United States v. Gomez-Villamizar
U.S. Court of Appeals for the First Circuit
United States v. Gomez-Villamizar
Opinion
USCA1 Opinion
December 23, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
For the First Circuit
For the First Circuit
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No. 92-1228
UNITED STATES,
Appellee,
v.
GUSTAVO GOMEZ-VILLAMIZAR,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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Skinner,* District Judge.
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Miguel A.A. Nogueras-Castro with whom Benicio Sanchez Rivera was
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on brief for appellant.
Epifanio Morales Cruz, Assistant U.S. Attorney, with whom Daniel
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F. Lopez-Romo, United States Attorney, and Jose A. Quiles Espinosa,
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Assistant U.S. Attorney, were on brief for appellee.
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*Of the District of Massachusetts, sitting by designation.
STAHL, Circuit Judge. Defendant-appellant Gustavo
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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.
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FACTUAL BACKGROUND
FACTUAL BACKGROUND
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We summarize the evidence in the light most favorable to
the government. United States v. Ocampo-Guarin, 968 F.2d
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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
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1. The jury acquitted him on the charge of importation of a
controlled substance into the customs territory of the United
States ("Count II").
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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.
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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.
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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
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3. Defendant testified that Rodriguez had informed him that
his flight was travelling directly from Bogota, Colombia to
Madrid, Spain.
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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.
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DEFENDANT'S ARGUMENTS
DEFENDANT'S ARGUMENTS
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A. Mens Rea
A. Mens Rea
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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.
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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 . .
. ."
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5
Essentially, defendant contends that, since the jury found
that he lacked the intent to import the cocaine into the
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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
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United States v. Bernal-Rojas, 933 F.2d 97, 98-100 (1st Cir.
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1991). In Bernal, like the case at bar, the defendant had
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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
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identical state of mind requirements, the verdicts were
inconsistent as a matter of law. Id. at 98, 100. We
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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."
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6
Id. at 100 (quoting United States v. Mejia-Lozano, 829 F.2d
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268, 271 (1st Cir. 1987)).
In the instant case, while defendant attempts to
distinguish his argument from that made in Bernal by dressing
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it in jurisdictional clothing,8 his central complaint is
that the jury verdicts are inconsistent. After Bernal, this
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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
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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.
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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
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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
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Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer
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Authority, 945 F.2d 10, 12 (1st Cir. 1991) ("We have held,
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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.
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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.
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November 4, 1992). Moreover, we must resolve all issues of
credibility in favor of the verdict. Id.
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1. Count I
1. Count I
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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
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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
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[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.
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Moreover, the government need not prove that the defendant
had the intent to distribute the controlled substance in the
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United States. "[T]he place of intended distribution is not
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important so long as such intent is established together with
the fact of possession within the United States." Id. at
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1411 (quoting United States v. McKenzie, 818 F.2d 115, 118
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(1st Cir. 1987)) (emphasis in original); see also Bernal, 933
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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
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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,
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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.
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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
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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.
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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
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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
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States v. Gonzales-Torres, No. 91-2410, slip op. at 6 (1st
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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.
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CONCLUSION
CONCLUSION
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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.
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In sum, for the foregoing reasons, we affirm defendant's
conviction under 21 U.S.C. 841(a)(1) and 955. Affirmed.
Affirmed.
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