[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
___________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12061 SEPTEMBER 10, 2009
THOMAS K. KAHN
___________ CLERK
D.C. Docket No. 07-00021-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL GARCIA-BERCOVICH,
Defendant-Appellant.
.
___________________
Appeal from the United States District Court
for the Northern District of Florida
__________________
(September 10, 2009)
Before WILSON and ANDERSON, Circuit Judges, and GOLDBERG,* Judge.
* Honorable Richard W. Goldberg, Judge. United States Court of International Trade, sitting by
designation.
GOLDBERG, Judge:
Angel Garcia-Bercovich (“Garcia-Bercovich”) appeals his convictions for
both conspiracy to distribute, and possession with the intent to distribute at least
100 kilograms, but less than 1000 kilograms, of marijuana. Specifically, Garcia-
Bercovich argues that insufficient evidence existed to support the jury’s conclusion
that he was aware that the shipments contained marijuana, and in denying his
motion to suppress the evidence of the Central Transport International (“CTI”)
search. Because we find sufficient evidence to support Garcia-Bercovich’s
conviction and no error in the denial of Garcia-Bercovich’s motion to suppress, we
affirm the decision of the district court.
I. BACKGROUND
In June of 2007, CTI in Gainesville, Florida received a shipment containing
thirteen boxes intended for “Angel at Natural Heat Systems.” The boxes were
shrink-wrapped together on a single pallet and covered by a single shipping
manifest. After this shipment sat unclaimed for several days, a company employee
opened the package to obtain more information as to its owner, and discovered
what appeared to be marijuana. The employee called the local police. The
responding officer manipulated and looked through the existing hole and
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determined the substance was marijuana. The officer then had the package
transported to a storage facility for destruction, but told CTI to call if anyone
showed up for the delivery. The following day, Garcia-Bercovich showed up at
CTI to pick up the shipment and was told that the shipment was scheduled to arrive
later that day. The officers re-wrapped the shipment and returned it to CTI. When
Garcia-Bercovich returned for the shipment, officers arrested him after a brief
altercation and an attempt to flee. Upon questioning, Garcia-Bercovich admitted
that he was paid $800 to pick up the shipment. In all, the shipment weighed 1100
pounds, 800 pounds of which was marijuana.
Subsequently, Garcia-Bercovich admitted his involvement in other
transactions. Garcia-Bercovich admitted that he had picked up three prior loads
and each time he had been given an $800 credit toward an all-terrain vehicle he
was in the process of purchasing from his employer. The first trip involved a
shipment of five boxes to Indianapolis, Indiana in which he left three boxes in a
storage facility and delivered two boxes to unidentified individuals. In July of
2007, police obtained a search warrant for the Indianapolis storage unit and
discovered two bricks of marijuana, which collectively weighed more than 100
pounds. In Garcia-Bercovich’s second trip, he traveled from Phoenix, Arizona to
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Savannah, Georgia to pick-up one and half pallets also containing large boxes. The
shipping company later confirmed that “Angel Garcia” had in fact picked up an
800-pound shipment. Garcia-Bercovich’s third trip saw him travel to Newark, New
Jersey where he picked up five boxes. Garcia-Bercovich did not confess to having
been involved in any other transactions, but a shipping manifest discovered during
the investigation indicated that a shipment of 1,000 pounds had been picked up by
an “Angel Garcia” at Louisville, Kentucky. Throughout, however, Garcia-
Bercovich continued to maintain that he was unaware of the contents of the
shipments.
Pre-trial, Garcia-Bercovich filed a motion to suppress the evidence seized
beyond the initial search at CTI because, in his view, the officers unlawfully
expanded the private search of the CTI employee. The district court denied this
motion based on its determination that the entire shipment constituted a single
package due to its having been covered by a single shipping manifest and shrink-
wrapped together on a single pallet. After a jury trial, Garcia-Bercovich was
convicted for conspiracy to distribute and possess with the intent to distribute at
least 100 kilograms, but less than 1000 kilograms, of marijuana in violation of 21
U.S.C. § 646, and possession with intent to distribute at least 100 kilograms, but
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less than 1000 kilograms, of marijuana in violation of 21 U.S.C. § 841. Garcia-
Bercovich now argues that the evidence submitted to the jury was insufficient to
establish his awareness of the containers’ contents, and that the district court erred
in denying his motion to suppress the evidence seized in the CTI search.
II. DISCUSSION
A. Sufficiency of the Evidence
Garcia-Bercovich’s first argument is that the evidence submitted to the jury
was insufficient to establish his knowledge or awareness that the containers which
he picked up, or attempted to pick up, at various locations throughout the United
States contained marijuana. The Court reviews de novo the sufficiency of the
evidence submitted at trial “in the light most favorable to the government, with all
inferences and credibility choices drawn in the government’s favor.” United States
v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). Further, this court “must affirm
the conviction if [it] find[s] that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000) (internal quotation marks and
citations omitted). Here, to establish Garcia-Bercovich’s guilt on the conspiracy
count, the government had to prove: (1) that a conspiracy existed; (2) that Garcia-
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Bercovich knew about the conspiracy; and (3) that Garcia-Bercovich knowingly
joined the conspiracy. United States v. Molina, 443 F.3d 824, 828 (11th Cir.
