U.S. v. Gonzalez-Rincon

• Decision Date: 08 June 1994
• Docket Number: GONZALEZ-RINCO,D,No. 93-50603,93-50603
• Citation: 36 F.3d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elizabethefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 859

36 F.3d 859

63 USLW 2275

UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth GONZALEZ-RINCON, Defendant-Appellant.

No. 93-50603.

United States Court of Appeals, Ninth Circuit.

Submitted June 8, 1994 ^*.

Decided Sept. 27, 1994.

Amy Fan, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Mary Carter Andrues, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: D.W. NELSON, BEEZER and KOZINSKI, Circuit Judges.

Opinion by Judge BEEZER; Concurrence by Judge KOZINSKI; Dissent by Judge D.W. NELSON

BEEZER, Circuit Judge:

Elizabeth Gonzalez-Rincon ("Gonzalez") appeals from the judgment entered upon her conviction for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and importation of cocaine, 21 U.S.C. Secs. 952(a) and 960. She argues that the district court erred in denying her motion to suppress cocaine seized after she was detained at the border for a monitored bowel movement. She also argues that the district court erred in denying her motion for a new trial, based on the government's failure to disclose impeachment evidence prior to trial, and in refusing to admit into evidence her husband's death certificate. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

On March 10, 1993, Gonzalez arrived at Los Angeles International Airport on a flight from Bogota, Colombia, via Mexico City. A United States Customs inspector monitoring incoming passengers noticed Gonzalez because she was wearing a bulky overcoat, unlike other passengers on her flight, and was carrying only one piece of luggage and a purse. When questioned, Gonzalez stated that she was from Colombia and was visiting the United States for 15 days. She was then referred to a secondary customs examination.

A second customs inspector requested Gonzalez's passport, customs declaration form and airline ticket. Her passport and declaration form were in the name "Auriestela Davilla de Ravachi" and the declaration form listed an address of 15755 Pocono Street in La Puente, California. The inspector noted that Gonzalez purchased her ticket with cash on March 5, 1993 for a flight on March 5 and that her passport reflected numerous entries into the United States. He also noted that she was perspiring profusely and appeared nervous.

When asked her profession, Gonzalez stated that she was a portrait photographer. She could not, however, describe the type of camera she used other than to say that it was a "very big" Canon that used 35 millimeter film. She produced a laminated card indicating she was a media photographer but she carried only a small pocket camera. When asked why she came to the United States, she first stated that she was here to attend her sister's wedding. Later, however, Gonzalez stated that her sister was already married and that she was here to help with her sister's children. She did not have her sister's telephone number, and her sister did not meet her at the airport.

Based on this interview and on a search of her luggage, the Customs inspectors decided to conduct a patdown search and a partial strip search of Gonzalez to determine if she was carrying narcotics. During the strip search, the inspectors instructed Gonzalez to perform several knee squats and felt her groin area through her underwear to determine if she was concealing drugs. None were found. At the inspectors' request, Gonzalez consented to be x-rayed. She was handcuffed and transported to an airport hospital, where she was given a urine test that indicated she was pregnant. The attending physician advised that Gonzalez not be x-rayed. She was then detained for a monitored bowel movement.

After several hours and attempts at bowel movements, Gonzalez reported that she had passed blood. The physician examined Gonzalez's anal cavity and felt a hard object. Gonzalez then confessed that she was carrying cocaine in her rectum and alimentary canal and signed a consent form permitting the physician to remove from her rectum two blue cylinder-shaped objects containing cocaine. She eventually expelled 73 balloons of cocaine. In total, Gonzalez smuggled 1005 grams of cocaine in her rectum and alimentary canal.

Gonzalez moved to suppress the cocaine, arguing that the inspectors lacked reasonable suspicion to conduct the strip search and to detain her for monitored bowel movements. The district court denied the motion.

Gonzalez's trial commenced on June 1, 1993. On June 2, Gonzalez took the stand and claimed duress. She testified that her husband had been murdered in July 1992, that he owed a debt to his murderers, and that his murderers threatened to kill Gonzalez's children if she did not smuggle cocaine into the United States to repay her husband's debt. She testified that the alleged murderers contacted her for the first time in December 1992 and that she received the passport in the name of Auriestela Davilla de Ravachi for the first time in March 1993, shortly before her trip to the United States.

