Petition for Writ of Certiorari — Raquel Rivera, Petitioner v. United States

Case: 21-3293

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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)

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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

2

Pub. L. 115-334, 132 Stat. 4490.

Compare 21 U.S.C. § 802(16) with 7 U.S.C. § 1639o(1).

2

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(“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

7 U.S.C. § 1639o(1).

See United States v. Polan, 970 F.2d 1280, 1282–83 (3d Cir.

1992).

3

4

3

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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

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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

6

Id. at 167–68.

Id. at 182.

5

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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

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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

8

United States v. Willis, 844 F.3d 155, 164 n.21 (3d Cir. 2016).

Id.

7

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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

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).

9

8

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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.

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

17

21 U.S.C. § 841(a)(1).

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.

14

15

9

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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

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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.

Id.

27

7 U.S.C. § 1639o(1).

26

11

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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

H.R. Conf. Rep. 115-1072 (emphasis added).

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.

28

29

12

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to a criminal offense.

Separately, Rivera relies on United States v. VargasCastillo, 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

329 F.3d 715, 719 (9th Cir. 2003).

Id. at 717.

33

Id. at 718–19.

34

Id. 719–20.

35

Id. at 719.

36

Id.

31

32

13

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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

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.

37

14