U.S. v. Gaviria

• Decision Date: 21 November 1986
• Docket Number: D,1521,Nos. 1506,s. 1506
• Citation: 805 F.2d 1108
• Parties: UNITED STATES of America, Appellee, v. Jorge William GAVIRIA and Victor Contreras, Defendants-Appellants. ockets 85-1463, 86-1002.
• Court: U.S. Court of Appeals — Second Circuit

Page 1108

805 F.2d 1108

UNITED STATES of America, Appellee, v. Jorge William GAVIRIA and Victor Contreras, Defendants-Appellants.

Nos. 1506, 1521, Dockets 85-1463, 86-1002.

United States Court of Appeals Second Circuit.

Argued Aug. 11, 1986.

Decided Nov. 21, 1986.

Debra D. Newman, Brooklyn, N.Y., Asst. U.S. Atty. for the E.D. of N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D. of N.Y., Allyne R. Ross, Jane Simkin Smith, Asst. U.S. Attys., of counsel), for appellee.

Peter Fabricant, New York City (Paul E. Warburgh, Jr., Axelrod & Warburgh, of counsel), for defendant-appellant Gaviria.

Richard Levitt, New York City, for defendant-appellant Contreras.

Before PRATT and MINER, Circuit Judges, and RE, Chief Judge, United States Court of International Trade, sitting by designation pursuant to 28 U.S.C. Sec. 293(a) (1982).

RE, Chief Judge:

Jorge William Gaviria and Victor Contreras, appeal from judgments of conviction following separate jury trials in the United States District Court for the Eastern District of New York. Both were convicted of conspiracy to possess cocaine with the intent to distribute, and of attempted possession of cocaine with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982), and 18 U.S.C. Sec. 2 (1982). Gaviria was also convicted of unlawful importation of cocaine into the United States, in violation of 21 U.S.C. Sec. 952(a) and 18 U.S.C. Sec. 2. Gaviria was sentenced to concurrent terms of 6 years imprisonment on each count, to be followed by a special parole term of 10 years. Contreras was sentenced to concurrent terms of 3 years imprisonment on both counts against him, to be followed by a special parole term of 5 years.

Appellants contend that the district judge erred in denying their pretrial motion to suppress evidence which, they allege, was illegally obtained. Initially, appellants contend that the search by Customs was not at the border or its functional equivalent, and that Customs did not possess "reasonable cause to suspect" a violation of the law before it searched the shipment. Appellant Gaviria further contends that the district court improperly concluded that there was probable cause for his warrantless arrest. In addition, appellant Contreras contends that the government's proof to establish a conspiracy was insufficient as a matter of law. Appellants also allege that numerous evidentiary and other errors were committed at the trial.

Since this court finds all contentions of appellants to be without merit, the judgments of conviction, the prison sentences and the imposition of the special parole terms ordered by the district court, are affirmed.

The Facts

A shipment, described as containing 70 cartons of canned fruit, was sent from Medellin, Colombia, to John F. Kennedy International Airport (JFK), in New York City. The air waybill, which accompanied the shipment, identified "Tropical Food Imported Company," a nonexistent company or entity, as the importer of the canned fruit. "Jorge Guevara" was designated on the air waybill as the consignee. When the shipment arrived at Miami International Airport on May 8, 1985, U.S. Customs officials inspected 7 of the 70 cartons. The customs inspectors did not find anything suspicious, and they resealed the seven cartons with special customs tape, which indicated that the cartons had been opened and inspected. The 70 cartons were, thereafter, transported from Miami International Airport to JFK Airport by a bonded truck carrier.

The shipment arrived at JFK on May 13, 1985, and the cartons were secured at an airport container station to await final customs inspection. After its arrival in the United States, the shipment was, at all times, under a customs bond.

On May 16, 1985, customs inspectors at the JFK airport container station examined the imported cartons of canned fruit. Upon opening one can, the inspectors discovered a quantity of cocaine wrapped in latex. The inspectors then examined the entire 70-carton shipment. The inspection revealed that 12 cans, concealed within 2 cartons, contained a total of 6.71 pounds of cocaine. The two cartons which contained the cocaine had not been inspected in Miami.

