UNITED STATES of America v. Fernando VIZCARRA-MARTINEZ
No. 94-50281
United States Court of Appeals, Ninth Circuit
June 21, 1995
As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Sept. 21, 1995
66 F.3d 1006
In Kokkonen, the parties settled their dispute and executed a “Stipulation and Order of Dismissal With Prejudice.” The district court approved and signed the stipulation. The stipulation, however, did not reserve jurisdiction to the district court to police the settlement agreement. ___ U.S. at ___, 114 S.Ct. at 1675. The parties later disagreed about their respective duties under the agreement. One party sought an enforcement order in the district court which the court granted “asserting an ‘inherent power’ to do so.” Id. We affirmed based on the district court‘s inherent supervisory power, but we were reversed by the Supreme Court.
The Court began its analysis by distinguishing between a district court enforcing a settlement agreement and a district court reopening a dismissed suit because of a breach of a settlement agreement. The Court noted that “some Courts of Appeals have held the latter can be obtained under
The Court then considered the doctrine of ancillary jurisdiction as the only possible source of federal court jurisdiction. The Court held ancillary jurisdiction did not lie. The short of the matter is this: the suit involves a claim for breach of a contract, part of the consideration for which was dismissal of an earlier federal suit. No federal statute makes that connection (if it constitutionally could) the basis for federal court jurisdiction over the contract dispute. Id. at ___, 114 S.Ct. at 1677. The force of the Court‘s opinion in Kokkonen compels our decision in this case—ancillary jurisdiction cannot support Kalt‘s independent action.
A possible exception to the Court‘s holding in Kokkonen would be a case in which relief was sought under Rule 60(b)(6). Id. at ___, 114 S.Ct. at 1675; see also Keeling v. Sheet Metal Workers Int‘l Assn., 937 F.2d 408, 410 (9th Cir.1991).
In short, Kalt has pleaded an independent action seeking equitable relief, but he has not satisfied his burden of establishing federal court jurisdiction. The parties are not diverse and we can find no constitutional or statutory authorization for federal court jurisdiction over this independent state law fraud claim. We affirm the dismissal of Kalt‘s action, but not on the merits and not with prejudice. The action should have been dismissed for lack of subject matter jurisdiction. Accordingly, we vacate the bankruptcy court‘s dismissal on the merits and remand for the entry of an order dismissing Kalt‘s action for lack of subject matter jurisdiction, without prejudice.
VACATED and REMANDED.
Bruce R. Castetter, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.
Before MONROE G. MCKAY,* REINHARDT, and FERNANDEZ, Circuit Judges.
Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.
ORDER
The opinion filed June 21, 1995, is amended as follows:
With these amendments to the opinion, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it.
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
OPINION
REINHARDT, Circuit Judge:
This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant‘s invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car was improperly admitted, we conclude that the district court committed reversible error by admitting evidence of his drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine. Because we reverse on this ground, we do not consider Vizcarra-Martinez‘s remaining contentions regarding the district court‘s evidentiary rulings and its sentencing decision.1
I.
Vizcarra-Martinez was indicted with six other defendants. He was charged in Count I with conspiracy to wrongfully possess a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of
II.
We first must evaluate whether there was sufficient evidence to convict Vizcarra-Martinez. In doing so, we must assume that the evidence at trial was properly admitted. Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988). We have consistently held that there is sufficient evidence to support a conviction if, “reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential
Here, however, we need not become entangled in a theoretical inquiry regarding standards of review because we conclude that there was adequate evidence to convict the defendant even under the standard we ordinarily use. Thus, it does not matter whether there is a practical difference between the standards or what the differences may be. In the case before us, there was clearly adequate evidence to establish that a conspiracy to manufacture methamphetamine existed and that the defendant possessed the hydriodic acid in question. It is a closer question as to (1) whether, having established the existence of a conspiracy, the government has proved beyond a reasonable doubt a connection between Vizcarra-Martinez and the conspiracy, see United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980), and (2) whether there was adequate evidence for the jury to conclude that the defendant knew or had reason to believe that the acid would be used to manufacture methamphetamine. The government produced no direct evidence tying Vizcarra-Martinez to the conspiracy or indicating that he had any knowledge of its scope; indeed, the leaders of the conspiracy and the DEA conceded that they had never encountered Vizcarra-Martinez before the day of the search.
