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

______________________

on brief for appellant.

Epifanio Morales Cruz, Assistant U.S. Attorney, with whom Dan
_____________________
___
F. Lopez-Romo, United States Attorney, and Jose A. Quiles Espino
_____________
______________________
Assistant U.S. Attorney, were on brief for appellee.
____________________
____________________
_____________________
*Of the District of Massachusetts, sitting by designation.

STAHL,

Circuit Judge.
______________

Gomez-Villamizar
intent to

of a
in

the

("Count III").1

under

controlled substance
customs

territory of

In so doing, defendant

a matter of law,
guilty

appeals his conviction

he lacked the

Counts I

legally insufficient

and III;

("Count I") and

on board
the

an aircraft

United

States

argues that:

(1) as

criminal intent to be
and

Gustavo

for possession with

distribute a controlled substance

possession
arriving

Defendant-appellant

(2) the

found

evidence was

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.

1406,

United States
_____________

1409 (1st Cir. 1992).

a Colombian

v. Ocampo-Guarin,
_____________

On October 13, 1990, defendant,

citizen, boarded

Iberia Airlines Flight

regularly scheduled flight from Bogota, Colombia, to

Spain.

Munoz Marin

Service

928, a
Madrid,

While en route to Madrid, at approximately 3:00 p.m.

that same day, the

While the

968 F.2d

flight stopped for refueling at

International Airport in Carolina,

plane was

in Puerto

("USCS") Canine

Garcia performed

Rico, United

Enforcement

an inspection of the

Officer

the Luis

Puerto Rico.
States Customs
Juan

Gracia-

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").
-22

928.

Gracia's

After

noticing an unusual thickness at the bottom of the two

suitcases,

dog alerted

Gracia

him to

conducted

powdery substance in each.

two pieces

search and

of luggage.

found

When field tested, the

white

substance

gave positive results for cocaine.

After
Iberia

obtaining

Airlines

the

test

results,

Gracia

and

obtained

personnel

information

identifying defendant

suitcases.

Gracia then

and requested an Iberia

Gracia

as the

contacted

printout

owner of

proceeded to the

with

the two

in-transit lounge

Airlines employee to page defendant.

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

defendant admitted
within them
Gracia,

belonged

defendant

Rodolfo Salcedo.
asked

that the

defendant

to

was

During that

two suitcases and

him.

After

questioned

Neither
whether

him.

Salcedo
he

by

the clothing

his

interview

with

USCS

Special

Agent

nor Gracia

knew that

interview,

his

specifically
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.

-33

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
precipitated
serve as

to
by a

defendant,
job offer

his
from one

the head of maintenance

defendant

lacked

adequate

trip

to

Carlos

Spain

Rodriguez to

at a hotel in

travelling

was

Madrid.

luggage,

As

Rodriguez

allegedly gave him the two pieces of luggage at issue in this

case.

After

packing the

belongings, defendant

two

rode in

suitcases with
a cab

his personal

with Rodriguez

to the

airport.
Defendant asserted that, while he

was paying a duty fee

at the airport, Rodriguez checked the two suitcases

flight.

Rodriguez then

handed

ticket and the baggage claim

he boarded

the airplane

tags.

defendant

both the

According to

unaware that his

onto the
plane

defendant,

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.
-44

After a three-day trial, on November

found defendant guilty on

20, 1991, the jury

Counts I and III.4

sentenced to seventy-eight months in

prison.

1992, defendant filed the instant appeal.

II.
II.
___
DEFENDANT'S ARGUMENTS
DEFENDANT'S ARGUMENTS
_____________________

Defendant was
On January 27,

A. Mens Rea
A. Mens Rea
____________
Defendant
required for
(Count I),5

first

argues that

conviction under
or 21 U.S.C.

jury found him

not guilty

not have

been found

lacked

the mens

either 21 U.S.C.

955 (Count

III).6

of violating 21

(Count II),7 defendant reasons

could

he

841(a)(1)
Because the

U.S.C.

that, as a matter of

guilty under

rea

Counts I

952(a)
law, he
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 . .
. ."
-55

Essentially, defendant contends

that

he lacked

the intent

that, since

to import
__ ______

the jury

the cocaine

found

into the

customs territory of the United States, it could not properly

find either

that he

intent to distribute
board

an

aircraft

intended

to possess

the cocaine

with

it or that he intended to possess it on

arriving

in or

departing

the

customs

territory of the United States.

Unfortunately
considered and

for

defendant,

however,

rejected the argument

United States v. Bernal-Rojas, 933 F.2d

_____________
____________
1991).
been

In Bernal, like the

______

found not
Bernal
______

identical

state

inconsistent

as

of

because
mind

a matter

97, 98-100 (1st Cir.

the

952(a).

defendant had

The defendant in

three offenses

requirements, the
of

See
___

841(a)(1) and 955, but was

guilty under 21 U.S.C.

argued that,

recently

he now advances.

case at bar, the

convicted under 21 U.S.C.

we

law.

