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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-2003 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                      JOSE R. SCHARON, JR., <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                    Cyr, Senior Circuit Judge, <br> <br>                and Pollak, Senior District Judge. <br> <br>                      _____________________ <br> <br>    Bryan M. Glover, by appointment of the Court, on brief, for <br>appellant. <br>    Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, <br>Chief, Criminal Division, and Antonio R. Bazn, Assistant United <br>States Attorney, on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                          June 17, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  On January 16, 1997, appellant <br>Jos R. Scharon, Jr. ("Scharon") arrived at Luis Muoz Marn <br>("LMM") Airport from Costa Rica.  Upon being referred to secondary <br>inspection by a Customs Inspector, his two suitcases were probed <br>because they had a strong smell of glue.  When searched, heroin was <br>found in the inner lining.  Additionally, a total of 563 <br>counterfeit one hundred dollar bills were found bundled in <br>Scharon's jeans in the two suitcases.  Scharon was indicted for <br>violating 21 U.S.C.  841(a)(1) & 952(a) and 18 U.S.C.  472. <br>         At the first trial, the jury returned a guilty verdict on <br>all counts.  After the conclusion of the trial, Scharon filed a <br>"Motion for New Trial" based on the fact that prior to rendering a <br>verdict, one of the jurors had sent a note to the court stating <br>that it appeared from one of the exhibits, Scharon's driver's <br>license, that Scharon and the juror had the exact same home <br>address.  The court granted the motion and scheduled the case for <br>a second jury trial. <br>         At the second trial, Scharon was again convicted.  He was <br>sentenced to 144 months of imprisonment and a five-year term of <br>supervised release.  This appeal followed. <br>                            BACKGROUND <br>         Upon arrival at LMM Airport, Scharon submitted his <br>declaration form to the Customs Inspector and was referred for <br>secondary inspection.  In response to question (g) of the <br>declaration form, which requires that the traveler list all <br>countries visited prior to arrival in the United States, Scharon <br>listed only Panama.  Scharon's passport had a stamp with his date <br>of departure from Colombia on January 16, 1997. <br>         Customs Inspector Luis Gonzlez testified that on <br>January 16, 1997, he was working the secondary inspection table <br>when Scharon's flight arrived.  Scharon told Gonzlez that he was <br>coming from Panama and that he was a realtor.  After Gonzlez's <br>inspection of his passport, Scharon admitted having visited <br>Colombia, but denied carrying currency in excess of $10,000.  At <br>that time, Scharon's two suitcases were placed on the inspection <br>table. <br>         As soon as his luggage was opened, a strong smell of glue <br>was noticed and the contents were removed from the suitcases.  Both <br>suitcases were heavy even after the contents were removed.  They <br>were then punctured with a probe, and a white powdery substance was <br>detected.  A field test yielded positive results for heroin.  At <br>that time, Scharon was placed under arrest. <br>         Scharon then signed a "Warning and Waiver of Rights."  <br>Several identification documents were obtained from Scharon, as <br>well as 563 one hundred dollars bills which appeared "counterfeit" <br>to Inspector Gonzlez. <br>         At this point, Special Agent Carmen Ricci took custody of <br>the two suitcases.  Ricci advised Scharon of his constitutional <br>rights.  Scharon again waived his rights and proceeded to tell <br>Ricci that his original luggage had been damaged, but he did not <br>report it to the airline upon arrival in Colombia on December 9, <br>1996.  Scharon informed Ricci that he purchased the two seized <br>suitcases in Colombia to replace his damaged luggage, but did not <br>have a receipt or a business card to prove where he purchased them.  <br>Scharon informed her that while he was at the store where he <br>purchased the suitcases, a man approached him and told him that he <br>knew a woman who would wash, iron, and fold his clothing for him.  <br>Scharon accepted the offer.  According to Scharon, the woman was <br>supposed to take the suitcases from the store to his hotel room.  <br>He did not know the name of the woman, and said that while she <br>washed, ironed and was folding his clothes, he left to have lunch <br>with his girlfriend. <br>         Scharon did not change his clothes when he returned to <br>the hotel room.  