court began by taking note of the line of decisions holding that, so long as a defendant knew he was dealing with a controlled substance, it need not be proved, for a conviction, that he knew the type of drug involved, and that a defendant also need not know the amount of the drug involved in order to be subject to a mandatory minimum sentence based on quantity. Id. at A1514. The court then explained that the rationale for those decisions -- that one who becomes involved in an illegal drug transaction assumes the risk that his anti-social action will subject him to enhanced criminal liability -- supports the conclusion that "a defendant need not be found to know the particular drug involved in order to receive a mandatory sentence based on the kind of drug under Section 841(b)(1)." Ibid. ARGUMENT Petitioner contends that he should not have received the ten-year minimum sentence required for trafficking in cocaine because the theory of the defense was that he believed the drug to be marijuana and because the jury's verdict did not resolve the issue. Pet. 13-21. The courts below correctly held that petitioner was subject to the mandatory minimum sentence regardless of which drug he believed he possessed. /1/ Nothing in the pertinent language of 21 U.S.C. 841 or 21 U.S.C. 846 makes knowledge of the particular type of illegal drug involved in the offense a requirement for imposition of a mandatory minimum sentence. Section 841(a) makes it a crime "for any person knowingly or intentionally" to possess with intent to distribute "a controlled substance." Pursuant to this language, courts have uniformly held that a defendant need not be aware of the type of controlled substance involved in a transaction, so long as he knows that he is dealing with a controlled substance. See, e.g., United States v. Ramirez-Ramirez, 875 F.2d 772, 775 (9th Cir. 1989); United States v. Lewis, 676 F.2d 508, 512 (11th Cir.), cert. denied, 459 U.S. 976 (1982); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978); United States v. Restrepo-Granda, 575 F.2d 524, 527 (5th Cir.), cert. denied, 439 U.S. 935 (1978). Since Section 846 provides that conspiracies shall be subject to the same penalties as those prescribed for the underlying crime, knowledge of the type of drug involved also need not be shown to support a mandatory minimum sentence for a violation of Section 846. /2/ As for the mandatory minimum sentence provisions of Section 841, the statutory language of those provisions also does not require any particular knowledge on the part of the defendant beyond that necessary to commit the offense. See 21 U.S.C. 841(b)(1). Accordingly, the courts of appeals have held that a defendant need not know the amount of drugs involved in his offense in order to be subject to an enhanced penalty based on quantity. See United States v. Klein, 860 F.2d 1489, 1495 (9th Cir. 1988); United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.), cert. denied, 486 U.S. 1058 (1988); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986); United States v. Simmons, 725 F.2d 641, 643-644 (11th Cir.), cert. denied, 469 U.S. 827 (1984). The court in Normandeau found that "(n)othing in the statute hints that Congress intended to place such a burden on the prosecution." 800 F.2d at 956. The court thus concluded that individuals who engage in drug transactions "assume() the risk of enhanced penalties if the government (can) show that their offense involved more than (the requisite quantity of drugs)." Ibid. See also Holmes, 838 F.2d at 1178. The same rationale applies here. As the court below explained (Pet. App. A1515; emphasis in original): it is undisputed that (petitioner) knew he was engaging in conduct designed to introduce some illegal substance into the stream of commerce. He was doing this at the behest of two individuals whom, he claimed, he hardly knew. Yet he lacked even the minimal consideration for the public welfare that would have caused him to determine the substance's true identity before agreeing to transport it. One who demonstrates a lack of even this minimal societal consciousness shows himself to pose an alarming menace to the public safety, because he readily allows himself to become the instrument for others' criminal designs "so long as the price is right." Accordingly, where the facts concerning the type and quantity of drugs involved in such a one's conduct ultimately prove to fit within Section 841(b)(1), that defendant is properly given the enhanced sentence prescribed by that statute. Petitioner's reliance (Pet. 16-17, 20-21) on United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984), is misplaced. In Alvarez, the court reversed the enhanced sentences of four drug conspirators because neither the indictment nor the jury verdict made clear exactly what type or amount of drug was involved in the conspiracy for which they were convicted. The court did not hold, however, that the government must prove a defendant's subjective knowledge of the nature or weight of the drugs. As the court below -- the same court that decided Alvarez -- correctly concluded, this case is different from Alvarez because here "the indictment and the evidence at trial clearly specified the type and quantity of drug involved." Pet. App. A1515. See also Normandeau, 800 F.2d at 956 (distinguishing Alvarez). /3/ Petitioner's contention thus is not supported by the statutory language, the statutory purpose, or the decisions interpreting the statute, and his claim does not warrant review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOEL M. GERSHOWITZ Attorney JANUARY 1991 /1/ Although petitioner's "Question Presented" refers to the proof necessary "to sustain a conviction" as well as to sustain a "mandatory minimum sentence" (Pet. 1), the petition itself addresses only the sentencing point. See, e.g., Pet. 13 (issue is the "district court's decision to impose a mandatory minimum sentence"). In the court of appeals, moreover, petitioner challenged only his sentence, not his conviction. See Pet. C.A. Br. 19-29. In any event, as the court of appeals correctly explained, "it is well-settled that to sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance." Pet. App. A1514. /2/ The current version of Section 846 provides that "(a)ny person who * * * conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the * * * conspiracy." The version in effect at the time of petitioner's offense provided that "(a)ny person who * * * conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the * * * conspiracy." 21 U.S.C. 846 (1982 ed.). Petitioner states (Pet. 12 n.1) that the mandatory minimum was not applicable to conspiracies under the prior version of Section 846, but does not raise this point as a basis for review; even if petitioner's statement were correct, it would not affect his minimum sentence in this case because the concurrent mandatory minimum ten-year sentence for possession with intent to distribute would not be affected by this claim concerning the conspiracy sentence. /3/ Petitioner also is not helped by his citation (Pet. 17-18) to United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir.), cert. denied, 469 U.S. 845 (1984); United States v. Quicksey, 525 F.2d 337 (4th Cir. 1975), cert. denied, 423 U.S. 1987 (1976); and Brown v. United States, 299 F.2d 438 (D.C. Cir.), cert. denied, 370 U.S. 946 (1962). In those cases, the courts held that, because a jury's general verdict on a multiple object conspiracy count was not clear concerning the object on which the jury had relied, sentence could be imposed based only on the object providing the least severe punishment. Here, by contrast, the conspiracy and substantive counts related to possession of a single quantity of cocaine and thus left no doubt about the crime for which the jury convicted petitioner. Orozco-Prada, Quicksey, and Brown do not address the issue of whether a defendant, in order to receive an enhanced sentence for trafficking in a particular type of illegal drug, must know that he is trafficking in that type of drug.