United States v. Cordoba-Hincapie

WEINSTEIN, J.:

These cases present two profound and fundamental questions about the operation of the criminal law in a democratic constitutional society. Can the requirement of proof of mens rea as a basis for criminals' punishment be circumvented by manipulation of a sentencing system? Can the guarantees of a jury trial to determine the substantive predicates of criminality be shortcircuited by characterizing a critical element of great significance in deciding punishment as one for the judge to determine in fixing sentence -- a sentence predetermined under fixed guidelines, not one imposed under a discretionary regime?

To impose the sentences demanded by the prosecution under the United States Sentencing Guidelines (Guidelines) would require that both these questions be answered affirmatively. To do so in the context of the instant cases would be to strike a blow at constitutional protections that developed in England and this country over almost a millenium. Congress could not have intended such a bizarre and dangerous result when it adopted guideline sentences. The war on drugs does not require that we win a minor battle with two drug mules by denigrating what we seek to protect -- constitutional rights and privileges.

Defendants imported heroin into the United States believing it to be cocaine. The punishment under the Guidelines for smuggling heroin is greater than for bringing in cocaine. The issue presented is how to treat their mistakes of fact: should they be punished only for the crimes they believed they were committing?

The unique new context of guideline sentencing and the serious drift of the federal criminal law away from first principles require that this problem be treated at some length. A rational and principled system of criminal sanction cannot tolerate the addition of many months of imprisonment to these defendants' sentences simply because it may be inconvenient to draw distinctions based upon traditional notions of mens rea. Congress did not require such a result and the Constitution does not countenance it. Consistent with the fundamental Anglo-American tradition that blameworthiness hinges upon a culpable state of mind, defendants' punishments must be limited by their culpability.

I. FACTS

A. Cordoba-Hincapie

Defendant Maria Theresa Cordoba-Hincapie is 38 years old and a Colombian citizen. On May 4, 1992 she arrived at Kennedy Airport on a flight from Colombia. During the United States Customs inspection that followed her arrival, an x-ray examination revealed balloons in her digestive tract. The balloons contained 772.8 grams of heroin.

Ms. Cordoba-Hincapie was born in Columbia and raised there, with her seven siblings. Her mother washed clothes to support the family. Defendant never married and now has three daughters, ranging in age from nine to eighteen. The children's father has not been in contact with the family since 1990. They have no means to support themselves. Defendant has had five years of education. She has found occasional work in Colombia as a seamstress and at other menial tasks. She came to the United States in hopes of obtaining an operation to cure the loss of hearing in an ear. She planned to use the proceeds of her crime to pay for the operation and to support her family upon her return to Colombia. The government does not contest her account.

She was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A). Section 960(b)(1)(A) requires a sentence of at least ten years of imprisonment for importation of in excess of one kilogram of heroin. On July 9, 1992, she pled guilty, pursuant to an agreement with the government that is now common in this district, to the lesser penalty provision of § 960(b)(2)(A) which carries a minimum sentence of five years imprisonment for 100 grams or more of heroin. That agreement provided that, should the laboratory report reveal the net weight of the heroin to be less than one kilogram, the indictment and plea would be amended at the government's request to charge a violation of § 960(b)(3), which carries no mandatory minimum term of incarceration. The drugs did turn out to weigh less than a kilogram and thus no statutory minimum applied to her sentence.

The government, by allowing a plea predicated on less than 100 grams of heroin, was able to avoid the harsh required minimum sentences of our drug laws. . . . It did not -- or so the government argues -- avoid the strictures of the Guidelines which require the "real offense" to control the sentence. If she was smuggling heroin, the Guideline range would be 46 to 57 months. For cocaine, it would be 30 to 37 months.

A Fatico hearing was held at which defendant testified and was cross-examined about the events leading up to her crime. She stated, as she did at her plea allocution, that she was told by the person for whom she acted as courier that the opaque balloons he provided contained cocaine. She testified that she believed him, made no further inquiry, swallowed the balloons and departed from Colombia thinking that she was carrying cocaine. She swore that she was not aware of heroin smuggling from Colombia, had not previously imported drugs and did not know other smugglers. Defendant also submitted a newspaper article describing her case and discussing the relatively novel phenomenon of Colombian production and export of heroin. . . .

Her testimony was credible. Based upon her education, her experience, the facts surrounding her involvement in this crime, the physical resemblance between cocaine and heroin and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that she believed she was importing cocaine.

B. Buelvas-Castro

Defendant Libardo Buelvas-Castro is 37 and a Colombian citizen. He arrived at Kennedy Airport on a flight from Colombia on December 11, 1992. An x-ray examination during a Customs inspection revealed foreign bodies in his digestive tract. The balloons contained 686.7 grams of heroin.

Defendant was born in Colombia and raised in an intact family. He married in 1976 and now has four children between the ages of nine and fourteen. He has been employed as a butcher since 1977. He has had five years of school.

He was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A). Section 960(b)(2)(A) mandates a prison term of at least five years for importation of in excess of 500 grams of heroin. Pursuant to an agreement like Cordoba-Hincapie's, he was permitted to plead guilty to one count of importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(3). Section 960(b)(3) carries no mandatory minimum sentence. For smuggling heroin, the Guideline range is 37 to 46 months. For cocaine it is 30 to 37 months.

