United States v. Cardenas

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 21, 1994
• Docket: 92-8660
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-8660 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RITA ANN CARDENAS and SHAMSIDEEN ABIODUN LAWAL,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the Western District of Texas _________________________________________________________________ (December 9, 1993)

Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Rita Ann Cardenas (Cardenas) and Shamsideen Abiodun Lawal

(Lawal) were convicted in a non-jury trial of conspiracy to

import heroin into the United States from Mexico, in violation of

21 U.S.C. §§ 952(a), 960(a)(1), and 963 (Count One); conspiracy

to possess heroin with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), 846 (Count Two); importation of heroin, in

violation of 21 U.S.C. §§ 952(a), 960(a)(1) (Count Three); and

possession of heroin with intent to distribute, in violation of

§ 841(a)(1) (Count Four). Cardenas was sentenced to 121 months

imprisonment on each count, to run concurrently, and a five-year term of supervised release. She was also ordered to pay a

special assessment of $200. Lawal was sentenced to 210 months

imprisonment on each count, to run concurrently, and a five-year

term of supervised release. He was also ordered to pay a special

assessment of $200.

Each defendant appeals his or her conviction and sentence.

We affirm the district court's judgment of conviction and

sentence.

I. BACKGROUND

A. Factual Background

Shortly before noon on August 7, 1992, Quirino Paez-

Guerrero, a taxi driver in Juarez, Mexico, picked up Cardenas and

Lawal in front of the San Carlos Hotel in Juarez to take them

across the border to El Paso, Texas. Following United States

Customs procedures for transporting passengers across the border,

Paez-Guerrero discharged his passengers in front of the

pedestrian border checkpoint before proceeding through the

vehicle checkpoint and waiting for them on the United States side

of the border.

Immigration Inspector Robert Alvarado passed Cardenas

through a pedestrian lane without detention after questioning her

and reviewing her United States passport. Approximately five

minutes later, Lawal attempted to pass through another pedestrian

lane. Senior Customs Inspector Arnulfo Valdez asked Lawal

several routine entrance questions to which Lawal responded with

2 "very evasive" answers. Lawal presented Valdez with his resident

alien card, which showed that he was a Nigerian citizen. When

Valdez then asked Lawal for his passport, airline tickets, and

itinerary, Lawal replied that he had only been in Juarez for a

day and that the requested items were in his hotel room in El

Paso. Throughout Valdez's questioning of Lawal, Lawal appeared

very nervous and "showed symptoms of abnormal behavior."

Valdez then took Lawal to the Customs "Head House," the

customs inspection area, approximately twenty yards from the

pedestrian lanes. In the waiting room, Valdez initiated a

routine patdown search for weapons on Lawal. Immigration

Inspector Lorenzo Ramirez and Supervising Inspector Jose Soledad

were nearby in the doorway. Valdez discovered in Lawal's pockets

an opened box of razor blades, $1044 in cash, part of a roll of

transparent tape, and a key to Room 17 in the San Carlos Motel in

Juarez. He also discovered in Lawal's wallet a photograph of a

woman later identified as Cardenas. When Lawal attempted to grab

the razor blades, inspectors had to subdue him. Inspector Valdez

testified that based on his past experience, the presence of the

razor blades, as instruments commonly used in the cutting of

heroin and cocaine, raised his suspicion that Lawal was involved

in narcotics trafficking.

Valdez then initiated a strip search of Lawal. When Lawal

was removing his shoes, a passport fell out of his right shoe and

onto the floor. Lawal tried to prevent discovery of the passport

by covering it with his foot; he dragged his feet with the

3 passport across the room so that the inspectors had to "kinda

push him" away to recover the passport. The passport was a

United States passport issued to Cardenas, which contained visa

stamps for entry into the Philippines, a country the inspectors

recognized as being "a high source country for narcotics."

Recalling from experience that drug smugglers often travel in

pairs and split up as they go through customs to avoid detection,

Valdez discontinued the search of Lawal to brief Soledad, his

supervisor, of his suspicions--i.e., that Lawal and Cardenas were

partners in a smuggling scheme and that Cardenas had recently

crossed the border and was somewhere nearby. Soledad and

Inspector Frasas then initiated a search for Cardenas.

While the search for Cardenas was proceeding, the inspectors

at the Head House continued their investigation of Lawal. A

drug-sniffing dog alerted to the presence of narcotics on the

cash discovered in Lawal's pocket.

Within approximately five minutes of initiating the search

for Cardenas, Soledad spotted her next to a wall near a store, at

most a block away from the border crossing. Soledad identified

himself, and Cardenas, responding to Soledad's questions,

confirmed that she was Cardenas. Soledad and Frasas then took

Cardenas back to the Head House.

After Cardenas arrived at the Head House, Inspector Edna

Hasan searched Cardenas' purse and found airline tickets and

boarding passes, hotel receipts, Filipino and Dutch currency, and

a United States passport in Cardenas' name. Cardenas appeared

4 unusually nervous throughout this search. When Cardenas then

asked what was wrong, she was informed that she was suspected of

being a narcotics courier. After Cardenas was told that carrying

drugs internally was very dangerous, Cardenas began to cry and

pointed to her waist, stating that she was carrying drugs "here."

Hasan and Inspector Sylvia Page then searched Cardenas and

found five plastic transparent bags containing heroin. These

bags had been held in place around Cardenas' waist by a strong

Lycra girdle and tape, the same kind of tape that Lawal was

carrying. Hasan stated that Cardenas would have required

assistance to put into place and secure the heroin onto her body

as it had been positioned and secured.1 Another bag of heroin

was found in Cardenas' left sock.

The gross weight of the heroin found on Cardenas' person was

5.5 pounds. Customs Special Agent Ricky Hearn testified that the

heroin was of 87 percent purity and that heroin of this amount

and purity was "distribution" heroin, not "user" heroin--which is

of less than 10 percent purity. Hearn also stated that the

wholesale value of the heroin was more than "half a million

dollars" and that once the heroin was cut up and had its purity

percentage lowered, its value would significantly increase.

1 Hasan assisted Cardenas in both taking the girdle and plastic bags off and securing everything back into place in order to take pictures. The largest bag of heroin was secured under the girdle on Cardenas' back.

5 Cardenas was informed of her Miranda2 rights and then signed

a form indicating that she understood her rights and that she

wished to waive them and make a statement. Cardenas told the

inspectors that she and Lawal were involved in a scheme to import

narcotics into the United States. She stated that a woman named

"Lucy" from Houston offered her $15,000 to pick up some narcotics

in the Philippines and bring them into the United States. She

said that after she had gone to the Philippines and received a

quantity of drugs there from an unknown man, she traveled to

Amsterdam, in the Netherlands, and then to Mexico City, where she

first met Lawal in the airport. She also explained that the

picture of herself found in Lawal's wallet was a picture she had

given to "Lucy" so that "Lucy" could give it--for identification

purposes--to the person who was to meet Cardenas at the Mexico

City airport. Together, she said, she and Lawal went to the San

Carlos Hotel in Juarez, where she stayed while Lawal went out to

"buy some stuff." She stated that he returned to the room with a

girdle, razor blades, tape, and plastic baggies. She explained

that after Lawal had packaged the drugs into the baggies and

secured the heroin in Cardenas' girdle, they exited the hotel,

got into a taxi, and proceeded to the border crossing to enter

into the United States. She also stated that more drugs were in

the hotel room in Juarez.

