USCA1 Opinion
April 7, 1993
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 91-1860
UNITED STATES,
Appellee,
v.
JOSE DE JESUS-RIOS, a/k/a PAPO RIOS,
Defendant, Appellant.
____________________
No. 91-1933
UNITED STATES,
Appellee,
v.
EVA RIOS,
Defendant, Appellant.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
_____________
Aldrich and Coffin, Senior Circuit Judges.
_____________________
____________________
Gabriel Hernandez Rivera for appellant Jose De Jesus-Rios and
_________________________
Juan Acevedo-Cruz with whom Wilma E. Reveron-Collazo was on brief for
__________________ ________________________
appellant Eva Rios.
Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom
_________________________
Daniel F. Lopez Romo, United State Attorney, and Antonio R. Bazan,
_____________________ _________________
Assistant United States Attorney, were on brief for appellee.
____________________
April 7, 1993
____________________
STAHL, Circuit Judge. Appellants Jose de Jesus
______________
Rios ("Jose Rios") and his cousin, Eva Maria Rios ("Eva
Rios"), were convicted of aiding and abetting each other in
the importation of approximately 196 kilograms of cocaine
into the customs territory of the United States in violation
of 18 U.S.C. 2 and 21 U.S.C. 952(a). Appellants also
were convicted of aiding and abetting each other in the
possession with intent to distribute cocaine in violation of
18 U.S.C. 2 and 21 U.S.C. 841(a)(1). On appeal, both
maintain that the evidence was insufficient to support their
respective convictions. Eva Rios also argues that the
district court erred in denying her motion to suppress the
pretrial identifications of her by two government witnesses.
After careful consideration of the record, we affirm the
conviction of Jose Rios and vacate that of Eva Rios.
I.
I.
__
Factual Background
Factual Background
__________________
The two principal government witnesses, George
Rivera Antron ("Rivera") and Juan Enrique Mejias Valle
("Mejias"), brothers-in-law who had known each other more
than thirty years, worked together aboard a vessel named the
"Santa Martina." The Santa Martina, which was owned by
Rivera, transported general cargo between the islands of
Puerto Rico and St. Thomas. Rivera made his livelihood as
-2-
2
the captain of the Santa Martina, and Mejias was employed as
his assistant.
On February 7, 1991, at approximately 5:30 p.m.,
while Mejias was working on the Santa Martina, which was
docked at a port in St. Thomas, two women approached him
looking for Rivera. Mejias informed them that Rivera was on
an errand and would probably return around 6:00 p.m. The two
women waited for Rivera for approximately fifteen minutes,
during which time they engaged Mejias in casual conversation.
For reasons unexplained in the record, they departed before
Rivera returned to the boat.
The following morning, at approximately 8:00 a.m.,
one of the two women returned to the boat looking for Rivera.
Mejias, who was preparing the boat for departure, informed
her that Rivera was on an errand and would return shortly. A
few minutes later Rivera returned, and the woman, posing as a
commercial dealer in detergent, asked him to transport ten
boxes of detergent to Fajardo, Puerto Rico. Rivera agreed
and they made the necessary arrangements. When Rivera asked
what name should be entered on the receipt as "sender," the
woman responded "A & A Supplies." When asked what name to
enter as receiver, she responded "Papo Rios." At some point
during their conversation, the woman told Rivera that she
would "send the boxes later." The conversation between
-3-
3
Rivera and the woman, which was witnessed by Mejias, lasted
somewhere between five and fifteen minutes.
Approximately one-half hour after she left, two men
drove up to the dock in a truck with the ten boxes. One of
the men told Rivera that "the lady sent the boxes." About an
hour after the ten boxes were loaded onto the Santa Martina,
Rivera and Mejias departed St. Thomas for Fajardo, Puerto
Rico.
The Santa Martina arrived in Fajardo later that
afternoon. After docking the vessel, Rivera went to customs
to enter all of his cargo. On the way to customs, Rivera was
approached by Jose Rios, who -- as it turned out -- had been
a longtime acquaintance of Rivera's. Rivera knew Jose Rios
as "Papo Rios." Rivera asked Jose Rios to accompany him to
customs to sign for the ten boxes being delivered to him. On
the way to customs, Jose Rios disclaimed ownership of the
boxes, and told Rivera that he did not know why the boxes had
been sent to him. At customs, however, Jose Rios signed the
entry declaration as the "owner" of the ten boxes. Rafael
Figueroa, a United States customs agent who witnessed Jose
Rios sign the declaration, testified that Jose Rios appeared
"nervous" as he answered questions about his ownership of the
ten boxes.