2006). To establish his guilt on the possession count, the government must have
proven three elements: (1) knowledge; (2) possession; and (3) intent to distribute.
United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). Garcia-Bercovich
specifically challenges the knowledge requirement on both counts, but his
argument fails.
Here, sufficient evidence existed for the jury to determine that Garcia-
Bercovich knew he was involved in a drug conspiracy and had possession of
marijuana. First, the evidence indicated that Garcia-Bercovich was involved in
multiple trips across regions of the United States to pick up various packages under
the direction of an individual Garcia-Bercovich barely knew. His travel
arrangements were directed by his employer, and he often did not know of the
specific plans until arriving at his destination. This evidence came from Garcia-
Bercovich’s statements to the police, and from the testimony of his co-conspirators
at trial. Second, Garcia-Bercovich’s prior convictions for importation of marijuana
allowed the jury to conclude knowledge and intent. See United States v. Roberts,
619 F.3d 379, 383 (5th Cir. 1980). Specifically, Garcia-Bercovich had been
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convicted of importing 31.48 kilograms of marijuana in 1993, and 26.16 kilograms
of marijuana in 1999. Third, the district court gave the jury an instruction on
deliberate ignorance. In this Circuit, “a deliberate ignorance instruction is
appropriate when the facts support the inference that the defendant was aware of a
high probability of the existence of the fact in question and purposely contrived to
avoid learning all of the facts in order to have a defense in the event of a
subsequent prosecution.” United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th
Cir. 1994). Here, the facts of the case and the different deliveries support an
inference that Garcia-Bercovich was aware of a very high probability of the
existence of contraband, and of his purposefully attempting to avoid learning all
relevant facts in order to have a defense to this prosecution. See United States v.
Riveria, 944 F.2d 1563, 1571 (11th Cir. 1991). Last, Garcia-Bercovich attempted
to flee, which the jury could also utilize as evidence of guilt. See United States v.
Williams, 541 F.3d 1087, 1089 (11th Cir. 2008). Overall, the “jury gets to make
any credibility choices, and [this Court] will assume that they made them all in the
way that supports the verdict.” United States v. Thompson, 473 F.3d 1137, 1142
(11th Cir. 2006). When all of the relevant evidence and testimony is combined,
sufficient evidence exists to support a jury’s conclusion that Garcia-Bercovich had
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knowledge that he was involved in a drug conspiracy and was in possession of
marijuana.
B. Motion to Suppress
Garcia-Bercovich’s second argument on appeal is that the district court
erred in denying his motion to suppress the results of the CTI search because the
government improperly expanded this search. As a preliminary matter, Garcia-
Bercovich had standing to challenge the results of this search as it was intended for
“Angel at Natural Heat Systems.” See United States v. Villarreal, 963 F.2d 770,
774 (5th Cir. 1992) (holding that an individual has a reasonable expectation of
privacy in a package even if addressed to a fictitious name). In Garcia-
Bercovich’s view, however, the boxes constituted distinct packages or shipments
which, in turn, required the officers to obtain a warrant before going beyond the
single box opened by the CTI employee. “A district court’s ruling on a motion to
suppress presents a mixed question of law and fact.” United States v. Zapata, 180
F.3d 1237, 1240 (11th Cir. 1999). This Court reviews a district court’s factual
findings for clear error. United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.
1992). The district court’s application of law to these factual findings is reviewed
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by this Court de novo. United States v. Dunkley, 911 F.2d 522, 525 (11th Cir.
1990).
Here, the district court found that the boxes comprised a single package
which, in turn, consisted of multiple boxes. The district courts based this decision
on the fact that all thirteen boxes were located on the same shrink-wrapped pallet,
and were covered by the same shipping manifest. In short, in the district court’s
view “it was all one package.” Thus, once one box was permissibly opened, the
other boxes could also be searched as part of that same “package.” This is not a
clearly erroneous factual determination based on the condition of the package when
discovered by the Gainesville police. As it was only a single package that was
searched by the Gainesville officers, there was no legal error in denying Garcia-
Bercovich’s motion to suppress because a police search following an unsolicited
private search does not constitute a search under the Fourth Amendment as long as
the search is confined to the same scope as the initial private search. United States
v. Bomengo, 580 F.2d 173, 175 (5th Cir. 1978). Accordingly, the district court did
not err in denying Garcia-Bercovich’s motion to suppress this evidence.
III. CONCLUSION
For the foregoing reasons, Garcia-Bercovich’s conviction is AFFIRMED.
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