by Anthony W. Accurso

The Supreme Court of Arizona held that “the identity of an alleged narcotic drug is an element of ARS § 13-3408, and therefore jury unanimity is required.”

Jorge Romero-Millan, Ernesto Hernandez Cabanillas, and Marco Antonio Garcia-Paz are all Mexican nationals who were lawfully residing in the U.S. Romero-Millan was convicted of possession of drug paraphernalia under ARS § 13-3415. Cabanillas and Garcia-Paz were each convicted of possession of a narcotic drug for sale under § 13-3408. After these convictions, the immigration court ordered them removed from the country.

On review by the U.S. Court of Appeals for the Ninth Circuit, the cases were consolidated, and because the outcome of the cases turned on whether the statutes of conviction are “divisible” under Descamps v. United States, 570 U.S. 254 (2013), the Ninth Circuit certified three questions to the Arizona Supreme Court, two of which involved divisibility.

Although the Court initially granted review of the three certified questions, it subsequently declined to rule on the two divisibility questions pertaining to Arizona statutes because such analysis “is not conducted under Arizona law,” the Court explained, adding “divisibility” issues do not “raise questions under Arizona state law.”

However, the Court did agree to address the certified question of whether jury unanimity with respect to the identity of a specific drug is a requirement for a conviction under the state’s narcotic drug possession statute, § 13-3408. In answering this question, the Court began with the statutory language. “Our task in statutory construction is to effectuate the text if it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. DOT, 417 P.3d 782 (Ariz. 2018). A statute is ambiguous if it is “reasonably susceptible to differing interpretations,” stated the Court. See Lewis v. Debord, 356 P.3d 314 (Ariz. 2015). When a statute is ambiguous, “secondary interpretation methods, such as the statute’s subject matter, historical background, effect and consequences, and spirit and purpose,” must be used. Rosas v. Ariz. Dep’t of Econ. Sec., 465 P.3d 516 (Ariz. 2020). 

After examining § 13-3408, the Court concluded that the statute “is ambiguous because it may be reasonably read to require that a jury unanimously determine that a specific drug be found to return a guilty verdict but could also reasonably be read to require only that a jury unanimously find that any one of the narcotics listed in § 13-3401(20) is sufficient for a conviction.” The Court then employed secondary methods of statutory construction and concluded that “the identity of an alleged narcotic drug is an element of § 13-3408, and therefore jury unanimity is required” for a conviction under the statute.

The Court then explained: “each of the ninety-five substances listed in § 13-3401(20) are designated as a narcotic drug independently, and possessing any one of these narcotic drugs constitutes a separate and independent criminal offense,” and “there may be multiple convictions under § 13-3408 for a single event that involves different narcotic drugs” because the unit of prosecution under the statute is drug based. See: Romero-Millan v. Barr, 507 P.3d 999 (Ariz. 2022). 

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