After being informed of his Miranda rights, Lawal told

inspectors that he had found Cardenas' passport on the ground

2 Miranda v. Arizona, 384 U.S. 479 (1966)

6 near the border crossing. He stated that he was carrying it

inside of his shoe to avoid being found with someone else's

passport and that he intended to turn it in to authorities. He

first explained that he was traveling alone, but he stated later

that his wife and infant son were waiting for him at the Holiday

Inn Hotel in downtown El Paso. Furthermore, he initially denied

ever seeing Cardenas, but later admitted riding in the taxi with

her from the hotel to the border crossing. He also denied

knowledge of either the presence of Cardenas' picture in his

wallet or the heroin confiscated from Cardenas' person.

B. Procedural History

On August 19, 1992, Lawal and Cardenas were indicted for

conspiracy to import heroin into the United States from Mexico,

in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963 (Count

One); conspiracy to possess heroin with the intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count Two);

importation of heroin, in violation of 21 U.S.C. §§ 952(a),

960(a)(1) (Count Three); and possession of heroin with the intent

to distribute, in violation of 21 U.S.C. § 841(a)(1). Each

defendant pleaded not guilty to all of the charges.

Cardenas then moved to suppress her confession and the drugs

seized from her person on the ground that they were obtained as a

result of an unlawful search and seizure. Lawal also moved to

suppress any evidence obtained from the search of his person or

the hotel room in Juarez and to suppress statements he made after

he was taken into custody on the same grounds. At a suppression

7 hearing which began on October 19, 1992, the district court

denied Cardenas' motion to suppress, reasoning that the search

and seizure of Cardenas had been conducted pursuant to the

extended border search doctrine as enunciated in United States v.

Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988). The court also

denied Lawal's motion to suppress. Neither Cardenas nor Lawal

testified at the suppression hearing.

After the defendants waived their right to a jury trial, the

district court held a bench trial on October 22, 1992, which

commenced at the conclusion of the suppression hearing. Neither

defendant testified at trial, and the court admitted the evidence

from the suppression hearing, including Cardenas' admission which

she had sought to suppress. Lawal objected to the inclusion of

testimony relating to Cardenas' admission on the grounds that it

violated his Sixth Amendment right to confront and cross-examine

Cardenas and that it was inadmissible hearsay. The district

court overruled his objection.

Cardenas and Lawal were convicted of the offenses charged

and sentenced to 121 months and 210 months imprisonment,

respectively, on each count to run concurrently. Each defendant

was also sentenced to a five-year term of supervised release and

ordered to pay a special assessment of $200. Each defendant now

appeals his conviction and sentence.

II. DEFENDANT CARDENAS

A. Standard of Review

8 Cardenas contends that the district court erred in

dismissing her motion to suppress evidence obtained as a result

of her search and seizure, which she alleges were made without

probable cause and hence in violation of the Fourth Amendment.

In reviewing a district court's denial of a motion to suppress,

we review factfindings under the clearly erroneous standard.

United States v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert.

denied, 113 S. Ct. 388 (1992); United States v. Lopez, 911 F.2d

1006, 1008 (5th Cir. 1990). The district court's conclusions of

law are reviewed de novo. United States v. Richardson, 943 F.2d

547, 549 (5th Cir. 1990). Furthermore, in reviewing a ruling on

a motion to suppress, we view the evidence in the light most

favorable to the party who prevailed in the district court.

United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1991);

United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989). We

view not only the evidence taken at the suppression hearing, but

also the evidence taken at trial. United States v. Rideau, 969

F.2d 1572, 1576 (5th Cir. 1992) (en banc).

B. Cardenas' Argument on Appeal

Cardenas contends that the district court erred in denying

her motion to suppress based on the court's erroneous conclusion

that her search and seizure were constitutionally permissible

under the extended border search doctrine. She argues

specifically that the extended border search doctrine is

inapplicable in her case because the doctrine applies only to

searches of vehicles, not to searches of pedestrians, that have

9 crossed the international border. She also argues that if the

doctrine does apply, its requirements have not been met because

several of the district court's critical factual findings

concerning her search and seizure are not supported by the

record.

We first review the rationale on which the extended border

search doctrine is grounded and the requirements which must be

met before a search can qualify as an extended border search. We

then address each of Cardenas' contentions in turn.

1. The Extended Border Search Doctrine

The Fourth Amendment to the United States Constitution

provides in pertinent part that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .

The Supreme Court has determined that warrantless searches and

seizures are per se unreasonable unless they fall within a few

narrowly defined exceptions. Coolidge v. New Hampshire, 403 U.S.

443, 454-55 (1977). One important exception is the border search

doctrine. Under this doctrine, a governmental officer at the

international border may conduct routine stops and searches

without a warrant or probable cause because the United States as

a sovereign state has the right to control what persons or

property crosses its international borders. See United States v.

Ramsey, 431 U.S. 606, 616 (1977); United States v. Berisha, 925

F.2d 791, 793-94 (5th Cir. 1991); see also United States v.

10 Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("[T]he Fourth

Amendment's balance of reasonableness is qualitatively different

at the international border than in the interior.").

The border search doctrine is also applicable to stops and

searches conducted at the "functional equivalent" of the border,

i.e., the first point at which an entrant may practically be

detained. Almeida-Sanchez v. United States, 413 U.S. 266, 272

(1973). For example, the "functional equivalent" of the border

has been found to be the airport where an international flight

lands, see, e.g., United States v. Klein, 592 F.2d 909, 911 n.1

(5th Cir. 1979), or the port where a ship docks after arriving

from a foreign country, see, e.g., United States v. Prince, 491

F.2d 655, 659 (5th Cir. 1974). A search at the "functional

equivalent" of the border is justified under the border search

doctrine because

"it is in essence no different than a search conducted at the border; the reason for allowing such a search to take place other than at the actual physical border is the practical impossibility of requiring the subject searched to stop at the physical border."