Id.
___

contained

verdicts

at 98,

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

100.

were
We

so long as such intent is established

together with the fact of possession
within the United States."

-66

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

central

complaint is

that the jury verdicts are inconsistent.

After

Bernal, this
______

argument

reject

defendant's

must

fail.

clothing,8 his

Accordingly,

we

entreaty to reverse his conviction on this basis.9

B. Sufficiency of the Evidence
B. Sufficiency of the Evidence
_______________________________
Defendant next
evidence to
III.

argues that the

find him guilty of

jury lacked

sufficient

the charges in Counts

I and

We find this argument unpersuasive.

In

assessing

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

guilty beyond a reasonable doubt."

the defendant

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.
_____ _______
-77

"[T]he

prosecution

hypothesis

of

need

innocence,

not
so

exclude
long as

every
the

total

reasonable
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).

issues of

Moreover, we must resolve all

credibility in favor of the verdict.

Id.
___

1. Count I
1. Count I
___________
To

prove

government

a violation

must

show

defendant knowingly

of

beyond

21 U.S.C.
a

reasonable

n.1.

statute

if s/he

A defendant

[defendant]

that

See Ocampo, 968 F.2d

___ ______
under this

constructive possession

of the

1410 ("Our decision

suitcase and

is consistent with many

a controlled

found guilty

See id. at
___ ___

possessed the

United States

can be

has merely

controlled substance.

doubt

or intentionally possessed

substance with intent to distribute it.

at 1409

841(a)(1), the

the cocaine

that
in the

previous decisions in

this circuit in which passengers landing in the United States

with checked
possession
involved
defendant]

luggage
of

is

the

have

been

found

contents.").

The

sufficient "to
knew it

Moreover, the
had the intent

would

permit

the

to

in

quantity

knowing
of

drugs

inference that

be distributed."

government need

be

not prove that

Id. at
___

[a

1410.

the defendant

to distribute the controlled substance in the

-88

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."

1411 (quoting United States v. McKenzie,

______________
________

Id.
___

818 F.2d 115,

at
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

intended to distribute it.

cocaine.
defendant as

For

the owner

ticket reflected that

the baggage

to show that defendant

possession of the two suitcases

example,
of

that he

As for the element of possession,

much evidence adduced at trial tended

was in constructive

cocaine or

the

airline

the two

identified

suitcases, his

he had checked two

claim tags attached

records

to his

and the

airline

pieces of luggage,
ticket had

numbers

that matched the baggage claim tags on the two suitcases, and

the control number on defendant's ticket matched

baggage claim

tags and boarding

arrest, defendant

admitted to

pass.

that on his

Moreover,

after his

USCS officer Gracia

that the

two suitcases and the clothing within them belonged to him.

Defendant also

contends that

the government

prove that he knew the cocaine was in the two

we have

recently stated, however,

identical argument:

failed to

suitcases.

in response to

As

an almost

"The jury, of course was not required to

believe [defendant's] testimony

denying knowledge [that

the

-99

cocaine
mind,

was in the suitcase].

such as

assessments of

knowledge and

jury

had

credibility.10
favorable

intent,

may be

credibility and often must

circumstantial evidence."
the

Issues relating

the

Viewing

influenced by

be established by

Ocampo, 968 F.2d at

______

opportunity
the

to

evidence

to state of

1410.

Here,

judge

defendant's

in

light

most

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.

large

quantity

of cocaine

involved,

the

From 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.
-1010

In urging
the very

reversal of Count III,

same arguments

he made

defendant relies upon

under Count I.

As

such,

discussion of Count III need not detain us long.

To

prove a violation of 21 U.S.C.

must show beyond a reasonable

or

possessed a

arriving in or

controlled

of

Nov.

1992)

n.1.

the evidence sufficient for a

(holding

that

evidence of a violation of

the
As
jury

a large quantity
See United
___ ______

slip op. at
government

6 (1st

presented

955 by showing "that

defendant was a passenger on an aircraft that arrived in

Puerto Rico from

contained a
fact

968 F.2d at 1409

Gonzales-Torres, No. 91-2410,

_______________
20,

aircraft

customs territory of

cocaine on board Iberian Airlines Flight 928.

sufficient
the

board an

that defendant knowingly possessed

States v.
______
Cir.

substance on

See Ocampo,
___ ______

outlined above, we think

to find

doubt that a defendant brought

departing from the

United States.11

955, the government

Panama, that two suitcases on that aircraft

controlled substance, that the

cocaine,

and

that

constructively possessed the

the

substance was in

defendant

actually

two suitcases").

we affirm defendant's conviction under Count III.

III.
III.
____
CONCLUSION
CONCLUSION
__________

or

Accordingly,

____________________
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.
-1111

In sum, for the foregoing reasons, we affirm defendant's

conviction under 21 U.S.C.

841(a)(1) and 955.

Affirmed.
Affirmed.
_________

-1212