U.S. v. Rivera

• Decision Date: 22 October 1991
• Docket Number: No. 89-5228,89-5228
• Citation: 944 F.2d 1563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny RIVERA, Elena Vila, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1563

944 F.2d 1563

UNITED STATES of America, Plaintiff-Appellee, v. Johnny RIVERA, Elena Vila, Defendants-Appellants.

No. 89-5228.

United States Court of Appeals Eleventh Circuit.

Oct. 22, 1991.

Michael Cohen, Miami, Fla., for Johnny Rivera.

Arthur Joel Berger, Miami, Fla., for Elena Vila.

Dexter W. Lehtinen, U.S. Atty., June C. Seraydar, Eduardo Palmer, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

ON PETITION FOR REHEARING

Before HATCHETT, Circuit Judge, CLARK and MORGAN, Senior Circuit Judges.

CLARK, Senior Circuit Judge:

The Court grants the petition for rehearing, withdraws the previous opinion published in this case on March 22, 1991 and reported at 926 F.2d 1564, and substitutes the following opinion, which modifies only parts of the penultimate paragraph.

Defendants Elena Vila and Johnny Rivera appeal from their convictions for conspiracy to import, importation of, conspiracy to possess with intent to distribute, and possession with intent to distribute in excess of 500 grams of cocaine. For the following reasons, we affirm these convictions.

I. BACKGROUND

On August 17, 1988, Vila, Rivera, and John Stroud arrived at Miami International Airport on a flight from Barranquilla, Colombia. Vila was traveling with her three-year old child. While picking up their baggage at the luggage carousel, this group was observed by Customs Inspector Sy Schor. Inspector Schor's attention was drawn to the group because they were all young, spoke English without an accent, and arrived from Colombia, a source country for cocaine, even though none of them appeared to be Colombian. Schor approached the group after they had retrieved their luggage and requested to see their passports, customs declarations, and airplane tickets.

Schor noticed that the tickets and other travel documents indicated that the group originally had intended to fly from New York City to Miami and on to Barranquilla on August 2, 1988 and to return along the same route on August 28. These travel plans, however, had been revised, and the group actually flew from New York to Barranquilla via Miami on August 5 and returned from Barranquilla on August 17. The tickets for the three adults and the child had been purchased through the same travel agency. The boarding passes indicated that the group sat together throughout the entire trip. The total cost of the tickets was $2,769. In addition, Schor noticed that the passport of Rivera had been issued on August 3, 1988 and that Stroud's passport had been issued on August 4, 1988.

Schor asked the group what the purpose of their trip was, and Stroud responded that they had gone just to visit Barranquilla and not to see family or friends. This heightened Schor's suspicion because he knew that that city was not a common destination for tourists. Upon further questioning, Schor learned that Vila was Rivera's sister-in-law and that Stroud was a very good friend. Vila also claimed that she worked as a sales clerk in a shoe store, that Stroud worked part-time installing window glass, and that Rivera was currently unemployed. Schor testified that during this preliminary questioning, the group was "fairly deadpan" and did not appear to be angry or nervous about being questioned.

Due to the unusual circumstances surrounding the group's travel, Schor decided to examine their luggage and directed them to a table in an inspection area. Prior to this examination, Schor had each of the three persons acknowledge their individual ownership of one of the three suitcases. Schor began by inspecting Stroud's suitcase. Upon opening it, Schor noticed immediately that the bottom portion of the suitcase had been altered and that it was unusually thick. Schor testified that this false bottom was so obvious that "it jumped out at" him. He then punctured this portion of the suitcase with a screwdriver and after withdrawing it, noticed a white powder on it which was tested as being cocaine. Schor testified that the group showed no surprise, agitation, or protest while he was probing Stroud's luggage.

Schor then placed the three into separate rooms along with their suitcases so that they could be individually examined. The suitcases of Rivera and Vila were virtually identical to that of Stroud and also had false bottoms constructed in the same manner which contained cocaine. After examining these suitcases, Schor informed Stroud, Rivera, and Vila that they were under arrest and recited to them their Miranda rights.

