Importation of steroids through mexico

[_Wiliam_WaLLace]

This is a case which deals with the elements of importation of steroids, not through mail order, but for those who go to mexico, or out of the country and bring back anabolics in their posession.

I will have another set of cases dealing with ordering steroids from the internet, and how the law applies to those of you who import steroids through mail order, I will do this if there is enough interest, so let me know if this is something you would like to see.

This case is interesting because the gentlemen involved got off on a technicality because the governement failed to show that the substances were steroids. This may be helpful if you find yourself in trouble, as the government must run the appropriate tests to prove that the substance is an anabolic steroid, in this case they did not. This is where a steroid savy lawyer can be of real help.

*This is for informational purposes only and should not be construed as legal advice, if you need legal advice consult an attorney!

Here is a quick review of the law for those who do not want to read the case:

Defendant was convicted of importing anabolic steroids and possessing anabolic steroids with intent to distribute, following jury trial in the United States District Court for the Southern District of California, Jeffrey T. Miller, J. Defendant appealed. The Court of Appeals, Trott, Circuit Judge, held that evidence was insufficient to support finding that ester derivatives of the drugs testosterone and boldenone promoted muscle growth, as required for such derivatives to be anabolic steroids.
Reversed.

Elements of the offense of unlawful importation of anabolic steroids are that: (1) the defendant intentionally brought anabolic steroids into the United States, and (2) the defendant knew that they were anabolic steroids or some other prohibited drug. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 1002, 1010, 21 U.S.C.A. §§ 952, 960.

In prosecution for unlawful importation of anabolic steroids, government had burden of proving, beyond a reasonable doubt, that the substances in question were anabolic steroids. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 1002, 1010, 21 U.S.C.A. §§ 952, 960.

Case as it is reported will follow.

[_Wiliam_WaLLace]

Orduno-Aguilera was attempting to enter the United States through the San Ysidro, California Port of Entry when custom inspectors searched his Toyota Tercel. Underneath the rear seat, in hidden compartments within both of the doors and in the trunk, the inspectors found small boxes containing over 400 vials of liquid. Orduno-Aguilera was subsequently indicted on two counts: importation of and possession with intent to distribute anabolic steroids, a Schedule III Controlled Substance, in violation of 21 U.S.C. §§ 841, 952, 960.
At trial, the government offered the testimony of Wisen Maroge, a forensic chemist with eleven years of experience working for the Drug Enforcement Administration ("DEA"). During voir dire, he admitted he did not have any expertise in determining the physiological effects of any chemical substance on the human body, and that he was just a chemist. Maroge testified that he analyzed the substances seized and determined that the vials contained testosterone propionate, boldenone undecylenate, and testosterone enanthate. Over defense counsel's objection, he further testified that these chemicals were anabolic steroids.
On cross-examination, however, defense counsel established that (1) the chemicals testosterone propionate and testosterone enanthate are actually ester derivatives [FN1] of the drug testosterone and (2) that boldenone undecylenate is an ester derivative of the drug boldenone. Defense counsel further established that Maroge's sole basis for determining that the drugs in question were anabolic steroids was the fact that they tested positive as ester derivatives of testosterone and boldenone.


FN1. "Ester" was defined at trial simply as "an inorganic--it's called a salt."


At the close of evidence, the defense moved under Rule 29 for an acquittal on the basis that the Government failed to prove beyond a reasonable doubt that the substances involved in the case were anabolic steroids. The judge denied the motion; the case went to the jury; and Orduno-Aguilera was convicted on both counts.

II
Standard of Review
[1] "There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Nelson, 137 F.3d 1094, 1103 (9th Cir.1998) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because Orduno-Aguilera properly preserved this issue by making a motion for an acquittal after the close of all evidence, this court's standard *1140 of review is the same as that of the district court's denial of that motion. United States v. Bahena-Cardenas, 70 F.3d 1071, 1072-73 (9th Cir.1995). We review de novo. Id. at 1072.

