United States Court of Appeals,
Eleventh Circuit.
No. 96-4624
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Moises QUILCA-CARPIO, Defendant-Appellant.
May 22, 1997.
Appeal from the United States District Court for the Southern District of Florida. (No. 95-962-CR),
Donald Graham, Judge.
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Moises Quilca-Carpio was convicted of importation of cocaine, 21 U.S.C. § 952(a), and
possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). On appeal, he contends that:
(1) there was insufficient evidence to sustain his conviction and (2) the district court erred by
denying his motion for a new trial or, in the alternative, for an evidentiary hearing because of juror
misconduct. We affirm.
On November 26, 1995, Quilca-Carpio traveled from Lima, Peru, his native country, to the
United States. After claiming the two pieces of luggage that he had checked for the flight, a blue
suitcase and a black roller-bag, he proceeded through immigration and customs. He cleared
immigration and a primary customs station, but was later stopped for a random check at a secondary
customs station by roving inspector Dwight Sweeting.1 The inspector emptied the black roller-bag
of its contents, which consisted of Peruvian fur rugs. He felt inside the bag and noticed an unusual
thickness in its bottom. He lifted it and determined that it weighed noticeably more than this type
of bag would normally weigh.
1
Roving inspectors are plain-clothes customs inspectors who mingle with arriving passengers
at the airport and are trained to spot suspicious individuals or luggage. Inspector Sweeting had
received such training, but had been a roving inspector for only nine months in November 1995.
Sweeting then motioned inspector Gilberto Aguilar, an inspector with over five years of
experience, for help. Aguilar later testified at trial that the bag did not look suspicious and that the
weight of the bag was the only thing suspicious about it. He estimated that it weighed about eight
to ten pounds, while the normal weight for that type of bag is usually about five pounds. The bag
was x-rayed and revealed nothing unusual. Sweeting then obtained a probe and punctured the
bottom of the roller-bag. The probe revealed a white substance hidden in the false bottom of the
roller-bag. The substance field-tested as cocaine. The total weight of the cocaine was 3.94
kilograms (or about 8.5 pounds). Aguilar also testified that Quilca-Carpio's answers to his questions
throughout the process were all normal and that Quilca-Carpio did not exhibit any nervousness. The
prosecution rested after presenting the testimony of inspectors Aguilar and Sweeting. The defense
rested without presenting any evidence.
Sufficiency of the evidence is a question of law that we review de novo. United States v.
Keller, 916 F.2d 628, 632 (11th Cir.1990). We view "the evidence in the light most favorable to the
jury's verdict, and accept reasonable inferences and credibility choices by the fact-finder." United
States v. Mattos, 74 F.3d 1197, 1199 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1839, 134
L.Ed.2d 942 (1996). We uphold the conviction if a reasonable trier of fact could find that the
evidence establishes the defendant's guilt beyond a reasonable doubt. Id. The evidence need not,
however, "exclude every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt." Id. (internal quotation marks omitted).
Quilca-Carpio contends that the evidence failed to prove that he knew that cocaine was
concealed in the roller-bag and that the government, thus, failed to prove the element of intent
necessary to sustain his conviction for both importation of cocaine and possession of cocaine with
intent to distribute. See United States v. Peart, 888 F.2d 101, 104 & n. 2 (11th Cir.1989). Direct
evidence of knowledge, however, is not necessary to sustain Quilca-Carpio's conviction; the
government may prove its case through circumstantial evidence. See id. at 104. The government
argues that the jury reasonably could infer that Quilca-Carpio knew the bag concealed almost four
kilograms of cocaine in a hidden compartment because he checked the roller-bag as his own luggage
on the flight from Lima and apparently owned it. In other words, the government contends that the
fact that Quilca-Carpio possessed the bag—which is not contested by Quilca-Carpio—supports an
inference that he knew of its contents.
Quilca-Carpio responds that possession of a bag that contains contraband in a well-hidden
compartment is analogous to a defendant's presence in a car in which contraband is hidden. In such
situations, we have required that "in addition to mere presence on the vehicle, or control over it,
there be circumstances evidencing a consciousness of guilt on the part of the defendant." United
States v. Stanley, 24 F.3d 1314, 1320 (11th Cir.1994) (quoting United States v. Gonzalez-Lira, 936
F.2d 184, 192 (5th Cir.1991) (citations omitted)); see also id. at 1320-21 (collecting from this and
other circuits cases in which evidence in addition to mere presence in, or control over, a vehicle was
required to sustain a conviction). Quilca-Carpio further argues that our cases involving the
conviction of defendants who had attempted to smuggle narcotics in luggage brought from overseas
supports the fact that additional evidence is invariably present to support the conviction. See United
States v. Rivera, 944 F.2d 1563, 1565 (11th Cir.1991) (additional evidence included travel under
suspicious circumstances and three suitcases, each having a "false bottom ... so obvious that "it
jumped out at' " the customs inspector); United States v. Herrera, 931 F.2d 761, 762-63 (11th
Cir.1991) (additional evidence included the facts that the defendant "was rigid and tense" in the
airport, "became evasive and nervous" when questioned by a customs inspector, later "became
increasingly nervous and gave inconsistent answers to routine questions concerning her travel
arrangements," and finally testified on her own behalf at trial and was disbelieved by the jury);
Peart, 888 F.2d at 104-05 (additional evidence included the fact that the defendant, a soldier, had
falsified travel orders; tried to distance himself from the ownership of the bag even though it
contained some of his belongings and he had baggage claim stubs corresponding to the bag; claimed
that he lost his luggage but was apprehended leaving the airport without filing a claim; and testified
on his own behalf and was apparently disbelieved by the jury); United States v. Duran, 687 F.2d
348, 350-51 (11th Cir.1982) (additional evidence included suspicious actions by the defendant in
Barranquilla, Colombia, on the morning of his arrest; the defendant also testified in his defense and
his "credibility was badly shaken").
