829 F.2d 268 (1st Cir. 1987), 86-1901, United States v. Mejia-Lozano

Docket Nº86-1901.
Citation829 F.2d 268
Party NameUNITED STATES of America, Appellee, v. Martha MEJIA-LOZANO, Defendant, Appellant.
Case DateSeptember 23, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 268

829 F.2d 268 (1st Cir. 1987)

UNITED STATES of America, Appellee,

v.

Martha MEJIA-LOZANO, Defendant, Appellant.

No. 86-1901.

United States Court of Appeals, First Circuit

September 23, 1987

Heard July 28, 1987.

Page 269

[Copyrighted Material Omitted]

Page 270

Thomas R. Lincoln, San Juan, P.R., by Appointment of the Court, for defendant, appellant.

Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BOWNES, NOONAN [*] and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Like Time, Martha Mejia-Lozano went a-flying. But, she gathered more than rosebuds--collecting first, some fourteen pounds of cocaine, and thereafter, a federal indictment. She was found guilty of certain charges by a jury. We present the details of the defendant-appellant's trip in the required post-conviction fashion, that is, in the light most flattering to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.1987).

I

On April 29, 1986, Mejia-Lozano boarded Lufthansa Airlines Flight 517 in Bogota, Colombia, en route to Frankfurt, Germany and Geneva, Switzerland. She was ticketed through to Geneva and back. The plane, with appellant aboard, made a regularly scheduled stop at the Luis Munoz Marin International Airport in Puerto Rico. 1 Those passengers who planned to continue aboard, including appellant, disembarked into an in-transit holding area. Customs inspectors performed a routine search of the aircraft. Their suspicions were (justifiably) aroused by two suitcases which, upon closer examination, proved to contain large quantities of cocaine. The appellant had checked the bags with Lufthansa in Bogota, stipulating a Geneva destination for them. She had the baggage claim stubs in her possession. And upon questioning, she identified the loaded luggage as belonging to her.

Page 271

Mejia-Lozano was swiftly arrested, charged, and indicted. She was accused, inter alia, of importation of a controlled substance in violation of 21 U.S.C. Sec. 952(a) (Count I) and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (Count II). 2 After some five days of trial in the United States District Court for the District of Puerto Rico, a jury found Mejia-Lozano guilty on both counts. Following the imposition of sentence, she appealed.

II

Appellant originally broached four issues for our perscrutation. The legal sufficiency of her main argument--that she was an authentic in-transit passenger who had no intention of entering the United States or of bringing narcotics into the United States--has lately been exploded by our decision in United States v. McKenzie, 818 F.2d 115 (1st Cir.1987). In McKenzie, on facts indistinguishable in any meaningful way from the facts of this case, we upheld a traveller's convictions under, inter alia, these same statutes. In respect to 21 U.S.C. Sec. 952(a), we observed that the statute requires "little else but a showing that a defendant has knowingly brought a controlled substance with him from abroad into the United States," id. at 118, and that the transit lounge at the airport was clearly a part of the United States for purposes of the statute. Id. Our holding was as unequivocal with regard to 21 U.S.C. Sec. 841(a)(1). We ruled:

Although appellant did not, apparently, intend to distribute the narcotics in the United States, the place of intended distribution is not important so long as such intent is established together with the fact of possession within the United States....

Id. at 118 (emphasis in original). In language which has equal applicability to Mejia-Lozano's circumstances, we concluded:

The seriousness and worldwide nature of the traffic in narcotics, which civilized nations have joined forces to stamp out, as well as the increased burden upon those efforts that recognition of some kind of in-transit exception would create, militate against the exemption appellant seeks. We decline to immunize international travellers who choose to pass through this country, however briefly.

Id. at 120.

McKenzie controls this case. In the process, the appellant's principal weaponry has been disarmed. That being recognized, we need not linger long in discussing Mejia-Lozano's remaining asseverations.

A. Intent to Import. Appellant argues that the government failed to prove that she "knew she would be coming to the United States," Appellant's Brief at 37. So, she argues, she lacked the requisite intent to import. Passing the obvious question of the knowledge properly inferable to a drug courier who boards an international flight with a regularly scheduled stopover in the United States, see supra n. 1, we find the appellant's premise to be ill-considered. 21 U.S.C. Sec. 952(a) does not require the sort of specific intent that Mejia-Lozano assumes. It is sufficient that the defendant knowingly possessed the contraband, and brought it into the jurisdiction of the United States. See McKenzie, 818 F.2d at 118. Nothing in Sec. 952(a) makes the accused's knowledge that she was landing on American soil, or her intent to do so, an element of the offense. This is neither a strained nor an unusual construction

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of such a criminal statute. Cf. Batsell v. United States, 217 F.2d 257, 261-62 (8th Cir.1954) (Mann Act violated when, in course of transporting woman intra-state in Minnesota for immoral purposes, detour taken through Wisconsin).

