U.S. v. Herrera, 90-5777
| Decision Date | 16 May 1991 |
| Docket Number | No. 90-5777,90-5777 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ofelia HERRERA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Stewart G. Abrams, Miami, Fla., for defendant-appellant.
Dexter Lehtinen, U.S. Atty., Miami, Fla., Linda Collins Hertz, Anne Ruth Schultz, Karen E. Rochlin, Asst. U.S. Attys., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida; Edward B. Davis, District Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.
Herrera appeals her conviction for importation and possession with intent to distribute cocaine in violation of 21 United States Code, Sections 952(a) and 841(a)(1). She contends that the evidence was insufficient to sustain her conviction, and that it was error to sentence her to a term of imprisonment without credit for the time she was subject to pre-trial electronic monitoring. We affirm.
Prior to trial, Herrera was released on a $50,000 personal surety bond with the special condition that she remain at her residence under electronic monitoring, and was only to leave her residence for medical or religious purposes, for trial preparation with her attorney, and for travel between her house in New York and the Southern District of Florida for court appearances.
Herrera received a trial by jury. At the conclusion of the government's case, she moved for a judgment of acquittal which the court denied. She was found guilty on both counts. She was sentenced to a term of imprisonment of one hundred months without credit for two months pre-trial time subject to electronic monitoring.
To determine whether sufficient evidence supports the conviction, we must view the evidence in the light most favorable to the government and decide whether a reasonable fact finder could have reached a conclusion of guilt beyond a reasonable doubt. United States v. Perez, 922 F.2d 782, 784 (11th Cir.1991). A jury's verdict cannot be overturned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt. United States v. Bonavia, 927 F.2d 565 (11th Cir.1991).
The application of the law to sentencing issues is subject to de novo review by this court. United States v. Chotas, 913 F.2d 897 (11th Cir.1990) (per curiam).
The only element of the government's proof that Herrera claims is insufficient is evidence of intent and knowledge that she possessed cocaine. She relies on her testimony that she did not know that cocaine was in her two suitcases. We find, however, that there was compelling circumstantial evidence that Herrera knew that she was smuggling cocaine in her suitcases and that she intended to distribute it.
When Herrera disembarked at the Miami International Airport, where her flight arrived from Colombia, a customs inspector observed that she was rigid and tense. After she retrieved two unusually heavy hard-sided Samsonite bags, she headed for the customs primary inspection area. The inspector showed his badge and upon questioning confirmed that the two suitcases were, in fact, hers. Herrera said that she lived in New York, however, her customs declaration form gave her address as Patterson, New Jersey. When questioned about this she became evasive and nervous. She was asked to go to a secondary examination table and became increasingly nervous and gave inconsistent answers to routine questions concerning her travel arrangements. The inspector found indications of fake compartments in one of Herrera's suitcases. Even when emptied of all contents, the suitcases were unusually heavy. As a result, the inspector probed one suitcase with a knife and found a white powdery substance concealed in the side of the bag. A field test indicated that the substance was cocaine. The same procedure was repeated for the second suitcase which also contained a substance that a field test showed to be cocaine. That suitcase also had a strong odor of fresh fiberglass.
Herrera was warned of her Miranda rights by a narcotics agent who was called to the scene. In explanation of her possession of the suitcases, she stated that when she arrived in Colombia her luggage was torn and the locks ripped off. A friend agreed to lend her the two suitcases. She noticed that they were unusually heavy. This friend told Herrera that when she returned to her home in Brooklyn, New York, she would be contacted by an unknown individual who would claim the suitcases. He would get in touch with her because he had no telephone. She acknowledged that she knew people in Colombia who would make suitcases with secret compartments, and that this was done so that drugs could be smuggled into the United States. She offered to cooperate to help catch the people in New York.
Herrera's airline ticket was for transit from New York to Colombia and return via Miami. It was paid for in cash with the return left open. She first stated that her ex-husband had purchased the ticket. Later she said that her common-law husband had bought it for her. Finally, she admitted that she had provided the money and that a friend had purchased the ticket for her.
A laboratory examination of the substances seized from the suitcases revealed that it consisted of 4.683 kilograms of cocaine with a street value of approximately $100,000. This created a strong inference that this kind of an investment would have been disclosed to the courier in order to insure its safe and careful handling. Moreover, the amount of cocaine was consistent with distribution and not individual use.
Herrera's credibility was for the jury to determine. It was its prerogative to disbelieve some, all, or none of her testimony. United States v. Sharif, 893 F.2d 1212, 1214 (11th Cir.1990). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984). Intent to import cocaine, and knowledge of importation, can be proved solely by circumstantial evidence. E.g., United States v. Restrepo-Granda, 575 F.2d 524 (5th Cir.), cert. denied, 439 U.S. 935, 99 S.Ct. 331, 58 L.Ed.2d 332 (1978).
We conclude that the evidence was sufficient to sustain the jury's verdict.
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