However, our review of the record indicates that, although the case before us is a close one, there was sufficient evidence presented at trial to permit a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to infer the knowledge necessary to convict on both counts. In addition to the defendant‘s conduct at the scene of the offense, there was other circumstantial evidence in the record tending to show that the defendant knew of and was connected to the conspiracy. This case is therefore distinguishable from United States v. Umagat, 998 F.2d 770, 772-74 (9th Cir.1993), in which we held that when the government proves only that a defendant is involved in a single transaction that is but a part of a substantial ongoing conspiracy, and offers no other evidence as to the defendant‘s knowledge of the overall conspiracy, there is insufficient evidence to permit a factfinder to impute knowledge of the broad conspiracy. Accordingly, we decline the defendant‘s invitation to reverse the conviction on this ground.
III.
Vizcarra-Martinez also appeals the district court‘s decision to deny his motion to suppress the evidence seized during a search of his car. Between November, 1992 and April, 1993, special agents of the Drug Enforcement Administration (DEA) investigated the methamphetamine manufacturing and trafficking activity of Noe Bueno Perez. During that period, the DEA relied upon a confidential informant to infiltrate Perez‘s organization. Perez ultimately attempted to purchase large quantities of the precursor chemicals necessary to manufacture methamphetamine from the DEA agent.
On April 6, 1993, Perez purchased a thirty-gallon drum of hydriodic acid for $9,500 in cash from the DEA agent. The acid was
A short time later, a brown Toyota sedan, driven by Vizcarra-Martinez, arrived at the garage and backed into it. The door was closed. Five minutes later, the garage door opened and the Toyota moved into a parking space across from the residence. After five or six minutes, the Toyota left the area and was pulled over by local police officers, who discovered hydriodic acid in the car. The defendant was subsequently arrested. He maintains that the search and subsequent arrest violated the Fourth Amendment because the police lacked probable cause to search the car.
On appeal, the government initially argues that Vizcarra-Martinez gave permission for the search to take place after he was pulled over and, thus, that all that was required was the reasonable suspicion necessary to support the investigatory stop that led to the search. While conceding that it failed to raise this argument below, the government asserts that this court may uphold the search on this ground, citing United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989).
The government mischaracterizes the Linn decision. In Linn, we held that a court of appeals may affirm a decision to admit evidence on a different ground than that relied upon by the district court as long as “the issue has been fully briefed on appeal, and there is sufficient basis in the record for us to address it.” Linn, 880 F.2d at 214. In this case, the issue has not been fully briefed since Vizcarra-Martinez did not address it in his initial brief and did not file a reply brief. More important, the issue of consent is a factual question that has not been adequately explored below; Vizcarra-Martinez had no reason to develop a full factual record regarding that issue. Accordingly, we conclude that the government has waived its right to raise this issue on appeal.
Nevertheless, we agree with the government that the district court properly admitted the evidence because there was probable cause to conduct the search. California v. Acevedo, 500 U.S. 565, 570-73, 111 S.Ct. 1982, 1986-88, 114 L.Ed.2d 619 (1991); United States v. Ross, 456 U.S. 798, 799-800, 825, 102 S.Ct. 2157, 2159-2160, 2173, 72 L.Ed.2d 572 (1982). Probable cause exists when “the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband.... A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required” for the search. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citations omitted).
The police had good reason to believe at the time of the search that quantities of hydriodic acid were inside the garage of the residence in question. After their first search of the red Ford Escort, they also knew that at least one driver had picked up some of that acid to deliver it elsewhere. Significantly, Vizcarra-Martinez acted in a manner that was remarkably similar to the conduct of the driver of the other delivery car—he drove into the garage, stayed for a few minutes, and then departed the area. Under these circumstances, we conclude that the police could reasonably believe that there was hydriodic acid in Vizcarra-Martinez‘s car.
On appeal, Vizcarra-Martinez contends that Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979), prevents us from holding that there was probable cause for the search. In Ybarra, the Supreme Court held that a “person‘s mere propinquity to others independently suspect-
We conclude that the facts of this case more closely resemble those in United States v. Curtis, 562 F.2d 1153 (9th Cir.1977), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978), where we held that probable cause existed to search two trucks when they were observed approaching an airplane believed to contain drugs, parking near the plane for a few moments, and then driving away (initially with their headlights off). Curtis, 562 F.2d at 1155-56. As in Curtis, the DEA had evidence that Vizcarra-Martinez briefly stopped at a location where its agents knew illicit substances to be present. Moreover, his conduct was quite similar to that of a drug transporter; in fact, his activities closely resembled those of the first driver, whom the police discovered to be in possession of precursor chemicals.2 Accordingly, we conclude that probable cause existed for the search and affirm the district court‘s decision to admit the evidence.
IV.
Vizcarra-Martinez also contests the district court‘s decision to admit evidence that he was in possession of a small, personal-use amount of methamphetamine when he was arrested. He contends that such evidence constitutes “other act” evidence that is unrelated to the underlying offense and accordingly should not have been admitted under Rule 404.3 We agree that the district judge abused her discretion in admitting this evidence.