During the inspection at JFK, appellant Contreras arrived at the airport to claim the shipment. After the inspection was completed, the inspectors, who were aware that Contreras was waiting to claim the shipment, approached the van in which Contreras was seated. Upon seeing the approaching inspectors, Contreras attempted to exit the airport, but the van's path was blocked by a truck. Contreras proceeded to back up, and then stopped when one of the customs inspectors identified himself. In response to the inspector's request for identification, Contreras produced rental papers which showed that he had rented the van, customs papers which entitled the bearer to take delivery of the shipment, and an invoice which indicated that he had paid the customs brokerage fee the previous day. Contreras denied any knowledge of the contents of the shipment, and said that he had planned to deliver the shipment to the address on the delivery order. Thereafter, Contreras was arrested by Drug Enforcement Administration (DEA) agents.

Contreras agreed to assist the agents in a controlled delivery to "Jorge Guevara," the named consignee of the shipment. Contreras informed the agents that "Guevara" had financed the operation, and that "Guevara" had instructed him to deliver the shipment to the corner of 84th Street and Northern Boulevard, Queens, in New York City. If no one was at the Queens location, Contreras was to deliver the shipment to a residence in the Bronx.

When no one appeared at the Queens location to accept the delivery, Contreras accompanied by DEA agent Randall, drove to the Bronx residence. Contreras parked the van in front of 2520 Maclay Avenue, the residence of Jorge Gaviria, and sounded his horn. Gaviria, who matched Contreras' description of "Guevara," met with Contreras at the parked van. After a brief conversation between Contreras and Gaviria, agent Randall gave a pre-arranged signal to the other DEA agents on the scene, and Gaviria was arrested.

Three questions are presented on this appeal: (1) whether a customs inspection of the 70 cartons at the final destination of the shipment in New York City is a valid border search when the goods first entered the United States in Miami; (2) whether there was probable cause for the DEA agents to arrest Gaviria without a warrant; and (3) whether the evidence was sufficient to support Contreras' conviction for conspiring to possess cocaine.

The court holds that the border search and the subsequent arrest of Appellant Gaviria were valid. Since the court also holds that the evidence was sufficient to sustain Contreras' conviction of conspiracy, and that all other contentions are without merit, the judgments of conviction are affirmed.

BORDER SEARCHES

The court must determine whether, for the purpose of a border search, JFK International Airport in New York may be considered the functional equivalent of the border, even though the shipment was transported there by truck from Miami, the initial port of entry. If JFK constitutes the functional equivalent of the border, then the search at JFK was valid because there is no dispute that the 70 cartons were sent from Colombia, a foreign point of departure. Since the court has concluded that JFK was the functional equivalent of the border, the court holds that the customs inspection at JFK in New York City was a valid border search, and that the evidence obtained as a result of that search was properly admitted at the trial.

The fourth amendment of the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const.amend. IV. It is well established, however, that searches of persons or property at the nation's borders are considered "reasonable" within the meaning of the fourth amendment simply because they occur at the border. See, e.g., United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977). As Chief Justice Rehnquist emphasized in United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985):

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.

Id. at 3309; see also id. at 3318 (Brennan, J., dissenting) ("the power of Congress to authorize wide-ranging detentions and searches for purposes of immigration and customs control is unquestioned") (emphasis in original). Pursuant to 19 U.S.C. Sec. 1582 (1982), and implementing regulation, 19 C.F.R. Sec. 162.6 (1986), the Customs Service is authorized to conduct routine border searches.

The authority to conduct a border search is based upon the inherent "right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." United States v. Ramsey, 431 U.S. at 616, 97 S.Ct. at 1978; see United States v. Glasser, 750 F.2d 1197, 1201 (3d Cir.1984), cert. denied, 471 U.S. 1018, 105 S.Ct. 2025, 85 L.Ed.2d 306 & 471 U.S. 1068, 105 S.Ct. 2148, 85 L.Ed.2d 504 (1985). In United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), Chief Justice Burger stated that,

Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers "[t]o regulate Commerce with foreign Nations." Art. 1, Sec. 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from...