On defendant's theory of the case, one could not be guilty of importation absent foreknowledge of the intended destination. Thus, a courier who knowingly possessed drugs yet blinded herself to the identity of the waystations along her route, could not be prosecuted for this offense. To construe the importation statute in such a stilted manner would run at cross purposes with the discernible intent of the enacting Congress and would place an unrealistically heavy burden upon the government. We decline to adopt such a myopic view. Mejia-Lozano selected the flight. She boarded it without demonstrable duress. We hold that the offense was complete the moment defendant, knowingly in possession of cocaine, landed in this country with the contraband, regardless of her knowledge of the aircraft's itinerary or the planned terminus of her journey.

B. Jury Instructions. The chief fault which the defendant finds with the charge seems to be the district judge's failure to instruct the jury in line with Mejia-Lozano's concept of "intent to import." Inasmuch as we have rejected that formulation outright, see supra Part II-A, we give but short shrift to the related claim of error in the jury instructions.

"The charge must, of course, be considered as a whole, not in isolated bits and pieces." Cintolo, 818 F.2d at 1003. We find that, in general, the district court's instructions as to knowledge and intent were adequate. Mejia-Lozano was not entitled to the exact charge that she requested. See supra Part II-A. And, in the absence of any further (specific) objection sufficient to meet the rigors of Fed.R.Crim.P. 30, we review the instructions only for plain errors, United States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.1987), that is, "errors so shocking that they seriously affect the fundamental fairness and basic integrity" of the trial. Id. at 100. We have been unable to fathom any error--plain or otherwise--here.

It is no cognizable ground for complaint that the trial judge failed "to use the precise language that defendant ... would have preferred." United States v. Lavoie, 721 F.2d 407, 409 (1st Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1424, 79 L.Ed.2d 749 (1984). On the whole, we believe the charge to have been an accurate and reasonably complete one. The assignment of instructional error is entirely devoid of merit.

C. Summation. Appellant's final claim revolves around the prosecutor's closing argument to the jury--a polemic which, in Mejia-Lozano's view, contained no less than a quintet of gross improprieties. Because this misconduct deprived her of a fair trial, she asserts, her conviction must be overturned. We are not convinced.

The five instances of alleged impropriety cited by appellant can be summarized as follows: (i) that the prosecutor created a false...

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98 practice notes
  • 891 F.2d 955 (1st Cir. 1989), 89-1177, United States v. Hunnewell
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • December 14, 1989
    ...of a contemporaneous objection, that the prosecutor's summation went too far. See id. at 99 n. 1. See also United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir.1987). The plain error hurdle is high. See, e.g., United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (......
  • 19 F.3d 763 (1st Cir. 1994), 92-1732, United States v. Rosales
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • March 31, 1994
    ...108, 121 L.Ed.2d 66 (1992); United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir.1989) (same); United States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir.1987) (same). Because this is precisely what the prosecutor in this case did, there is no doubt that his argument was improper. ......
  • 838 F.2d 585 (1st Cir. 1988), 86-1969, United States v. Franchi-Forlando
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • February 3, 1988
    ...plane would stop in United States customs territory. This court recently and specifically held, however, in United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir.1987) that the government does not have to prove that a defendant in appellant's position knew that the plane would stop in the Un......
  • 952 F.2d 1458 (1st Cir. 1992), 91-1010, United States v. Abreu
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • January 3, 1992
    ...that the trial's outcome was likely affected." Mateos-Sanchez, 864 F.2d at 240-41 (quoting Page 1471 United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987)). In this case we find that the remarks in question did not constitute plain error requiring reversal. The prosecutor at ......
  • Request a trial to view additional results
98 cases
  • 891 F.2d 955 (1st Cir. 1989), 89-1177, United States v. Hunnewell
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • December 14, 1989
    ...of a contemporaneous objection, that the prosecutor's summation went too far. See id. at 99 n. 1. See also United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir.1987). The plain error hurdle is high. See, e.g., United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (......
  • 19 F.3d 763 (1st Cir. 1994), 92-1732, United States v. Rosales
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • March 31, 1994
    ...108, 121 L.Ed.2d 66 (1992); United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir.1989) (same); United States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir.1987) (same). Because this is precisely what the prosecutor in this case did, there is no doubt that his argument was improper. ......
  • 838 F.2d 585 (1st Cir. 1988), 86-1969, United States v. Franchi-Forlando
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • February 3, 1988
    ...plane would stop in United States customs territory. This court recently and specifically held, however, in United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir.1987) that the government does not have to prove that a defendant in appellant's position knew that the plane would stop in the Un......
  • 952 F.2d 1458 (1st Cir. 1992), 91-1010, United States v. Abreu
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • January 3, 1992
    ...that the trial's outcome was likely affected." Mateos-Sanchez, 864 F.2d at 240-41 (quoting Page 1471 United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987)). In this case we find that the remarks in question did not constitute plain error requiring reversal. The prosecutor at ......
  • Request a trial to view additional results