United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982)

(quoting United States v. Garcia, 672 F.2d 1349, 1363-64 (11th

Cir. 1982)). Thus, a routine search made at the border or its

functional equivalent may be made without probable cause or any

suspicion to justify the search. United States v. Sandler, 644

F.2d 1163, 1167-69 (5th Cir. 1981) (en banc).3

3 Although the Supreme Court has never determined what makes a border search "routine," lower courts have generally classified routine searches as those which do not seriously invade a

11 Further, the border search doctrine has been extended to

allow government officials to conduct a warrantless search and

seizure beyond the border or its functional equivalent on the

"reasonable suspicion" of criminal activity. See Espinoza-

Seanez, 862 F.2d at 531; United States v. Melendez-Gonzalez, 727

F.2d 407, 410-11 (5th Cir. 1984). "The main difference between

the functional equivalent of the border search and an extended

border search is that the latter takes place after the first

point in time when the entity might have been stopped within the

country." Niver, 689 F.2d at 526.

An extended border search, however, entails a greater

intrusion on an entrant's legitimate expectations of privacy than

does a search conducted at the border or its functional

equivalent. See id. Accordingly, this court has determined that

three factors must be demonstrated before an extended border

traveler's privacy. See, e.g., United States v. Jackson, 825 F.2d 853, 857 (5th Cir. 1987) (search of vehicle), cert. denied, 484 U.S. 1011, and cert. denied, 484 U.S. 1019 (1988); United States v. Fortna, 796 F.2d 724, 738 (5th Cir.) (en banc) (search of luggage), cert. denied, 479 U.S. 950 (1986); see also United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993) (search of border entrant's outer clothing, personal effects, purse, and wallet). However, a stop and search that is not considered "routine" requires at least "reasonable suspicion" of wrongdoing to pass constitutional muster. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (detention at the border, beyond the scope of a routine customs inspection, is justified if--after having considered all of the facts surrounding the traveler and his itinerary--the inspectors reasonably suspect that the traveler is smuggling contraband). This "reasonable suspicion" standard has been applied to non-routine searches such as x-ray examinations, see Montoya, 473 U.S. at 541 n.4, and strip searches, see United States v. Adekunle, 980 F.2d 985, 987- 88 (5th Cir. 1992), cert. denied, 113 S. Ct. 2380, and cert. denied, 113 S. Ct. 2455, vacated in part on reh'g on other grounds, 2 F.3d 559 (5th Cir. 1993).

12 search is deemed reasonable and hence constitutionally

permissible: (1) a showing of a "reasonable certainty" or a

"high degree of probability" that a border crossing has occurred;

(2) a showing of a "reasonable certainty" that no change in the

condition of the person or vehicle being inspected occurred from

the time of the border crossing until the search and that the

contraband found was present when the person or vehicle crossed

the border; and (3) a showing of a "reasonable suspicion" that

criminal activity was occurring. See Espinoza-Seanez, 862 F.2d

at 531. This court has also determined that "reasonable

certainty" is "a standard which requires more than probable

cause, but less than proof beyond a reasonable doubt." Id.;

United States v. Delgado, 810 F.2d 480, 484 (5th Cir. 1987);

Niver, 689 F.2d at 526. Further, in determining whether there is

a "reasonable suspicion" that criminal activity was occurring,

each case "must turn on the totality of the particular

circumstances." Espinoza-Seanez, 862 F.2d at 531.

2. Applicability of the Extended Border Search Doctrine

a. Vehicles or Persons

Cardenas first contends that the district court erred in

applying the extended border search doctrine in her case. She

argues that the justification for relaxing the warrant

requirement under the extended border search doctrine is the

mobility, speed, and capability for smuggling associated with

vehicles. She thus concludes that the border search doctrine was

13 formulated to apply only to vehicles, not pedestrians, crossing

the border. We disagree.

Although reported cases concerning the extended border

search doctrine involve the search of a vehicle, the doctrine was

not formulated to apply only to vehicles that have crossed the

border. The major impetus behind the extended border search

doctrine is "the government interest in stopping drug traffic."

WILLIAM E. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS § 15.3, at

15-20 (Supp. 1993); cf. United States v. Kenney, 601 F.2d 211,

212-13 & n.1 (5th Cir. 1979) (noting that subject to the

requirements of the Fourth Amendment, 19 U.S.C. § 482 authorizes

customs inspectors to stop and search at the border any vehicle

or person suspected of bringing contraband into the country). We

explained the basic rationale for an extended border search in

United States v. Richards, 638 F.2d 765, (5th Cir.), cert.

denied, 454 U.S. 1097 (1981):

While the mere fact that a person or thing has once crossed the border does not sanction a search of it forever after, we have also recognized that the need to protect personality and property against warrantless invasion must be balanced against the myriad difficulties facing customs and immigration officials who are charged with the enforcement of smuggling and immigration laws. We have, therefore, recognized in the doctrine of "extended border search," the government's power, under certain circumstances, to search without a warrant persons and things after they have entered the country.

Id. at 771 (emphasis added); see also United States v. Flynn, 664

F.2d 1296, 1306 n.17 (5th Cir.) (explaining that an extended

border search "enables government officials to search persons or

goods at some point after they have crossed the border where

14 there is a reasonable suspicion of secreted contraband that can

be shown to have been present at the time the border was

crossed") (emphasis added), cert. denied, 456 U.S. 930 (1982);

United States v. Sheikh, 654 F.2d 1057, 1070 n.16 (5th Cir.

1981), cert. denied, 455 U.S. 991 (1982) (same). Thus, because

both vehicles and persons crossing the border may harbor

contraband, it follows that the extended border search doctrine

should permit the search of not only vehicles but also persons--

the caveat being, however, that the requirements enunciated in

Espinoza-Seanez must be met so that an entrant's legitimate

expectations of privacy are not unconstitutionally intruded

upon.4 To view the extended border search doctrine in the

limited manner which Cardenas prescribes would be to frustrate

the purpose of the extended border search doctrine--as well as

the border search doctrine itself on which the extended doctrine

is based--so as to limit illogically the right of a sovereign

state to control what persons or property crosses its

international borders. We therefore find Cardenas' argument to

be without merit.

b. The Requirements of Espinoza-Seanez

Cardenas contends generally that the district court based

its determination that the Espinoza-Seanez factors had been

4 We note that an extended border search can properly be conceived as much like a search at the border or at the functional equivalent of the border because the entrant or the vehicle to be searched "'brings the border with it' to the point of the search." United States v. Johnson, 588 F.2d 147, 154 n.11 (5th Cir. 1979).

15 demonstrated on clearly erroneous factfindings, i.e., that the

taxi driver gave a description of Cardenas' clothing to Inspector

Soledad before Soledad set out to look for Cardenas, that

Cardenas volunteered to walk with Soledad to the Head House, and

that Cardenas told Soledad that she had just crossed the border.

We find no support in the record for these particular findings.

However, we consider the other findings made by the district

court, which are supported by record evidence, in reviewing the

district court's conclusion that the Espinoza-Seanez factors have

been demonstrated.

