United States v. Gomez-Villamizar

• Court: Court of Appeals for the First Circuit
• Decided: December 23, 1992
• Docket: 92-1228
• Status: Published

Opinion

USCA1 Opinion

December 23, 1992
                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 92-1228

                                    UNITED STATES,

                                      Appellee,

                                          v.

                              GUSTAVO GOMEZ-VILLAMIZAR,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Stahl, Circuit Judge,
                                        _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              Skinner,* District Judge.
                                        ______________

                                 ____________________

            Miguel A.A. Nogueras-Castro  with whom Benicio Sanchez Rivera  was
            ___________________________            ______________________
        on brief for appellant.
            Epifanio Morales Cruz,  Assistant U.S. Attorney, with whom  Daniel
            _____________________                                       ______
        F. Lopez-Romo,  United States Attorney,  and Jose A.  Quiles Espinosa,
        _____________                                ________________________
        Assistant U.S. Attorney, were on brief for appellee.

                                 ____________________

____________________

        _____________________
        *Of the District of Massachusetts, sitting by designation.

STAHL,  Circuit  Judge.     Defendant-appellant  Gustavo
                         ______________

            Gomez-Villamizar  appeals his conviction  for possession with

            intent to  distribute a controlled substance  ("Count I") and

            possession  of a  controlled substance  on board  an aircraft

            arriving  in  the  customs  territory of  the  United  States

            ("Count III").1  In so doing, defendant  argues that:  (1) as

            a matter of law,  he lacked the  criminal intent to be  found

            guilty  under  Counts I  and III;  and  (2) the  evidence was

            legally insufficient  to convict him under either Counts I or

            III.  Finding neither argument persuasive, we affirm.

                                          I.
                                          I.
                                          __

                                  FACTUAL BACKGROUND
                                  FACTUAL BACKGROUND
                                  __________________

                 We summarize the evidence in the light most favorable to

            the  government.   United States  v. Ocampo-Guarin,  968 F.2d
                               _____________     _____________

            1406,  1409 (1st Cir. 1992).  On October 13, 1990, defendant,

            a Colombian  citizen, boarded  Iberia Airlines Flight  928, a

            regularly scheduled flight from Bogota, Colombia, to  Madrid,

            Spain.   While en route to Madrid, at approximately 3:00 p.m.

            that same day, the  flight stopped for refueling at  the Luis

            Munoz Marin  International Airport in Carolina,  Puerto Rico.

            While the  plane was  in Puerto  Rico, United  States Customs

            Service  ("USCS") Canine  Enforcement  Officer  Juan  Gracia-

            Garcia performed  an inspection of the  luggage aboard Flight

____________________

            1.  The  jury acquitted him on the charge of importation of a
            controlled substance into the customs territory of the United
            States ("Count II").  

                                         -2-
                                          2

928.   Gracia's  dog alerted  him to  two pieces  of luggage.

            After  noticing an unusual thickness at the bottom of the two

            suitcases,  Gracia  conducted  a  search and  found  a  white

            powdery substance in each.  When field tested, the  substance

            gave positive results for cocaine.

                 After  obtaining  the  test  results,  Gracia  contacted

            Iberia  Airlines  personnel  and  obtained  a  printout  with

            information  identifying defendant  as the  owner of  the two

            suitcases.   Gracia then  proceeded to the  in-transit lounge

            and requested an Iberia  Airlines employee to page defendant.

            Gracia  identified defendant through his passport and airline

            ticket,2 and then placed him under arrest.

                 Subsequently, Gracia escorted defendant to the airport's

            USCS  office and  interviewed  him.   During that  interview,

            defendant admitted  that the  two suitcases and  the clothing

            within them  belonged  to  him.   After  his  interview  with

            Gracia,  defendant  was  questioned  by  USCS  Special  Agent

            Rodolfo Salcedo.   Neither  Salcedo  nor Gracia  specifically

            asked  defendant  whether  he  knew that  his  two  suitcases

            contained cocaine.

____________________

            2.  Defendant's  airline ticket reflected that he had checked
            two  pieces of  luggage at  the airport in  Bogota, Colombia.
            Attached to the  airline ticket were baggage  claim tags with
            numbers that matched  the baggage  claim numbers  on the  two
            suitcases  containing  the  cocaine.   Further,  the  control
            number of defendant's ticket was the same control number that
            was on defendant's baggage claim tags and his boarding pass.