A. “Other Act” Evidence
The government initially maintains that we need not evaluate the district court‘s decision to admit the evidence in question under Rule 404. It asserts that the evidence was not “other act” evidence, and was exempted from the requirements of Rule 404, because it was “inextricably intertwined” with the underlying offense. We disagree.
There are generally two categories of cases in which we have concluded that “other act” evidence is inextricably intertwined with the crime with which the defendant is charged and therefore need not meet the requirements of Rule 404(b). First, we have sometimes allowed evidence to be admitted because it constitutes a part of the transaction that serves as the basis for the criminal charge. For example, in United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.1993), we concluded that contemporaneous sales of cocaine and crank by the defendant were inextricably intertwined with the crime with which the defendant was charged: the sale of cocaine. As we noted in Williams, “[t]he policies underlying rule 404(b) are inapplicable when offenses committed as part of a ‘single criminal episode’ become other acts simply because the defendant ‘is indicted for less than all of his actions.‘” Williams, 989 F.2d at 1070 (quoting United States v. Soliman, 813 F.2d 277, 278 (9th Cir.1987)). Thus, when it is clear that particular acts of the defendant are part of, and thus inextricably intertwined with, a single criminal transaction, we have generally held that the admission of evidence regarding those acts does not violate Rule 404(b).
Second, we have allowed “other act” evidence to be admitted when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story
It is clear that the evidence in this case does not fall within either of these exceptions. Coincidence in time is insufficient. The mere fact that a defendant is in possession of a small amount of a prohibited narcotic substance at the time he commits a crime is not enough to support the introduction of the evidence of drug usage. There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b). Here, there was no such relationship. First, the defendant‘s personal use of methamphetamine was, unquestionably, not a part of the transaction with which he was charged—possession of hydriodic acid with knowledge that it would be used to manufacture methamphetamine. The prosecution presented absolutely no evidence that the methamphetamine in question was obtained from a member of the conspiracy or that Vizcarra-Martinez had been involved in its manufacture or distribution. Second, it is clear that the prosecution would encounter little difficulty in presenting the evidence relevant to its case against the defendant—his possession of hydriodic acid and the circumstances surrounding the commission of that crime—without offering into evidence the personal-use amount of methamphetamine the police discovered in the defendant‘s pocket upon arrest. The methamphetamine found in the defendant‘s pocket had nothing to do with the incidents leading to the search, nor did it have any bearing upon the commission of the crime. Thus, we reject the government‘s contention that the contested evidence was so inextricably intertwined with the crime as to fall outside the scope of Rule 404(b).
B. Rule 404(b) Test
Because we conclude that the evidence in question represents “other act” evidence, we must apply our court‘s four-part test to determine whether it should have been excluded. Under Rule 404(b):
Evidence of prior criminal conduct may be admitted if (1) the evidence tends to prove a material point; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged.4
United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994). In applying this test, we have repeatedly emphasized that:
“Extrinsic act evidence is not looked upon with favor.” We have stated that “[o]ur reluctance to sanction the use of evidence of other crimes stems from the underlying
United States v. Bradley, 5 F.3d 1317, 1320 (9th Cir.1993) (quoting United States v. Hodges, 770 F.2d 1475, 1480 (9th Cir.1985)).
Vizcarra-Martinez does not argue that the prior act in this case is too remote in time or that the evidence is insufficient to support a finding that he had in his possession a personal-use amount of methamphetamine. Instead, he rests his case upon the contention that the evidence does not tend to prove a material point and that his alleged possession of an amount of methamphetamine suitable for personal use is not sufficiently similar to the offense charged to justify its admission. In essence, Vizcarra-Martinez argues that the fact that he used methamphetamine does not tend to prove that he was aware that the chemicals he was delivering would be used to manufacture methamphetamine or that he intended to participate in a conspiracy to do so.
The defendant‘s arguments regarding relevancy and similarity5 are closely related, see United States v. Hernandez-Miranda, 601 F.2d 1104, 1109 (9th Cir.1979) (“The greater is the dissimilarity of the two offenses, the more tenuous is the relevance.“), and we address them both together. We conclude that the evidence regarding Vizcarra-Martinez‘s drug use was not sufficiently relevant to the charged offense and that it does not tend to prove the requisite knowledge.