After all of the relevant customs documents were
processed, Rivera, Jose Rios, and United States Customs Agent
-4-
4
Angel Luis Villegas Lopez ("Agent Villegas"), went to the
Santa Martina to unload its cargo. As Jose Rios was carrying
one of the boxes off the boat, Agent Villegas became
suspicious about its weight and decided to inspect it. Agent
Villegas opened one of the boxes and discovered powder that
appeared to be cocaine. Upon hearing that cocaine may have
been discovered, Jose Rios disclaimed ownership of the boxes,
stated that he was "going to look for the owners," and
promptly departed the scene.
Shortly thereafter, Agent Villegas conducted a
field test on the powder in one of the boxes. That test
yielded a positive result for cocaine.1 The government then
seized the Santa Martina, informing Rivera that it would be
held pending the investigation. Several days later, the
government arrested Jose Rios, and began its search for the
as yet unidentified woman who had contracted with Rivera to
ship the ten boxes to Fajardo. The facts leading up to the
identification ofEva Rios asthat person aresummarized below.2
____________________
1. A subsequent field test and laboratory analysis of the
powder in the ten boxes confirmed that it was cocaine. A
government witness testified that the cocaine had a "street
value" of as much as 40 million dollars.
2. In reviewing the denial of a motion to suppress, our
review is not limited to the transcript of the suppression
hearing where, as here, the defendant renewed her motion at
trial. See United States v. Thomas, 875 F.2d 559, 562 n.2
___ _____________ ______
(6th Cir.) (holding that appellate review of denial of motion
to suppress may include evidence adduced at trial only in
cases where defendant renews the motion at trial), cert.
_____
denied, 493 U.S. 867 (1989). See also 4 Wayne R. LaFave,
______ ___ ____
-5-
5
On February 8, 1991, both Rivera and Mejias gave
verbal descriptions of the woman who had contracted with
Rivera to United States Customs Agent Hector Marti Figueroa
("Agent Marti"). According to Agent Marti, both Rivera and
Mejias described the woman as a "Latin female" with "dark
hair" and "white" skin who was "a little chubby" and
approximately five feet, two inches tall.
On February 11, 1991, Rivera was interviewed again
by United States Customs Agent Juan Dania ("Agent Dania"),
and Agent Marti. Relying upon written notes, Agent Dania
testified that Rivera described her as "white" with "shoulder
length [black] hair" and "a full face . . . with fine
features."3 The next day, on February 12, Agents Dania and
____________________
Search & Seizure 11.7(c), at 519 (2d ed. 1987) ("If
__________________
following [her] conviction the defendant takes an appeal and
claims that [her] motion to suppress was erroneously denied,
. . . the appellate court [must] consider trial evidence
_____
favorable to . . . the defendant . . . where the pretrial
motion is renewed and reconsidered by the trial judge during
the course of trial.") (emphasis in original). Cf. United
___ ______
States v. Vargas, 633 F.2d 891, 895 n.6 (1st Cir. 1980) ("the
______ ______
use of trial testimony to undermine the validity of an arrest
_________
or search is apparently discouraged, at least when the motion
to suppress has not been renewed and reconsidered during the
course of the trial") (emphasis in original).
3. At the suppression hearing, Rivera admitted that he
described the suspect to Agent Dania as "white." At trial,
however, Rivera testified that he used the phrase "blanca-
attrigenado," which -- according to the English translations
offered by both the government and defense attorneys -- is
apparently equivalent to describing someone as a "light-
skinned black person." Although a description of Eva Rios's
actual skin color does not appear anywhere in the record, it
is apparent from the government's and defense counsel's
briefs that the phrase "blanca-attrigenado" accurately
-6-
6
Marti also interviewed Mejias. Relying upon his written
notes, Agent Dania testified that Mejias described the woman
as "white."
