United States v. Velez Posada

• Court: Court of Appeals for the First Circuit
• Decided: March 9, 1993
• Docket: 92-1147
• Status: Published

Opinion

USCA1 Opinion

March 9, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1147

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                              JUAN CARLOS VELEZ-POSADA,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge. 
                                         _____________

                                 ____________________

            Enrique Velez-Rodriguez for appellant.
            _______________________
            Juan Carlos Velez-Posada on brief pro se.
            ________________________
            Jose A.  Quiles-Espinosa,  Senior  Litigation Counsel,  with  whom
            ________________________
        Daniel  F. Lopez-Romo, United  States Attorney, and  Hernan Rios, Jr.,
        _____________________                                ________________
        Assistant United States Attorney, were on brief for appellee.

____________________

____________________

COFFIN,  Senior  Circuit  Judge.    Defendant  appeals  from
                        ______________________

          judgments  of conviction  for importing  cocaine into  the United

          States,  21 U.S.C.     952(a), and  for  possessing a  non-listed

          controlled substance on board  an aircraft, 21 U.S.C.    955.  In

          addition to having read appellate counsel's brief and listened to

          oral argument,  we also have  read supplemental and  reply briefs

          filed by appellant  himself.   Our conclusion,  after giving  due

          attention to all  claims, is  that we must  affirm the  judgments

          below.  

                                    A. Sufficiency

               We  address first  whether  the evidence  was sufficient  to

          support  the verdicts.  Appellant testified to a series of events

          beginning  with  meetings  at   his  father's  bar  in  Medellin,

          Colombia, with two men who said that appellant  owed them a favor

          and who  wanted his  passport number and  photographs; continuing

          with a rendezvous at a street corner; a taxi ride  to the airport

          and a  flight to the  island of  San Andres; the  receipt of  two

          heavy suitcases supposedly containing clothes,  as well as an air

          ticket (purchased  by one person and reconfirmed  by another) for

          travel from Nicaragua to Panama and then to Madrid, and $2,000 in

          cash; and subsequent travel to Panama for a three-day stay during

          which appellant called home a number of  times but did not reveal

          his  whereabouts, fearing threatened  harm to  his family  if the

          truth were told.  He also expressed his apprehension that unnamed

          persons were plotting to cut out one of his body organs.   

Appellant was apprehended when his plane landed in San Juan.

          He  had   manifested  nervousness  and  the   customs  officials'

          suspicions were  aroused by the  fact that his  passport revealed

          exits from  a country less identified  with narcotics trafficking

          than Colombia.  The  two suitcases, bearing the claim  numbers on

          his ticket, emitted a chemical odor; when samples of the suitcase

          material  were tested,  they  revealed the  presence of  cocaine.

          Appellant, a  22-year-old student,  whose earnings  in connection

          with his father's bar approached $13 a month, was found with cash

          and records of expenditure totalling over $4,000.

               The most important  guide to note is  that the jury was  not

          obligated to believe appellant's testimony.It   could  disbelieve

          part or all of it.  It also could conclude that  the picture of a

          young man going without  information as to what he  was carrying,

          whom he had  met, precisely where he was to go  or whom he was to

          see upon arrival  in Madrid, possessed  of two excessively  heavy

          suitcases, smelling of chemicals though purportedly carrying only

          clothes  and a substantial amount  of cash, was  an unlikely one.

          As we said in a similar case involving an air  passenger en route

          from Colombia to  Madrid with cocaine-impregnated  suitcases, "We

          cannot say that  a reasonable juror could not reason in this way;
                                                    ___

          or  that  such a  juror must  have a  reasonable doubt  about the
                                  ____

          conclusion."  United States v. Mahecha-Onofre, 936  F.2d 623, 624
                        _____________    ______________

          (1st Cir. 1991) (emphasis in original).

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B. Expert Testimony

               Appellant also  challenges the  testimony of a  U.S. Customs

          chemist, who had been  qualified as an expert, and  who testified

          about  the tests  he  had made  on  material extracted  from  the

          suitcases.   The grounds for challenge are that the testimony was

          misleading  and confusing  as  to  the  presence  and  amount  of

          controlled substance, and that the testing  technique used by the

          witness was not trustworthy.  The witness possessed a B.S. degree

          in chemistry from the  University of Puerto Rico, had  done three

          years  of graduate  work, and  had spent  five years  in training

          activity while  on the job.  He had performed hundreds of tests a

          year, and had  been qualified as an expert in  a number of cases.

          He  testified  that  he had  had  experience  on  only two  prior

          occasions with drug-impregnated luggage  but had through  reading

          known how to conduct accurate testing.  

               At  the  end  of  cross examination  as  to  qualifications,

          defendant's  trial  counsel  said,  "That's   all,  your  Honor."

