U.S. v. Gonzalez-Torres

• Decision Date: 07 October 1992
• Docket Number: GONZALEZ-TORRE,No. 91-2140,D,91-2140
• Citation: 980 F.2d 788
• Parties: UNITED STATES, Plaintiff-Appellee, v. Claudioefendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 788

980 F.2d 788

UNITED STATES, Plaintiff-Appellee, v. Claudio GONZALEZ-TORRES, Defendant-Appellant.

No. 91-2140.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 1992.

Decided Nov. 20, 1992.

As Amended Nov. 20, 1992.

Luis Rafael-Rivera, San Juan, P.R., on brief, for defendant-appellant.

Jose A. Quiles-Espinosa, Asst. U.S. Atty. and Sr. Litigation Counsel, with whom Daniel F. Lopez-Romo, U.S. Atty., and Epifanio Morales-Cruz, Asst. U.S. Atty., Hato Rey, P.R., were on brief, for plaintiff-appellee.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and FUSTE, ^* District Judge.

BOWNES, Senior Circuit Judge.

Defendant, Claudio Gonzalez-Torres, was tried by jury on a three count indictment: knowingly, willfully, and unlawfully possessing, with intent to distribute, approximately 3.627 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count One); knowingly, willfully, and unlawfully importing said cocaine into the United States from the Republic of Panama, in violation of 21 U.S.C. § 952(a) (Count Two); and knowingly, willfully, and unlawfully possessing said cocaine on board an aircraft arriving in United States customs territory without it being part of the aircraft's official supplies or being entered on the cargo manifest, in violation of 21 U.S.C. § 955 (Count Three). He was acquitted on Count One and convicted on Counts Two and Three. On appeal, defendant challenges the sufficiency of the evidence, the verdict, and the district court judge's questioning of the defendant.

I Background

The facts are summarized in the traditional post-conviction fashion, taking the evidence in light most favorable to the government. United States v. Mejia-Lozano, 829 F.2d 268, 270 (1st Cir.1987); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

At trial, Gonzalez testified that at the time of his arrest he was fifty-four years old and lived in a small town four hours driving distance outside Panama City, Panama. His only means of income was to Gonzalez was scheduled to leave for Spain on February 14, 1991, for an undetermined amount of time to meet unidentified individuals in an unspecified Madrid hotel. That morning, Gonzalez met with Castillo. Castillo exchanged two suitcases for Gonzalez's travel bag, gave Gonzalez $1500 in U.S. dollars and took him to the airport. Upon boarding Iberia Airlines flight # 934, Gonzalez checked a large black suitcase and carried a smaller one on board. During a routine inspection of in-transit luggage at a stopover at the Luis Munoz Marin International Airport in San Juan, Puerto Rico, United States customs personnel discovered cocaine concealed within the panels of the large suitcase that Gonzalez checked into the cargo hold. Gonzalez was detained prior to reboarding the plane and his carry-on suitcase was searched. Inspectors found cocaine concealed within various toiletry bottles and the bag itself.

                make small items like hats and aprons by hand and to bring them to Panama City to sell to street vendors.   On December 20, 1990, during one of his trips to the city, Gonzalez was aided by a Mr. Castillo during a riot in a public park.   Over the next month, the two became better acquainted and Castillo offered a job to Gonzalez on the condition that he would travel to Madrid, Spain, in order to bring back some documents and a package for Castillo.   Gonzalez agreed and subsequently obtained a passport
                

At trial, it was stipulated that: (1) the substance seized was 3.627 kilogram of cocaine; (2) the chain of custody was linked firmly to defendant; (3) Gonzalez was listed on the passenger manifest of Iberia flight # 934 of February 14, 1991, a regularly scheduled flight departing from Panama, landing in Puerto Rico, and continuing on to Madrid, Spain; and (4) said flight did not have cocaine listed on its cargo manifest, nor was cocaine part of the official supplies.

II

On Appeal

SUFFICIENCY OF THE EVIDENCE

Gonzalez moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29 both at the close of the government's case and again prior to closing argument. The district court denied both motions. In this appeal, Gonzalez again asserts that the evidence was insufficient to support his conviction, and, more specifically, that the government failed to prove the requisite knowledge element of the charged offenses beyond a reasonable doubt. Defendant's claim rests upon the fact that the government presented no direct evidence as to the defendant's knowledge of the contents of his luggage and that the cocaine was not readily detectable within the suitcases and defendant had no reason to inspect the non-transparent toiletry bottles. We find that the jury could reasonably find beyond a reasonable doubt that Gonzalez was guilty of the two counts and, therefore, affirm the denial of defendant's motions.

The principles governing a review of a challenge to the sufficiency of the evidence are well settled. We "survey the totality of the evidence, scrutinizing the record in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the verdict." United States v. Amparo, 961 F.2d 288, 290 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992). If reading the record in such a way would allow a rational jury to conclude beyond a reasonable doubt that the defendant was guilty of the charged offenses, then we must affirm the denial of a Rule 29 motion. Id.; see also United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989). The government may prove its case entirely by circumstantial evidence and need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt. United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2053, 114 L.Ed.2d 458 (1991); Serrano, 870 F.2d at 5. The jury is free to choose among reasonable constructions of the evidence and is entitled to resolve any issues of credibility for or against any such reasonable construction. See United The government presented sufficient evidence from which the jury could reasonably find the defendant was guilty. It proved, with direct evidence, that the defendant was a passenger on an aircraft that arrived in Puerto Rico from Panama, that two suitcases on that aircraft contained a controlled substance, that the substance was in fact cocaine, and that the defendant actually or constructively possessed the two suitcases. The knowledge element of the charged offenses can rarely be established with direct evidence. But the totality of the evidence presented at trial permits a rational inference that the defendant knowingly possessed cocaine on board an aircraft and imported it into the United States Customs territory. The record as a whole supports a finding of guilt beyond a reasonable doubt.

States v. Rivera Rodriguez, 808 F.2d 886, 890 (1st Cir.1986).

THE VERDICT

Gonzalez suggests that the inconsistent verdicts, not guilty as to Count One and guilty as to Counts Two and Three, requires the conviction be vacated but cites no authority supporting such contention. It is well settled that inconsistency in a criminal verdict does not require setting the verdict aside. Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-91, 76 L.Ed. 356 (1932); United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 479, 83 L.Ed.2d 461 (1984); United States v. Bucuvalas, 909 F.2d 593 (1st Cir.1990). Even so, the verdicts are not inconsistent. Although all three charged criminal violations have the element of knowledge, each violation demanded proof of some distinctive element not part of the other charged violations. See, e.g., United States v. Ortiz-Alarcon, 917 F.2d 651, 652 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2035, 114 L.Ed.2d 120 (1991). Here, Count One required proof of intent to distribute; Count Two required proof of importation; and Count Three required proof of possession of a controlled substance on...