Although the record is not clear, it appears that
Eva Rios became a suspect based upon independent information
from a confidential informant. Apparently relying upon that
information, Agents Marti and Dania decided to conduct a
show-up identification procedure using Rivera as the
identifying witness and Eva Rios as the potential suspect.
To that end, on February 16, 1991, they arranged with Eva
Rios to meet them in front of the United States Customs
Building in St. Thomas. Immediately after making the
arrangements with Eva Rios, Agent Marti phoned Rivera and
instructed him to be at the United States Customs Building by
11:30 a.m.
Upon Rivera's arrival, Agent Marti informed him
that a suspect, named "Eva Rios," would be meeting the agents
on the steps of the customs building sometime between 11:30
a.m. and 12:00 p.m. Marti also informed Rivera that the
purpose of Eva Rios's visit was to allow him to make an
identification of her. Rivera was instructed to sit in a
parked car across the street from the customs building, and
to signal the agents with a white handkerchief as soon as he
____________________
describes her skin color.
-7-
7
could positively identify her as the woman with whom he spoke
on the morning of February 8, 1991.
At some point between 11:30 a.m. and 12:00 p.m.,
Eva Rios arrived at the customs building. Rivera testified
that he saw her as she drove by, as she parked her car, and
again as she walked by his parked car. He did not, however,
give a signal to the officers until she walked up to Agents
Marti and Dania, shook their hands, and sat down next to them
on the stairs of the customs building. Based upon Rivera's
positive identification of Eva Rios, Agents Marti and Dania
arrested her on the spot.
The record reveals that February 16, 1991, was a
Saturday, Eva Rios's car was the only car that drove by the
customs building during the time Rivera was in his parked
car, and, while several women "passed by" the customs
building during that time, only Eva Rios stopped to talk with
the agents. Agents Marti and Dania also testified that they
would not have arrested Eva Rios but for Rivera's positive
identification of her. Subsequently, on or about February
22, 1991, the government returned the Santa Martina to
Rivera.
On February 25, 1991, Rivera and Mejias were
brought to an office in the customs building and shown a
photo-spread of six photographs, one of which was Eva Rios.
Both Rivera and Mejias positively identified Eva Rios from
-8-
8
the photo spread. After Rivera and Mejias made their
respective identifications, Agent Marti, the agent in charge
of the procedure, asked both of them to sign affidavits
attesting to the results. They also included in their
affidavits an additional description of the woman with whom
they spoke on February 8. Rivera described her as "a young
woman . . . with dark hair, light brown complexion, thirty
years old . . . and somewhat fat." Mejias described her as a
lady "with light brown skin, of average height . . . dark
hair and a little fat."
Agent Marti testified that Rivera and Mejias made
their identifications at different times and "never
encountered each other at the office."4 When asked whether
he had had any discussions with Rivera about the incident,
Mejias testified that he ended his employment relationship
with Rivera on February 8, 1991, and had not seen Rivera
between that date and February 25, 1991, the date of the
photo spread identification. During their trial testimony,
Rivera and Mejias also made in-court identifications of Eva
Rios as the woman with whom they spoke on February 8, 1991.
____________________
4. Agent Marti's testimony on this question was, however,
contradicted by Mejias, who testified during the suppression
hearing that, on February 25, he and Rivera were at the
office at the same time but went into the office to make
their identifications separately. Mejias testified that,
while he waited in the hall to be called into the office, he
saw Rivera walk into and out of the office.
-9-
9
At trial, both defendants took the stand in their
own defense. Jose Rios testified that he had been asked by
his cousin, Evaristo Rios (Eva Rios's brother), to pick up
the boxes on board the Santa Martina. He denied any
knowledge that the boxes contained cocaine, and claimed not
to have spoken with Eva Rios for seven or eight years. When
asked why he signed the customs document as the "owner" of
the ten boxes, he stated that he did so in order to pick up
the boxes for his cousin.
As well as arguing that she had been misidentified
by Rivera and Mejias, Eva Rios presented an alibi defense.