          Whereupon the court allowed  examination to proceed.  At  the end

          of  cross examination directed at  the testing and  at the method

          used  in extrapolating  the percentage  of cocaine  found in  the

          samples to determine the amount present in the suitcases, counsel

          simply  stated  that she  had no  more  questions.   No objection

          having  been  made  at any  time  to  the  qualifications of  the

          witness, the  method or the results of testing, appellant's heavy

          burden  is to demonstrate plain error to the extent that manifest

          injustice will result if  the judgment is allowed to  stand.  The

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record   does  not   allow   appellant  to   carry  this   burden

          successfully.    It  makes  clear that  although  the  method  of

          concealing cocaine by impregnating  suitcase liners with the drug

          may be  novel, the technique of  sampling, determining percentage

          of  the drug in the  samples, and extrapolating  to ascertain the

          total  amount   of  contraband  in  the  two  suitcases  was  not

          particularly novel or exotic.   The specific half dozen  tests to

          which the  samples were  subjected to determine  the presence  of

          cocaine  base, such  as  ultraviolet  spectrophotometric and  gas

          chromatography tests,  have been widely accepted.   The method of

          determining the  quantity of  cocaine base  contained in  the two

          suitcases  was  explained  carefully   and  at  length,  with  no

          suggestion  that the method was novel.  Moreover, for purposes of

          sentencing, the court used an amount less than  one third of that

          extrapolated by the witness.

               In his pro  se reply brief, appellant has cited  a number of

          cases, such as  Turpin v. Merrell Dow Pharmaceuticals,  Inc., 959
                          ______    __________________________________

          F.2d 1349, 1352 (6th Cir. 1992) (involving the proof of causation

          of  Bendectin  birth  defects),  where the  state  of  scientific

          studies, literature, and  opinion is in such  turmoil that courts

          bring  to  bear  "close  judicial analysis"  of  proposed  expert

          testimony.  There is nothing in this record to place this case in

          the company of those at the cutting edge of scientific inquiry.

                                   C. Other Issues

               Appellant was allowed to  file supplemental and reply briefs

          raising  additional issues.  None  of these was  preserved in the

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trial  court.  Our consideration of them is therefore limited; we

          review only to  prevent a  serious miscarriage of  justice.   See
                                                                        ___

          United  States v. Newman,  No. 91-2303, slip op.  at 15 (1st Cir.
          ______________    ______

          Dec. 31, 1992).

               1.  The  fact  that  the  indictment  charged an  amount  of

          contraband (10.9 kilograms of  cocaine) greatly in excess of  the

          amount proven  (1,547 grams of cocaine  base) is not  a basis for

          reversal.   The discrepancy between charge and proof did not mean

          that a  different or an additional offense  had been proven.  The

          petit jury  operated under  proper instructions for  weighing the

          evidence and in fact acquitted on Count I (charging possession of

          a  large enough  amount  to indicate  an  intent to  distribute),

          showing  that  it  was not  misled  into  thinking  that over  10

          kilograms of cocaine were involved.

               2. The  same observation disposes of  appellant's contention

          that Count III could not stand without Count I. 

               3. The fact  that the indictment charged that  the defendant

          "knowingly and  willfully"  committed the  offenses, whereas  the

          statutes  contained no  such requirements,  could only  help, not

          hurt, defendant.  

               4. Appellant's  concern over  the possibility that  Count II

          (21  U.S.C.   952(a)) and Count III  (21 U.S.C.   955) charge the

          same  crime  and thus  violate  the  proscription against  double

          jeopardy  has  been  specifically   addressed  by  us  and  found

          unjustified in  United States v. Franchi-Forlando,  838 F.2d 585,
                          _____________    ________________

          589-591 (1st Cir. 1988).  5.  Appellant  claims  that  the  court

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should have  given an  instruction  on the  possibility that  his

          actions were attributable to  duress.  There having been  no such

          request, we would need a much more persuasive record to fault the

          judge for not including an instruction on his own initiative.  

               6. Appellant asserts error in sentencing by arguing that the

          controlled substance  involved was not cocaine  base but cocaine,

          or at least that there is uncertainty over this point.  But it is

          clear that the chemist identified it as cocaine base, without any

          objection by  defense counsel,  and without  any evidence  to the

          contrary.   Indeed,  the  chemist was  subjected to  considerable

          questioning  regarding  the  distinctions  between   cocaine  and

          cocaine base.

               7. Appellant also argues for a downward departure because of

          duress, and for an additional downward departure because of 

          his  asserted minimal  role  as a  mere  "mule."   As  an initial

          matter, we note that we lack appellate jurisdiction to consider a

          request  for downward  departure.   See,  e.g., United  States v.
                                              ___   ____  ______________

          Amparo, 961  F.2d 288,  292 (1st  Cir. 1992).   This argument  is
          ______

          equally unavailing  on the  merits.   What the  court did  was to

          assume an amount  (500 grams)  well below what  the chemist  felt

          certain was proven (1,547 grams); this established a base offense

          level of 36.   The court then  granted a two-point reduction  for

          minor participation and another two-point reduction for accepting

          responsibility.   This  produced  a total  offense  level of  32,

          which, for a  defendant with  a Criminal History  Category of  I,

          called for  a sentence within  the range of  121 and 155  months.

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The court imposed a sentence of 121 months. It  noted  that   the

          mandatory minimum sentence was 10 years, or 120 months.  Not only

          is the  support for further  downward departures  for duress  and

          minimal  role nonexistent, therefore,  but the  mandatory minimum

          floor is an impassable barrier to any further meaningful relief.

               The judgments  of conviction are not  attributable to errors

          of either court or counsel, but must be 

               AFFIRMED.    

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