U.S. v. Arango-Echeberry, ARANGO-ECHEBERR
| Decision Date | 07 November 1990 |
| Docket Number | Nos. 90-1138,90-1139,D,SANCHEZ-ECHEVERR,ARANGO-ECHEBERR,s. 90-1138 |
| Citation | 927 F.2d 35 |
| Parties | UNITED STATES of America, Appellee, v. Octavioefendant, Appellant. UNITED STATES of America, Appellee, v. Ruben Darioefendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Rachel Brill by Appointment of the Court, with whom Gerardo Ortiz Del Rivero, Federal Public Defender, San Juan, P.R., was on brief, for defendant, appellant Octavio Arango Echeberry.
Rafael Gonzalez-Velez, Santurce, P.R., on brief, for defendant, appellant Ruben Dario Sanchez-Echeverri.
Carlos A. Perez, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for U.S.
Before CAMPBELL and CYR, Circuit Judges, and GIERBOLINI, * District Judge.
Defendants-appellants Ruben Dario Sanchez-Echeverri and Octavio Arango-Echeberry appeal from convictions in the District of Puerto Rico for (1) possession with intent to distribute approximately three thousand grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); (2) importing the cocaine into the customs territory of the United States, in violation of 21 U.S.C. Sec. 952(a); and (3) possessing the cocaine on board an aircraft in violation of 21 U.S.C. Sec. 955. On appeal, Sanchez and Arango challenge the sufficiency of the evidence. Arango also challenges the effectiveness of his counsel. We affirm.
Defendants Arango and Sanchez were passengers on an Iberia Airlines flight from Bogota, Colombia to Madrid, Spain, which stopped in San Juan, Puerto Rico. During the stopover, the passengers waited in an in-transit lounge while the airplane was serviced and refueled. At this time, customs officials searched the in-transit luggage. Customs Inspector Carlos Ruiz identified and opened a suitcase smelling of vinegar, which, he testified, is commonly used to conceal the odor of cocaine from narcotics detection dogs. Inside the suitcase, Inspector Ruiz discovered women's and infant's clothing, a book and a photo album. Cocaine was discovered in the covers of the book and photo album. A name tag on the suitcase carried the name Maritza Sarmiento. The airline baggage ticket attached to the suitcase had a claim number 320957 and a control number 223-003. Thereafter, Customs Inspector Juan Lopez discovered another suitcase nearby with a name tag carrying the name Maritza Sarmiento, and a baggage ticket with a claim number 320981 and a control number 223-003. Two books containing cocaine were found in the second suitcase as well.
The following general practices by Iberia Airlines were established at trial: Passengers are given claim checks with numbers which correspond to the numbers on the baggage ticket attached to the suitcase. Control numbers are assigned to passengers for security purposes to allow the airline to identify a passenger with the luggage the passenger has checked. If a passenger does not appear for a flight, the airline is thereby able to retrieve the luggage which that passenger has checked. Two control numbers separated by a dash correspond to two sequential flights. The control numbers are assigned when the passenger checks in, and normally appear on the passenger's boarding pass as well as on the baggage tickets attached to the luggage and corresponding claim checks.
Inspectors Ruiz and Lopez determined from Iberia Airlines personnel that Maritza Sarmiento 1 was not listed as a passenger on the flight, but that defendant Sanchez was assigned the control numbers 223-003, 2 which corresponded to the control numbers on the contraband luggage. Ruiz and Lopez inspected the passports, tickets and boarding passes of the passengers on the jetway as they reboarded the airplane for the flight to Madrid, and located defendant Sanchez. Ruiz testified that when he stopped Sanchez on the jetway, Sanchez told his travelling companion, Arango, "keep on going, I will get you later." The evidence is uncontested that Sanchez and Arango were travelling together and were assigned adjacent seats on the airplane.
Both Sanchez and Arango were detained. Sanchez was in possession of a boarding pass for the Bogota-Madrid flight with control number 223, a boarding pass for a flight from Madrid to Valencia, with control number 003, a key which opened the lock on one of the cocaine-containing suitcases, and tickets for flights returning to Bogota via Madrid. The key, however, was demonstrated at trial to open several different locks, and several different keys were demonstrated to open the lock on the suitcase in question. Arango was found in possession of a boarding pass for the Bogota-Madrid flight, and claim checks matching the baggage ticket numbers on the two cocaine-containing suitcases. Inspector Ruiz discovered the claim checks concealed in a memo book in Arango's wallet.
At trial, defendants testified that they were travelling to Spain to arrange to import auto parts for their businesses in Colombia. They testified that they did not bring the cocaine-containing suitcases to the airport; Sanchez testified he never saw those suitcases. Arango testified that he purchased the airline tickets for Sanchez and himself in Ibague, Colombia from a person named Hydel Montanez. He testified that Montanez later met them in the Bogota airport and offered to check their suitcases for them, (while defendants waited in line to pay a Colombia exit tax), taking Arango's passport and wallet with him. Arango testified Montanez returned with the wallet and travel documents, and told defendants that a tour representative in Madrid would help them obtain their luggage and send it to their hotel. Alfonso Sanchez, defendant Sanchez's father and defendant Arango's uncle, corroborated this story, claiming to have taken the defendants to the airport, and testified as to the purpose of the trip and the intervention of the person who checked the bags for the defendants at the airport. An Iberia Airlines representative testified that on the passenger list defendants' entries did not carry the standard designation for passengers travelling in a group.
The standard for appellate review of sufficiency of the evidence calls for a determination of whether, viewing the evidence and all legitimate inferences therefrom in the light most favorable to the government, a rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Bernal, 884 F.2d 1518, 1523 (1st Cir.1989); United States v. Santiago, 828 F.2d 866, 870 (1st Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Here, however, after they moved unsuccessfully for a judgment of acquittal at the conclusion of the government's case pursuant to Fed.R.Crim.P. 29, Sanchez and Arango did not renew their Rule 29 motion at the close of all the evidence. 3 In these circumstances, they are deemed to have waived their motion, and an appellate court will reverse only if the evidence is so inadequate that to affirm the conviction would amount to "clear and gross" or "manifest" injustice. United States v. Clotilda, 892 F.2d 1098, 1100 (1st Cir.1989); United States v. Lopez, 709 F.2d 742, 746 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983), citing United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982); United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). On the present facts, however, it is not important to the outcome what review standard we apply. The evidence was enough to convict under both standards.
Sanchez attacks the evidence on three grounds. First, he argues that the control number on the cocaine-containing suitcases, which corresponded to the control number on his ticket, could not be determinative of his guilt, since another person, such as Hydel Montanez, could have taken the luggage to the counter and checked it under Sanchez's name. Second, Sanchez argues that the key found in his possession does not tie him to the contraband because the key was not specific to the lock, but rather opens any lock of the type found on the suitcase. Third, he argues that association with...
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