Essentially, her alibi witnesses testified that she could not
have been on the St. Thomas waterfront at the time in
question. One witness, who worked at the school Eva Rios's
daughter attends, remembered Eva Rios dropping off her
daughter at the school at around 7:30 a.m., on February 8,
1991. An employee at Eva Rios's place of employment
testified that Eva Rios was at work on February 8, 1991, and
usually arrived at work between 8:00-8:10 a.m. A traffic
officer in St. Thomas further testified that, based on the
common traffic conditions in St. Thomas, Eva Rios would not
have been able to travel from her daughter's school to the
waterfront and then to her office between 7:30 a.m. and 8:10
a.m.
-10-
10
On April 30, 1991, the jury found Jose and Eva Rios
guilty on both counts. Jose Rios was sentenced to 210
months, and Eva Rios to 188 months, of imprisonment. These
appeals followed.
II.
II.
___
Discussion
Discussion
__________
A. The Admissibility of the Pretrial Identifications of Eva
A. The Admissibility of the Pretrial Identifications of Eva
_____________________________________________________________
Rios
Rios
____
Eva Rios's principal contention on appeal is that
Rivera's February 16, 1991, pretrial identification of her
was the result of a highly suggestive, prejudicial, and
unlawful showup procedure, the introduction of which violated
her due process rights. She also argues that Rivera's
February 25, 1991, and his in-court identifications were
tainted by the previous identification, and should,
therefore, also have been kept from the jury.5
We will uphold a district court's denial of a
motion to suppress if any reasonable view of the evidence
supports it. See, e.g., United States v. McLaughlin, 957
___ ____ _____________ __________
F.2d 12, 16 (1st Cir. 1992). Moreover, the findings of the
____________________
5. Additionally, Eva Rios argues that the February 25, 1991,
photo spread identification procedure was irregularly
administered and, therefore, rendered Mejias's independent
identification of her inadmissible as well. For the reasons
amply addressed in the district court's opinion, see United
___ ______
States v. De Jesus Rios, No. 91-0084CCC, slip op. at 4-5
______ ______________
(D.P.R. April 23, 1991), we find this argument meritless, and
see no need to address it further.
-11-
11
district court after a hearing on a pretrial motion to
suppress are binding on appeal unless they are clearly
erroneous. See, e.g., id. at 17.
___ ____ ___
To determine whether evidence procured as a result
of a pretrial identification procedure should be excluded, a
district court must conduct a two-pronged inquiry. See,
___
e.g., Allen v. Massachusetts, 926 F.2d 74, 81 (1st Cir.
____ _____ _____________
1991); United States v. Maguire, 918 F.2d 254, 263 (1st Cir.
_____________ _______
1990), cert. denied, 111 S. Ct. 2861 (1991); United States v.
_____ ______ _____________
Bouthot, 878 F.2d 1506, 1514 (1st Cir. 1989). First, the
_______
court must determine whether the procedure was impermissibly
suggestive. See, e.g., Maguire, 918 F.2d at 263. If the
___ ____ _______
court finds the procedure impermissibly suggestive, it must
then inquire whether, under the totality of circumstances,
the identification itself was reliable, despite the
suggestive procedure. See, e.g., Allen, 926 F.2d at 81. The
___ ____ _____
factors to consider under the reliability prong are fivefold:
(1) the opportunity of the witness to
view the criminal at the time of the
crime; (2) the witness' degree of
attention; (3) the accuracy of the
witness' prior description of the
criminal; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation.
Id. (quoting United States v. Drougas, 748 F.2d 8, 27 (1st
___ _____________ _______
Cir. 1984)) (citing Neil v. Biggers, 409 U.S. 188, 199-200
____ _______
-12-
12
(1972)). Before excluding identification evidence,
the court must be persuaded that there was "`a very
substantial likelihood of irreparable misidentification.'"
Bouthot, 878 F.2d at 1514 (quoting Simmons v. United States,
_______ _______ ______________
390 U.S. 377, 384 (1968)). A court must also be mindful
that "`it is only in extraordinary cases that identification
evidence should be withheld from the jury.'" Maguire, 918
_______
F.2d at 264 (quoting United States v. Turner, 892 F.2d 11, 14
_____________ ______
(1st Cir. 1989)). See also Bouthot, 878 F.2d at 1516 n.11.
___ ____ _______
In applying the first prong of this test, the
district court concluded that the one person showup
identification procedure was impermissibly suggestive. See
___
De Jesus Rios, slip op. at 2 ("The agents in this case were .