When questioned again by Ricci as to whether he <br>had opened the suitcases, he stated: "Yes I did, I opened it up and <br>I put the toiletry bag in it."  However, he denied having smelled <br>a strong odor of glue.  Scharon stated that he left the damaged <br>suitcase in Colombia. <br>         Scharon took the stand in his own defense and testified <br>that he had five years of college education, but did not receive a <br>college diploma.  Since June of 1996, when he moved to Milwaukee, <br>he had worked with a firm dedicated to architectural lighting <br>consultations for a period of approximately two weeks.  During <br>September 1996, he traveled to Colombia because his brother had <br>suggested that he travel there to be interviewed by a friend of his <br>who worked for the airlines. <br>         That person's name was "Reginfo," and the job offer was <br>to take a prostitute to Japan.  He declined the offer for moral <br>reasons.  During this trip to Colombia, he became close to a female <br>named "Patricia" who happened to be the prostitute he was supposed <br>to take to Japan.  His involvement with "Patricia" motivated his <br>subsequent trips to Colombia. <br>         Scharon testified that the purpose of his trip to <br>Colombia on December 9, 1996 was to see "Patricia." He stayed at <br>the Astoria Hotel in Cali, Colombia.  On January 15, 1997, it was <br>"Patricia's" birthday, and late in the afternoon, they went <br>shopping.  He purchased the two suitcases, one small and one big, <br>and they arranged for the suitcases to be delivered to his hotel <br>room.  He never met the woman who was supposed to take the <br>suitcases to his hotel room.  According to Scharon, he just called <br>the hotel, and told them to expect the woman who would attend to <br>his clothes and pack his things. <br>         He returned to his hotel room late that evening, and then <br>took a bus to Medelln to get his return flight.  He stated that he <br>did not smell any odor from the suitcase when he packed his <br>toiletry bag before leaving the hotel. <br>         On cross-examination, Scharon admitted that from June 22, <br>1996, for two months, both he and his family had been receiving <br>food stamps.  He admitted that he traveled to Colombia on <br>October 18th, and at the time, was receiving all his money from <br>"Patricia."  He remained in Colombia until November.  In November, <br>still with no source of income, he traveled twice to Colombia.  <br>"Patricia" provided the funding for his travel to Colombia and <br>during his stay in the country.  She was employed at a warehouse <br>during the day, but also engaged in prostitution.  For the December <br>trip, "Patricia" gave him $1000, part of which he used to pay for <br>the airline ticket.  "Patricia" also paid for his hotel expenses.  <br>The suitcases were purchased separately, with money from an <br>unidentified source. <br>         Experts testified that inside the interior sidewalls of <br>the suitcases were approximately 2.4 kilograms of heroin.  Cartoon <br>paper had been placed on the interior walls to prevent x-ray <br>detection.  Further, the sidewalls of the suitcases had to be <br>broken with a hammer because they were made of fiberglass.  <br>Evidence was also introduced establishing that the 563 one hundred <br>dollar bills found in Scharon's packed jeans were counterfeit. <br>                            DISCUSSION <br>I.  Sufficiency of the Evidence <br>         One who challenges the sufficiency of the evidence bears <br>a heavy burden: he must show that no rational jury could have found <br>him guilty beyond a reasonable doubt.  See United States v. <br>Rodrguez, 162 F.3d 135, 141 (1st Cir. 1998).  We review the <br>sufficiency of the evidence as a whole, in a light most favorable <br>to the verdict, taking into consideration all reasonable <br>inferences.  See  United States v. Scantleberry-Frank, 158 F.3d <br>612, 616 (1st Cir. 1998).  We resolve all credibility issues in <br>favor of the verdict.  See id.  The evidence may be entirely <br>circumstantial, and need not exclude every hypothesis of innocence; <br>that is, the factfinder may decide among reasonable interpretations <br>of the evidence.  See id. (citation omitted). <br>         First, Scharon arrived at LMM Airport on board L.A.C.S.A. <br>Flight 653.  He had originally purchased a C.O.P.A. Airlines ticket <br>to San Juan in Colombia.  Upon arrival in Panama, he exchanged the <br>Panama to Puerto Rico portion of the airline ticket for a <br>L.A.C.S.A. airline ticket.  His Customs Declaration card reflected <br>that he was arriving in San Juan from Panama rather than from <br>Colombia, a source country for narcotics.  A reasonable inference <br>can be made that he did not want Customs to know that his trip had <br>originated in Colombia. <br>         Second, witnesses testified that a strong smell of glue <br>emanated from Scharon's suitcases when opened.  