                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2004

USA v. Yongo
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3055




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 03-3055


            UNITED STATES OF AMERICA

                            v.

              BERNARD OUMA YONGO

                                  Appellant



      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                (Dist. Ct. No. 02-cr-00543)
        District Judge: Honorable Stewart Dalzell



        Submitted Under Third Circuit LAR 34.1(a)
                     June 24, 2004

Before: NYGAARD , McKEE and CHERTOFF, Circuit Judges.

                   (Filed: July 8, 2004)



                        OPINION




                            1
CHERTOFF, Circuit Judge.

           Bernard Ouma Yongo was convicted of importing more than one kilogram of

heroin into the United States in violation of 21 U.S.C. § 952(a).1 The sole issue on

appeal is whether there was sufficient evidence presented at trial from which a jury

could conclude beyond a reasonable doubt that Yongo knew heroin was hidden in the

briefcase he transported. We conclude that the evidence was sufficient, and for the

reasons stated below, we will affirm the District Court’s judgment.



                                              I.

           The District Court exercised jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 28 U.S.C. § 1291. “In reviewing [a defendant’s] challenge to the

sufficiency of the evidence, we apply a particularly deferential standard of review. The

verdict must be sustained if there is substantial evidence to support it.” United States v.

Cartwright, 359 F.3d 281, 285-86 (3d Cir. 2004) (internal citations and quotations

omitted). “‘We must view the evidence in the light most favorable to the Government

and sustain the verdict if any rational juror could have found the elements of the crime

beyond a reasonable doubt.’” Id. (quoting United States v. Cothran, 286 F.3d 173, 175

(3d Cir. 2002)). Moreover, where, as here, the defendant fails to file a timely motion

       1
         This provision provides, in pertinent part, that “[i]t shall be unlawful to import
into the customs territory of the United States from any place outside thereof (but within
the United States), or to import into the United States from any place outside thereof, any
controlled substance.” 21 U.S.C. § 952(a).
                                              2
for judgment of acquittal we review sufficiency of evidence for plain error. United

States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997).

       Because we write only for the parties, we abbreviate our recitation of the facts.

On May 12, 2002, Yongo attempted to enter the United States from Kenya through

Philadelphia International Airport. Upon arrival, Yongo provided a customs inspector

with a passport and baggage declaration indicating that he was Bernard Yongo arriving

from Kenya on British Airways Flight 67. Yongo presented for customs inspection a

briefcase and suitcase. In response to questions by a customs inspector, Yongo

represented that the suitcase and briefcase, as well as their contents, belonged to and had

been packed by him. Customs inspectors testified that Yongo was sweating and

dabbing his forehead, despite the cool temperature.

       Yongo opened the briefcase, which contained small wooden carvings wrapped in

newspaper. On his customs declaration, Yongo declared the value of his items as $100.

The thirteen wooden carvings were appraised at approximate $10 each in their source

country and $40 apiece in the United States, for a total value of $130 and $520,

respectively.

       An initial inspection of the briefcase revealed that the top was unusually thick,

and upon further examination it was revealed that the briefcase contained a false lid,

permitting contraband to be hidden. The briefcase was drilled, revealing a white

substance which tested positive for heroine. Expert testimony indicated that the heroin,


                                            3
with a net weight of 1501 grams, was worth at least $500,000.

       Following the waiver of his Miranda rights, Yongo altered his story. Yongo

informed custom agents that a boyhood friend had paid for his ticket to the United

States in exchange for him transporting the wooden carvings. The parties stipulated that

the plane ticket bore a face value of $2,300 in United States currency. Yongo provided

the agent with additional details about the purported purpose and circumstances of the

trip. He explained that the original purpose of the trip was to attend a niece’s graduation

from college, which the parties stipulated was held on May 10, 2002 (notably two days

before his arrival) in St. Louis, Missouri.

       Apart from the graduation, Yongo informed the agent that he planned on staying

with his sister. Yongo did not know where his sister lived or her telephone number, but

he did have an email address for his nephew. Yongo indicated that he had supplied a

photograph in advance of his arrival so that he could be recognized by the person

picking him up at the airport. Yongo explained that a man by the name of Peter

Odfiambo, or someone selected by Odfiambo, was going to meet him in Philadelphia

and take him to New Jersey for a few days, whereupon he was planning on emailing his

nephew to locate his sister. Among the items seized from Yongo’s person was a small

notebook which had written on the inside the name “Peter Odfiambo” and the name and

address of a Best Western hotel in Philadelphia.

       Yongo was tried before a jury and found guilty on March 11, 2003. On April 1,


                                              4
2003, Yongo filed a pro se motion for judgment of acquittal and a new trial. The

motion was denied as untimely, and Yongo was sentenced. This appeal follows.



                                             II.

          Yongo argues that the evidence was insufficient because the record contains no

evidence, direct or circumstantial, from which a reasonable jury could have found

beyond a reasonable doubt that he knew heroin was in the suitcase. We disagree. The

above outlined evidence provides ample basis from which the jury could conclude that

Yongo had knowledge that the suitcase contained drugs.

          “It is not unusual that the government will not have direct evidence. Knowledge

is often proven by circumstances.” United States v. Iafelice, 978 F.2d 92, 98 (3d Cir.

1992). In this case there was, at the very least, substantial circumstantial evidence to

support the inference that Yongo knew that the briefcase contained drugs. We have

previously noted the significance of ownership, “considered in the context of the

surrounding circumstances,” in assessing whether a defendant knew that he was

transporting drugs. See id. at 97.2 In this case, Yongo initially claimed, before

recanting his story, that he packed and owned the suitcase and its contents. In addition,

the conclusion that Yongo had knowledge of the drugs is bolstered by the surrounding


      2
        As the Government points out, the fact of ownership distinguishes this case from
other decisions of this Court. See Iafelice, 978 F.2d at 96-97 (distinguishing, e.g., U.S.
v. Wexler, 838 F.2d 88 (3d Cir. 1988)).
                                              5
circumstances, including Yongo’s demeanor during the inspection, the relative value of

the statues as compared to the cost of the plane ticket, and Yongo’s not particularly

believable revised statements regarding the purpose of his trip. Taking the evidence in

the light most favorable to the Government, there was sufficient evidence from which a

reasonable jury could conclude that Yongo had knowledge that he was carrying drugs.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                            6