(i). Reasonable certainty of a border crossing

Cardenas first contends that the government failed to show

by a "reasonable certainty" or a "high degree of probability"

that she had just crossed the border. She argues that she was

not viewed with suspicion as she crossed the border, that she was

not kept under surveillance after she crossed, and that nothing

about her appearance or her being located within a block of the

border when found supports a high degree of probability that she

had just entered the United States. She thus concludes that the

first Espinoza-Seanez requirement was not satisfied and that her

search and seizure cannot be qualified as having been made under

the extended border search doctrine. Again, we disagree.

Despite Cardenas' argument otherwise, continuous

surveillance is not a requirement of an extended border search.

Niver, 689 F.2d at 527; United States v. Ingham, 502 F.2d 1287,

1291 (5th Cir. 1974), cert. denied, 421 U.S. 911 (1975); see also

16 United States v. Driscoll, 632 F.2d 737, 739 (9th Cir. 1980).5

Furthermore, although the "reasonable certainty" standard, which

governs our inquiry into whether a border crossing has occurred,

requires more than probable cause, it does not require knowledge

beyond a reasonable doubt. Espinoza-Seanez, 862 F.2d at 531.

The "reasonable certainty" standard requires that

"the totality of facts and circumstances within the [government] officers' knowledge of which they have reasonably trustworthy information be sufficient in the light of their experience to warrant a firm belief that a border crossing has occurred."

United States v. Corral-Villavicencio, 753 F.2d 785, 788 (9th

Cir. 1985) (quoting United States v. Tilton, 534 F.2d 1363, 1366-

67 (9th Cir. 1976)). Moreover, that a border crossing has

occurred may be inferred from circumstantial evidence. See

Delgado, 810 F.2d at 484 n.2 (explaining that government

officials need not actually observe a border crossing in order

for their search to be considered reasonable). For example, in

United States v. Barbin, 743 F.2d 256, 261 (5th Cir. 1984), this

court concluded that it was "reasonably certain" that a sailboat

and trailer had crossed the United States border from Mexico

because (1) an informant had reported to customs inspectors that

the boat and trailer were approaching the border on the Mexican

5 We have, however, indicated that constant surveillance is one way in which the government can demonstrate that there had been no change in the condition of person or vehicle being searched between the time of the border crossing and the time of the search itself and that the contraband was present at the border crossing. United States v. Niver, 689 F.2d 520, 527 (5th Cir. 1982); United States v. Richards, 638 F.2d 765 (5th Cir.), cert. denied, 454 U.S. 1097 (1981); see also United States v. Alfonso, 759 F.2d 728, 735 (9th Cir. 1985).

17 side of the Rio Grande River; (2) the boat and trailer were later

sighted within 25 miles of the border on the United States side;

(3) the boat and trailer were found with sand and river mud on

them; and (4) trailer tracks, which matched the trailer, were

found at the border river crossing.

Additionally, in United States v. Delgado, we upheld the

district court's determination that the search of a truck

qualified as an extended border search because there was a

"reasonable certainty" that the contraband found in the truck had

crossed the border. 810 F.2d at 484. In Delgado, James

Marchant, a customs investigator, received information that a

drug smuggling operation was using a specific crossing on a farm

on the Rio Grande River to smuggle marijuana into the United

States from Mexico. Id. at 481. Marchant was informed that a

convoy of vehicles had left Juarez, Mexico, headed downriver on

the Mexican highway to the crossing at the farm and that before 9

p.m. the marijuana was to be offloaded from one of the vehicles--

a large truck capable of carrying tonnage--and smuggled across

the border into the United States. Id. at 482. Relying on the

past credibility of his informant, Marchant established

surveillance at the farm with another customs official, both of

whom were positioned so that traffic not coming from the border

area had to pass one of the two inspectors. Id.

When Marchant saw a truck driving away from the border on

the road out of the farm at 7:30 p.m., Marchant concluded that it

had come from the border area because it had not passed either

18 him or his partner. Id. Marchant then followed the truck on the

highway, and when a car passed him to travel with the truck, he

concluded--from his experience--that the car was a "heat

vehicle," traveling in tandem with the truck to ensure that the

truck reached its destination. Id. This court upheld Marchant's

subsequent stop and search of the truck under the extended border

search doctrine, concluding that there was sufficient evidence to

show beyond a "reasonable certainty" that the contraband had

crossed the border. Id. at 484.

Evidence in the instant case is also circumstantial.

Testimony indicates that Cardenas' co-defendant Lawal appeared

nervous and was very evasive in answering routine questions posed

to him by Inspector Valdez as he attempted to cross the border,

that a patdown search of Lawal rendered razor blades (for which

Lawal attempted to fight), a roll of transparent tape, and a

picture of Cardenas, and that a strip search of Lawal brought

forth a United States passport issued to Cardenas that contained

visa stamps for the Philippines, which Lawal attempted to hide.

Specifically, Valdez testified that based on his past experience,

the presence of the razor blades, as instruments commonly used in

the cutting of heroin and cocaine, raised his suspicion that

Lawal was involved in narcotics trafficking. He further

testified that because his experience had shown that drug

smugglers often travel in pairs and split up as they go through

customs to avoid detection, he discontinued the search of Lawal

to brief Inspector Soledad, his supervisor, of his suspicions--

19 i.e., that Lawal and Cardenas were partners in a smuggling scheme

and that Cardenas had recently crossed the border and was

somewhere nearby. He also attested that Cardenas' passport with

visa stamps from the Philippines, which was recognized by

inspectors as a "high source country for narcotics," made him

very suspicious of her involvement in a smuggling scheme.

Moreover, Soledad testified that Cardenas was found not more than

a block away from the border crossing, standing next to a wall

near a store, within minutes of his proceeding to look for her.

The evidence provided by the searches of Lawal, Valdez's

familiarity with the modus operandi of drug smugglers in crossing

the border in pairs, Valdez's briefing of Inspector Soledad on

his suspicions about Cardenas and Lawal, the location at which

Cardenas was found, and the short time frame during which the

inspectors discovered Cardenas' picture and passport with Lawal

and then found Cardenas herself near the border indicate a "high

degree of probability" or a "reasonable certainty" that Cardenas

had crossed the border. Thus, the district court did not err in

concluding that the government had sufficiently demonstrated the

first factor enunciated in Espinoza-Seanez.

(ii). Reasonable certainty of unchanged condition

Cardenas also argues that the district court erroneously

concluded that the government had established the second

Espinoza-Seanez factor, i.e., a reasonable certainty that there

had been no change in Cardenas' condition from the time of the

border crossing until the time of the search and that the heroin

20 found on Cardenas' person had been present when she crossed the

border. She asserts that Inspector Alvarado, who allowed her to

pass through the pedestrian lane without inspection, did not

notice her looking "bulky around the waist" and that no one

testified whether she looked the same when she crossed the border

as when she was confronted in El Paso. We are, however,

unpersuaded by Cardenas' argument.

