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) 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 Pub. L. 115-334, 132 Stat. 4490. 2 Compare 21 U.S.C. § 802(16) with 7 U.S.C. § 1639o(1).

2 (“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 3 7 U.S.C. § 1639o(1). 4 See United States v. Polan, 970 F.2d 1280, 1282–83 (3d Cir. 1992).

3 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 th