                                         -3-
                                          3

On October  15, 1990, Salcedo removed  the white powdery

            substance from the suitcases and delivered it to USCS Chemist

            Marcelino Borges.   Borges  conducted a chemical  analysis of

            the substance and concluded that it was cocaine hydrochloride

            with a gross weight of 1,999.3 grams.

                 According   to  defendant,   his  trip   to  Spain   was

            precipitated  by a  job offer  from one  Carlos  Rodriguez to

            serve as  the head of maintenance  at a hotel in  Madrid.  As

            defendant  lacked  adequate  travelling   luggage,  Rodriguez

            allegedly gave him the two pieces of luggage at issue in this

            case.   After  packing the  two  suitcases with  his personal

            belongings, defendant  rode in  a cab  with Rodriguez  to the

            airport.

                 Defendant asserted that, while he  was paying a duty fee

            at the airport, Rodriguez checked the two suitcases  onto the

            flight.    Rodriguez then  handed  defendant  both the  plane

            ticket and the baggage claim  tags.  According to  defendant,

            he boarded  the airplane  unaware that his  luggage contained

            cocaine  and that the flight would make an in-transit stop in

            Puerto Rico.3

____________________

            3.  Defendant testified that Rodriguez  had informed him that
            his flight  was travelling directly from  Bogota, Colombia to
            Madrid, Spain.

                                         -4-
                                          4

After a three-day trial, on November  20, 1991, the jury

            found defendant guilty on  Counts I and III.4   Defendant was

            sentenced to seventy-eight months in  prison.  On January 27,

            1992, defendant filed the instant appeal.

II.
                                         II.
                                         ___

                                DEFENDANT'S ARGUMENTS
                                DEFENDANT'S ARGUMENTS
                                _____________________

            A.  Mens Rea
            A.  Mens Rea
            ____________

                 Defendant  first  argues that  he  lacked  the mens  rea

            required for  conviction under  either 21 U.S.C.    841(a)(1)

            (Count I),5  or 21 U.S.C.    955 (Count  III).6   Because the

            jury found him  not guilty  of violating 21  U.S.C.    952(a)

            (Count II),7 defendant reasons  that, as a matter of  law, he

            could  not have  been found  guilty under  Counts I  and III.

____________________

            4.  Defendant had  been tried previously on  these charges in
            September  1991.   Because  the jury  was  unable to  reach a
            verdict, defendant's first trial ended in a mistrial.

            5.  21 U.S.C.   841(a)(1) provides that it "shall be unlawful
            for any  person knowingly or intentionally"  to "possess with
            intent . . . to distribute . . . a controlled substance . . .
            ."

            6.  21 U.S.C.   955  provides that it "shall be  unlawful for
            any person to bring or possess" a controlled substance aboard
            any aircraft "arriving in or departing from . . . the customs
            territory of the United States . . . ."

            7.  21 U.S.C.   952(a) provides that it "shall be unlawful to
            import  into the customs territory of  the United States from
            any  place outside thereof . . . [a] controlled substance . .
            . ."

                                         -5-
                                          5

Essentially, defendant contends  that, since  the jury  found

            that  he lacked  the intent  to import  the cocaine  into the
                                         __ ______

            customs territory of the United States, it could not properly

            find either  that he  intended  to possess  the cocaine  with

            intent to distribute  it or that he intended to possess it on

            board  an  aircraft  arriving  in or  departing  the  customs

            territory of the United States.

                 Unfortunately  for  defendant,   however,  we   recently

            considered and  rejected the argument  he now advances.   See
                                                                      ___

            United States v. Bernal-Rojas, 933 F.2d  97, 98-100 (1st Cir.
            _____________    ____________

            1991).   In Bernal, like the  case at bar, the  defendant had
                        ______

            been  convicted under 21 U.S.C.    841(a)(1) and 955, but was

            found not  guilty under 21 U.S.C.   952(a).  The defendant in

            Bernal  argued that,  because  the  three offenses  contained
            ______

            identical  state  of  mind  requirements, the  verdicts  were

            inconsistent  as  a matter  of  law.   Id.  at 98,  100.   We
                                                   ___

            rejected that argument:

                      The jury  could have found,  for example,
                      that although appellant  did possess  the
                      drugs  on board  the  aircraft,  and  did
                      intend  to distribute  them, she  did not
                      import  them  into   the  United   States
                      because  her  intent was  to  import them
                      into    Belgium.         This    possible
                      interpretation  of  the  facts  does  not
                      undermine  the conviction  for possession
                      with intent to  distribute, as "the place
                      of intended distribution is not important
                      so  long  as such  intent  is established
                      together  with  the  fact  of  possession
                      within the United States."