Testimony supports the district court's finding that between

fifteen and thirty-five minutes elapsed between the time

Inspector Alvarado passed Cardenas through the pedestrian lane

and the time Inspector Soledad encountered her in El Paso--not

more than a block from the border. Furthermore, the district

court found Inspector Hasan's testimony to be convincing. Hasan

testified not only to the difficulty of removing the girdle from

Cardenas' body but also to the difficulty of placing the girdle

around Cardenas' waist with the bulky, plastic packages

underneath. Hasan also testified that it would have been

difficult for Cardenas to put on the girdle and the plastic

packages quickly and extremely difficult for her to have done so

with no help. Specifically, Hasan testified that Cardenas

required assistance to position one of the packages of heroin

underneath the girdle she was wearing as it was positioned, i.e.,

on her back.

Cardenas argues, however, that it is ludicrous to believe

that she could not have put on the girdle in a restroom or

dressing room in one of the nearby El Paso shops. She also

21 asserts that because Hasan testified that it took approximately

five minutes to help Cardenas put the girdle on, Cardenas had

plenty of time to do so during the fifteen to thirty-five minutes

when she was unobserved in downtown El Paso.

We again emphasize that continuous surveillance is not a

requirement of an extended border search. Niver, 689 F.2d at

739; Driscoll, 632 F.2d at 739; Ingham, 502 F.2d at 1291. This

court has also upheld border searches in which defendants have

remained unobserved for periods of thirty minutes, United States

v. Ramos, 645 F.2d 318, 321 (5th Cir. 1981), and fifty-five

minutes, United States v. Walters, 591 F.2d 1195, 1198 (5th

Cir.), cert. denied, 442 U.S. 945 (1979). Although the searches

conducted in Ramos and Walters were each deemed a functional

equivalent of the border search, and not an extended border

search as the district court decided in the instant case, our

discussion in those cases aids our analysis of Cardenas'

situation.

In Walters, for example, fifty-five minutes had elapsed

between the time the defendant passed through the airport customs

enclosure to the time a customs agent requested that she return

to the customs enclosure. 591 F.2d at 1198. During that fifty-

five minute period, the defendant testified that she had gone

upstairs to the end of the airport terminal building, into a

drugstore where she bought a soda and looked at magazines, and

returned to the airport lobby. Id. We took into account the

defendant's limited activities during the fifty-five minute

22 period, that her clothing was unchanged when she returned to

customs, and that cocaine had been taped to her body under heavy

clothes and a girdle to determine that a reasonable fact finder

could conclude that the cocaine was in the same position on the

defendant's person as it had been when the defendant entered the

country. Id.

In Ramos, we reviewed the district court's determination

that the government demonstrated with "reasonable certainty" that

the contraband found on the defendant had recently crossed the

border. The defendant had been approached by customs officials

within thirty minutes of leaving the airport customs enclosure.

645 F.2d at 320-21. The defendant testified that during that

thirty-minute period he had checked into the airport hotel which

was part of the terminal complex. Id. at 321. However, there

was no indication that the defendant had gone to his room because

he had not changed clothes since his departure from the customs

enclosure and was carrying the same briefcase. Id. A patdown

search of the defendant eventually revealed a package of cocaine

taped to the defendant's leg and covered by an ace bandage. Id.

at 320. In agreeing with the district court that it was

"reasonably certain" that the cocaine found on the defendant had

crossed the border, we explained:

The government is not required to negate every hypothetical possibility as to how the contraband may have been obtained subsequent to the border crossing. In this case, the mere assertion by the defendant that there was the opportunity to obtain the contraband after the border crossing is insufficient to controvert the facts established by the government. Although opportunity is, of course, one factor, and might be the

23 controlling factor if the contraband were found loose in a pocket or purse, the court finds that it is highly unlikely that cocaine obtained after a long international flight, late at night almost contemporaneously with registration in a hotel, would be carried in the manner of the cocaine found in this case.

Id. at 321 (emphasis added).

In light of our discussion in Walters and Ramos, and after

reviewing the evidence in the instant case on which the district

court made its factual findings, we cannot say that the district

court erred in determining that the government demonstrated a

reasonable certainty that Cardenas, and thus the heroin secured

to her person, had not changed in condition between the time she

crossed the border and the time she was found in El Paso. We

therefore find Cardenas' contention to be without merit.

(iii). Reasonable suspicion of criminal activity

Finally, Cardenas contends that the inspectors who found her

in El Paso had at best a generalized suspicion that she was

involved in criminal activity but no "particularized suspicion."

She asserts that the inspectors who encountered her in El Paso

noticed nothing suspicious about her when they approached and

that the inspectors who suspected Lawal of drug trafficking could

not transfer that suspicion to Cardenas simply because Lawal

possessed Cardenas' passport. She thus concluded that the

district court erred in determining that the third factor

enunciated in Espinoza-Seanez, a reasonable suspicion that

criminal activity is occurring, had been demonstrated. Again, we

disagree.

24 "Reasonable suspicion" of criminal activity must be based on

specific facts which, taken together with rational inferences

therefrom, reasonably warrant an intrusion. See United States v.

Lopez-Gonzalez, 916 F.2d 1011, 1013 & n.3 (5th Cir. 1990) (citing

Terry v. Ohio, 392 U.S. 1 (1968), and explaining that factors

relevant to the reasonable suspicion inquiry for a Terry stop

might also be relevant to the reasonable suspicion inquiry in an

extended border search, particularly for those stops in which the

transportation of contraband is suspected); United States v.

Miranda-Perez, 764 F.2d 285, 288 (noting that the "reasonable

suspicion standard reaches to stops for the purpose of

investigating not only suspected smuggling of contraband or

transportation of illegal aliens but also, in a broader sense,

for investigating suspected criminal activity"). We have also

made it clear that "reasonable suspicion" of criminal activity is

not limited to any particular set of factors. Espinoza-Seanez,

862 F.2d at 531. Instead, "'each case must turn on the totality

of the particular circumstances.'" Id. (quoting Melenez-

Gonzalez, 727 F.2d at 410-11).

Testimony supports the district court's finding that Lawal

was concealing Cardenas' passport, a passport marked with visa

stamps from the Philippines, which Inspector Valdez recognized as

a "high source country" for narcotics. We have found such

evidence to be supportive of a government official's "reasonable

suspicion" of the person to whom the passport had been issued.