Following Gonzalez's testimony on direct examination, prosecutors obtained copies of computer records from an Immigration and Naturalization Service ("INS") agent revealing that a person using a passport in the name of Auriestela Davilla de Ravachi had entered the United States through Los Angeles on November 20, 1992, and had completed a declaration form with the address of 15755 Pocono Street in La Puente, California. The prosecutors discovered that a customs inspector had been in possession of the declaration form since at least March 1993. They obtained the form from him on June 3. The government then disclosed the form to Gonzalez's defense counsel.

On the following day, June 4, Gonzalez stated under cross-examination that she did not enter the United States using the name "Auriestela Davilla de Ravachi," or any other name, on November 20, 1992. In rebuttal, the government moved to admit the November 20, 1992 declaration form and called as witnesses the INS agent and a handwriting expert to establish that the form had been completed by a person with handwriting identical to that of Gonzalez. Gonzalez objected to the document's admission under Rule 16 of the Federal Rules of Criminal Procedure. Her objection was overruled.

On the afternoon of June 3, at the government's request and in the presence of defense counsel, the INS agent conducted an infrared examination of the passport Gonzalez had used during her March 1993 entry. On June 4, the agent testified that when the passport was placed under a black light, illumination of the ink used on an INS entry stamp revealed that the stamp had been altered to read November 20, 1990. Defense counsel sought a continuance to prepare for the witness' cross examination and to consult an infrared expert. The district court denied the request.

During redirect examination of Gonzalez, her counsel attempted to introduce her husband's death certificate to establish the cause, date and time of his death. The government objected to the certificate's admission on the grounds that it lacked authentication and foundation, and contained hearsay. The district court sustained the objection on the basis that questions regarding the death certificate, which was not offered into evidence on Gonzalez's direct examination, were not proper on redirect.

Gonzalez moved for a new trial, arguing that the government had violated Rule 16 of the Federal Rules of Criminal Procedure by failing to disclose to her the impeachment evidence until the day before its admission at trial. She also argued that the district court erred in denying her request for a continuance and in refusing to admit the death certificate. The district court denied her motion. Gonzalez timely appealed.

II

Gonzalez argues that her detention for monitored bowel movements constituted an unreasonable search and seizure under the Fourth Amendment because the customs inspectors lacked reasonable suspicion that she was an alimentary canal smuggler. She argues that the inspectors' failure to find evidence of drugs during her strip search should have allayed their suspicions, rather than have given rise to suspicion of internal smuggling. Gonzalez contends that reasonable suspicion of alimentary canal smuggling could be found only if certain additional factors were present in her case that supported reasonable suspicion in other cases. See, e.g., United States v. Oba, 978 F.2d 1123, 1126 (9th Cir.1992) (defendant possessed antidiarrheal and motion sickness medication); United States v. Chukwubike, 956 F.2d 209, 210 (9th Cir.) (antidiarrheal medicine), cert. denied, --- U.S. ----, 112 S.Ct. 2288, 119 L.Ed.2d 212 (1992); United States v. Handy, 788 F.2d 1419, 1420 (9th Cir.1986) (lubricant, dental floss and anti-laxative); see also United States v. Montoya de Hernandez, 473 U.S. 531, 534, 105 S.Ct. 3304, 3306, 87 L.Ed.2d 381 (1985) (during strip search inspector felt abdomen area and noticed firm fullness; also, defendant was wearing two pairs of elastic underpants with paper towel in crotch). She also argues that without such additional factors, her detention was based on no more than classic drug courier profile factors, insufficient to support reasonable suspicion. See United States v. Rodriguez, 976 F.2d 592 (9th Cir.1992), amended, 997 F.2d 1306 (1993).

We review de novo whether a border detention is based on reasonable suspicion. Oba, 978 F.2d at 1128. We accept the district court's findings of fact unless they are clearly erroneous. Id. at 1125. When evaluating a border search, we view "as a whole all factors that would be considered by an experienced and prudent customs inspector." Handy, 788 F.2d at 1421. Detention for a monitored bowel movement is justified if customs officers have a "particularized and objective basis for suspecting the particular person of alimentary canal smuggling." Oba, 978 F.2d...