
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          March 9, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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).                                         -3-                                 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                                         -4-          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                                         -5-          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                                         -6-          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.                                         -7-          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.                                             -8-
