U.S. v. Franchi-Forlando

• Decision Date: 05 October 1987
• Docket Number: No. 86-1969,FRANCHI-FORLAND,D,86-1969
• Citation: 838 F.2d 585
• Parties: 24 Fed. R. Evid. Serv. 790 UNITED STATES of America, Appellee, v. Orlandoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 585

838 F.2d 585

24 Fed. R. Evid. Serv. 790

UNITED STATES of America, Appellee, v. Orlando FRANCHI-FORLANDO, Defendant, Appellant.

No. 86-1969.

United States Court of Appeals First Circuit.

Heard Oct. 5, 1987.

Decided Feb. 3, 1988.

Rafael F. Castro-Lang, San Juan, P.R., by Appointment of the Court, for defendant, appellant.

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

Before CAMPBELL, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

The appellant, Orlando Franchi-Forlando, is an Italian citizen, living in Colombia. He was flying on Iberia Airlines from Colombia to Spain when his airplane made a scheduled stop in San Juan, Puerto Rico. He went to the "in-transit" lounge at the airport. A United States Customs Service officer boarded the aircraft and inspected the luggage in the baggage hold. Noting that one of the suitcases (with a false bottom) looked suspicious, the officer poked it with a probe. He found cocaine. He then took the suitcase to the in-transit lounge and confronted the appellant. Appellant admitted the suitcase was his. The officer arrested him.

On the basis of these facts, a jury convicted Franchi-Forlando of (1) unlawfully importing cocaine into the United States, 21 U.S.C. Sec. 952(a) (1982); (2) possessing the 1. Appellant first argues that these facts do not show that he intended to import the cocaine into the United States, for, in his view, the government failed to prove that he knew that his 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 United States. In Mejia-Lozano the court wrote that the facts "that the defendant knowingly possessed the contraband and [in fact] brought it into the jurisdiction of the United States" permit conviction under Sec. 952(a) (which prohibits the importation of narcotics or other controlled substances), and that "[n]othing in 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." Mejia-Lozano, 829 F.2d at 271 (emphasis added). Mejia-Lozano requires that we rule against appellant on this point. Regardless, we believe that the jury could conclude from the facts that the trip was long, the stops were few, and the stop was scheduled that appellant knew he would land in the United States.

cocaine with intent to distribute it, 21 U.S.C. Sec. 841 (1982); and (3) unlawfully possessing cocaine on an aircraft "arriving in" the United States without proper listing in the aircraft's documents, 21 U.S.C. Sec. 955 (1982). The district court sentenced Franchi-Forlando to three fifteen-year prison terms, one on each count, to run concurrently. Franchi-Forlando appeals. We affirm his convictions.

2. Appellant also argues that the customs officer's search of his suitcase was unlawful. He concedes that in United States v. McKenzie, 818 F.2d 115 (1st Cir.1987) we upheld a virtually identical search. We pointed out that a statute, 19 U.S.C. Sec. 1496 (1982) (see Appendix A) authorizes customs officers to search baggage of any

person arriving in the United States in order to ascertain what articles are contained therein and whether subject to duty, free of duty, or prohibited notwithstanding a declaration and entry therefor has been made.

In addition, another statute, 19 U.S.C. Sec. 1581(a) (1982) authorizes customs officers to "board any vessel or any vehicle at any place" in U.S. customs territory, to "examine the manifest" and other documents, and to "search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board." We added, in McKenzie, that the relevant customs regulation, 19 C.F.R. Sec. 162.5 (1987) encompasses searches of this sort. It says that

[a] customs officer may stop any vehicle and board any aircraft arriving in the United States from a foreign country for the purpose of examining the manifest and other documents and papers and examining, inspecting, and searching the vehicle or aircraft.

Appellant claims, however, that in McKenzie we overlooked a different statute and two different regulations which he finds controlling. The statute to which appellant refers is 19 U.S.C. Sec. 1467 (1982) and the regulations are 19 C.F.R. Secs. 148.21, 162.6 (1987). The statute permits a customs officer to "search ... persons, baggage, and merchandise discharged or unladen" from incoming vessels. Appellant argues that his suitcase was not "discharged or unladen," hence the customs officers could not search it. Appellant's argument may show that Sec. 1467 does not authorize the search; but that is beside the point for the two other statutes we just mentioned, namely, Sec. 1496 and Sec. 1581(a), provide statutory authority for the search.

