
USCA1 Opinion

	




          December 23, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1228                                    UNITED STATES,                                      Appellee,                                          v.                              GUSTAVO GOMEZ-VILLAMIZAR,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              Skinner,* District Judge.                                        ______________                                 ____________________            Miguel A.A. Nogueras-Castro  with whom Benicio Sanchez Rivera  was            ___________________________            ______________________        on brief for appellant.            Epifanio Morales Cruz,  Assistant U.S. Attorney, with whom  Daniel            _____________________                                       ______        F. Lopez-Romo,  United States Attorney,  and Jose A.  Quiles Espinosa,        _____________                                ________________________        Assistant U.S. Attorney, were on brief for appellee.                                 ____________________                                 ____________________        _____________________        *Of the District of Massachusetts, sitting by designation.                 STAHL,  Circuit  Judge.     Defendant-appellant  Gustavo                         ______________            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.                                          __                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                                  __________________                 We summarize the evidence in the light most favorable to            the  government.   United States  v. Ocampo-Guarin,  968 F.2d                               _____________     _____________            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                                            ____________________            1.  The  jury acquitted him on the charge of importation of a            controlled substance into the customs territory of the United            States ("Count II").                                           -2-                                          2            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.                                            ____________________            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.                                         -3-                                          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                                            ____________________            3.  Defendant testified that Rodriguez  had informed him that            his flight  was travelling directly from  Bogota, Colombia to            Madrid, Spain.                                         -4-                                          4                 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.                                         ___                                DEFENDANT'S ARGUMENTS                                DEFENDANT'S ARGUMENTS                                _____________________            A.  Mens Rea            A.  Mens Rea            ____________                 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.                                            ____________________            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 . .            . ."                                         -5-                                          5            Essentially, defendant contends  that, since  the jury  found            that  he lacked  the intent  to import  the cocaine  into the                                         __ ______            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                                                                      ___            United States v. Bernal-Rojas, 933 F.2d  97, 98-100 (1st Cir.            _____________    ____________            1991).   In Bernal, like the  case at bar, the  defendant had                        ______            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            ______            identical  state  of  mind  requirements, the  verdicts  were            inconsistent  as  a matter  of  law.   Id.  at 98,  100.   We                                                   ___            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."                                         -6-                                          6            Id. at 100 (quoting  United States v. Mejia-Lozano,  829 F.2d            ___                  _____________    ____________            268, 271 (1st Cir. 1987)).                 In  the  instant  case,  while  defendant  attempts   to            distinguish his argument from that made in Bernal by dressing                                                       ______            it  in  jurisdictional  clothing,8 his  central  complaint is            that the jury verdicts are inconsistent.  After  Bernal, this                                                             ______            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            _______________________________                 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.                                                ______                                            ____________________            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                                                     ______            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                                                                      ___            Metcalf  &  Eddy,  Inc. v.  Puerto  Rico  Aqueduct  and Sewer            _______________________     _________________________________            Authority,  945 F.2d 10, 12  (1st Cir. 1991)  ("We have held,            _________            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.            _____ _______                                         -7-                                          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.            _____________    _____            November 4, 1992).   Moreover, we must resolve all  issues of            credibility in favor of the verdict.  Id.                                                  ___                 1.  Count I                 1.  Count I                 ___________                 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                                                     ___ ______            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                                    ___ ___            [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.                                                            ___            Moreover, the  government need  not prove that  the defendant            had the intent  to distribute the controlled substance in the                                         -8-                                          8            United States.  "[T]he place of  intended distribution is not                                   _____            important so long as such intent is established together with            the fact of  possession within  the United States."   Id.  at                                                                  ___            1411 (quoting United  States v. McKenzie,  818 F.2d 115,  118                          ______________    ________            (1st Cir. 1987)) (emphasis in original); see also Bernal, 933                                                     ___ ____ ______            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                                         -9-                                          9            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,                                        ______            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.              ___                 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                 _____________                                            ____________________            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.                                           -10-                                          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                                  ___ ______            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                                                               ___ ______            States v.  Gonzales-Torres, No. 91-2410,  slip op. at  6 (1st            ______     _______________            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.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                                            ____________________            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.                                         -11-                                          11                 In sum, for the foregoing reasons, we affirm defendant's            conviction under 21 U.S.C.    841(a)(1) and 955.  Affirmed.                                                              Affirmed.                                                              _________                                         -12-                                          12