_____________
. . oblivious to the almost uniform criticism of show up in
their use of this unfair and discredited method of
investigation.") (internal quotations and citation omitted)
("`The practice of showing suspects singly to persons for the
purpose of identification[,] and not as part of a [lineup,]
has been widely condemned.'") (quoting Stovall v. Denno, 388
_______ _____
U.S. 293, 302 (1967)). Applying the second prong of the
test, however, the district court concluded -- from the
totality of the circumstances -- that Rivera's identification
was nevertheless reliable. See De Jesus Rios, slip op. at 4
___ _____________
(finding "no significant difference between the descriptions
[Rivera] gave before and after the [showup]"). As a result,
-13-
13
the court denied Eva Rios's motion to suppress that evidence.
See id. at 2-4. After a close review of the record,
___ ___
we agree with the district court's conclusion that the showup
procedure was impermissibly suggestive but disagree with its
determination that Rivera's identification was otherwise
reliable. While application of the first, second, and fifth
factors enumerated above does not give us pause,6 we are
troubled by application of the third and fourth factors
(i.e., the accuracy of the witness's prior description of the
____
criminal, and the level of certainty that witness
demonstrated at the confrontation) to the facts of this case.
Agent Marti testified that, on the date the cocaine was
discovered, February 8, 1991, Rivera described the suspect as
"white" and approximately five feet, two inches tall.
Rivera's testimony at the suppression hearing and Agent
Dania's trial testimony revealed that during his February 11,
1991, interview with Agent Dania, Rivera again described her
as "white." It was not until after the February 16, 1991,
showup that Rivera described the suspect as having "light
____________________
6. It is clear from the record that Rivera had ample time
(at least five minutes) to view the suspect on the date the
arrangements were made to ship the purported detergent, that
he paid some degree of attention to the person at the time,
and that eight days between the date of the cocaine shipment
and the showup was not unreasonable.
-14-
14
brown" skin.7 Moreover, Rivera also failed to provide an
accurate description of her height (five feet, six inches) at
either of his pre-showup descriptions.8
The record also contains uncontroverted evidence
that, despite having been asked at the February 16, 1991,
showup to signal the agents when he positively identified Eva
Rios, Rivera waited until after she approached the agents and
began speaking with them (as scheduled) to signal. We hardly
think that this constitutes a high degree of certainty on
Rivera's part, particularly in light of the showup procedure
at issue here. Prior to that showup, Rivera was informed
that the agents were meeting the suspect in front of the
customs building at a specific time. While a few other women
also may have walked by the customs building that morning,
only Eva Rios stopped to speak with the agents.9
____
____________________
7. Accordingly, the district court's finding that there was
"no significant difference" between Rivera's pre-showup and
post-showup descriptions of the suspect is clearly erroneous.
8. During the suppression hearing, Agent Marti -- who is
approximately five feet, seven inches tall -- testified that,
on February 8, 1991, Rivera described the suspect as being "a
little bit more or less like my [Agent Marti] height." At
trial, however, he admitted that, on February 8, 1991, Rivera
described the suspect as five feet, two inches tall.
9. Our analysis of the reliability of Rivera's
identification is further informed by the undisputed evidence
that the government seized Rivera's boat, his only source of
livelihood, on the date of the crime, and informed him that
he would receive it only after their investigation was
completed. The record also reveals that the government
returned his boat less than a week after his positive
identification of Eva Rios. We think that these facts, when
-15-
15
Based upon the above analysis, therefore, we find
that Rivera's pretrial identifications were both
impermissibly suggestive and unreliable. And, as this is not
a case of "minimal suggestivity . . . [that could have been]
_______
cured at trial," Maguire, 918 F.2d at 264 (emphasis
_______
supplied), we conclude that his identification testimony
should have been kept from the jury.
Our inquiry does not, however, end here. We must
now determine whether the district court's error was
"harmless beyond a reasonable doubt." Arizona v. Fulminante,
_______ __________
111 S. Ct. 1246, 1265 (1991). Outside of Rivera's testimony,
the only other evidence linking Eva Rios to the crime was the
testimony of Mejias, Rivera's brother-in-law and former
employee. Mejias testified that he spoke with the suspect
for approximately fifteen minutes on February 7, 1991, the
day before the crime. He spoke with her again the next
morning when she inquired about Rivera's whereabouts, and
witnessed the subsequent conversation between her and Rivera.