See United States v. Adekunle, 980 F.2d 985, 988 (5th Cir. 1992)

25 (evidence that a person carried a passport from Nigeria, a known

narcotics source country, supported the custom agent's reasonable

suspicion), cert. denied, 113 S. Ct. 2380, and cert. denied, 113

S. Ct. 2455, vacated in part on reh'g on other grounds, 2 F.3d

559 (5th Cir. 1993). Testimony further supports the finding that

Lawal tried to hide Cardenas' passport from the inspectors and

that Lawal was also carrying a photograph of Cardenas in his

wallet. The district court also found that the inspectors

possessed an "abundance of information" supporting a reasonable

suspicion of criminal activity, i.e., evidence obtained from the

search of Lawal--especially the razor blades which Lawal

struggled to keep from the inspectors--and Inspector Valdez's

testimony that his experience indicated that drug smugglers often

traveled in pairs and crossed the border separately but at

approximately the same time. When viewed as a whole, the

evidence supports the district court's determination that Lawal

and Cardenas were each reasonably suspected of criminal activity.

We thus cannot say that the district court erred in determining

that the third factor enunciated in Espinoza-Seanez, a reasonable

suspicion of criminal activity on Cardenas' part, had been

demonstrated.

3. Conclusion

The district court correctly concluded that the search and

seizure of Cardenas was made pursuant to the extended border

search doctrine. As such, Cardenas' search and seizure were not

unreasonable, and her Fourth Amendment rights were not violated.

26 The district court thus did not err in denying Cardenas' motion

to suppress.

III. DEFENDANT LAWAL

Lawal contends that the district court erred in admitting

into evidence at trial Cardenas' statements implicating Lawal in

an elaborate scheme to smuggle heroin into the United States

because Cardenas did not testify at either the suppression

hearing or the trial. He argues that because this evidence was

erroneously admitted, his Sixth Amendment right of confrontation

and cross-examination was violated under Bruton v. United States,

391 U.S. 123 (1968). Additionally, Lawal contends that Cardenas'

statements were hearsay and not competent evidence bearing on the

issue of his guilt or innocence. Lawal further maintains that

the district court erred in denying his motion for a judgment of

acquittal as to all charges because the government did not

present sufficient evidence of his guilt. We review each of

Lawal's contentions in turn.

A. Lawal's Bruton Claim

The Sixth Amendment provides a defendant with the right "to

be confronted with the witnesses against him." The Supreme Court

in Bruton held that this constitutional right to confrontation

and cross-examination is violated when (1) co-defendants are

tried jointly, (2) one defendant's extrajudicial confession and

statement are admitted into evidence and used to inculpate a co-

defendant, and (3) the confessing defendant does not testify and

27 is thus not subject to cross-examination. Id. Thus, when co-

defendants are tried jointly, a pre-trial confession from one

cannot be admitted against another co-defendant--even if the jury

is instructed to consider the confession only against the

confessing defendant--unless the confessing defendant testifies

at trial. Id. Later decisions of the Court limited Bruton's

applicability to situations in which the confessing defendant's

confession expressly implicates a co-defendant. Richardson v.

Marsh, 481 U.S. 200, 211 (1987); see Cruz v. New York, 481 U.S.

186, 193-94 (1987); United States v. Restrepo, 994 F.2d 173, 186

(5th Cir. 1993); United States v. Kelly, 973 F.2d 1145, 1150 (5th

Cir. 1992); Espinoza-Seanez, 862 F.2d at 534.

The Bruton Court based its reasoning on the fact that

despite limiting instructions to the contrary, the jury could not

be relied upon to disregard completely the confessing defendant's

statement when considering the guilt or innocence of the

inculpated defendant. Id. at 136. As the Court explained,

there are some contexts in which the risk that the jury will not, or cannot follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by cross examination.

28 Id. at 135-36.

The application of Bruton to a bench trial, however, is

questionable. Nothing in Bruton, or in later Supreme Court cases

discussing Bruton, suggests that in a bench trial a judge is

incapable of disregarding inadmissible extrajudicial statements

implicating a defendant. Moreover, this court has always

presumed the contrary: "a trial judge is presumed to rest his

verdict on admissible evidence and to disregard the

inadmissible." Government of the Canal Zone v. Jimenez G., 580

F.2d 897, 898 (5th Cir. 1978) (quoting United States v. Impson,

562 F.2d 970, 971 (5th Cir. 1977)), cert. denied, 439 U.S. 990

(1979); United States v. Masri, 547 F.2d 932, 936 (5th Cir.),

cert. denied, 431 U.S. 932, and cert. denied, 434 U.S. 907

(1977); United States v. Dillon, 436 F.2d 1093, 1095 (5th Cir.

1971).

Other circuits that have addressed the applicability of

Bruton to a bench trial have determined that Bruton does not

apply. See, e.g., Rogers v. McMackin, 884 F.2d 252, 255-57 (6th

Cir. 1989), cert. denied, 493 U.S. 1061 (1990); United States ex

rel. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir. 1979);

United States v. Castro, 413 F.2d 891, 894-95 & n.7 (1st Cir.

1969), cert. denied, 397 U.S. 950 (1970); Cockrell v. Oberhauser,

413 F.2d 256, 258 (9th Cir. 1969); see also 21 CHARLES A. WRIGHT &

KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5064,

at 321 (1977) ("The Bruton rule does not, of course, apply in

nonjury trials."). In making its decision, the Sixth Circuit

29 considered whether the Supreme Court's decision in Lee v.

Illinois, 476 U.S. 530 (1986), made Bruton applicable to non-jury

trials. Rogers, 884 F.2d at 257. We agree with the Sixth

Circuit's assessment that Lee did not make Bruton applicable to

bench trials.

In Lee, Millie Lee and Edwin Thomas were charged with

committing a double murder and were jointly tried in a non-jury

trial. 476 U.S. at 536. Thomas, at the time of his arrest, made

a confession to police which expressly implicated Lee and which

suggested that the two of them had discussed murdering one of the

victims immediately prior to the actual murder. Id. at 532.

Although Lee also confessed, her confession suggested that Thomas

had "snapped" the night of the murders and gave no indication of

any type of plan or premeditation. Id. at 535-36. Thomas'

confession was admitted into evidence at trial and heavily relied

upon by both the prosecution and the defendants. Id. at 536.

Neither of the defendants testified at the trial. Id. In

finding Lee guilty, the judge expressly relied on portions of

Thomas' pre-trial confession as substantive evidence against Lee.

Id. at 538. The Supreme Court held that such reliance violated

Lee's Sixth Amendment right to confrontation. Id. at 547.6

The issue specifically addressed in Lee was whether the

trial judge's reliance upon Thomas' pre-trial confession, not the

6 We note that the Lee Court did not foreclose the possibility, however, that such a reliance was harmless "when assessed in the context of the entire case against Lee." Lee, 476 U.S. at 547.

30 admission of such a confession, violated Lee's Sixth Amendment

right to confrontation. Id. at 531. Moreover, the Court

observed that Lee was "not strictly speaking a Bruton case." Id.

at 542. Bruton, the Court explained, was based "on the fact that

a confession that incriminates an accomplice is so . . .

'devastating' that the ordinarily sound assumption that a jury

will be able to follow faithfully its [limiting] instructions

could not be applied." Id. (emphasis added).