In order to admit evidence concerning other “bad acts,” the government must prove “a logical connection between the knowledge gained as a result of the commission of the [other] act and the knowledge at issue in the charged act.” Mayans, 17 F.3d at 1181-82. Here, there exists no logical connection between the knowledge that the defendant might have gained by using methamphetamine and the knowledge that the government must prove that he possessed at the time of his arrest—that is, knowledge of the use to which the hydriodic acid in his possession would be put as well as knowledge of the scope and purpose of the conspiracy.
We conclude that evidence of possession of a small quantity of drugs does not tend to prove that a defendant is aware of the use to which a particular chemical in his possession will be put—more specifically, that possession of a small amount of methamphetamine for personal use does not tend to prove that Vizcarra-Martinez was aware that hydriodic acid could be transformed into methamphetamine through a complicated manufacturing process. Viewing the case from “common human experience,” Hernandez-Miranda, 601 F.2d at 1108, it is clear that most people who use drugs—indeed, most people who use legal chemical substances, such as cleaning fluid or paint or
Similarly, we hold that evidence that the defendant used methamphetamine, or possessed a small amount of the drug, does not tend to prove that he participated in a conspiracy to manufacture it. We believe that this is precisely the type of abuse that Rule 404 was designed to prevent; bad act evidence cannot be used to prove a defendant‘s propensity to commit a crime. See United States v. Hill, 953 F.2d 452, 456-58 (9th Cir.1991). Indeed, in United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982), we explicitly rejected the government‘s argument that “the jury could infer that since [the defendant] used drugs he was likely to participate in their importation.” The rationale for our holding in Mehrmanesh is equally persuasive in this case.
Irrespective of any inference that may be drawn from evidence of an individual‘s possession or use of a drug in assessing their knowledge, intent, or motive to possess or distribute another drug, see, e.g., United States v. Hegwood, 977 F.2d 492, 497 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2348, 124 L.Ed.2d 257 (1993) (holding that evidence of prior possession or sale of cocaine is admissible in a prosecution for possession, importation, and intent to distribute narcotics), there is an important distinction to be drawn between an individual‘s private use of a small quantity of a drug and his knowledge of the drug‘s manufacturing process or his participation in a large-scale conspiracy to possess precursor chemicals in order to manufacture that drug. In United States v. Blackstone, 56 F.3d 1143, 1145 (9th Cir.1995), we distinguished between an individual‘s possession of marijuana for personal use and drug trafficking.7 An assumed connection between drug trafficking and guns may be explained by the theory that “drug traffickers typically possess weapons to guard their drugs and money.” Id. “[B]ut nothing suggests that those who possess small quantities of marijuana for personal use feel equally compelled to carry weapons.” Id. Likewise, nothing suggests an individual who possesses a small quantity of methamphetamine for personal use feels compelled to participate in a conspiracy to manufacture that drug.
As we noted in United States v. Bibo-Rodriguez, 922 F.2d 1398, 1402 (9th Cir.1991), “[t]he relevant factor is the type of activity undertaken, not the identity of the drugs.” (quoting United States v. Moschiano, 695 F.2d 236, 245 (7th Cir.1982), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983)); see also United States v. McLister, 608 F.2d 785, 789 (9th Cir.1979) (concluding that a conviction for possessing marijuana should not be used to convict the defendant for distribution of cocaine because it has “little probative value ... to prove any of the purposes listed in Rule 404(b)“); cf. United States v. Bramble, 641 F.2d 681, 682 (9th Cir.1981) (emphasizing the distinction between being convicted of possession and being convicted of distribution or possession with intent to distribute). The
A second, independent justification prevents us from upholding the admission of the disputed evidence. Even if we found the government‘s arguments to be persuasive—and we do not—we would nevertheless be compelled to conclude that the district court erred in light of our decision in United States v. Hill, 953 F.2d 452 (9th Cir.1991). In Hill, we held that evidence that a defendant had used cocaine prior to the drug transaction in question could not be admitted as evidence to convict him of conspiracy and attempt to possess with intent to distribute cocaine. Despite the fact that the defendant had used the same drug that he was convicted of possessing with intent to distribute, we held that the evidence was inadmissible because “the testimony at issue had no direct bearing on the elements of conspiracy in this case.” Hill, 953 F.2d at 457.8
We are at a loss as to how we could hold that the evidence in this case was properly admitted since the relationship between the charged offense and the “other act” evidence in this case is even more attenuated than was the relationship in Hill. Given that Hill prevents the prosecution from using evidence that the defendant used a drug to convict him for possessing precisely the same drug with intent to distribute, we cannot conclude that evidence of Vizcarra-Martinez‘s use of methamphetamine was properly admitted to prove that he possessed an entirely different substance—a precursor chemical which can only be transformed into that drug through a complex manufacturing process—with the requisite knowledge and intent necessary to support a conviction.9
C. Harmless Error Analysis
Having determined that it was an abuse of discretion for the district court to admit the evidence in question, we examine the record to assess whether the error was
Our review of the record reveals that the government relied heavily upon the evidence in question during its opening argument, closing argument, and rebuttal. The prosecutor repeatedly emphasized that Vizcarra-Martinez could not be innocent of the charges because he had used methamphetamine and was therefore “familiar” with it. Several times during closing argument, the prosecutor reiterated his contention that the defendant could not have been ignorant of the purpose of the conspiracy because he used methamphetamine, because he was familiar with the substance, and because he associated with those who used and manufactured it. The government‘s heavy reliance upon this evidence created a grave danger that the defendant‘s guilt was established not “by evidence relevant to the particular offense being tried,” but rather by a “showing that the defendant has engaged in other acts of wrongdoing.” Bradley, 5 F.3d at 1320 (citations omitted). Given that this case was not “open and shut,” we cannot say that it is more probable than not that the government‘s forceful and repetitive references to the defendant‘s use of methamphetamine did not affect the jury‘s decision.
