Summaries of Selected Opinions
| Publication year | 2013 |
| Pages | 107 |
| Citation | Vol. 42 No. 9 Pg. 107 |
From the Courts U.S. Court of Appeals for the Tenth Circuit
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 11-2186. United States v. Berry. 06/26/2013. D.N.M. Judge O’Brien. Jury Instructions—Permissible Inference —Defendant’s Knowledge of Contraband—Sentencing Guidelines—Commercial Truck Driving as "Special Skill" Warranting Enhancement.
A jury convicted defendant of possession with intent to distribute 100 kilograms or more of marijuana. The marijuana was discovered while defendant, a commercial truck driver, w as stopped at a New Mexico port of entry in his tractor-trailer. A police officer noted violations in defendant’s logbook and decided to perform a safety inspection of his truck. While examining the trailer’s contents, the officer noticed eight brown boxes stamped "UPS, " for which there was no bill of lading. Defendant stated they were his household belongings that he was moving, but when opened, the boxes contained bundles of marijuana wrapped in brown contact paper, plastic wrap, and tin foil. The judge sentenced defendant to ninety-seven months’ imprisonment.
On appeal, defendant first challenged a jury instruction that permitted, but did not require, the jury to infer that defendant knowingly possessed the controlled substance found inside the vehicle if it found that the government proved defendant’s sole possession of the vehicle. The instruction further cautioned the jury that any inference it made must be based on all the evidence in the case, and that the government retained the burden to prove defendant’s knowledge beyond a reasonable doubt. The Tenth Circuit concluded that the instruction, though not perfect, was valid. The jury was not required to draw the inference, but was permitted to do so. Moreover, the totality of the evidence concerning defendant’s knowledge justified the instruction. Finally, the instruction did not shift the burden of proof to defendant.
Defendant also argued it was error to convict him of possessing 100 kilograms or more of marijuana, because the government failed to subtract the weight of packaging and any "masking agents"—that is, substances used to mask the marijuana smell. A...
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