He gave descriptions of her on February 8, 12, 25, and during
his trial testimony. Despite having described her skin color
as "white" on both February 8 and 12, he selected her picture
on February 25, from a photo spread with photos of five other
women with similar characteristics. Also on that date, he
____________________
placed alongside the one-person showup and Rivera's belated
identification, cast serious further doubt on the reliability
_______
of that identification.
-16-
16
described her as having "light brown skin." Additionally,
during his trial testimony, he identified her in court as the
woman he spoke with on February 7 and 8.
Although the harmless error question is close, we
cannot conclude -- under the particular circumstances of this
case -- that the error was harmless beyond a reasonable
doubt. First, there is no way for us to discern the role
that Rivera's identification played in the jury's
deliberations. We are concerned that the jury may have been
persuaded to convict by the very fact that there were two
___
witnesses who identified Eva Rios. It is also possible that
the jury relied solely upon the testimony of Rivera in
reaching its conclusion. Thus, we find reasonable doubt
exists as to whether the jury would have convicted Eva Rios
based solely upon Mejias's identification testimony.10 See
___
Clark v. Moran, 942 F.2d 24, 27 (1st Cir. 1991) ("there must
_____ _____
____________________
10. We note that there exists at least some basis for
questioning Mejias's testimony that his photo-spread and in-
court identifications of Eva Rios were not influenced by
Rivera's showup identification. Mejias and Rivera were
brothers-in-law of more than thirty years who worked together
on Rivera's boat. Despite their close relationship, Mejias
testified that he had no contact with Rivera between February
8, 1991, (the date on which he and Rivera described the
suspect as having "white" skin), and February 25, 1991, (the
date on which they both described the suspect as having
"light brown" skin and selected Eva Rios's picture from a
photo-spread). This testimony, coupled with the fact that
Mejias offered no explanation as to what caused him to change
his description of the suspect, may well have led the jury to
doubt his credibility on this critical question.
-17-
17
be `no reasonable doubt' that the jury would have reached the
same verdict without having received the tainted evidence")
(quoting Milton v. Wainwright, 407 U.S. 371, 377 (1972)).
______ __________
Cf. Coppola v. Powell, 878 F.2d 1562, 1571 (1st Cir.)
___ _______ ______
(holding no harmless error where improperly admitted evidence
"may have been the clincher" in the jury's deliberations),
cert. denied, 493 U.S. 969 (1989).
_____ ______
Finally, this is not a case of "overwhelming
evidence of guilt." Wainwright, 407 U.S. at 377; Moran, 942
__________ _____
F.2d at 27. Indeed, the entire case against Eva Rios
depended upon the jury's having credited the Rivera and
Mejias identifications and rejected her alibi defense.11
Under these circumstances, we cannot say that the district
court's error was harmless beyond a reasonable doubt. Cf.
______ _ __________ _____ ___
Coppola, 878 F.2d at 1571 (holding no harmless error despite
_______
finding that independent evidence indicated it was "probable
that [defendant] committed the crime"). Accordingly, Eva
Rios's conviction cannot stand.12
B. Sufficiency of the Evidence Against Jose Rios
B. Sufficiency of the Evidence Against Jose Rios
_________________________________________________
____________________
11. Our harmless error analysis might be different had the
government's case against Eva Rios included the testimony of
the confidential informant, the two men who delivered the ten
boxes of purported detergent to the boat, an eyewitness who
was not a potential suspect in the case, or some physical
evidence linking her to the crime.
12. We need not address, therefore, Eva Rios's alternative
argument that the evidence was insufficient to convict her.
-18-
18
Jose Rios asserts that there was insufficient
evidence to find him guilty of aiding and abetting in the
violation of 21 U.S.C. 952(a)13 (importation of cocaine),
and 21 U.S.C. 841(a)(1)14 (possession with intent to
distribute cocaine). As such, he argues that the district
court erroneously denied his Rule 29(a) motions for judgment
of acquittal.