Appellant goes on to discuss customs regulation 19 C.F.R. Sec. 148.21(a) (1987). It says the following:

(a) Customs officers are not to open. Customs officers shall not open baggage or other containers, nor unlock vehicles or compartments thereof for the purpose of examination, but shall detain them until the owner, his agent, or the person in charge of any baggage, or vehicle opens or refuses to open them.

(Emphasis in original.) The customs officer in this case, the appellant says, "opened" the appellant's "baggage" (with a probe) without giving appellant the opportunity to do so himself, as the regulation requires. This regulation, however, is also beside the point. The customs officer carried out the search under the authority of a different regulation (Sec. 162.5) which, among other things, allows searches of aircraft that stop in the United States customs territory only briefly and then travel elsewhere. Such aircraft may keep luggage subject to search in their holds, perhaps mixed with other packages or freight.

The regulation to which appellant points, Sec. 148.21, is one of a set of provisions (19 C.F.R. Secs. 148.0--148.116 (1987)) which, read in a natural way, seem not to apply to "in-transit" baggage, but rather apply to baggage accompanying passengers who pass through customs in order to disembark and spend time in the United States. See 19 C.F.R. Sec. 148.0 (1987) (defining scope of Sec. 148). Of course, the regulations' language need not be read so restrictively; one might read them to apply as well to luggage that remains in an in-transit aircraft. But it is primarily up to an agency, not to a court, to interpret the agency's own regulations, Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980), and recent practice shows that the Customs Service does not read the restriction of Sec. 148.21 as applicable to searches authorized by Sec. 162.5 of in-transit aircraft.

Finally, appellant points to regulation 19 C.F.R. Sec. 162.6 (1987), which says that "special agents ... are authorized to ... search [baggage] under" 19 U.S.C. Sec. 1467; and, as mentioned above, that statute refers only to "luggage ... discharged or unladen." But, as we also just said, neither this statute nor this regulation governs the search here at issue. Since none of the statutes or regulations that appellant cites forbids the search and since other statutes and regulations authorize it, 19 U.S.C. Secs. 1496, 1581 (1982); 19 C.F.R. Sec. 162.5 (1987), we need not consider the evidentiary consequences of any failure to comply with relevant agency regulations. See United States v. Caceres, 440 U.S. 741, 749-55, 99 S.Ct. 1465, 1470-73, 59 L.Ed.2d 733 (1979).

3. Appellant argues that the cocaine admitted at trial was not properly authenticated, that is to say, the government failed to show that the packets of cocaine (real evidence) had not been "altered in any material respect since the time of the crime." United States v. Luna, 585 F.2d 1, 6 (1st Cir.) (citations omitted), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978). The customs officer who seized the cocaine, however, testified that he initialed two of four small bags and a larger bag in which the two other small bags were contained; and that he handed them to a second officer. The second officer testified that she received the bags from the first officer, initialed all four small bags and sent them to the chemist. The chemist testified that he received four small sealed bags with a laboratory serial number on them, that he placed his initials on them, tested the contents, resealed the bags, and returned them to the evidence custodian. The second customs officer and the chemist testified at the trial that they recognized the bags introduced at the trial because all four bags bore their initials; two of them bore the initials of the first officer as well.

The testimony of the first and second officers shows that the second officer received the bags from appellant's luggage; the second officer's recognition of her initials on the trial exhibits shows they were the seized bags, and the chemist's recognition of his initials (and the seals) shows the bags contained the substance that he tested. In order to decide whether to admit the exhibits as evidence, the trial court must determine whether there is a reasonable probability that the evidence has not been altered in any material respect since the time of the crime. United States v. Luna, 585 F.2d at 6 (1st Cir.1978). The trial court's decision here is perfectly reasonable and well within its broad power to accept, or to reject, proffered evidence. Luna, 585 F.2d at 6.

4. Appellant's fourth claim is that the trial judge wrongly refused to give the Where a defendant has offered evidence that he is a law-abiding citizen, the jury should consider such evidence along with all the other evidence in the case.

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