-6-
                                          6

Id. at 100 (quoting  United States v. Mejia-Lozano,  829 F.2d
            ___                  _____________    ____________

            268, 271 (1st Cir. 1987)).

                 In  the  instant  case,  while  defendant  attempts   to

            distinguish his argument from that made in Bernal by dressing
                                                       ______

            it  in  jurisdictional  clothing,8 his  central  complaint is

            that the jury verdicts are inconsistent.  After  Bernal, this
                                                             ______

            argument  must  fail.   Accordingly,  we  reject  defendant's

            entreaty to reverse his conviction on this basis.9

            B.  Sufficiency of the Evidence
            B.  Sufficiency of the Evidence
            _______________________________

                 Defendant next  argues that the  jury lacked  sufficient

            evidence to  find him guilty of  the charges in Counts  I and

            III.  We find this argument unpersuasive.

                 In  assessing  a  sufficiency  claim,  "we  must  decide

            whether, viewing  the evidence and all  legitimate inferences

            which may be drawn from it in the light most favorable to the

            government, a  rational jury  could have found  the defendant

            guilty beyond a reasonable doubt."  Ocampo, 968 F.2d at 1409.
                                                ______

____________________

            8.  Defendant contends  that, because he lacked  the mens rea
            to be  found guilty  under  Counts I  and III,  the Court  is
            without jurisdiction over his person.  

            9.  Acknowledging that  the  holding in  Bernal controls  his
                                                     ______
            case, defendant  urges us  to revisit  our precedent in  this
            area.   Even if we were persuaded by defendant's arguments on
            this question, which we are not, this panel would nonetheless
            be  bound  by  this  circuit's controlling  precedent.    See
                                                                      ___
            Metcalf  &  Eddy,  Inc. v.  Puerto  Rico  Aqueduct  and Sewer
            _______________________     _________________________________
            Authority,  945 F.2d 10, 12  (1st Cir. 1991)  ("We have held,
            _________
            with  a  regularity bordering  on the  monotonous, that  in a
            multi-panel  circuit, newly  constituted panels  are, by  and
            large, bound  by prior  panel decisions closely  on point."),
            cert. granted, 112 S. Ct. 1290.
            _____ _______

                                         -7-
                                          7

"[T]he   prosecution  need   not  exclude   every  reasonable

            hypothesis  of  innocence,  so  long as  the  total  evidence

            permits a  conclusion of  guilty beyond a  reasonable doubt."

            United States v. Nueva, No. 91-2150, slip op. at 8  (1st Cir.
            _____________    _____

            November 4, 1992).   Moreover, we must resolve all  issues of

            credibility in favor of the verdict.  Id.
                                                  ___

1.  Count I
                 1.  Count I
                 ___________

                 To  prove  a violation  of  21 U.S.C.     841(a)(1), the

            government  must  show  beyond  a  reasonable  doubt  that  a

            defendant knowingly  or intentionally possessed  a controlled

            substance with intent to distribute it.  See Ocampo, 968 F.2d
                                                     ___ ______

            at 1409  n.1.   A defendant  can be  found guilty  under this

            statute  if s/he  has merely  constructive possession  of the

            controlled substance.   See id. at  1410 ("Our decision  that
                                    ___ ___

            [defendant]  possessed the  suitcase and  the cocaine  in the

            United States  is consistent with many  previous decisions in

            this circuit in which passengers landing in the United States

            with checked  luggage  have  been  found  to  be  in  knowing

            possession  of  the  contents.").    The  quantity  of  drugs

            involved  is  sufficient "to  permit  the  inference that  [a

            defendant]  knew it  would  be distributed."    Id. at  1410.
                                                            ___

            Moreover, the  government need  not prove that  the defendant

            had the intent  to distribute the controlled substance in the

-8-
                                          8

United States.  "[T]he place of  intended distribution is not
                                   _____

            important so long as such intent is established together with

            the fact of  possession within  the United States."   Id.  at
                                                                  ___

            1411 (quoting United  States v. McKenzie,  818 F.2d 115,  118
                          ______________    ________

            (1st Cir. 1987)) (emphasis in original); see also Bernal, 933
                                                     ___ ____ ______

            F.2d at 100 (same).  

