15-4118-cr
United States v. Fagan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of January, two thousand seventeen.
PRESENT: REENA RAGGI,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-4118-cr
KEVIN FAGAN,
Defendant-Appellant.
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APPEARING FOR APPELLANT: DANIEL HABIB, Federal Defenders of New
York, Inc., New York, New York.
APPEARING FOR APPELLEE: LINDSAY K. GERDES, Assistant United
States Attorney (Emily Berger, on the brief), for
Robert L. Capers, United States Attorney for
the Eastern District of New York, Brooklyn,
New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Joan M. Azrack, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on December 17, 2015, is AFFIRMED.
Defendant Kevin Fagan was convicted after a jury trial of importation and
possession with intent to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
952(a), 960(a)(1), 960(b)(3), and sentenced to a prison term of one year and one day,
which he has now served, followed by three years of supervised release. Fagan appeals
his conviction on the ground that, although he was arrested at John F. Kennedy
International Airport in possession of three kilograms of cocaine concealed in the false
bottom of a suitcase he transported from St. Lucia to New York, the evidence was
insufficient to prove his knowledge that the bag contained a controlled substance. We
review a sufficiency challenge de novo, although the defendant bears a heavy burden
because we must view the evidence in the light most favorable to the government,
affirming the jury’s verdict if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original); accord United States v. Harvey, 746 F.3d 87, 89 (2d
Cir. 2014). We assume the parties’ familiarity with the facts and record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
Fagan does not dispute the sufficiency of the evidence to prove the actus reus
elements of the crimes of conviction: importation and possession of a distribution
quantity of cocaine. Nor does he challenge the sufficiency of the evidence to prove his
knowledge that he was in possession of or smuggling contraband. He argues only that
the evidence was insufficient to prove his knowledge of possession of a controlled
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substance such as cocaine. The argument fails because knowledge can be—and usually
must be—proved by reasonable inferences drawn from circumstantial evidence. See
McFadden v. United States, 135 S. Ct. 2298, 2306 n.3 (2015) (“Although the
Government must prove that a defendant knew that the substance in question was a
controlled substance under federal law, the Government need not introduce direct
evidence of such knowledge.” (internal quotation marks omitted)); see also United States
v. Davis, 690 F.3d 127, 134 (2d Cir. 2012) (guilty knowledge that shipment contained
narcotics “may be established through circumstantial evidence” (internal quotation marks
omitted)).
The circumstances here showed Fagan’s sole possession of a suitcase containing a
quantity of cocaine with a New York City wholesale value between approximately
$80,000 and $140,000. Our precedent recognizes that a defendant’s sole possession of a
valuable illegal commodity can support a reasonable inference that the defendant knows
what it is with which he has been entrusted. See United States v. Anderson, 747 F.3d
51, 66–67 (2d Cir. 2014) (collecting cases). Such an inference is reinforced here by
evidence that, when questioned by United States customs officials, Fagan never stated
that he received the suitcase from or was bringing it to anyone. Rather, he stated that
the suitcase was his, that he packed it, that he had checked it in, and that he had received
no items in transit. Further circumstances admitting an inference of guilty knowledge
that he possessed a controlled substance are (1) Fagan’s suspicious inability to provide
contact information for the son he was purportedly traveling to see, (2) his failure to
provide destination information contained in his phone for an airport hotel location (a
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location more consistent with a drug delivery than a family visit), and (3) Fagan’s turning
of his back as the thoroughness of the search of his drug-laden bag increased. The
combination of “nervousness, a false statement, or suspicious circumstances” with
evidence of the defendant’s sole control over a container is sufficient to support “an
inference that the defendant knew about the drugs in [a] hidden compartment.” United
States v. Tran, 519 F.3d 98, 104, 105 (2d Cir. 2008) (reaching conclusion as to sole
occupant of vehicle). Fagan’s “possession of the [narcotics] concealed in his baggage,
coupled with his acknowledgement that the baggage was his and that he owned the
contents, and with his visible nervousness during the search, were more than legally
sufficient to establish his guilt.” United States v. Forlorma, 94 F.3d 91, 93 (2d Cir.
1996).
United States v. Torres, 604 F.3d 58 (2d Cir. 2010), cited by Fagan, is not to the
contrary because defendant there was accompanied by other individuals and had “no
prospects of having sole dominion” over the package containing drugs that he received
from a third party, id. at 71; see United States v. Anderson, 747 F.3d at 68 (distinguishing
Torres based on lack of evidence of “sole dominion over the unidentified packages”
(emphasis in original)). Similarly, in United States v. Samaria, 239 F.3d 228 (2d Cir.
2001), and United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004), defendants played
only supporting roles for persons carrying out illicit transactions.
In sum, where, as here, an international courier is entrusted with sole possession of
a valuable quantity of drugs and responds suspiciously to questions about his travel plans
and the ownership and contents of the suitcase containing the drugs, such evidence is
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sufficient to allow a reasonable jury to find knowing importation and possession of a
controlled substance.
We have considered Fagan’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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