III
Sufficiency of Evidence
Orduno-Aguilera argues that the Government failed to prove the substances in question are anabolic steroids because it failed to provide any evidence that the substances in question satisfied the statutory definition. The statutory definition provides:
The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, and includes-
(i) boldenone,
...
(xxvi) testosterone,
... and
(xxviii) any salt, ester, or isomer of a drug or substance described or listed in this paragraph, if that salt, ester, or isomer promotes muscle growth.
21 U.S.C. § 802(41)(A) (West Supp.1999) (emphasis added).
[2] Orduno-Aguilera argues that, because the Government failed to provide any evidence that the ester derivatives in question promote muscle growth, there was insufficient evidence to uphold the conviction. We agree.
[3] The Due Process Clause requires the Government to prove all facts necessary to convict a defendant beyond a reasonable doubt. This matter was resolved in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in which the Court held, "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364, 90 S.Ct. 1068.
The importance of this ruling was recently reaffirmed in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), in which the Court, while addressing the distinction between elements of the offense and sentencing factors, reiterated that every element of the offense "must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Id. 119 S.Ct. at 1219.
[4] In this case, the jury was properly instructed that the elements of the offense for unlawful importation were that: (1) the defendant intentionally brought anabolic steroids into the United States; and (2) the defendant knew that they were anabolic steroids or some other prohibited drug. Similarly, the elements required to convict on the count for possession with intent to distribute were that (1) the defendant knowingly possessed anabolic steroids; and (2) the defendant possessed them with intent to deliver them to another person.
[5] The Government had the burden of proving, beyond a reasonable doubt, that the substances in question were "anabolic steroids." Yet the Government failed to offer adequate evidence that the substance met the statutory definition. The statute specifically states that only certain types of ester derivatives of boldenone and testosterone-those that promote muscle growth-meet its definition of anabolic steroids. The language of the definition necessarily implies that there may be other types of ester derivatives-those that do not promote muscle growth-that are not prohibited under the statute. There was no evidence admitted that even purported to prove that the substances imported and possessed by Orduno-Aguilera promote muscle growth. The chemist, Wisen Maroge, could offer nothing on this issue. Because this fact is a necessary element of the statutory definition of anabolic steroids, which is in turn a necessary element *1141 of the offense, failure to offer this evidence resulted in insufficient evidence to sustain the jury's verdict.
In an effort to uphold the conviction, the Government argues that it was not required to provide scientific testimony or other forms of direct testimony to prove that the drugs were anabolic steroids. It argues that the circumstantial evidence in the case is sufficient, pointing out the clandestine nature with which Orduno-Aguilera attempted to bring the drugs across the border and the fact that there was a distributable quantity of the drugs.
[6] It is true that "[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction." United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir.1998) (citation omitted). Furthermore, we agree with the Sixth Circuit that the allowance of circumstantial evidence recognizes the practical impossibility of providing direct evidence in many contexts, particularly drug cases:
an evidentiary rule [requiring scientific analysis to identify drugs] ... would insulate from prosecution a large class of unlawful acts involving illicit drugs when the government happens upon the scene too late to seize a sample of the substance. To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule.
United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988).
[7] However, while circumstantial evidence, combined with reasonable inferences, may be enough, this does not relieve the Government of its burden to prove every fact necessary to convict a defendant beyond a reasonable doubt. In re Winship, 397 U.S. at 364, 90 S.Ct. 1068. The clandestine nature of the transporting of the vials of liquid, along with the quantity involved, is susceptible to a number of inferences, including a desire to avoid customs duty. It is not enough by itself to supply the missing evidentiary link. There is simply no evidence, circumstantial or otherwise, that would allow the jury to infer the muscle-promoting potential of the drugs seized. Absent such evidence, the conviction cannot be sustained.
REVERSED.

[Ozzy]

Great post Thanks for that info, keep it up Bro.

Oh yea, Defintely post mail order info.

[PaPaPumP]

Wow. Flawless post . I think I will make this a sticky.


btw...when you get the other case, just post it in here so that will be stuck too.

[jbrand]

I think it's funny how the government half-assed their prosecution by using the testimony of a forensic chemist who was unable offer any conclusive evidence as to proving that the substances seized were "anabolic steroids".

[PaPaPumP]

Me too jbrand, but last time I said something like that, someone went ballistic on me, so I chose not to say anything. Ima let you take the heat on this one.

[jbrand]

Originally posted by PaPaPumP
Me too jbrand, but last time I said something like that, someone went ballistic on me, so I chose not to say anything. Ima let you take the heat on this one.

Not a problem. If I did say something off-base and I am attacked I will definetely take the oppurtunity to utilize my fifth amendment right and abstain from my rebuttal

[Dr.Evil]

strange... i thought boldenone and tesosterone are on the schedule III controlled substances list. it shouldn't matter what the attached ester is, it's the parent hormone that is in question. i don't think it should have been a matter of trying to prove that these were actually anabolic steroids, but rather that these are the exact same hormones that are on the controlled substances list. is the prosecutor mental?

[BigMike J]

bump on mailorder

[jbrand]

Originally posted by Dr.Evil
strange... i thought boldenone and tesosterone are on the schedule III controlled substances list. it shouldn't matter what the attached ester is, it's the parent hormone that is in question. i don't think it should have been a matter of trying to prove that these were actually anabolic steroids, but rather that these are the exact same hormones that are on the controlled substances list. is the prosecutor mental?

I can (very likely) be wrong here but isn't the current scheduling of AAS due to the Anabolic Steroids Control Act of 1990? Perhaps the laws weren't as well defined (to include actual chemical names, etc) at the time of the case (1970).

[_Wiliam_WaLLace]

Thanks for the interest guys, I will get to work on the other materials when i have the chance, my Westlaw is out right now, so I need to get that fixed up.
By the way, the case is not from 1970, they used the Comprehensive Drug Abuse Prevention and Control Act of 1970, but the case is recent, i would not post a 1970 case for you guys, unless it was very relevant.

[tommybono]

They should really legalize roids ya know. They can't get much sense out of law anyway.

[xtremesport14]

mail order please!!!

[njkode]

mail order please!!!

good post

[mateo112]

we want the mail order post. nice post for mexico