Chaidez

MEMORANDUM **

Francisco Daniel Chaidez appeals from his jury-trial conviction for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 , and importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Chaidez contends that the district court erred by instructing the jury that he had the burden of proving by a preponderance of the evidence his affirmative defense of duress, with regard to both the importation and possession counts. His argument with regard to the importation count has recently been foreclosed by Dixon v. United States, — U.S. -, 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006).

With regard to the possession count, Chaidez argues that the heightened level of scienter — “intentionally,” as opposed to “knowingly and voluntarily” — required the government to disprove duress, notwithstanding Dixon . We disagree. “[T]he Due Process Clause forbids shifting the burden of proof to the defendant on an issue only where establishing the defense would necessarily negate an element that the prosecution must prove beyond a reasonable doubt.” See United States v. Leal-Cruz, 431 F.3d…