Yet, Scharon denied <br>having detected this glue smell even though he admitted opening at <br>least the smaller of the suitcases to pack his toiletry bag.  The <br>jury could have easily inferred that Scharon's denial was a <br>fabrication to disguise his knowledge that narcotics were secreted <br>in the suitcases. <br>         Third, the jury could have found Scharon's description of <br>the events not to be credible.  He testified that on the last day <br>of his trip, he went to a store, whose name he cannot recall, to <br>purchase two suitcases that had been damaged at the beginning of <br>the trip.  He did not have a receipt for the purchase of the <br>suitcases or any indicia identifying the store.  He permitted a <br>woman, whose name he did not know, to enter his hotel room to wash, <br>iron, and pack his clothes in the new suitcases. <br>         Moreover, Scharon did not have any means of support, <br>aside from his Colombian girlfriend "Patricia," who was a <br>prostitute.  Yet, he had a return airline ticket to Colombia for <br>the month of February 1997, and within the pockets of his packed <br>jeans was over $50,000 in counterfeit United States currency. <br>         The above evidence, along with his suitcases containing  <br>heroin with a street value of over $2 million dollars, was <br>sufficient for the jury, employing its common sense in evaluating <br>the circumstantial evidence, to conclude beyond a reasonable doubt <br>that Scharon knew the suitcases contained heroin.  See United <br>States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992) ("[N]o premium <br>is placed upon direct as opposed to circumstantial evidence; both <br>types of proof can adequately ground a conviction."). <br>II.  Chain of Custody <br>         Scharon argues that the district court abused its <br>discretion in admitting the narcotics at trial because it could not <br>have determined with reasonable probability that the evidence had <br>not been altered in any material respect given an alleged break in <br>the chain of custody.  Because no objection was made at trial, we <br>review only for plain error.  See Johnson v. United States, 520 <br>U.S. 461, 467 (1997). <br>         A possible defect in the chain of custody for a certain <br>piece of evidence factors into the weight given to the evidence <br>rather than its admissibility.  See Rodrguez, 162 F.3d at 144.  A <br>defendant can attempt to cast doubt on an exhibit's authenticity.  <br>See id.  Such an issue, however, is to be resolved by the jury, and <br>not the judge.  See id. <br>         The narcotics were properly authenticated and introduced <br>into evidence.  At trial, the government showed that the suitcases <br>were the suitcases seized from Scharon at LMM Airport, and the <br>suitcases from which the forensic chemist extracted the narcotics <br>at the laboratory.  Under Fed. R. Evid.  901, the government <br>satisfied its authentication requirement for the seized narcotics. <br>III.  "Safety Valve" <br>         Scharon argues that the district court erred in finding <br>that he failed to meet the five criteria listed in the "safety <br>valve" provision for relief from mandatory minimum sentences.  See <br>18 U.S.C.  3553(f)(1)-(5); U.S.S.G.  5C1.2.  That provision, if <br>applicable, requires a sentencing court to disregard the <br>statutorily imposed mandatory minimum sentence and impose sentence <br>pursuant to the Sentencing Guidelines.  See 18 U.S.C. S 3553(f).  <br>The government concedes that Scharon met the first four of the <br>criteria.  See 18 U.S.C.  3553(f)(1)-(4).  In dispute is the fifth <br>criterion, which requires a defendant to "truthfully provide[] to <br>the Government all information and evidence the defendant has" <br>regarding the offense.  18 U.S.C.  3553(f)(5). <br>         In order to qualify for safety valve relief, the <br>defendant must persuade the court that he meets all of the <br>requirements.  See United States v. Montaez, 82 F.3d 520, 523 (1st <br>Cir. 1996).  We review for clear error the district court's factual <br>determinations underlying the question whether a defendant is <br>entitled to such relief.  See United States v. Miranda-Santiago, 96 <br>F.3d 517, 527 (1st Cir. 1996).  "Where there is more than one <br>plausible view of the circumstances, the sentencing court's choice <br>among supportable alternatives cannot be clearly erroneous."  <br>United States v. D'Andrea, 107 F.3d 949, 958 (1st Cir. 1997). <br>         Previously, we have found clear error in the denial of <br>safety valve relief where "the government did not rebut <br>[defendant's] facially plausible tale of limited involvement by <br>pointing to information [the] defendant must have known."  <br>Miranda-Santiago, 96 F.3d at 529.  