Evidence that a defendant uses drugs is highly prejudicial. We have explicitly held that far less damaging evidence regarding drug use—a misdemeanor conviction for possessing one marijuana cigarette nine years before the crime was committed—could have a “significant” prejudicial effect upon the jury‘s decision. United States v. McLister, 608 F.2d 785, 790 (9th Cir.1979). In light of that holding, it would be especially difficult for us to conclude that the error was harmless in this case, where the drug involved is clearly more serious and the use far more recent. Thus, we conclude that the error was not harmless.
CONCLUSION
For the reasons set forth above, we reverse and remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
FERNANDEZ, Circuit Judge, dissenting:
I agree that the evidence was sufficient to sustain the verdict and that there was probable cause to search Vizcarra-Martinez‘s car. However, I do not agree that it was prejudicial error to admit the small amount of methamphetamine that Vizcarra-Martinez had on his person when he was arrested.
Often we have even said that possession or use of a drug on a prior occasion is relevant to show the knowing possession of drugs on a second occasion. See United States v. Santa-Cruz, 48 F.3d 1118 (9th Cir.1995); United States v. Hegwood, 977 F.2d 492 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2348, 124 L.Ed.2d 257 (1993); United States v. Milner, 962 F.2d 908 (9th Cir.), cert. denied, 506 U.S. 1004, 113 S.Ct. 614, 121 L.Ed.2d 548 (1992); United States v. Marshall, 526 F.2d 1349 (9th Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976); United States v. Perez, 491 F.2d 167 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). It is true that those cases involved prior and current possession of drugs, whereas this case involves possession of a drug and of a precursor chemical. It is also true that a person could possess a drug and not know what chemicals went to make it up. Still, it is also true that a person could possess a little cocaine and still not know what heroin was. But see Marshall, 526 F.2d at 1360-61 (possession of cocaine could lead to inference of knowledge of heroin); Perez, 491 F.2d at 171-72 (same). And a person could have used drugs and still not know that a package had drugs in it. But see Hegwood, 977 F.2d at 497 (prior use of cocaine is relevant to knowledge, intent, absence of mistake). And a person could have used drugs and still not have conspired to distribute them. But see Santa Cruz, 48 F.3d at 1120 (prior possession of cocaine relevant to knowing participation in drug deal 12 weeks later); Milner, 962 F.2d at 912-13 (evidence of drug use relevant
Another concept militates against a determination that the admission of the methamphetamine was unfairly prejudicial. We have not been overly prissy about making sure that a defendant knew exactly what drugs he was transporting. We have considered one combination of chemicals to be as good as another. So if a person thought he had marijuana, but had cocaine or heroin, he could be prosecuted for cocaine or heroin possession. See United States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir.1989); United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984). Cf. United States v. Davis, 501 F.2d 1344, 1345-46 (9th Cir.1974) (psilocybin mushrooms versus LSD). It is easy to infer that Vizcarra-Martinez knew he was illicitly transporting a chemical substance of some kind. His clandestine activity, his driving to the pickup place with one of the major co-conspirators in tow, his lies, his threats, and his pay all tended to show that he was not just some poor unknowing wretch who was transporting water or gasoline for all he knew. We cannot get inside his head to determine whether he thought he was transporting methamphetamine itself or something to make methamphetamine with. But we can discount his claim that he had no idea at all about what it might be.
Vizcarra-Martinez‘s possession of methamphetamine was relevant to undercut his total ignorance argument and it did add a piece to the puzzle, even though what the picture was going to be was pretty clear already.
Therefore, I respectfully dissent.