15-4118-cr
United States v. Fagan


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                                 No. 15-4118-cr

KEVIN FAGAN,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          DANIEL HABIB, Federal Defenders of New
                                                  York, Inc., New York, New York.

APPEARING FOR APPELLEE:                          LINDSAY K. GERDES, Assistant United
                                                 States Attorney (Emily Berger, on the brief), for
                                                 Robert L. Capers, United States Attorney for
                                                 the Eastern District of New York, Brooklyn,
                                                 New York.

          Appeal from a judgment of the United States District Court for the Eastern District

of New York (Joan M. Azrack, Judge).


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      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 17, 2015, is AFFIRMED.

      Defendant Kevin Fagan was convicted after a jury trial of importation and

possession with intent to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

952(a), 960(a)(1), 960(b)(3), and sentenced to a prison term of one year and one day,

which he has now served, followed by three years of supervised release.    Fagan appeals

his conviction on the ground that, although he was arrested at John F. Kennedy

International Airport in possession of three kilograms of cocaine concealed in the false

bottom of a suitcase he transported from St. Lucia to New York, the evidence was

insufficient to prove his knowledge that the bag contained a controlled substance.     We

review a sufficiency challenge de novo, although the defendant bears a heavy burden

because we must view the evidence in the light most favorable to the government,

affirming the jury’s verdict if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original); accord United States v. Harvey, 746 F.3d 87, 89 (2d

Cir. 2014).   We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

      Fagan does not dispute the sufficiency of the evidence to prove the actus reus

elements of the crimes of conviction: importation and possession of a distribution

quantity of cocaine. Nor does he challenge the sufficiency of the evidence to prove his

knowledge that he was in possession of or smuggling contraband. He argues only that

the evidence was insufficient to prove his knowledge of possession of a controlled

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substance such as cocaine. The argument fails because knowledge can be—and usually

must be—proved by reasonable inferences drawn from circumstantial evidence. See

McFadden v. United States, 135 S. Ct. 2298, 2306 n.3 (2015) (“Although the

Government must prove that a defendant knew that the substance in question was a

controlled substance under federal law, the Government need not introduce direct

evidence of such knowledge.” (internal quotation marks omitted)); see also United States

v. Davis, 690 F.3d 127, 134 (2d Cir. 2012) (guilty knowledge that shipment contained

narcotics “may be established through circumstantial evidence” (internal quotation marks

omitted)).

       The circumstances here showed Fagan’s sole possession of a suitcase containing a

quantity of cocaine with a New York City wholesale value between approximately

$80,000 and $140,000. Our precedent recognizes that a defendant’s sole possession of a

valuable illegal commodity can support a reasonable inference that the defendant knows

what it is with which he has been entrusted. See United States v. Anderson, 747 F.3d

51, 66–67 (2d Cir. 2014) (collecting cases). Such an inference is reinforced here by

evidence that, when questioned by United States customs officials, Fagan never stated

that he received the suitcase from or was bringing it to anyone. Rather, he stated that

the suitcase was his, that he packed it, that he had checked it in, and that he had received

no items in transit. Further circumstances admitting an inference of guilty knowledge

that he possessed a controlled substance are (1) Fagan’s suspicious inability to provide

contact information for the son he was purportedly traveling to see, (2) his failure to

provide destination information contained in his phone for an airport hotel location (a

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location more consistent with a drug delivery than a family visit), and (3) Fagan’s turning

of his back as the thoroughness of the search of his drug-laden bag increased. The

combination of “nervousness, a false statement, or suspicious circumstances” with

evidence of the defendant’s sole control over a container is sufficient to support “an

inference that the defendant knew about the drugs in [a] hidden compartment.” United

States v. Tran, 519 F.3d 98, 104, 105 (2d Cir. 2008) (reaching conclusion as to sole

occupant of vehicle). Fagan’s “possession of the [narcotics] concealed in his baggage,

coupled with his acknowledgement that the baggage was his and that he owned the

contents, and with his visible nervousness during the search, were more than legally

sufficient to establish his guilt.” United States v. Forlorma, 94 F.3d 91, 93 (2d Cir.

1996).

         United States v. Torres, 604 F.3d 58 (2d Cir. 2010), cited by Fagan, is not to the

contrary because defendant there was accompanied by other individuals and had “no

prospects of having sole dominion” over the package containing drugs that he received

from a third party, id. at 71; see United States v. Anderson, 747 F.3d at 68 (distinguishing

Torres based on lack of evidence of “sole dominion over the unidentified packages”

(emphasis in original)). Similarly, in United States v. Samaria, 239 F.3d 228 (2d Cir.

2001), and United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004), defendants played

only supporting roles for persons carrying out illicit transactions.

         In sum, where, as here, an international courier is entrusted with sole possession of

a valuable quantity of drugs and responds suspiciously to questions about his travel plans

and the ownership and contents of the suitcase containing the drugs, such evidence is

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sufficient to allow a reasonable jury to find knowing importation and possession of a

controlled substance.

      We have considered Fagan’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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