While Quilca-Carpio is correct in pointing out that additional evidence is typically present
in cases involving airport couriers, we have never held that such additional evidence is necessary
to support a conviction. We agree with the government and the district court2 that a reasonable jury
could conclude beyond a reasonable doubt that a person who is caught with luggage containing a
significant amount of drugs knew of the presence of the drugs. A reasonable jury could infer from
the quantity of drugs seized that a "prudent smuggler" is not likely to entrust such valuable cargo
to an innocent person without that person's knowledge. Cf. United States v. Cruz-Valdez, 773 F.2d
1541, 1547 (11th Cir.1985) (en banc) ("[A] prudent smuggler is not likely to suffer the presence of
unaffiliated bystanders."). Moreover, in this case, the government presented the additional evidence
of the unusual weight of the roller-bag. We conclude that, although this case is very close indeed,
the evidence presented at trial was sufficient for a reasonable jury to decide that Quilca-Carpio was
guilty beyond a reasonable doubt.
Quilca-Carpio further contends that the district court erred in denying his motion for a new
trial, or at least for an evidentiary hearing, because of juror misconduct. One week after Quilca-
Carpio was convicted, one of the members of the jury, John Bonanno, participated in the voir dire
for an unrelated trial involving charges of possession of a firearm by a felon, use of a firearm in
relation to a drug trafficking crime, and possession of cocaine with intent to distribute. The court
2
Quilca-Carpio submitted a letter to the trial court before sentencing in which he explained
how he came to be traveling to Miami with a roller-bag that contained cocaine. Quilca-Carpio
maintained that he unwittingly was set up by friends and gave the district court an account of the
names and addresses of these friends. The district court found that Quilca-Carpio met the
truthfulness requirement for application of the safety valve provision contained in 18 U.S.C. §
3553(f) and U.S.S.G. § 5C1.2 (allowing the district court to impose a sentence within the
sentencing guidelines applicable range without regard to the statutory minimum). The district
court exhibited its skepticism of the jury's verdict when it responded to the government's
argument that the court could not simultaneously uphold a guilty verdict and find that a
defendant who maintains his innocence has been truthful for the purpose of sentencing. The
district court said: "It's true that the jury found the defendant guilty, and I've decided not to
disturb that verdict. A reasonable jury based upon the facts, I suppose, could conclude that he
committed the offense knowingly and intentionally." R8-13 (emphasis added). Considering
how close this case is, we share the district court's concern regarding the judgment in this case;
we also agree, however, with the district court's conclusion that a proper application of the
standard of review requires that we uphold the jury's verdict.
in the second trial dismissed Bonanno sua sponte after the following exchange occurred:
JUROR: It would [be] really difficult [for me to sit as a juror], because I have had friends
charged with similar offenses; and it just would be kind of—I guess it wouldn't make my
judgment quite as fair.
I mean I would feel like—I guess I just don't feel like I can give a completely fair
judgment like someone else could in this case.
THE COURT: You think that it would make you biased one way or the other?
JUROR: Yeah. It might make me biased. I just don't feel comfortable with it.
R1-43-14. Because Bonanno did not disclose during the voir dire for Quilca-Carpio's trial the facts
that Bonanno had friends charged with similar offenses and that this might make him biased, Quilca-
Carpio contends that he is entitled to a new trial due to juror misconduct or, at least, to a hearing on
this matter.
A district court's decision whether to grant a new trial or an evidentiary hearing is reviewed
for abuse of discretion. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104
S.Ct. 845, 850, 78 L.Ed.2d 663 (1984) (new trial); United States v. Dynalectric Co., 859 F.2d 1559,
1580 (11th Cir.1988) (evidentiary hearing). Under McDonough, "to obtain a new trial ... a party
must first demonstrate that a juror failed to answer honestly a material question on voir dire, and
then further show that a correct response would have provided a valid basis for a challenge for
cause." McDonough, 464 U.S. at 556, 104 S.Ct. at 850; BankAtlantic v. Blythe Eastman Paine
Webber, Inc., 955 F.2d 1467, 1473 (11th Cir.1992). Here, the district court reviewed Bonanno's
responses in the second voir dire and thought it would be speculative to assume that Bonanno, in
fact, was dishonest in Quilca-Carpio's voir dire. Moreover, the district court ruled that, if there was
any potential bias on Bonanno's part, it likely would have inured to the benefit of the defendant
rather than the prosecution. We agree with the district court's determination that Quilca-Carpio did
not meet the standard for a new trial set out in McDonough. We further conclude that the district
court acted within its discretion in denying Quilca-Carpio's request for an evidentiary hearing.
AFFIRMED.