At his plea allocution on March 23, 1993, defendant swore that he was told by the person for whom he acted as courier that he would be carrying 600 grams of cocaine. He said he was given prepared packages to swallow in Colombia and told that he would be met at Kennedy Airport.

Defendant testified at a Fatico sentencing hearing that his Colombian handler told him he was swallowing cocaine. He swore that he believed the representation because he was not familiar with drugs and that he did not ask any questions. He stated that he is from the coastal region of Colombia, that heroin is not produced there, that he does not read newspapers and that he did not learn that heroin is produced in Colombia until after he came to the United States.

The government contended that heroin is now the predominant drug for export from Colombia. It was afforded the opportunity to adjourn the hearing and produce evidence in support of this contention. It declined to do so.

Based upon defendant's background and education, the circumstances surrounding his involvement in this crime, the physical resemblance between heroin and cocaine and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that he believed he was importing cocaine.

II. LAW

A. The Mens Rea Principle

The term, "mens rea," meaning "a guilty mind; a guilty or wrongful purpose; a criminal intent," Black's Law Dictionary 1137 . . . is shorthand for a broad network of concepts encompassing much of the relationship between the individual and the criminal law. . . . These doctrines of criminal responsibility and the theories that support them are deeply rooted in our legal tradition as one of our first principles of law. To understand its import, it is necessary to unpeel the terse Latin.

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. . . [T]he mens rea principle remains, in the modern criminal law, a fundamental requirement. . . . Like most ancient doctrines, however, it has grown far more sophisticated and nuanced than it once was. It can no longer simply be invoked. Its application must be carefully explained and its many distinctions must be considered. Not only has the law developed an appreciation of gradations in mental states, but it now also openly recognizes limited exceptions to a rule once characterized as admitting no compromise.

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Perhaps the most common exception to the mens rea principle has been in cases involving what are characterized as "public-welfare offenses." Criminal liability has been permitted to attach without regard to fault in instances in which the actor's conduct involves

“minor violations of the liquor laws, the pure food laws, the anti-narcotics laws, motor vehicle and traffic regulations, sanitary, building and factory laws and the like.”

Francis Bowes Sayre, Public Welfare Offenses, . . .

Sayre dated the development of this welfare-exception doctrine to the middle of the nineteenth century. Emphasizing that he was speaking of "light" offenses, he explained it as follows:

“The decisions permitting convictions of light police offenses without proof of a guilty mind came just at the time when the demands of an increasingly complex social order required additional regulation of an administrative character unrelated to questions of personal guilt; the movement also synchronized with the trend of the day away from nineteenth century individualism toward a new sense of the importance of collective interests.”

. . . Sayre cautioned against overstating the significance of this development. "Criminality is and always will be based upon a requisite state of mind as one of its prime factors." . . .

Sayre was able to discern from the cases two principles identifying the contours of the public-welfare offense doctrine. . . . First, if punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then mens rea is probably required. Second, if the penalty is light, involving a relatively small fine and not including imprisonment, then mens rea probably is not required. . . .

Justice Jackson once described the public-welfare offenses as, for practical purposes, imposing a negligence standard:

“The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation.”

Morissette, . . .

Other commentators have described and delimited this doctrine of strict liability on similar grounds. . . .

Given this modern development, anti-drug offenses might once have been characterized as public-welfare offenses, particularly as this country moved from a "freedom to use" model through some tax and medical models beginning in the 1910s. When, however, criminal penalties were markedly increased, particularly through such severe sentencing mechanisms as the Rockefeller laws in New York and those adopted in our current war on drugs that now include life sentences, . . . and even capital punishment, . . ., the legal-constitutional situation changed radically. What once may have been a minor welfare offense, malum prohibitum, is now a major criminal offense, malum in se. Older cases that may have allowed conviction of narcotics offenses without proof of mens rea have no precedential value in this new setting.

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Strict liability has been permitted in the criminal law in a number of other instances. . . . The most widely recognized form of strict liability outside the realm of public-welfare offenses probably is the doctrine, embodied in statute and upheld by courts in a majority of states, that the perpetrator of the crime of "statutory rape," that is, intercourse with a person below the age at which the law deems consent possible, cannot defend on the grounds that he did not know of or was mistaken as to the victim's age. . . .

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III. APPLICATION OF LAW TO FACTS

Both Cordoba-Hincapie and Buelvas-Castro proved, beyond a reasonable doubt, at sentencing that they believed they were importing cocaine. Their proof met both a subjective test of knowledge and an objective test of reasonableness. Whatever the burden of proof or the nature of the presumption, defendants have established beyond a reasonable doubt lack of mens rea respecting heroin. Not only their credible testimony but all of the facts establishing the context of their particular acts of importation supported that finding. Neither defendant acted deliberately, recklessly or negligently or wilfully closed his or her eyes, in arriving at the belief that the balloons they carried contained cocaine rather than heroin.

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IV. CONCLUSION

Cordoba-Hincapie is sentenced to 30 months in prison, five years supervised release and a $ 50 assessment. Buelvas-Castro is sentenced to 30 months in prison, three years supervised release and a $ 50 assessment. Neither has assets so a fine is inappropriate.

SO ORDERED