Thus, a sentencing court's "bare <br>conclusion" that the defendant failed to cooperate within the <br>meaning of  3553(f)(5) is insufficient to support such a finding <br>"absent either specific factual findings or easily recognizable <br>support in the record." Id. <br>         In finding that Scharon failed to meet the fifth <br>criterion, the district court stated: <br>                  I find for various reasons, one, it states in <br>         the pre-sentence report which was prepared in <br>         March concerning defendant's acceptance of <br>         responsibility, Mr. Scharon proclaimed his <br>         innocence and provided no personal statement.  <br>         That is what the pre-sentence [sic] claims and <br>         has not been taken in issue by counsel or the <br>         defendant at this sentencing hearing. <br> <br>                     Secondly, defendant went to trial, he took <br>         the stand and consistent with what the pre- <br>         sentence report states, he gave his version of <br>         the facts for which he portrayed for the jury, <br>         that he did not know anything about the drugs <br>         nor the counterfeit monies that were coming <br>         there so the criteria the Court finds are <br>         based on these two grounds; that he did not <br>         comply with the criteria . . . and, therefore, <br>         the Court will not grant him the benefit of <br>         the safety valve. <br>         Scharon argues that he satisfied the burden for the fifth <br>criterion because he truthfully provided all the information he had <br>concerning the offense at a debriefing on July 8, 1998 with the <br>government.  In response, the government states that the object of <br>the debriefing was to obtain a "Plea and Cooperation Agreement" so <br>that other persons could be prosecuted in relation to those <br>offenses.  Such cooperation did not materialize because Scharon <br>decided to exculpate himself and deny knowledge of the narcotics <br>concealed in his suitcases and the counterfeit currency found in <br>his jeans.  According to the government, he elected to go to trial. <br>         In determining the amount of information a convicted <br>defendant must provide to the government in order to meet the fifth <br>criterion and avail himself of the safety valve provision, we note <br>that other circuits have held that a defendant must disclose <br>information beyond the offense of conviction to satisfy the safety <br>valve.  See United States v. Gambino, 106 F.3d 1105, 1111 (2d Cir. <br>1997) (rejecting defendant's argument that he did not have to <br>answer questions beyond the conspiracy period alleged and to which <br>he pled guilty); United States v. Adu, 82 F.3d 119, 124 (6th Cir. <br>1996) (stating that the safety valve provisions "clearly require an <br>affirmative act by the defendant truthfully disclosing all the <br>information he possesses that concerns his offense and related <br>offenses" and upholding district court's refusal to apply the <br>safety valve where the defendant did not provide complete <br>information concerning other offenses); United States v. Long, 77 <br>F.3d 1060, 1062-63 (8th Cir.) (district court did not err in <br>refusing to apply safety valve where defendant did not truthfully <br>provide all information relevant to the "same course of conduct or <br>. . . a common scheme or plan" of drug trafficking); see also <br>United States v. Arrington, 73 F.3d 144, 149 (7th Cir. 1996) <br>(stating that  3553(f) requires a defendant to disclose "'all <br>information' concerning the course of conduct -- not simply the <br>facts that form the basis for the criminal charge"). <br>         The district court had the opportunity to hear Scharon's <br>testimony at trial and gauge his credibility.  As the above <br>quotation from the sentencing transcript illustrates, the district <br>court was not persuaded that Scharon was truthful during his <br>testimony.  It simply strains the limits of credibility to believe <br>that forces in Colombia, absolutely oblivious to Scharon's final <br>destination, would go to enormous effort to secrete well over $2 <br>million dollars worth of heroin in his suitcases and further insert <br>over $50,000 in counterfeit currency in his jeans pockets.   <br>         The district court did not clearly err in determining <br>that Scharon did not satisfy the requirement that he provide "all <br>information and evidence [he] has concerning the offense."  18 <br>U.S.C.  3553(f)(5).  At the very least, Scharon should have <br>disclosed the identity of the person on whose behalf he was acting.  <br>See United States v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. <br>1995). <br>                            CONCLUSION <br>         For the reasons stated above, we AFFIRM the judgment of <br>the district court.</pre>

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