While each was being held in custody in a separate room, Schor decided to inspect the contents of each suitcase. Starting with Vila's suitcase, Schor picked up a normal-looking can of aerosol hairspray and noticed that it weighed more than a normal hairspray can and that there was no shift in weight that should occur from the flow of liquid inside the can. Schor then detached the bottom of this can, probed with his screwdriver, and again discovered a white powder later identified to be cocaine. Schor testified that while he was searching the can, Vila had a "deadpan" reaction and did not appear to be interested or upset. A subsequent search of the suitcases of Rivera and Stroud disclosed that each also contained an aerosol can containing cocaine.

Stroud pled guilty prior to trial.

II. DISCUSSION

A.

Rivera first contends that the government violated the district court's Standing Discovery Order and Fed.R.Crim.P. 16(a)(1)(A) by not producing his statement to Inspector Schor that one of the suitcases belonged to him. At trial, the government elicited the testimony of Inspector Schor that when Stroud, Rivera, and Villa were in the customs line, he asked whether each of them had a suitcase and that Rivera (along with the other two) identified his suitcase by saying "this is mine". Rivera admits that this discovery violation on the part of the government was unintentional and that the government did disclose this statement on the first day of trial immediately prior to Rivera's opening statement.

In order for this court to reverse a conviction based on the government's violation of a discovery order, a defendant must demonstrate that the violation prejudiced his substantial rights. ¹ Substantial prejudice is established when the defendant shows that he was unduly surprised and did not have an adequate opportunity to prepare a defense or that the mistake had a substantial influence on the jury. ² After a review of the record, we find that Rivera has failed to establish either of these requirements.

We do not believe that Rivera could have been surprised by Schor's testimony that Rivera had verbally claimed ownership of his suitcase. Rivera's statement was made in response to a rather routine question that custom inspectors could ordinarily be expected to ask while questioning a citizen returning from abroad. ³ In a trial in which all the issues revolved around whether the defendants knowingly possessed a cocaine-laden suitcase, it is doubtful that Rivera's counsel would not anticipate or contemplate that such a statement might exist. In addition, the belated disclosure of Schor's testimony involved Rivera's own statement which he should have had some knowledge of making. More importantly, if Rivera had, in fact, been prejudiced by the delayed disclosure of this statement, he should have moved for a continuance. Rivera, however, did not do so and elected to proceed to trial.

Schor's testimony concerning Rivera's identification of his suitcase also did not have a substantial influence on the jury. The government introduced other substantial evidence linking the three members of the group to the three suitcases containing cocaine. For instance, the government introduced an airline ticket holder that had three claim checks attached which matched the claim checks fastened to the three suitcases. Since the group had spent ten days outside of the United States on their trip to Colombia, the jury could have reasonably inferred that each member had taken a suitcase on the trip. In addition, there was no confusion about whether only one of the members of the group possessed the contraband because cocaine was not found in just one suitcase, but relatively equal amounts were found in each piece of luggage. Rivera's statement was cumulative of other evidence introduced by the government tending to show Rivera's possession of one of the suitcases and therefore did not have a substantial effect on the jury. ⁴

B.

Vila next contends that her right to due process was violated when the government was allowed to comment at trial on her silence after having been arrested and given her warnings as required by Miranda v. Arizona. ⁵ This argument is based on the accepted notion that implicit within the Miranda warnings is the assurance that a defendant's silence "will carry no penalty." ⁶ In addition, silence in the wake of these warnings is "insolubly ambiguous because of what the State is required to advise the person arrested." ⁷ Thus, when the government has induced silence by assuring the defendant that she will suffer no penalty by being silent, the prosecution violates fundamental fairness if it then attempts to use that silence against her. ⁸ Although Vila raises a substantial question about whether or not the government did in fact impermissibly comment on Vila's silence, we find that the prejudice flowing from any constitutional violation would be harmless error.

The record indicates that Inspector Schor testified about Vila's demeanor as he observed it at three different points during the initial confrontation in the customs line and the subsequent search. First, Schor testified that when he initially encountered the group at the luggage carousel and began to question them, all three members of the group were "fairly deadpan," expressionless, and without any visible signs of agitation or nervousness about being singled...