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[NOT FOR PUBLICATION]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).
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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
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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
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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
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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.
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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.
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