We therefore agree with the Sixth Circuit that automatically

"[t]o apply Bruton to bench trials would be to conclude that

judges, like jurors, may well be incapable of separating evidence

properly admitted against one defendant from evidence admitted

against another." Rogers, 884 F.2d at 257. Furthermore, absent

an express reliance by a trial judge on a non-testifying

defendant's pre-trial confession--which facially implicates a co-

defendant--in determining that co-defendant's guilt, we do not

see how a Sixth Amendment confrontation issue can arise in a

bench trial. No such express reliance exists in the instant

case.

In light of the Supreme Court's rationale in Bruton and Lee

and this circuit's case law which recognizes the presumption that

a judge in a bench trial has no difficulty in disregarding

inadmissible evidence in reaching his verdict, we thus agree with

our sister circuits who have determined that Bruton is

31 inapplicable to bench trials.7 Lawal's reliance on Bruton is

therefore misplaced.

B. Cardenas' Admission as Hearsay

Lawal also contends that the district court erred in

admitting Cardenas' admission, which implicated Lawal in an

elaborate scheme to smuggle heroin into the United States,

because her admission was inadmissible hearsay as to Lawal and

not competent evidence bearing on the issue of Lawal's guilt or

innocence. He thus argues that his conviction should be set

aside because the admissible evidence was not sufficient to

establish his guilt.

1. Standard of Review

The prejudicial impact of erroneously admitted evidence in a

bench trial is presumed to be substantially less than it might

have been in a jury trial. United States v. Hughes, 542 F.2d

246, 248 (5th Cir. 1976); United States v. Nicholson, 492 F.2d

124, 124 (5th Cir. 1974). Moreover, "'a judge, sitting as a

trier of fact, is presumed to have rested his verdict only on the

admissible evidence before him and to have disregarded that which

is inadmissible.'" Jiminez G., 580 F.2d at 898 (quoting Impson,

562 F.2d at 971); Hughes, 542 F.2d at 248; Dillon, 436 F.2d at

1095. Any error the judge makes in admitting evidence is thus

7 We also point out that at least two commentators have cited the Supreme Court's decision in Lee for the proposition that Bruton is inapplicable to bench trials. See 21 CHARLES A. WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5064, at 173 n.33 (West Supp. 1993).

32 harmless if there exists other admissible evidence sufficient to

support the conviction. Jiminez G., 580 F.2d at 898.

Our standard of review in reviewing the ultimate finding of

guilt by the district court is a substantial evidence test.

United States v. Puente, 982 F.2d 156, 158-59 (5th Cir.), cert.

denied, 113 S. Ct. 2934 (1993); United States v. Rosas-Fuentes,

970 F.2d 1379, 1381 (5th Cir. 1992); United States v. Jennings,

726 F.2d 189, 190 (5th Cir. 1984). Thus, this court should

sustain Lawal's conviction if the district judge's finding is

supported by any substantial evidence. United States v.

Richardson, 848 F.2d 509, 511 (5th Cir. 1988); Jennings, 726 F.2d

at 190. As we explained in Jennings,

[w]here a jury has been waived and bench trial held, on appellate review of the ultimate finding of guilt the usual rule is that it must stand if it is supported by substantial evidence. [Thus,] in reviewing the findings of guilt by a trial court in a non-jury trial, the standard of review of the appellate court "is to determine whether such findings are supported by any substantial evidence. It is not our function to make credibility choices or to pass upon the weight of the evidence. The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty . . . ."

726 F.2d at 190 (quoting Gordon v. United States, 438 F.2d 858,

868 n.30 (5th Cir.), cert. denied, 404 U.S. 828 (1971)) (internal

citations and quotations omitted).

In applying this substantial evidence test, we must consider

the evidence in the light most favorable to the government.

Rosas-Fuentes, 970 F.2d at 1381; Richardson, 848 F.2d at 511.

"We must likewise 'defer to reasonable inferences of fact drawn

33 by the trial court.'" Richardson, 848 F.2d at 511 (quoting

United States v. Reeves, 782 F.2d 1323, 1326 (5th Cir.), cert.

denied, 479 U.S. 837 (1986)); see Rosas-Fuentes, 970 F.2d at

1381; United States v. Pitts, 428 F.2d 534, 537 (5th Cir.), cert.

denied, 400 U.S. 910 (1970). Furthermore, our review remains the

same whether the evidence is direct or circumstantial.

Richardson, 848 F.2d at 511; United States v. Lorence, 706 F.2d

512, 518 (5th Cir. 1983).

2. Evidence Supporting Lawal's Conviction

Lawal was convicted on two counts of drug conspiracy, one

count of drug possession, and one count of drug importation. See

supra Part I.B. We need not decide whether the district judge

erroneously admitted Cardenas' hearsay statements, for our review

of the remaining admissible evidence shows that substantial

evidence exists to support the district judge's ultimate finding

of guilt on these charges. We address each of the charges in

turn.

a. Conspiracy

To prove the drug conspiracy charges against Lawal, the

government must prove beyond a reasonable doubt (1) that a

conspiracy existed, i.e., that two or more persons agreed to

violate the narcotics laws; (2) that Lawal knew of the

conspiracy; and (3) that Lawal voluntarily participated in the

conspiracy. United States v. Rodriguez-Mireles, 896 F.2d 890,

892 (5th Cir. 1990); United States v. Natel, 812 F.2d 937, 940

(5th Cir. 1987). Direct evidence is not required; each element

34 may be inferred from circumstantial evidence. Espinoza-Seanez,

862 F.2d at 537.

An agreement to violate narcotics laws may be inferred from

"concert of action." Id.; see Natel, 812 F.2d at 940; United

States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982). Knowledge of

the conspiracy may be inferred from "'a collection of

circumstances.'" Espinoza-Seanez, 862 F.2d at 537; Vergara, 687

F.2d at 61. Evasive and erratic behavior is some evidence of

guilty knowledge. See Richardson, 848 F.2d at 513; United States

v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986).

Voluntary participation in the conspiracy may also be inferred

from a "collection of circumstances." Espinoza-Seanez, 862 F.2d

at 537; Vergara, 687 F.2d at 61; United States v. Marx, 635 F.2d

436, 439 (5th Cir. 1981). Although mere presence at the scene of

the crime or a close association with a co-conspirator alone

cannot establish voluntary participation in a conspiracy, United

States v. Moreno, 649 F.2d 309, 312 (5th Cir. 1981), presence or

association is a factor that, along with other evidence, may be

relied upon to find conspiratorial activity by the defendant,

Natel, 812 F.2d at 941; see United States v. Magee, 821 F.2d 234,

239 (5th Cir. 1987).