                 Defendant argues that the government failed to establish

            either  that he knowingly  possessed the  cocaine or  that he

            intended to distribute it.  As for the element of possession,

            much evidence adduced at trial tended  to show that defendant

            was in constructive  possession of the two suitcases  and the

            cocaine.     For  example,  the  airline  records  identified

            defendant as  the owner  of  the two  suitcases, his  airline

            ticket reflected that  he had checked two  pieces of luggage,

            the baggage  claim tags attached  to his  ticket had  numbers

            that matched the baggage claim tags on the two suitcases, and

            the control number on defendant's ticket matched  that on his

            baggage claim  tags and boarding  pass.  Moreover,  after his

            arrest, defendant  admitted to  USCS officer Gracia  that the

            two suitcases and the clothing within them belonged to him.

                 Defendant also  contends that  the government  failed to

            prove that he knew the cocaine was in the two  suitcases.  As

            we have  recently stated, however,  in response to  an almost

            identical argument:  "The jury, of course was not required to

            believe [defendant's] testimony  denying knowledge [that  the

-9-
                                          9

cocaine  was in the suitcase].   Issues relating  to state of

            mind,  such as  knowledge and  intent,  may be  influenced by

            assessments of  credibility and often must  be established by

            circumstantial evidence."   Ocampo, 968 F.2d at  1410.  Here,
                                        ______

            the   jury   had   the  opportunity   to   judge  defendant's

            credibility.10    Viewing  the   evidence  in  a  light  most

            favorable  to the verdict, we are persuaded that the jury was

            not unreasonable in discrediting his denial of knowledge.

                 Evidence adduced at trial  also supported a finding that

            defendant had the intent to distribute the cocaine.  From the

            large  quantity  of cocaine  involved,  the  jury could  have

            inferred that defendant harbored the intent to distribute it.

            Id. at 1410.  
            ___

                 Based   upon  the   aforementioned  evidence,   we  find

            unpersuasive defendant's sufficiency argument under 21 U.S.C.

               841(a)(1).  Accordingly,  we affirm defendant's conviction

            under Count I. 

                 2.  Count III
                 2.  Count III
                 _____________

____________________

            10.  In  addition  to  asserting  that he  did  not  know the
            cocaine was  in his luggage, defendant testified  that he did
            not know much about  Rodriguez, the man who allegedly  loaned
            him  the  suitcases,  purchased   his  airline  ticket,   and
            persuaded  him  to  sell all  of  his  possessions and  leave
            Columbia for  a hotel maintenance  job in Madrid.   Defendant
            also  testified that  he  did not  know  the name,  size,  or
            specific location of the hotel.  

                                         -10-
                                          10

In urging  reversal of Count III,  defendant relies upon

            the very  same arguments  he made  under Count I.   As  such,

            discussion of Count III need not detain us long.  

                 To  prove a violation of 21 U.S.C.   955, the government

            must show beyond a reasonable  doubt that a defendant brought

            or  possessed a  controlled  substance on  board an  aircraft

            arriving in or  departing from the  customs territory of  the

            United States.11      See Ocampo,  968 F.2d at 1409  n.1.  As
                                  ___ ______

            outlined above, we think  the evidence sufficient for a  jury

            to find  that defendant knowingly possessed  a large quantity

            of  cocaine on board Iberian Airlines Flight 928.  See United
                                                               ___ ______

            States v.  Gonzales-Torres, No. 91-2410,  slip op. at  6 (1st
            ______     _______________

            Cir.  Nov.  20,  1992)  (holding  that  government  presented

            sufficient  evidence of a violation of   955 by showing "that

            the  defendant was a passenger on an aircraft that arrived in

            Puerto Rico from  Panama, that two suitcases on that aircraft

            contained a  controlled substance, that the  substance was in

            fact  cocaine,   and   that   the   defendant   actually   or

            constructively possessed the  two suitcases").   Accordingly,

            we affirm defendant's conviction under Count III.

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

____________________

            11.  Section 955 also requires proof that the cocaine was not
            part  of the cargo manifest  or the official  supplies of the
            aircraft.   Defendant does not contest the sufficiency of the
            government's evidence on this element.

                                         -11-
                                          11

In sum, for the foregoing reasons, we affirm defendant's

            conviction under 21 U.S.C.    841(a)(1) and 955.  Affirmed.
                                                              Affirmed.
                                                              _________

-12-
                                          12