"In reviewing a properly preserved Rule 29 motion,
we examine the evidence and all legitimate inferences
therefrom in the light most favorable to the government to
determine whether a rational jury could have found guilt
_____
beyond a reasonable doubt." United States v. Morales-
______________ ________
Cartagena, Nos. 91-2079, 2080, slip op. at 2 (1st Cir.
_________
February 23, 1993) (emphasis added). See also United States
___ ____ _____________
v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (To uphold a
_________
conviction, the court must "satisfy itself that the guilty
verdict finds support in `a plausible rendition of the
record.'") (quoting United States v. Ortiz, 966 F.2d 707, 711
_____________ _____
(1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993)). In
_____ ______
making this determination, the court must resolve all
____________________
13. 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 (but within the United States)
. . . [a] controlled substance . . . ."
14. 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 . . . ."
-19-
19
credibility issues in favor of the verdict. United States v.
_____________
Nueva, 979 F.2d 880, 883 (1st Cir. 1992), cert. denied, 1993
_____ _____ ______
WL 38626 (U.S. March 22, 1993) (No. 92-7536).
To prove a violation of 21 U.S.C. 952(a), the
government must show beyond a reasonable doubt that a
defendant knowingly or intentionally imported, or caused to
be imported, a controlled substance into the customs
territory of the United States. See United States v.
___ ______________
Alvarado, 982 F.2d 659, 663 (1st Cir. 1992). See also United
________ ___ ____ ______
States v. Ocampo-Guarin, 968 F.2d 1406, 1409 n.2 (1st Cir.
______ _____________
1992) ("This statute `requires little else but a showing that
a defendant has knowingly brought a controlled substance with
him from abroad into the United States.'") (quoting United
______
States v. McKenzie, 818 F.2d 115, 118 (1st Cir. 1987)).
______ ________
"Criminal intent may, of course, be inferred from
circumstantial evidence." Morales-Cartagena, slip op. at 5.
_________________
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. United States v.
_____________
Gomez-Villamizar, 981 F.2d 621, 624 (1st Cir. 1992). A
________________
defendant can be found guilty under this statute if s/he
merely has constructive possession of the controlled
substance. Id. The quantity of drugs involved is sufficient
___
to create an inference that a defendant knew that it would be
-20-
20
distributed. Id. See also United States v. Vargas, 945 F.2d
___ ___ ____ _____________ ______
426, 428-29 (1st Cir. 1991) (holding that possession of one
kilogram of cocaine is enough to support inference of intent
to distribute).
Jose Rios argues that the evidence was insufficient
because (1) the government failed to prove that he made any
contacts with the person who sent the cocaine prior to its
shipment, and (2) the only evidence linking Jose Rios to the
crime was his presence at the dock in Fajardo. Unfortunately
for appellant, these arguments fall well short of the mark.
Evidence in the record supports an inference that
Jose Rios did have contact with the sender prior to the
shipment. For instance, the sender instructed Rivera to fill
in the name of "Papo Rios" on the receipt as the individual
who would receive the shipment. Testimony revealed that Jose
Rios also went by the name of "Papo Rios." And, Jose Rios
was the individual who greeted Rivera on the dock in Fajardo
to pick up the ten boxes. Further, despite having disclaimed
ownership of the ten boxes, Jose Rios signed the customs
document as the "owner" of the ten boxes.
Jose Rios's defense turned upon the jury believing
his story about having been duped by his cousin Evaristo
Rios. Unfortunately for him, it appears that the jury found
his story unpersuasive. Having carefully reviewed the
-21-
21
record, we think that there is ample evidence to support his
conviction. Accordingly, we do not disturb it.
III.
III.
____
Conclusion
Conclusion
__________
In sum, for the reasons herein stated, we vacate
the judgment of conviction as to Eva Rios, and affirm the
judgment of conviction as to Jose Rios.
In Appeal No. 91-1933, the judgment of conviction
In Appeal No. 91-1933, the judgment of conviction
___________________________________________________
is vacated and the case is remanded for further proceedings
is vacated and the case is remanded for further proceedings
_____________________________________________________________
not inconsistent with this opinion.
not inconsistent with this opinion.
___________________________________
In Appeal No. 91-1860, the judgment of conviction
In Appeal No. 91-1860, the judgment of conviction
___________________________________________________
is affirmed.
is affirmed.
____________
-22-
22