Evidence shows that Lawal and Cardenas left together from

the Hotel San Carlos in Juarez, Mexico. They travelled by taxi

together, instructing the taxi driver to take them across the

border to El Paso. Lawal and Cardenas split up to cross the

border into the United States, with Lawal waiting approximately

35 five minutes after Cardenas had passed through a pedestrian lane

at the border crossing before he attempted to pass through a

different pedestrian lane. Lawal was nervous and evasive in his

responses to routine questioning from Inspector Valdez in the

pedestrian lane. He manifested unusual behavior when questioned

about the reasons for his trip to Mexico.

Although he told Inspector Valdez that he had only been

visiting Juarez and that he was staying at the Holiday Inn Hotel

in El Paso, a key to Room 17 in the Hotel San Carlos in Juarez

was found in his possession. Later, Mexican Judicial Police

found four pounds of heroin in Room 17, which was registered in

Lawal's name.8 A small role of transparent tape, $1044 in United

States currency, a photograph of Cardenas in Lawal's wallet, and

razor blades were also found in Lawal's possession. Lawal tried

forcefully to prevent inspectors from taking the razor blades,

and a drug dog later alerted to the currency found in Lawal's

possession.

Additionally, Cardenas' United States passport, which

contained visa stamps from the Philippines, was hidden in Lawal's

right shoe. Lawal attempted to hide that passport after it was

found. Cardenas was spotted minutes after inspectors had

discovered her passport with Lawal. She was not more than a

block from the border crossing, standing next to a wall. Later,

8 We note that neither probable cause nor a search warrant was required to search Room 17. The Fourth Amendment does not apply to searches or seizures conducted on foreign soil, even if the search involves agents of the United States government. United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990).

36 5.5 pounds of heroin--worth approximately $500,000 wholesale--was

found secreted on Cardenas' person by means of a girdle and tape,

the same type of tape found in Lawal's pocket.

After being informed of his Miranda rights, Lawal stated

that he found Cardenas' passport on the ground near the border

crossing, carried it inside his shoe to avoid being detected with

another's passport, and intended to turn it in to the proper

authorities. He initially reported that he was traveling alone,

but later stated that his wife and infant son were waiting for

him in El Paso. He also initially denied that he had ever seen

Cardenas, but later admitted riding in the taxi with her from the

Hotel San Carlos to the border crossing. Furthermore, Lawal

denied knowledge of either the presence of Cardenas' picture in

his wallet or the heroin confiscated from Cardenas' person.

Reviewing this evidence, albeit circumstantial, in the light

most favorable to the government and likewise deferring to

reasonable inferences of fact drawn by the district judge, we

find the evidence sufficient to prove all of the elements in the

conspiracy charge as discussed above. Substantial evidence

exists to support an inference of agreement, knowledge, and

voluntary participation on Lawal's part to convict him of

conspiracy.

b. Possession with intent to distribute

To prove the possession with intent to distribute charges

against Lawal, the government must prove knowing possession of

the contraband with intent to distribute. Rosas-Fuentes, 970

37 F.2d at 1382; Williams-Hendricks, 805 F.2d at 500. The elements

of the offense may be proven by circumstantial evidence alone.

Rosas-Fuentes, 970 F.2d at 1382; United States v. Molinar-

Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989).

Possession may be actual or constructive and may be joint

among several defendants. Molinar-Apodaca, 889 F.2d at 1423;

Vergara, 687 F.2d at 61. This court has defined "constructive

possession" as "the knowing exercise of, or the knowing power or

right to exercise dominion and control over the proscribed

substance." Molinar-Apodaca, 889 F.2d at 1423; United States v.

Glasgow, 658 F.2d 1036, 1043 (5th Cir. 1981). Intent to

distribute "may be inferred from the presence of distribution

paraphernalia, large quantities of cash, or the value and quality

of the substance." United States v. Munoz, 957 F.2d 171, 174

(5th Cir.), cert. denied, 113 S. Ct. 332 (1992).

Evidence shows that Lawal had in his possession--when he

attempted to cross the border--razor blades, tape of the same

type that was used to secure the heroin to Cardenas' person,

Cardenas' picture and passport, and a large amount of cash to

which a drug dog alerted. Inspector Hasan testified not only to

the difficulty of Cardenas alone securing the girdle and drugs on

Cardenas' person as they had been secured, but also to the

difficulty of removing the girdle and drugs without help. The

taxi driver testified that he had taken Lawal and Cardenas

together to the border crossing. Having reviewed this evidence,

along with other evidence presented, see Part III.B.2.a supra, in

38 the light most favorable to the government, we conclude that the

district court did not err in determining that Lawal had

constructive possession of the heroin found on Cardenas' person

and the intent to distribute that heroin. Substantial evidence

exists to support Lawal's conviction for possession with intent

to distribute.

c. Importation

To prove the importation charge against Lawal, the

government was required to prove the elements of the possession

charge and that Lawal "played a role in bringing the [heroin]

from [Mexico] into the United States." United States v.

Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988);

Williams-Hendricks, 805 F.2d at 500. Again, we find substantial

evidence to support that Lawal did indeed play a role in bringing

heroin from Mexico into the United States. See Part III.B.2.a

supra.

d. Conclusion

We therefore determine that any error made by the district

judge in admitting Cardenas' hearsay statements was not harmful

because there exists other sufficient admissible evidence to

support Lawal's conviction for the crimes with which he was

charged.

C. Denial of Motion for a Judgment of Acquittal

Finally, Lawal contends that the district court erred in

denying his motion for a judgment of acquittal because the

39 government did not present sufficient evidence to support Lawal's

conviction. We disagree.

We first note that the government argues that because Lawal

failed to renew his motion for acquittal at the close of all of

his evidence, Lawal has waived his sufficiency review on appeal.

Citing this court's decision in United States v. Ruiz, 860 F.2d

615, 617 (5th Cir. 1988), the government contends that we should

review the sufficiency of evidence for Lawal's convictions under

the "manifest miscarriage of justice" standard. We must point

out, however, that the "manifest miscarriage of justice" standard

applies only when the defendant fails to move for acquittal at

the close of all the evidence in a jury trial. Rosas-Fuentes,

970 F.2d at 1381. Because Lawal waived his right to trial by

jury and elected a bench trial, his plea of not guilty serves as

a motion for acquittal and thus error has been preserved. Id.;

Pitts, 428 F.2d at 535.

Furthermore, because Lawal waived his right to a jury trial

and a bench trial was held, we review his sufficiency of the

evidence claim according to the substantial evidence test, as

discussed in Part III.B.1 supra. In light of our discussion

concerning the sufficiency of the evidence to support Lawal's

convictions in Part III.B.2 supra, we find that Lawal's argument

concerning the district court's denial of his motion for a

judgment of acquittal to be without merit.

IV. CONCLUSION

40 For the foregoing reasons, we AFFIRM the district court's

judgment of conviction and sentence as to each of Cardenas and

Lawal.