## Facts

- Federal agents stopped David Villarreal and a co-defendant at the Falfurrias, Texas Border Patrol checkpoint after receiving information that they were transporting drugs.
- Agents searched the vehicle and found ten taped bundles of white (and some pink) powder in the trunk.
- Villarreal admitted he was transporting what he believed to be cocaine to Houston, Texas.
- A DEA laboratory analysis determined the bundles contained cocaine and had a total net weight of 8.4 kilograms.
- The lab grouped the bundles by appearance and purity:
  - Seven bundles weighed about 5.9 kilograms and tested at low purity (about 3.2%).
  - Three bundles weighed about 2.5 kilograms and tested at extremely low purity (about 0.41%); the expert described their color and texture as inconsistent with marketable cocaine.
- The government charged Villarreal under federal drug statutes, including 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii), which increases statutory penalties when the offense involves “5 kilograms or more of a mixture or substance containing a detectable amount of” cocaine.
- Before trial, Villarreal requested a special jury instruction requiring the government to prove not only drug type and total weight, but also that the cocaine-containing material was “marketable” as cocaine (i.e., that a buyer or user would purchase or consume it knowing its purity).
- The district court addressed that request in a memorandum opinion and order.

## Issues

1. Under 21 U.S.C. § 841(b)(1)(A)(ii), must the jury be instructed that the government must prove the cocaine-containing “mixture or substance” was “marketable” as cocaine before its full weight can be counted toward the five-kilogram threshold?
2. If the substance contains a detectable amount of cocaine, does the statute use the entire weight of the mixture (including diluents and cutting agents) to determine whether the five-kilogram threshold is met?

## Decision

- The court denied Villarreal’s requested “marketability” jury instruction.
- The court ruled that § 841(b)(1)(A)(ii) does not add a “marketable as cocaine” requirement; the statutory trigger is possession of at least five kilograms of a mixture or substance that contains a detectable amount of cocaine.
- The case would proceed with standard instructions applying the statute’s “mixture or substance containing a detectable amount” language, without any marketability element.

## Legal Principles

- Under § 841(b)(1)(A)(ii), statutory quantity is based on the weight of the “mixture or substance” that contains a detectable amount of cocaine, not the weight of pure cocaine alone.
- The statute’s text does not require the government to prove the mixture was usable, sellable, or “marketable” as cocaine to count its weight toward the five-kilogram threshold.
- Very low purity and heavy dilution do not, by themselves, remove a cocaine-containing mixture from the statute’s quantity calculation when cocaine is detectable in the material.

## Conclusion

United States v. Villareal holds that a defendant is not entitled to a jury instruction requiring proof that a cocaine-containing mixture was “marketable” to trigger § 841(b)(1)(A)(ii)’s five-kilogram threshold; the statute looks to the total weight of any mixture or substance with a detectable amount of cocaine.


United States v. Villareal, 2012 WL 401051 (2012)